ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH, AT KARACHI

HCA No:204,205,206 & 207 of 2007

Date Order with signature of Judge

PRESENT:

MR.JUSTICE MEHMOOD ALAM RIZVI &

MR. JUSTICE FARRUKH ZIA G.SHAIKH

Date of hearing 06.02.2008.

Mr. Mansoor-Ul-Arfin, Advocate for appellants.

Mr. Rasheed A. Rizvi, Advocate for

respondent Nos.1,2&3.

>>>>>>>> <<<<<<<<

FARRUKH ZIA G.SHAIKH,J: All these four High Court Appeals arise out of a common order dated 13.08.2007, passed in Suits No.1141 & 1145 as well as in Suits No.1142 & 1177 of 2004, between the same parties, hence the same are disposed by this one and common order.

The facts leading to these appeals are that originally the four suits were filed separately, but later suits No.1141/04 and 1145/04 were consolidated and one set of issues was framed. Thereafter Suits No.1142/04 and 1177/04 were also consolidated and another set of issues was framed vide order dated 18.04.2005. Then, vide order dated 12.12.2005, all the four suits were consolidated on the ground of similarity of parties and issues involved. The respondent/plaintiff filed application for recording evidence on Commission, in suit No.1141/04 which was opposed by the appellant. Ultimately, the learned single judge, passed the impugned order, relevant portion whereof is reproduced hereunder for sake of convenience.

“ After hearing the learned counsel I have observed that all the four suits have been filed in 2004 and issues have been framed, while huge amount has been transacted between the parties, while defendant/vendor has also challenged the sale agreements and in such a situation both the properties are in hang on position. In all the four matters normal orders for framing of issues and their consolidation as well as joint trial have already been passed, hence there will be no harm for the defendant if the request of Commissioner and recording of evidence through him, is granted. It will be in the interest of both the parties, if they come out of litigation as early as possible, hence the objection of learned counsel for the defendant that other suits are pending in this court since long has no force. The difficulty of Mr. S. M. Mehmood, learned counsel for the defendant that the defendant is out of country can be accommodated by granting more time to the Commissioner then normal.

In the circumstances, Mr. Tahseen Bhatti, learned retired District & Sessions Judge, is appointed as Commissioner for recording evidence in the matter..............which may be requested by the parties from the list of witnesses, and also have power to close the side of the defaulting party; if the witness does not appear without any reasonable excuse...........”

The appellant being aggrieved by such appointment of commissioner and mode of recording evidence, has filed these appeals and assailed the order on the grounds namely, the commissioner cannot be appointed for recording evidence without consent of the parties; the respondent/plaintiff did not mention as to which of the witnesses were required to be examined on commission and why they were not able to come to court for that purpose; the application did not speak about examination of plaintiffs themselves on commission. According to learned counsel, only in suit No.1141/04 the respondent/plaintiff moved application for recording of evidence on commission, but the trial court passed the impugned order in all the four cases. He further submitted that the ground of earnest money having been deposited by the plaintiff, taken for recording evidence on commission, by the plaintiff/respondent was not valid for passing the impugned order in as much as the evidence by way of filing affidavits could only be recorded by consent and not otherwise. He also stressed recording of evidence in open court to check the demeanor of the witnesses and stopping the irrelevant questions being asked from the witness, which is not expected from a commissioner e.t.c.

The counsel appearing for the respondent /plaintiff has opposed the appeal and has placed reliance on the cases (i) KHATIZA BAI V/S MUSLIM COMMERCIAL BANK (NLR 1978 Civil 554), (ii) MALIK ASAD ALI & OTHERS V/S FEDERATION OF PAKISTAN & OTHERS (PLD 1998 SC 161), (iii) MRS.SHAHNAZ & OTHERS V/S HAMID ALI MIRZA (2006 CLC 1736) and unreported case of ALLIED BANK OF PAKISTAN V/S IMDAD A.SHAIKH (HCA No.216 of 2007) wherein a learned Division Bench of this Court observed as follows:

“......Although under Order X Rule 1 (A)(ii) CPC Court can issue commission to examine witnesses by consent of the parties, however, court, in appropriate matter to achieve the ends of justice and to prevent an abuse of process of court, can refer matter for recording the evidence on commission by a speaking order, even without the consent of the parties in exercise of its inherent powers.”

