ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No.584 of 2004

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DATE                ORDER WITH SIGNATURES OF JUDGE(S)

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For hearing of CMA 10644/18

Dated: 02.10.2018

Mr. Taimur holds brief for Mr. Farooq H. Naek for plaintiff.

Mr. Saathi M. Ishaque for defendant No.1.

Mr. Muhammad Nauman Jamali for defendant No.3.

Ms. Amna Usman for defendant No.4.

Mr. Dilawar Hussain, Commissioner.

-.-.-

Learned Commissioner has filed his report, taken on record, copy supplied to the counsel, which narrates the status of recording of evidence.

Through the instant application the newly engaged counsel for defendant No.1 requested appointment of a new commissioner for recording of the evidence or in the alternate the evidence be recorded in Court.

This suit is pending since 2004 where issues were framed vide order dated 15.03.2016 whereafter Mr. Dilawar Hussain was appointed as commissioner vide order dated 21.03.2017. The plaintiff filed her affidavit-in-evidence on 01.11.2017 and the copy was supplied to other side and the matter was fixed for evidence of the plaintiff. As seen from the commissioner report, the parties sought a number of dates on the pretext that they are inching towards compromise, however on 24.07.2018, per commissioner report, the plaintiff and her witness were present and the commissioner was recording the examination-in-chief of the plaintiff/party at which juncture Mr.Saathi M. Ishaque Advocate appeared and stated that he had filed his Vakalatnama on behalf of defendant No.1 and claimed copy of affidavit-in-evidence along with annexures as he has been appointed/engaged by the defendant No.1. Since the Commissioner has already supplied the affidavit-in-evidence to the earlier counsel Mr. Muhammad Anwar Tariq, as he was proceeding with the matter for defendant No.1, reluctance was shown by the commissioner as Vakalatnama of Mr. Muhammad Anwar Tariq was still in the field, which agitated the applicant/defendant No.1’s counsel. Surprising to note is that her client Erum Rasheed was not even present who has filed her affidavit in support of the instant application, which has been objected by the commissioner as well as by defendant No.3.

In the circumstances at hand, interest of justice would only be met if the evidence is recorded without any further delay in the matter and counsels to facilitate this exercise. In these circumstances, I do not see any reason, particularly when the commissioner was appointed with the mutual consent of the earlier counsels, to release the present commissioner or to appoint new commissioner. Let the commissioner proceed with the recording of evidence and submit his report within next two months. Learned Commissioner would be at liberty impose cost upto Rs.5,000/- in respect of defaulting witness(es) absent on two consecutive dates or to close the side as deemed fit and proper.

Instant application stands disposed of in the above terms.

                                                                   J U D G E