Sohrab Khan Vs Muhammad Tayyab

JUDGMENT SHEET

PESTIAWAR HIGH COURT, PESIIAWAR

Uudicial Depattmenl

RFA No. 270-P of 2023.

SohnbKhan Vs. Muhanmad Thvvab Presenu Mr.A Adwxete for antreIlant with aooellent MalikSlahbaz Khaa. aduuate. for tesmndenL with rcsoondent Date of hearins: 14.07.2025

GMENT

MAI{AMMAD NAEEM - The appellant, Sohrab Khan, has assailed the judgment & decree dated 23.06.2023. passed by the learned Additional District fudge-lX, Mardan, whereby the suit of the respondent was decreed based on the oath of respondent pursuant to the offer of appellant/defendant. The said proceedings arose out of Suit No. 20/1 of 2022, instituted under Order XXXVII of the Code of Civil Procedure, 1908, forrecoveryof Rs.30,00,000/- on the strength of apronote executed on 07 .09.2022.

2.Learned counsel for the appellant, Mr. Abid-ur-Rehman, Advocate, contended that the judgment and decree rendered by the learned trial Court were not in conformity with the provisions of the Oath Act, L877, nor with Article L63 of the Qanun-e-Shahadat Order, 1984. He emphasized that in the respondent's suit for recovery of Rs.30,00,000f -, based on the pronote dated 07.09.2022, the appellant had filed an application for leave to defend, wherein he categorically denied both the N receipt of the amount and the execution of the pronote. In such circumstances, the matter was required to be adjudicated upon by recording evidence and could not have been determined merely on oath. According to learned counsel, it was incumbent upon the Court to decide the lis based on evidence, irrespective of any offer made by the appellant for decision on oath. In

support of his submissions, he placed reliance upon "Khafu! Mehmood Vs Tahin Yasmin and other{ e007 S C M R 1652) and case titled "Ahmad Khan and othen Vs Iewal @ LD 2002 Suoreme Court 650.

3.Conversely, learned counsel for the respondent/plaintiff, Malik Shahbaz Khan, supported the impugned judgment and decree. He argued that it was the appellant/defendant himself who had offered to have the matter decided on oath, which offer was accepted, and the statements of the parties were duly recorded. Having voluntarily opted for such mode of decision, the appellant could not now be permitted to resile from his own choice and demand determination through the regular evidentiary process. He therefore submitted that the appeal is devoid of merit and liable to be dismissed with costs.

4.Arguments heard and record pemsed

5.The controversy arising in the present appeal hinges upon two material questions: firstly,whether the appellant/defendant had extended an offer to the respondent/plaintiff to take oath in support of his claim, and secondly, whether the appellant/defendant, after having made such an offer and upon the matter being decided in consequence thereof, could subsequently resile from the same. The case set up by the respondent/plaintiff was that the appellant, being in need of an amount of Rs.30,00,000/-, approached him for financial assistance, whereupon the said amount was advanced. To secure the transaction, a pronote was executed on 07.09.2022, duly attested by marginal witnesses, stipulating that the amount would be repaid on or before 07.04.2023. Upon failure of the appellant to discharge the liability within the stipulated period, the respondent instituted the instant suit on 18.05'2023. The appellant/defendant, on appearance, filed an application seeking leave to defend, asserting therein that the signatures on the

pronote had been fraudulently obtained and that no consideration had ever been received by him from the respondent. This application was filed on 08.06.2023, and the matter was adjourned from 06.06.2023 to L9.06.2023 for submission of reply by the respondent/plaintiff. It transpires from the record that on 23.06.2023, when both parties appeared along with their learned counsel, the appellant/defendant voluntarily offered that the respondent/plaintiff may take oath about the execution of the pronote and the affixation of signatures thereon, and that if such oath was taken, the suit may be decreed against him. The respondent/plaintiff accepted the said offer and, in pursuance thereof, took oath before the learned trial Court. The offer, its acceptance, and the statements of both parties were duly recorded, bearing their thumb impressions as well as CNIC particulars, Consequent thereto, through the impugned judgment and decree dated 23,06.2023, the suit was decreed in favour of the respondent/plaintiff.