We have considered the submissions advanced by the learned counsel for the parties and gone through the impugned order and find that the learned single judge had passed the impugned order, keeping in mind amongst others the transaction of huge amount, allegedly paid to the appellants by the plaintiffs/respondents as earnest money towards the price of the properties and the trend of the vendors prolonging the process of finalizing the transaction or avoiding the same for any reason, thereby making the purchasers to suffer for indefinite period knowing that the purchasers could not take any action against them except approaching the civil courts, which in the normal course take time over years together for its decision. When looked from that angle, it appears that perhaps the appellants had also been under the impression that the instant suits would also take time which situation would be favoring to them. It was for that reason that, by passing the impugned order, he found himself in an embarrassing position and therefore felt aggrieved. Otherwise, there was nothing adverse to the appellants in the impugned order. Taking steps for an early decision in the matter and recording evidence on commission to save time of the parties, cannot be termed to be erroneous or an act against principles of natural justice. The learned single judge rightly held that it would be in the interest of both the parties if they come out of litigation as early as possible. The impugned order, therefore is not likely to cause any prejudice to the appellant in any way, as both the parties will have the opportunity to adduce their evidence and cross examine the witnesses viz a viz.

As far as the contention of learned counsel that the application for commission was moved only in one case, while the trial court passed the order in all the four cases, suffice it to say that admittedly all the four suits were consolidated, issues were framed, therefore passing of the impugned order only in one case would not have only been awkward but also have not served the purpose in as much as it would create an anomalous situation. Naturally, filing of similar applications in other suits would have also been necessitated thereby wasting further time in passing similar orders in other suits. Therefore, passing of impugned order in all the cases was just and proper and in the fitness of circumstances.

The learned counsel stressed for recording of evidence in court to check the demeanor of witness and stopping irrelevant questions likely to be put to him, it may be observed that such conditions are available in all the suits where the recording of evidence on commission has been ordered. Had this been a valid reason, then appointment of commissioner for evidence would have been discouraged in all the cases.

The other contention of the learned counsel for the appellants that the court could not have passed the order for recording evidence on commission without consent of the appellant is without substance. No doubt such an order can be passed by consent of the parties, but there is no bar on the court in passing the order without consent. Even in the cases where the parties give consent, the court is not bound to act accordingly. It will be pertinent to reproduce here Order XVIII Rule 4 and Order XXVI Rule 1 & 2 which deal with commission, evidence and witnesses:

Order XVIII

4. Witnesses to be examined in open Court. The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge.

Order XXVI

1. Cases in which court may issue commission to examine witness.-- Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it.

2. Order for commission.- An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

Main grievance of the appellant is that the impugned order dated 13.08.2007 gives power to the commissioner to close the side of the defaulting party if witness does not appear without any reasonable excuse. Learned counsel during the course of arguments has stressed that can a commissioner be appointed without consent of both the parties ? It is pertinent to mentioned here that impugned order clearly states that there will be no harm for the defendant if the request of the plaintiff for appointment of commissioner and recording of evidence is granted. It will be in the interest of both the parties if they come out of litigation as early as possible, hence the objection of learned counsel for defendant that other suits are pending in this court since long has no force. It may not be out of place to bring on record that in counter affidavit to application under order 26 rule 2 CPC filed on 25.4.2007 learned counsel for attorney of appellant has on his own stated that wife of defendant is unwell and therefore if this statement is taken on record it will be in the interest of justice that commissioner may be appointed to dispose of mater as early as possible since the mater is pending since 2004.

It may also be noted that during the course of arguments the court made a suggestion to Mr. Arfin that this court was prepared to modify the impugned order to the extent that commissioner of choice of parties can be appointed and that bone of contentions raised by appellant that the commissioner has been given power to close the side of defaulting party if witness does not appear without any reasonable excuse so that appellant may not have any grievance. However this suggestion was rejected by learned counsel for applicant. What the court has to see is the proper dispensation and interest of justice. From the contentions raised on behalf of the appellant what we could gather is that the appellants have insisted for recording of evidence in the ordinary manner before the court so that the case may take as long time as possible to the benefit of the appellants.

This reflects upon the bona fide and fairness of the appellants’ grievance.

In view of the above, we do not find any substance in the appeals. By a short order dated 06.02.2008 all the four appeals were dismissed and above are the reasons for the same.

J U D G E