P L D 1988 Lahore 294 (PLP)

This judgment shall' dispose of civil Revision Nos.508, 509, 510 and 511 of 1986 also as common questions of law and facts are involved in all these cases.

2. The respondents, filed g suit for cancellation of sale deeds under section 39 of Specific Relief Act, and for declaration under section 42 of the Specific Relief Act, 1877 that the mutations based on the purported sale‑deeds are void and of no legal effect and as a consequential relief decree for possession of the property subject matter of sale‑deeds and mutations and for the rendition of accounts 'in respect of income of said property and also for perpetual injunction restraining the defendants from interfering in any manner with the title, ownership, or enjoyment of the suit property by the plaintiff. The suit was contested by the present petitioners who filed written statement. On the pleadings of the parties, various issues were framed and the respondents /plaintiffs produced evidence. During the pendency of the suit the respondents/ plaintiffs made an application on 15‑5‑1986 under Order 26 Rule 5, C.P.C. for issuance of commission or letter of request for recording the evidence of the plaintiff and Mr. C. Chambers and to return the same to the Court for further proceedings. This application was resisted. The learned trial Court by impugned order dated 30‑6‑1986 accepted the said application and the parties were directed to file their respective interrogatories and cross interrogatories alongwith relevant documents. It was directed that a letter of request be issued to the High Court of England as provided by Order 26 Rule 5, C.P.C. In this revision petition the said order has been assailed.

3. Learned counsel for the petitioners argued that the trial Court had no jurisdiction to issue letter of request or to allow the examination of the plaintiff in the suit through commission. According to learned counsel only a witness could be examined on Commission not a party to the suit. Therefore, according to him the learned trial Court has exercised jurisdiction not vested in it under the law so far as examination of the plaintiff himself was concerned. So far as the examination of Mr. Christopher Chamber Solicitor of plaintiff was concerned, Commission could be issued to examine him as his name was not included in the list of witnesses filed by the Plaintiffs under Order 16 Rule 1, C.P.C. as required by law and he could not be called through Court as such while allowing him to be examined through Commission he shall be deemed to have been called through the agency of the Court, therefore, the order was without jurisdiction. He maintained that the direction for issuance of letter of request to examine the plaintiff and his witnesses through interrogatories was highly contrary to law inasmuch as the present petitioners have been deprived of their valuable right to cross‑examine them effectively as various documents were to be put to them during cross‑examination in order to confront them with the same. On merits he argued that since the respondents had chosen the forum of their own choice by filing the suit at Sahiwal, therefore, they could not claim that they be examined on Commission. To support this contention, learned counsel relied upon judgment reported as Akbar Ali Khan v. Herbert Francis A I R 1925 Pat.

125. He also urged that according to judgment reported as Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufacturing Company Ltd. 1984 C L C 1549 the trial Court has to exercise the discretion in this respect judicially and is not to act arbitrarily. In view of these submissions, learned counsel maintained that the trial Court while passing the impugned order has committed material irregularity and illegality in the exercise of its jurisdiction. He submitted that merely because the plaintiffs were engaged in their business at London and it would be inconvenient to them to fly over to Pakistan for recording their statements did not constitute sufficient grounds to examine them through commission. He further submitted that the case law relied upon by the trial Court was not applicable to the facts and circumstances of this case.

4. On the other hand, learned counsel for the respondent/defendant No.1, argued that the plaintiff had never been to Pakistan and the suit on his behalf was filed through his general attorney as is manifest from the plaint and other documents which have been signed by his attorney which fact was also pleaded in the application and the petitioners did not produce any material to the contrary and it was in these circumstances that application for issue of letter of request was moved. He argued that the revision petition itself. was ,not competent for, the impugned order does not amount to a case decided. He relied upon Gambhir Mal Pandya v. George Anthony John A I R 1934 All. 37(2), Mirza Iqbal Ali Beg and another defendants‑applicants v. Dr. S. Abdul Ali and another plaintiffs opposite party A I R 1942 Order. 344 and Shantibai v. Motiram Sitaram A I R 1946 Sind

30. He maintained that where a plaintiff has to appear as his own witness his status would be that of a witness like any other witness, therefore, all the provisions of law permitting the examination of a witness on commission could be applied to the examination of the plaintiff as such. Apart from this, according to learned counsel the language employed in Order 26 Rule 4, C.P.C. is very wide in scope in which the term 'any person' has been used which means that irrespective of the status of a person in the litigation whether he is a witness or a party, commission could be issued for his examination. He urged that according to Volume 1, Chapter 10‑F Part 4 of High Court Rules and Orders, the provisions have been 'made for issuance of letter of' request, therefore, it cannot be argued that it could not be issued for examination of a plaintiff who has to appear as witness. He relied upon Phanindra Krishna Dutt v. Raja Promatha Nath Malia A I R 1928 Calcutta 421, where in a suit the defendant who filed counter claim and as such his status from that claim was that of a plaintiff was allowed to be examination commission and the order was not interfered with. Learned counsel submitted that judgment relied upon by the learned counsel for the petitioners reported as A I R 1925 Patna p.125 was considered subsequently in judgment reported as Fariduddin Ahmed v. Abdul Wahab A I R 1926 Patna 277 and was departed from. He also relied upon judgments reported as The Levant Shipping Company (S.A.L.) of Beirut, through their Agents, Turner Morrison & Co. Private Ltd., Chittagong v. Pakistan through the General Manager, Eastern Bengal Railway, Chittagong P L D 1960 S C 341 and Bangladesh Shipping Corporation Karachi v. S.S. "NEDON" P L D 1981 Kar. 663 to maintain that the Court had the jurisdiction to issue commission for examination of a witness. With regard to objection regarding examination of Mr. C.Chambers as a witness, it has been argued that there was no bar for a party to produce any number of witnesses of their own responsibility even if his name was not included in the list of witnesses submitted to the Court. The learned counsel maintained that Mr. C. Chamber himself was not required to be called through process of the Court and he was requested to be examined on commission before whom he shall be produced without the aid of process of Court and his production before the commission shall be deemed to be before the Court at the instance of party. Learned counsel for respondent No.1 further argued that there was no choice with the plaintiff to choose forum to file suit at a particular place inasmuch as in the suit prayer for decree for possession of immovable property was made which is situated in District Sahiwal, therefore, under relevant provisions as contained in the C.P.C. from section 16 onwards the plaintiff was bound to file suit in a civil Court within whose jurisdiction the property was situated as such, the choice of forum was not vested with the petitioners and, therefore, the case law relied upon by learned counsel for petitioners was not applicable to the facts of this case. According to him it has been impliedly held in this case law that if choice of selection of forum to file suit was not with the plaintiff, he could be examined on commission.

