1984 PLP 292 (MLD)

Muzaffar Hassan for Respondents. Date of hearing: 15th September, 1983. This Revision Application is directed against the order dated 13th April, 1981 passed in Suit No.48 of 1975 whereby the learned VIII Additional District Judge at Karachi rejected the application filed by the petitioners (hereinafter referred to as the defendants) in March, 1981 for issuance of commission for the examination of witnesses resident outside Pakistan.

1. The facts briefly stated are that the above-mentioned suit was filed in 1975 wherein the respondent the plaintiff basing his claim on an alleged registered patent for the manufacture of coloured glass marbles sought relief, inter alia, for damages and injunction for restraining the defendants from manufacturing the said articles. The suit was contested by the defendants /petitioners. Consent issues in the suit were framed on 21st November, 1975. The defendants however failed to file the documents and the list of witnesses within the prescribed time. He also did not apply for examination of any witness on commission. On 31st March, 1980 however he removed an application under Order XIII, rule 2, C.P.C. before the learned trial Court seeking for extension of time which application however was rejected by order passed on 27th July, 1980. Against the said order the petitioners filed Revision Application No.266 of 1980 which was disposed of on 15-11-1980 by a learned Single Judge of this Court with the consent of the parties whereby while setting aside the order, dated 27th July, 1980 passed by the trial Court, it was ordered:- "Both the parties may be allowed to file documents and commission application within one month."

2. Pursuant to the order passed as above by the High Court, the petitioners filed the list of documents but instead of filing application for issuance of commission for examination of any witness, he remained contented with filing on 10th December, 1980 a list containing the names of two Companies of Japan, and a third company whose office is shown to be situated at Dacca and also at Karachi. The fourth witness in the said list is a company whose office is situated at Karachi. This list was described as "List Commission". Thereafter, in March, 1981 or thereabout the petitioner moved an application under Order XXVI, rules 3 and 5, C.P,C. for issuance of commission for examination of the two witnesses/ companies residents of Japan. This application was rejected by the learned trial Court by order passed on 13th April, 1981 alongwith another application moved for stay of the proceedings in Suit No.48 of 1975. The stay of proceedings was sought on the ground that the case for revocation filed by the defendants/the petitioners was ,pending.

3. This Revision Application has now been preferred by the petitioners/the defendants against the order of the learned trial Court rejecting the application for issuance of commission for examination of witnesses, No grievance has been made against the refusal of the trial Court to stay the proceeding in Suit No.48 of 1975.

4. I have heard the learned counsel for the parties and find that the order passed by the learned trial Court refusing to grant the application for issuance of commission for examination of witnesses residing in Japan on the ground that the suit was pending since 1975, the defendants /petitioners had already moved 17 adjournment applications which showed that they wanted to delay the proceeding and that there was no likelihood of the examination of the witnesses by the Commissioner in the near future, and that no material had been placed on record in support of the application. The above grounds in my opinion fully justified the discretion exercised by the learned trial Court in refusing to grant the application. The discretion in the circumstances could not be called as perverse, arbitrary or fanciful. The learned counsel for the petitioners was unable to point out any illegality or material irregularity in the said order which would call for any interference by this Court in exercise of revisional jurisdiction within the meaning of section 115, C. P. C. The fact that the above order has been passed with jurisdiction is not disputed.

5. The impugned order is also justified for the reason that the learned Singie Judge while disposing of the Revisional Application No.266 of 1980 by order passed on 15-11-1980 by the consent of the parties, allowed them to file documents and commission application within one month of the passing of the said order. The defendants however remained content with filing list of witnesses who were to be examined on Commission within the time allowed by the order passed in the above?mentioned Revision Application No.266 of 1980. The application for commission allowed in March, 1981 i.e. after more than about 4 months was admittedly beyond the time fixed by the High Court by consent of, the parties, which time, therefore; could not be enlarged or modified except with the consent of both the parties.

6. This impugned order refusing to grant the application for examination of witnesses of commission even otherwise would not amount to a case decided within the purview of section 115, C . P. C . on the principle laid down in the case of Habibullah Khan v. Pak Cement Industries 1969 S C M R

965. The facts of the said case were that after issues were framed in the said case the trial Judge allowed the respondents to place on record certain documents against which order the petitioner moved the High Court under section 115, C.P.C. which was dismissed by the High Court as no material irregularity or illegality in admitting the documents in evidence was shown. The said order of the learned High Court was challenged by the petitioner by moving a petition for leave to appeal in the Honourable Supreme Court. The leave was however refused and petition was dismissed with the observation:

"An order admitting or declining to admit evidence oral or documentary does not amount to a case decided within the purview of section 115, C. P. C. The High Court could not, therefore, interfere with the order of the trial Court in exercise of its revisional jurisdiction."

7. The principle laid down as above apply to the case under consideration. It is not the case of the petitioner that the impugned order was passed on ground not contemplated by the law. For the above reasons this Revision Application is dismissed with costs. M. A. K.????????????????????????????????????????????????????????????????????????????????? Application dismissed.