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First Appeal from Original Order No.29 of 1984/BWP, decided on 20th June, 1987.

---O.XLIII, R.3--Requirement of notice before presentation of appeal--Where appeal was directed against interim order of subordinate Court, notice, as contemplated by O.XLIII, R.3, C.P.C. would be necessary before presentation of appeal--No such notice would be necessary where appeal was filed against judgment and decree of Court.

---Art.33--Punjab--Pre-emption Act (I of 1913), S.21--Pre-emption suit--Defendant undertaking to abide by oath of plaintiff on factum of duration of possession, and sale price--Plaintiff accepting offer of oath and making statement on Holy Qur'an in terms suffered by defendant--Effect--Defendant agreeing to be bound by the statement of plaintiff on oath, which offer was never withdrawn by him--Such defendant, held, would be bound by the statement of plaintiff made on Holy Qur'an in terms offered by defendant.

---O.XLIII, R.1 & O.XLI, R.23--Punjab Pre-emption Act (I of 1913), S.21--Appeal against remand order--Order of remand passed by First Appellate Court on erroneous view of fact and law was set aside by High Court and judgment and decree of Trial Court was restored being in consonance with legal requirements.

Sh.Inayat Ali for Appellant.

M . M . Bhatti for Respondent.

Date of hearing: 20th June, 1987.

Facts necessary for decision of this appeal are as follows:-----

Khadim Hussain, plaintiff-appellant filed a suit for possession to pre-empt the sale of land measuring 32 kanals and 2 marlas in favour of Muhammad Abdullah defendant- respondent who resisted the suit. The parties were put to issues. The statement of PW1 Ata Hussain Shah was recorded on 25-5-1983. After his statement Muhammad Abdullah defendant stated on oath in Court that if Ata Hussain Shah PW makes statement on Holy Quran that the possession of land was delivered 4 years earlier and that Rs.6,000 were paid in his presence, the suit of the plaintiff be decreed otherwise it be dismissed. On that very day i.e. 25-5-1983, Khadim Hussain plaintiff and his counsel accepted the offer. Ata Hussain Shah PW1 who was present in Court agreed to take the said oath. The learned Civil Judge did not record the statement of Ata Hussain Shah though he took the oath on Holy Quran. The learned Civil Judge on 25-5-1983 recorded the order stating therein that PW1 took the Holy Quran in his hands; that he on oath stated that Rs.6,000 were paid by the defendant in his presence and that the possession was transferred in his presence. The learned Civil Judge, Liaquatpur observed in his order that the offered oath ( ass) has been taken. He therefore, decreed the suit of Khadim Hussain plaintiff on payment of Rs.6,000, vide judgment dated 25-5-1983, Muhammad Abdullah defendant challenged this decree before learned Additional District Judge-I, Rahimyar Khan who vide the impugned order dated 24-7-1984 accepted the appeal and remanded the suit back to the trial Court for fresh decision according to law. It was held by the learned Additional District Judge that Ata Hussain Shah did not take the oath as suggested by the defendant. Hence this appeal.

2. A preliminary objection has been taken on behalf of Muhammad Abdullah respondent that this appeal was not competent because no notice as contemplated under Order XLIII rule 3 was served on the respondent before presenting this appeal. I have considered this contention but find the same to be without any force. The provisions of Order XLIII Rule 3, C.P.C. are not applicable to the facts of the appeal in hand. The appeal before the learned Additional District Judge was against the judgment and decree of learned Civil Judge. The lower appellate Court accepted the appeal and remanded the main suit. The appeal before the lower Appellate Court in which the impugned order was passed, was not directed against any interim order regarding which the suit was pending in the lower Court. In my view there was no procedural irregularity in presentation of this appeal.

3. A perusal of the proceedings would show that Muhammad Abdullah defendant agreed to be bound by the statement of Ata Hussain Shah on Holy Quran. This offer was never withdrawn by him. Ata Hussain Shah made statement before the learned Civil Judge by placing the Holy Quran in his hands. It was stated by him that Rs.6,000 were paid by Muhammad Abdullah-defendant-vendee to Vendor and that the possession was delivered in his presence. Learned counsel for respondent contended that it was not necessary for the Civil Judge to separately record the statement of Ata Hussain Shah. 'In his view it was enough to incorporate the statement on Holy Quran in the final judgment by which the suit was decreed. The precise objection on behalf of the defendant-respondent was that the offer to be bound by the statement -of Ata Hussain Shah was made on the condition that the possession was transferred 4 years earlier and that the judgment of learned Civil Judge does not indicate that Ata Hussain Shah stated on' Holy Quran that the possession was transferred 4 years earlier. It was therefore, argued that Muhammad Abdullah was not bound by the statement. I am not impressed by this argument. A perusal of the judgment of the learned Civil Judge dated 25-5-1983 clearly shows that Ata Hussain Shah made statement by placing the Holy Quran in his hands. He stated that Rs.6,000 were paid in his presence and that the possession was also delivered in his presence. The parties to the suit were present at the time when Ata Hussain Shah made the said statement. Muhammad Abdullah did not at that time raise any objection about the form of the oath or the contents of the oath. In my view Ata Hussain Shah PW1 in substance made statement on Holy Quran in the terms offered to by Muhammad Abdullah defendant who under Article 33 Qanun-e-Shahadat (Section 20 of Evidence Act) was bound by the said admission. It cannot be said that Ata Hussain Shah did not take oath as suggested by the defendant, I therefore, accept this appeal and set aside the impugned order of remand dated 24-7-1984. The judgment and decree dated 25-5-1983 passed by learned Civil Judge 1st Class, Liaquatpur is restored. The parties are left to bear their own costs.

A.A./K-38/L Appeal allowed.

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