ORDER SHEET
Suit No. 1761 of 2008
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DATE ORDER WITH SIGNATURE OF JUDGE
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1. For hearing of CMA No. 5051/2010
2. For hearing of CMA No. 1951/2011
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Date of hearing 06.08.2012
Mr. Hassan K. Hashmi Advocate for the plaintiff
Mr. Haseeb Jamali Advocate for the defendant
.x.x.x..x.
1. This is an application filed by the defendants for appointment of Commissioner for recording of evidence of the parties. The plaintiff has filed counter affidavit and rejoinder affidavit is also filed by the defendant in rebuttal thereto.
Learned Counsel for the defendant in support of this application has argued that the plaintiff has filed this suit for cancellation of the agreement, damages and permanent injunction whereas the defendant in response has filed a written statement along with the counter claim on behalf of the defendant No.1 for specific performance of the agreement. Learned Counsel for the defendants submitted that dispute involved a property built at Plot No. E-92, Bazar Area, Malir Cantt., Karachi, admeasuring 240 square yards which was agreed to be sold by the plaintiff to the defendant for total sale consideration of Rs.13,500,000/-. Learned Counsel submitted that out of the aforesaid sale consideration a sum of Rs.5.00 million was paid by the defendant No.1 out of which Rs.100,000/- was paid as token amount by a cross cheque and Rs.49,00,000/- was paid by pay order. Learned Counsel submitted that the parties went into litigation and this Court vide order dated 07.5.2009 ordered that upon deposit of the balance amount with the Nazir, the interim order dated 26.3.2009 passed earlier shall continue till disposal of the suit. It is submitted by the learned Counsel for the defendant that they have deposited the entire amount of sale consideration of Rs.13,500,000/-. However, despite best endeavour the parties have failed to arrive at amicable settlement. Learned Counsel for the defendant submitted that it would be fair and in the interest of justice if the evidence is recorded through Commission which would decide the lis earlier than expected. It is submitted that since the plaintiff is enjoying the possession of the premises and the defendant No.1 has also deposited the entire sale consideration, it would be unfair and unjust to keep this case lingering on and parties to await for its turn. Learned Counsel further submitted that the defendant No.1 is a bonafide purchaser and her valuable rights are being usurped by the plaintiff.
In reply to the submission of the learned Counsel for the defendant, the learned Counsel for the plaintiff submitted that this Court has no inherent powers to issue commission for any other purpose as mentioned in Order 26 Rule 2 CPC and the consent of the opposite party is necessary. It is further submitted by the learned Counsel for the plaintiff that apart from the above legal objection, the defendant has failed to fulfil their part of agreement within the stipulated period and as such the under reference does not merit consideration. It is submitted that the parties as matter of right cannot seek appointment of Commissioner for recording of evidence and in view of the apparent default of the defendant they have no right to claim the discretionary remedy from this Court.
In rebuttal to the submission of the learned Counsel for the plaintiff, the learned Counsel for the defendant submitted that it appears that the plaintiff is afraid of early disposal of the suit and the serious and strong opposition is a proof that for obvious malafide reasons the plaintiff is opposing the appointment of Commissioner. He submitted that plaintiff cannot be allowed to enjoy the possession and part of sale consideration for such period.
Learned Counsel for the defendant in support of his application has relied upon the following case laws:
1997 SCMR 260
“(b) Administration of Justice---
---Principal object behind all legal formalities was to safeguard paramount interest of justice; mere technicalities, unless offering insurmountable hurdle, should not be allowed to defeat ends of justice—“
PLD 1998 SC 161
“(i) Interpretation of statute---
--- Rules of Procedure---Nature---Rules of Procedure are subservient to the cause of justice and they cannot be interpreted in a manner so as to whittle down the proceedings or to frustrate the ends of justice.”
2011 YLR 2770
“Civil Procedure Code (V of 1908)---
---O.XXVI, R.1---recording of evidence—Local Commissioner---Principle---Expeditions disposal of case----- Procedural technicalities---Scope---Defendant objected recording of evidence through Local commissioner on the ground that suit involved intricate details and other legal issues---Validity----Defendant had no lucid justification to oppose the application as taking steps for early decision in the matter and recording evidence on Commission to save time of parties could not be termed to be erroneous or an act against principle of natural justice—was in the interest of both the parties if they would have come out of litigation as early as possible--- All technicalities had to be avoided unless it was essential to comply with them on the ground of public policy--- English system of administration of justice on which system in Pakistan was based might be to certain extent technical but defects from that system should not be taken---any system which by giving effect to the form and not the substance had defeated substantive rights, was defective to that extent---Ideal was always a system that had given to every person what was his---Plaintiff was ready to bear expenses of Commission and no prejudice would be caused to defendant--- High Court allowed recording of evidence before Local Commissioner--- Application was allowed in circumstances.”
