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Civil Petition for Special Leave to Appeal No. 397 of 1981, decided on 18th October, 1981).
(On appeal from the judgment and order of the Lahore High Court, dated 2‑3‑1981, in F. A. O. 188/74).
Dispute over immovable property‑Parties making statement before appellate Court wherein they agreed to get matter settled in favour of party taking oath on Holy Qur'an‑Order passed by appellate Court on basis of such oath‑Held: Unexceptionable and case not fit one for examination by Supreme Court.
Munir A. Sheikh, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.
Malik Sher Bahadur, Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑on‑Record for Respondent.
Date of hearing : I8th October, 1981.
It is not necessary to go into the lengthy details of this case and it will be sufficient for our purposes to mention that the petitioner as well as the respondent each filed a suit claiming title over the property in dispute which was described more fully in their respective plaint. The suits were disposed of by a common judgment by the learned Civil judge dated 11‑3‑1971, whereby the suit of the petitioner was decreed whereas the suit of the respondent herein was dismissed.
2. The respondent filed two appeals‑(one in each case)‑which were disposed of in terms of a statement of the parties wherein they agreed to get the matter settled in favour of Muhammad Ismail, respondent, if he took oath on the Holy Quran that he had not sold the property in dispute to the present petitioner Muhammad Ismail ,respondent took the requisite oath and accordingly his suit was decreed and the suit of the petitioner was dismissed and the two appeals were accordingly disposed of on 2‑10‑1972. The present petitioner then filed a review which was accepted by the learned Additional District Judge on 10‑10‑1974. and the main appeals were restored for decision on merits.
3. Muhammad Ismail, respondent filed an appeal being F. A. O. 188/74 which was accepted by the High Court, vide its order dated 2‑3‑1981 whereby the order of the learned Additional District Judge on 10‑10‑1974 was set aside and his earlier order dated 2‑10‑1972 was restored.
4. The petitioner has come up in a petition for special leave to appeal against the last mentioned order to this Court.
5. Learned counsel for the petitioner tried to argue that the appeal of Muhammad Ismail respondent was not maintainable under Order XLI, rule 7; C. P. C. because the order of the learned Additional District Judge date 10‑10‑1974 did not suffer from violation of rule 2 or rule 4 of Order XLVII, We do not want to go into this point and leave it open for examination some more appropriate case because in our opinion the order dated 2‑10‑1974 was based on the consent of both the parties in accordance with which the respondent had duly taken the oath and in this context, we do not feel any jurisdiction to take exception to the same especially when the aforesaid statement had duly been acted upon. For this reason, we do not feel that this is a fit case for examination by this Court inasmuch as the parties bat: themselves settled the matter by a just arrangement and there is no justification to realise them from their aforesaid undertaking, in our discretionary jurisdiction in the matter of granting leave to appeal.
6. The petition for the reasons aforesaid is dismissed.
Leave petition dismissed.
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