6.Now, adverting to the first question, i.e., whether the appellant/defendant had offered the respondent/plaintiff to have the matter decided on oath. A perusal of the memorandum of appeal, particularly paragraph No.3 thereof, clearly demonstrates that not only such an offer was extended by the appellan! but the same also stands admitted by him. Pursuant to the said offer, the suit came to be decreed. For ready reference, the statement of offer made by the appellant/defendant and its acceptance by the respondent/plaintiffare reproduced as under:

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Fida Muharlmad

ADJ IX Mardan.

Moreover, para No.3 of the memorarldum of' appeal is of worth consideration which is reproduced as under:

-Ihat duriryproceedings beforc the nial cout has olfered to rcspondent to hke the OATII which olIer tns adnitted by rcspoadent and when, he bken the said OATI{, the leaned lower cout passed decree against the appellant uide order and deave dated 23. 06.202r. "

7.It appears from the record that a wakalatnama was filed on behalf of the appellant in favour of Mr. Sher Muhammad, Advocate, before the learned trial Court on 19,06.2023. The record further reveals that the application for leave to defend had earlier been submitted by the appellant himself on 08.06.2023. Today, the appellant has appeared in person before this Court, and upon being questioned regarding his offer, the recording of his statement, and the affixation of his thumb impression thereon, he candidlyadmitted all these facts. The suit, therefore, was decided in accordance with the mode voluntarily adopted by the appellant, which squarely attracts the doctrine of election. It was held by the apex Court in the case of " Mir Muiib- ur-Rehman Muhammad Hassani Vs. Returning Officer PB-47 Washuk and otherl'(PLD 2020 Supreme Court 718) that" once a litigant had made the choice ofpursuinga certain course ofaction available to him or had abandoned a certain plea/action, then he was not allowed to reopen the same matter only because he had received unfavourable results as a result of his first choice." Reliance may also be placed on the cases of " SilverStarlnsurance

Company Limlted Lahore tltrough Chlef Executive Vs. Messrs Kamal Pipes Industries. Lahore and anothef' (2023 CLD 1342, Lahore), " Tradlng Corporation of Pakistan Vs. Devan Sugar Mills Limited and otherC' (PLD 2018 Supreme Court 828) and "Luclry Cement Ltd. through Authorized attorney Vs. Federation of Pakistan through Secretary Revenue Diuision and 03 otherl' (2021 PTD 835). Moreover, it is not the case of the appellant that no such offer was made to the plaintiff for decision of the suit on oath, or that he himself was absent from the Court on the relevant date. On the contrary the facts pertaining to the offer extended by the appellant, its acceptance by the plaintiff, the recording of their statements, and the consequentialdecision of the trial Court, are admitted and undisputed. These proceedings, to which a presumption of truth is attached, cannot now be questioned or disowned either by the plaintiff or by the appellant. In this regard, reliance may be placed upon Abdul Aziz us Abdul Hameed (deceased) throueh LRs (2022 SCMR 842) & Favwz Hussain us.Alcbar Hussain and otlterc (2004 SCMR 954).

8.In addition, proceedings undertaken under the provisions ofthe Oath Act, 7877,are to be conducted strictly in accordance with the terms mutually agreed upon by the parties. Once it stands established on the record that the parties consented to certain terms and conditions for the adjudication of the lis, neither party can thereafter be permitted to approbate and reprobate, having already taken a decisive step because oftheir mutual agreement. Reference may be made to the case of "Ariqullah Vs Kifarranrllah" (1981 S C M R 162), wherein it was observed:

"After consideriryI a number of authorities, the Court observed that since no section of the Oaths Act deals with the question whether a party making an offer to abide by a statement on oath by another party or witrress, can resile from such offer. Therefore, this question must be decided on general principle of law. The leamed Court observed further "The offer to abide by the oath of the opposite- party and its acceptance by the other party was in the nahrre of an agreement and the question whether the party who offered can resile from it depends on the facb

and circumstances of each case", It was held in the said case that in the circumstances of that particular case, the learned Court was justified in exercising its discretion in favour of the person making the offer and permiuing him to resile from the same. The matter was clinched in a subsequent judgment of this Court, i.e. Saleem Ahmad v. Khushi Muhammad (1), where the same question came up for consideration. In that case the defendant offered that if Wali Muhammad, the brother of the plaintiff took an oath on the Holy Quran in respect of the matter in issue, he would agree to a decree being passed on the basis of such a statement in favour of the plaintiff. The next day, however, he made an application saying that he had learnt from the people of the village that Wali Muhammad was a habinral liar and was accustomed to taking lalse oaths. He, therefore, wanted to withdraw his offer. The learned Cour! however, recorded the statement of Wali Muhammad on oath and the ci$e was decided against the defendant on the basis of that statement The defendant challenged the said order before the High Court throueh a revision petition, which nas dismissed. Saleem Ahmad then filed a petition before this Court which upheld the decision of the Hish Court in the following words: -

"The High Court rejected both the contentions and held that there was no ground in law or in equity on which the petitioner could claim the right of resiling from the solemn agreement which was entered into by him, such an agreement raras in the natrue ofa conh'act and one of the connacdng parties could not be allowed to back out of it unless the contract was void or had become frustrated. None of these eventualities had occurred in this case." l,ikewise, this court in the case of "Bhore Khan versus Noor Din "(P LD 1993 Peshawar 7 2) has dilated upon the issue pertaining to implementation of the agreement made behveen the parties in view of the offer and acceptance thereof, wherein it was held:

"The first contention raised by the leamed counsel for the petitioner rs misconceived as the oath taken by the respondent having emanated from the ofler made by the petitioner of his own free will and accord is governed by section 8 to I I of Oaths Acg 1873 and not by Article 163 of Qanun<-Shahadat, 1984. The oath within the contempla.tion of sections 8 to 11 of the Oaths Act, 1873 stems from a voluntary agreement between the parties and when taken has a binding elfect leaving the party making the offer with no choice to [rrn around and strike a discordant note as observed in Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908, Firm Chiragh Hussain v. Khawaja HabibJoo PLD 1983 Peshawar 86 and Muzafler Ali and 2 others v' Ch' Asghar Ali 1991 CLC 2110 while the oath, envisaged byArticle 163 of the Qanun-e-Shahadat, 1984 is entailed

by the initiative taken by the plaintiffwho takes an oath in support of his claim first and then on his application the court calls upon the defendant to deny the claim on oath and in any event the court is not precluded form recording evidence of the parties and deciding the case on merits".

Hence, the submission of the learned counsel that the matter requiring recording of evidence is also misconceived along with the proceedinp conducted before the leamed trialcourt. Reference may be made to the case of Msr Saira Bibi and 02 others V. Nawab Ali and 02 others(2015CLC1998).

9.During arguments, learned counsel for the appellant urged that the proceedings were conducted in haste, as the counsel for the appellant was not present before the learned trial Court, and that the trial Court had compelled the appellant to have the suit decided through oath. This contention, however, is misconceived. In this regard, reference may be made to the case of "MukhtarAhmad Khan Vs Mushtao Ahmad" (1998 S C M R page 2049), wherein the Hon'ble Supreme Court ha^s held:

"3, Petitioner who is present in penon denied having made any statement for decision of the case on special Oath and stated that the learned Additional District Judge, in absence of his counsel, asked him to sign certain papers and also got his thumb impression without disclosing him all that has been done for setdement of the dispute through special Oath.

4.In presence of the statement of the petitioner recorded twice on the date of hearing by the learned Additional DistrictJudge, firstly, when special Oath was offered and secondly, when respondent took the Oath on Holy Qur'an, in which he agreed to the decision in terms thereof. This factual aspect of the case has been believed by the leamed High Courl We, therefore, find no infirmity in the judgment of the learned High Court in refusing to rely on the statement of the petitioner. l,eave to appeal is, therefore, refused and petition dismissed."

