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Civil Petition for Special, Leave to Appeal No. 943 of 1974, decided on 2nd May 1975.

(On appeal from the judgment and order of the Lahore 1‑iigh Court made on 25th of November 1974 in F. A. O. No. 55 of 1974).

‑‑--O. XXIII, r. 3 read with O. XXXII, r. 7(1)‑‑Compromise of suit -Compromise on behalf of minor defendants‑Parties reporting to Court to decide appeal in terms of statement made on Holy Qurari in Court by a named person‑‑Court first recording order under O. XXXII, r. 7 granting permission for compromise (some defendants being minors), recording statements of parties and thereafter that of named person‑No reference rnride to so‑called award allegee to have been made by such named person in petitioner's favour‑‑-Document described as award no 3oubt filed in Court but not pressed into service by either party when matter came to be finally decided‑‑Court, held, justified in passing order on basis of' statement made on special oath by named person and too late to urge Court to have placed reliance on so‑nailed award.

Muhammad Akbar v. Mohammad Aslam P L D 1970 S C 241 and Jalal Din v. Chiragh Din P L D 1972 Kar. 622 distinguished.

Kh. Muhammad Tufail, Advocate S. Wajid Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents,

Date of hearing : 2nd May 1975.

The petitioner Ghulam Haider had brought a declaration to the effect that he was owner in possession of the land an dispute, and that he had not sold the same in favour of the defen dants. The suit was, however, dismissed by the trial Court on 1‑2‑1973. The plaintiff, thereupon, filed an appeal, which came up for hearing before the learned Additional District Judge, Gujranwala, on 9‑4‑1974, on which date a compromise was arrived at between the parties to the effect that the appeal may be decided according to the statement made by one Jewan on the Holy Qur'an. The learned Additional District Judge recorded the statements of the parties, and also gave permission for the compromise under Order XXXII, rule 7 (1) of the Code of Civil Procedure in respect of the minor defendants. The said Jewan thereupon took the oath, as agreed to between the parties, and stated that Ghulam Haider had sold the land for a sum of Rs. 32,000 and had also received the price, and that there had been no fraud practised on him. Acting on the basis of this statement on special oath, the learned Additional District Judge dismissed the petitioner's appeal by his order dated the 9th of April 1974.

Aggrieved by this appellate order, the petitioner filed an appeal in the High Court, which has, however, been dismissed by a learned Judge by his order dated 25‑I1‑1974.

The petitioner now seeks leave to appeal mainly on the ground that the parties had, in fact, agreed to accept Jewan as a private arbitrator during the pendency of the appeal, and that the said Jewan had filed his award in the Court of the Additional District Judge, stating that the land had not been sold by the petitioner, and that this award was already before the Court when Jewan made a contradictory statement on oath on the 9th o April 1974, but the learned Additional District Judge failed to take note o the award. Learned counsel for the petitioner submits, relying on Mohammad Akbar v. Mohammad Aslam (P L D 1970 S C 241) and Jalal Din v. Chiragh Din (P L D 1972 Kar. 622) that the statement made by Jewan was not binding on the petitioner, and the learned Additional District Judge should not have given effect to it.

We see no substance in these submissions. Whatever the private position of the gentleman named Jewan, the compromise reported to the learned Additional District Judge by the parties was that the appeal be decided in terms of the statement made on the Holy Quran by the said Jewan In the Court. The document, which the learned counsel describes as the award given by Jewan, was no doubt filed in the Court of the Additional District Judge, but it was not pressed into service by either of the parties when the matter came to be finally decided by the Court on the 9th of April 1974. On that date the learned Additional District Judge first recorded an order under rule 7 (ii) of Order XXXII, C. P. C. granting permission for the compromise as some of the defendants were minor. He then recorded the statements of the petitioner as well as the defendants, followed by the statement of Jewan. Throughout these proceedings, no reference was made on behalf of the present petitioner to the so‑called award which had already been made by Jewan. In these circumstances, it is too late in the day to urge that the learned Additional District Judge should have placed reliance on the so‑called award and not on the statement made by Jewan on special oath before the Court itself.

The two cases mentioned by Kh. Mohammad Tufail have no relevance in the present context, as in. those cases one or the other parties had refused to be bound by the agreement concerning the, administration of the special oath. Such was not the case here. Both the parties had specifically agreed to be bound by the statement to be made by Jewan, There was thus no occasion for the learned Additional District Judge to exercise his discretion in favour of the petitioner by refusing to accept Jewan's statement for the purpose of deciding the fate of the appeal.

We are, therefore, of the view that the learned Judge fn the High Court was right in upholding the decision of the lower appellate Court. The petition fails and is hereby dismissed.

Petition dismissed.

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