5. Learned counsel for respondent No.3 which is Bank in Civil Revision No.509 of 1986, has not objected to the examination of the plaintiff and his witness on commission.

6. Learned counsel for respondent No.1, lastly argued that in order to show his bona fides, respondent No.1 submitted C.M. No.1996 of 1986, in which he made an offer that let a commission be appointed for examination of the plaintiff as witness and learned counsel for the petitioners may be allowed to go to London for which expenses shall be borne by respondent No. I so as to enable him to cross‑examine the witnesses and so as to remove his apprehension that on interrogatories tie would nut be able to cross‑examine them properly. This offer has been declined by the petitioners and their learned counsel which attitude according to learned counsel for respondent No.l. proves their mala fides inasmuch as the ground of prejudice regarding cross‑examination has been raised merely as a lame excuse.

7. The main question involved in the case is as to whether a commission can issue for examination of a party as a witness. Commission the, relevant provision as contained in Order 26 Rule 5, C‑r‑C. is couched in perfectly general Terms and no constraint can be spelt out therefrom as regards issue of commission, to u party in the suit. All procedure, is meant for advancing the cause of justice. A literal construction of Order 26, Rule 5, C.P.C. will help promote justice are therefor, be adopted in the absence of any compelling reason against allowing a party to be examined on commission. The above view finds support from F L D 1960 S C 341, P L D 1981 Kar 663 and AIRI 192C Patna 277, above referred.

8. The contention that the plaintiff having the choice of forum for instillation of suit should not be allowed facility of being examined on commission does not require to be examined on merits in this Since the property which is subject matter of the suit being immovable property, the plaintiff had no choice of forum. On the hypothesis that the Court had jurisdiction to issue commission in the vase. the fact that it decided to exercise that jurisdiction in favour of plaintiffs in its disruption does not raise any question calling for interference in revision jurisdiction.

9. As regards the offer made by the plaintiff to pay expenses, for visit of defendants' counsel to London for cross‑examination, I do not react favorably to such bargaining. If the law allows plaintiff to be examined on commission it should have its course irrespective of any bargaining and no such consideration should be all influence the judgment of the Court in the matter of enforcement of law. However, since an offer had been made by the plaintiff it was, for the defendant to avail of it if so advised. The objection that the' name of Mr. C. Chambers Solicitor who was also ordered to be examined on commission was not included in the list submitted by the plaintiffs under order 16 Rule 1, C. P. C. can De shortly repelled on the authority' of case reported as Ghulam Murtaza v. Muhammad Ilyas and 3 others P L D 1980 Lah. 495 which has laid down the rule that legislation pieced fetters only for calling those witnesses not named in the list of witnesses and does not create a bar against production of any witness by the party of its own. In the instant case. no process, was sought to be issued to have the attendance of witness before Court. The position of Local Commissioner was that of Court and the said witness could be produced by the plaintiffs for examination in the same manner as could he produced on his own responsibility before the Court. The case law relied upon by learned counsel for the petitioners such as the Times Law Reports VoI.IX 1892‑93 Page 571, 'Kelley v. Wakley and Indian Law Reports 1924 Patna Series Vol. III Page 863, Nawab Sayed Muhammad Akbar Ali Khan v. Herbert Francis not advance the case of the respondents. The first mentioned case was a case for recovery of damages for libel, therefore, it was held that the evidence of the plaintiffs was to be given before jury. In the second reported judgment, it ' was held that there was undoubtedly jurisdiction in the Court to allow the examination of the plaintiff on commission and in that case the plaintiff was not allow to be examined on commission on the ground that he had a choice of forum. That was a case where the plaintiff prayed for a decree to recovery of money whereas in the Instant case the plaintiffs have prayed for determination of rights to immovable property and decree for possession thereof, therefore, they had no choice to select forum, for filing suit. In the result, I would uphold the impugned order Of the learned trial Court, since the same does not suffer from any irregularity and illegality in the exercise of its jurisdiction. The revision petition fails which is hereby dismissed without any order as to cost. M.Y.H./M‑625/M Petition dismissed.