U. So far as the.iudgment relied upon by the learned counsel for appellant of the case "Ahmad Khan and others Vs Jewan" (P L D 2002 Supreme Court 655), it was observed by the High Court that the plaintifl/petifioner lnrl not of'fered the rlecisiotr of'the case or-r oath by filing specific rcquest in writing befbre the n'ial cotlrt because the

I

brother of the defendant in collusion of'the plaintifl had given a statement on oath as such, for determinati<ln of'which the matter was remanded tcr the learned trial coutt fbr detcmrination thereof as such, the principle laid down in referred to above case cannot be made applicable to the instant appeal.

11.The suit pertained to the recovery of Rs. 200,000/- based on a pronote, in which the defendant was initially granted leave to defend. When the matter was fixed for recording of evidence, the parties mutually agreed to have the case decided on special oath. In pursuance thereof, the plaintiff/respondent made a statement before the Court in terms of the said agreement whereupon the suit was decreed. In view of the appellant's own admission regarding the proceedings conducted, the recording of statements, and the consequent decree, the submissions advanced by his learned counsel stand wholly inconsistent with both the facts on record and the settled principles of law. Ratio of the law settled in the cases of "Naiibullah Khan and others Vs Fazal IGrim and 2 others" (1997 S C M R page 1085) and "Mahmood Ali Buu Vs krspector General Police Puniab, Iahore and l0 others " (1998 P S C 53), may be made, wherein it was hekl.

"The petitioner cannot be heard to say that after adopting the course that he chose for resolution of the respective claims and establishment of his liability, his undertaking be not enforced and the respondent should be asked to seek her remedy from civil Courts. Such a dishonest conduct cannot be countenanced, what to say of accepting the same as it amounts to ridiculing the process of the Court and defeating the purpose for which the Courts ofjustice exist i.e., resolving the real cause of dispute and affording the necessary relief to the party wronged. Procedure exists for advancing cause ofjustice. This Court has repeatedly held that proper place of procedure in any system of adminisu-ation ofjustice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. Aby system which by gnving effect to the form and not to the substance defeats substantive righs is defective to that extenl The ideal must always be a system that gives to every person what is his. (See Imtiaz Ahmad v. Ghulam Ali and othen

v (PLD 1963 SC 382). Moreover, what else is required to be done after the proceedings which were held at the option and volition of the petitioner who in any case is bound to honour his undertaking. It is well established that breach of undertaking to the Court amounts to contempt of CourL The petitioner by challenging the order passed in fact seeks to avoid the liability so incured by him. Substantial justice has been done and on merits nothing was urged. Hence interference is not warranted."

12.Moreover, the principle of estoppel also operates as a bar against the appellant. As defined in Osborn's Legal Dictionary estoppel is a doctrine of law which precludes a person from denying the truth of a statement formally made by him. On the principle of estoppel, the august Supreme Court of Pakistan in case Dr. Muhammad lauaid Shafi vs. Syed Rashid Arshad and others (PLD 2015 Supreme Court 212) has observed: -

"ln other words, where a person who is aggrieved of a fact, he has a righg rather a duty to object thereto for the safeguard of his right, and if such a person does not object he shall be held to have waived his right to object and subsequently shall be estopped from raising such objection at a later stage. Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person."

Considering the entirety of the facts, the mode voluntarily adopted by the appellant and assented to by the respondent/plaintiff, and keeping in view the principles enunciated by the august Supreme Court in the cases referred to above, learned counsel for the appellant has failed to point out any illegality in the impugned judgment. Therefore, this appeal is devoid merits which stands dismissed. No order as to costs' Announced on 14.0 7 .2025 Released on 29.08.2025.

JUDGE

SB Hon'ble Mr.Justicc Mrrhamrnad Naeem Anwar AsifJan Sr. S.S