2009 CLC 459
---In terms of Order XXVI, R 1-A---Issuance of Commission for examination of evidence can be issued within the limits provided, however, by consent of the parties Commission can be issued for examination of witnesses even in the matter which is not covered by rule 4 of Order XXVI, C.P.C Order X, Rule 1A, C.P.C provided that with the consent of the parties Commission to examine parties can be issued.
Normally Commission can be issued for recording of evidence by consent of the parties to decide the case expeditiously. However, if the Court is of the opinion that one of the parties, will be benefited by delaying proceedings, one party is in possession of the proerpty in question enjoying part payment, and by not giving consent for recording of evidence on Commission, in exercise fo inherent power can order to record the evidence on Commission. Such directions can be exercised for advancement of justice and should not prejudice interest fo one of the parties. Procedural law is meant for advancement of justice and to expedite decision of dispute, rather than to delay grant of right to a party.
The Civil Procedure Code provides a procedural code with . an overriding object to enable Court to deal with cases justly, to provide justice to the parties according to law, within a reasonable timeframe, to meet requirement of Article 37(d) of the Constitution.
---S.12---Relief of specific performance being an equitable relief, delay in deciding the dispute not only adversely affects the interest of both the parties before the Court but may also disentitle the party asking relief for specific performance.
PLD 2008 Karachi 239
“--- 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 given consent, the court is not bound to act accordingly.”
Learned Counsel for the plaintiff in support of his arguments has relied upon the following case laws:
1981 SCMR 336
“--- We, however, find that the issue of commission will be sought with the consent of the parties and being even otherwise in the interest of justice apprehension expressed is unjustified.”
1990 CLC 155
“---The Commission is issued under Order 26, Rule 1 C.P.C. It postulates that the 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 the Code from attending the Court or who is from sickness or infirmity unable to attend it. It is purely a matter of discretion likely to be exercised in genuine cases. But the spirit of law is that the Commission is issued for the examination of any person who is unable to attend the Court for one of the reasons described above.
2004 YLR 1876
“---The appointment of the commission in the light of these admitted facts cannot be justified. There is no cavil that is within the competence of the Court seized with the matter to appoint the commission, however, it is a matter of judicial discretion. Under the provisions of the Civil Procedure Code, the Court can issue a commission for the examination of any person who on account of his sickness or infirmity is unable to attend it or where the evidence available before the Court is equally balanced and the Court necessary to elucidate such evidence in the light of the report prepared after the local inspection by the commission.
----However, the commission cannot be appointed, if the evidence on the record is clear and such report shall result in filling in the lacuna or shall improve the weak evidence of any party to the litigation.”
AIR 1975 Calcutta 303
---Section 75 empowers the Court to issue a commission for purposes specified therein even though it is not so expressly stated that there is no power to appoint a commissioner for other purposes, a prohibition to that effect is in view fo the Court in Padam Sen’s cases (AIR 1961 Sc 218) implicit in Section 75.
In (AIR 1964) Sc 993 at p-1003) the Supreme Court observed:-
“It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provision of the Code dealing with a particular topic and they expressly or by necessary implication exhaust jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates.”
I have heard the arguments of both the learned Counsels and perused the record. It appears that the plaintiff and the defendants are litigating over a property for which the defendant has already parted with total sale consideration and the plaintiff is still enjoying the possession of the premises apart from the sale consideration of Rs.5.00 million which he has pocketed at the time of execution of agreement. This matter is pending since 2008 and apparently it should have been the need and priority of the plaintiff to get rid of this case as soon as possible so that this property would be free from any litigation. However the intention of the plaintiff in not concluding the case is obvious for the reason that he at one hand is enjoying the possession of the premises and on the other hand pocketed Rs.5.00 Million at the time of agreement and also able to obtain the order of deposit of the balance sale consideration before the Nazir of this Court. Thus he deserted the defendant in every aspect. The judgments that have been cited by both the learned Counsels are needed to be applied before a decision is made for the appointment of Commoner.
The judgment that has been cited by the learned Counsel for the defendant as PLD 2008 Karachi 239 passed a learned Division Bench of this Court which held as under:-
“--- 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 given consent, the court is not bound to act accordingly.”
The other judgments cited by the defendants also support the contention that a party cannot be allowed to take benefit of any procedural defect of our judicial system. It is so unfortunate that litigants have to wait for their turn to record evidence.
Order 26 Rule 2 CPC appears to be an independent provision which reads as under:
“O.26 R.2 CPC
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 the affidavit or otherwise, of any party to the suit or of the witness to be examined.”
It appears that the legislature in its own wisdom has divided the two categories separately Rule 1 and 2 of Order 26 CPC. There is however, no restriction as far as passing of order for the issue of commission for examination of witness under Order 26 Rule 2 CPC is concerned. The Court may take this issue on its own motion or on the application supported by an affidavit or otherwise of any party to the suit or of the witness to be examined. Learned Counsel for the plaintiff has not shown that the two Rules of Order 26 CPC are to be read together only. Even otherwise, the list shown in Rule 1 of Order 26 CPC is not exhaustive or limited. It is within the competence and jurisdiction of the Court to see whether any miscarriage would be done by not issuing commission under particular facts and circumstances of the case.
In our judicial system the delay in deciding a case is caused on account of accumulative effect of overall functioning of various sections of society who were concerned with litigation including litigants themselves. Justice would not be done by not appointing a Commissioner but justice can be done if substantive right of the parties are decided at its earliest. The judgments which have been cited by the learned Counsel for the plaintiff in support of his contention which in fact are not supporting the arguments and also the view of the Court that has been mentioned above. These judgments cited by the plaintiff only discuss the issue of appointment of Commissioner on account of sickness of the witness or infirmity who is unable to attend the Court. However, in none of the judgments it has been held that the appointment of the Commissioner otherwise under Order 26 Rule 2 CPC would be barred or unlawful or unjustified. In fact the discretionary powers of High Court were never discussed in the cited judgements.
In view of the above submissions and findings I have no hesitation to order for appointment of Commissioner for recording evidence of the parties through commission. Accordingly, Mr. Abdul Ghafoor Qureshi Advocate is appointed as Commissioner for recording evidence of the parties. The Commissioner will record the evidence of the parties in suit within a period of four months from the date of receipt of this order. The parties shall file affidavit-in-evidence of their respective witnesses before the learned Commissioner with advance copy to the other side. Tentatively the fee of the Commissioner is fixed at Rs.8,000/- per witness. At present the cost of recording evidence through commission shall be borne by the defendant, however the same will be adjusted towards the cost of the suit if at all the defendant succeed ultimately.
2. This is an application filed by the defendant seeking direction for the plaintiff to deposit a sum of Rs.5.00 million with the Nazir of this Court in the interest of justice and equity. Learned Counsel primarily relied upon the facts that have been addressed in support of his application at serial No.1. He submitted that the plaintiff cannot be allowed to enjoy both the property as well as part of the sale consideration i.e. Rs.5.00 million. He submitted that it is not a token amount but much more than the token amount which was given at the time of execution of Sale Agreement. He further submitted that the plaintiff has not filed counter affidavit to this application and as such the application deserves to be allowed on this score alone. He relied upon the case reported in PLD 2003 Karachi 691.
In reply, the learned Counsel for the plaintiff has submitted that this is an earnest money which has been forfeited since the defendant has committed default. Learned Counsel for the plaintiff in support of his contentions relied upon 2004 SCMR 436, AIR 1960 Punjab 51, PLD 1967 Karachi 714, 1996 CLC 883, 2009 CLC 883, 2000 MLD 251 and PLD 1969 Karachi 318. He submitted that since this is an earnest money therefore, on account of the default of the defendant it has already been forfeited and that it is insignificant that no counter affidavit has been filed against the application.
I have perused the record and have gone through the judgments which have been cited. It appears that the plaintiff primarily has relied upon the ultimate decisions of the Court which at the conclusion of the issue has given such observation regarding forfeiture of money. This is a case where only issues have been framed and it has yet to be determined whether this amount is liable to be forfeited or the plaintiff is liable to specifically perform the agreement. It cannot be believed that for a property which worth Rs.13,500,000/- the token amount would be Rs.5.00 million. Without prejudice, if at all the token amount is to be forfeited then if it has not been established that this Rs.5.00 million is in fact the token amount which was paid by the defendant at the time of execution of sale agreement.
As observed earlier while deciding the application at serial No.1 the plaintiff is not only enjoying the possession of the property but is also enjoying part of sale consideration since the execution of the sale agreement. The token amount is primarily meant for the purpose that in case the buyer shows his desire of not purchasing the property, the token amount that has been paid should be forfeited. This can be achieved at any stage even if this amount shall remain with the Nazir of this Court. In consequences whereof the application is allowed, the plaintiff shall deposit this amount before the Nazir of this Court within a period of three weeks from the date of the passing of the order, however it shall remain with the Nazir till decision of this suit. The Nazir shall invest the amount in a profit bearing scheme. The profit accrued thereon shall be subject to final decision of this suit.
The application stands disposed of in the above terms.
Dated: JUDGE