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High Court Appeal No.41 of 1984, decided on 4th September, 1984.

‑‑‑ 0. XXVI, R. 5‑‑Examination of witness by commission on interrogatories‑ ‑Import and purpose of provisions of 0. XXVI, C.P.C. is to provide convenience to parties and to minimise expenditure on litigation‑ ‑Where a witness was resident of Foreign country or even a distant place in Pakistan, normal mode of examination of such witness, held, would be by Commission unless Court came to the conclusion that object of justice would not be satisfied by examination on Commission by interrogatories‑ ‑Refusal to grant Commission without any substantial reason would frustrate purpose of law.

Bangladesh Shipping Corporation, Karachi v. "NEDON11, PLD 1981 Kar. 663; Bilqis v. Kohinoor Industries Ltd., Lahore P L D 1979 Lah. 387 and Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufacturing Company Ltd. and another 3.984 C L C 1549 ref .

‑‑‑ 0. XXVI, R. 5‑‑Examination of witness by Commission‑‑Application for‑‑Where on examination of witness by Commission, reply to interrogatories was not found to be sufficient, it would always be open to Court to send supplementary interrogatories‑ ‑Application for examination of witness by Commission, held, could not be rejected solely on ground that quantum of opportunity to cross‑examine witness would be lesser when witness would be examined on Commission.

M.H. Kazmi for Appellants.

Muhammad Naeem for Respondents 1 and 2 on pre‑admission notice.

Imtiaz Lari for Respondent No.3 (on pre‑Admission Notice).

Respondent No.3 has filed a suit on the original side of this Court for recovery of Rs.2,87,214 with costs and interest in relation to a collision, which took place between the vessels respectively belonging to the present appellant and respondent No.l. It may be stated that the suit is by the Insurance Company, who have very nominal contest in the subject‑matter of the instant appeal.

The background in fact is that, after the collision, some survey was carried out, and the Respondent No.3 settled the claim of the insured, under a letter of subrogation and discharge of contractual obligations.

It is common case that Mr. John Mischulec was the Captain of the vessel m.v. "STEFAN SZARNIECKIII. It is also admitted case that the said captain is in employ of defendant No.l. After the written statement was filed and issues were framed. Mr. Muhammad Naeem, appearing for defendants I and 3 (respondents I and 2 herein), made an application under Order XXVI, Rule 5, C.P.C. for examination of the said captain on commission by interrogatories. The examination of this witness was not opposed, but Mr. M.H. Kazmi, who appeared for the present appellant (Defendant No.3), opposed the grant of order for examination on commission on the ground that such examination would not fulfil the purposes of law. Upon hearing the counsel, the learned Single Judge granted the application for examination of the said witness in the manner prayed for. It may be stated that the application was not opposed by respondent No.3 (the plaintiff in the suit).

Before admitting this appeal, we had issued pre‑admission notice to the respondents, and we have also heard Mr. Muhammad Naeem and Mr. Imtiaz Lari.

The learned Single Judge repelled the objection s raised by Mr. M.H. Kazmi on the grounds that the total claim in the suit was under Rs.3 Lakh and having the witness present in Court in Pakistan would involve heavy cost, which will be disproprotionate to the claim in the suit. We may, however, state that Mr. M.H. Kazmi had urged before the learned Single Judge that the examination of the witness on interrogatories would prejudice the present appellant, as effective cross‑examination would not be possible. In the alternative Mr. M.H. Kazmi urged that examination on commission viva voce would not be opposed by him, provided respondents 1 and' 2 paid for the cost of the advocate for the appellant to go to Poland.

The main contentions, that have been raised before us, are on the sufficiency of evidence that might be recorded, if the witness is examined on interrogatories. Mr. M.H. Kazrrd has urged before us that the requirements of law and justice would not be fulfilled if the commission is executed on interrogatories. To that extent, Mr. Muhammad Naeem has urged before us that most of the evidence, that the witness has to give, is on the basis of documents, which have been placed by respondents 1 and 2 on the record of the suit. To that extent we must initially state that the argument raised by Mr. M.H. Kazmi is so broad based that, if it is accepted, the provisions of Order XXVI of the Code of Civil Procedure would be rendered virtually nugatory and meaningless. The import and purpose of the provisions of Order XXVI of the Code of Civil Procedure is to provide convenience to the parties, and to minimise the expenditure on litigation. It is precisely in such words that the bulk of authorities would interpret under Order XXVI of the Code of Civil Procedure. On the other hand if, without any substantial reasons, the grant of commission is to be refused, the purpose of Order XXVI will be frustrated. In such circumstance, a fair balance has to be drawn by closely looking into the interrogatories, and also after the interrogatories are answered, to find out, if full evidence has been recorded. If at that stage, one of the two parties could demonstrate before the Court that there is a lacuna in the evidence, or, that the interests of justice have not been fulfilled by examination on commission by interrogatories, the Court would be free to either call for supplementary interrogatories or, even on substantial considerations, enforce the attendance of the witness, but surely a Court would not be justified in taking a plenary and uncontroverted view that examination on interrogatories would fall short of the demands of justice. If that were so, then every application under Order XXVI, Rule 5, C.P.C. would have to fail. We wish to make it clear that we do not wish to be misunderstood to mean what, in all cases, commission, by interrogatories must be allowed, but we only wish to convey that, in case a witness is resident of foreign country, or, even a distant place in Pakistan, the normal mode of examination would‑ be by commission, unless the Court comes to the conclusion that the objects of justice would not be satisfied by examination on commission by interrogatories.

Applying the above test to the instant case, we are of the view that nothing has been shown by the appellant before us to show that the demands of justice will not be satisfied by examination of the witness on commission by interrogatories. On the other hand, Mr. Muhammad Naeem has stated before us that a major part of the evidence of this witness would be in relation to documents, which have been placed on record. We may also advert to the stand taken by Mr. M.H. Kazmi before the learned Single Judge. He had no objection to examination of the witness on commission, provided the co‑defendants would pay the cost of the advocate to go to Poland. In such view of the matter, we would be reasonably correct to hold that examination of the witness on commission has not been opposed by Mr.M.H. Kazmi on any sound principle of law, but on considerations of the bearing of cost for travel to Poland.

After the replies to interrogatories are received the learned Single Judge will give notice to the counsel for all the parties, and if any party satisfies the learned Single Judge that there is an obvious lacuna in the replies, so that the suit cannot be decided on the material that is available, the learned Signal Judge could again order supplementary interrogatories to be sent.

The other ground, on which the learned single Judge has rejected the application, is the disproportionate cost entailed in calling the witness for viva voce examination in Court. This too is no less relevant. The value of the suit, as stated above, is under Rs.3 Lakh, and the cost of calling the witness from Poland and making him stay here at Karachi would be very high. This is also a relevant consideration. What Mr. Muhammad Naeem points out is that this witness being captain of a vessel, it would be very difficult to bring him to Karachi for his leaving the vessel would keep it stranded, which too would create a situation not readily complacent.

Mr. M.H. Kazmi has invited our attention to a few cases. The first case is a decision by a learned Single Judge of this Court in the Bangladesh Shipping Corporation Karachi v. 11NEDON11, reported in P L D 1981 Kar. 663. The learned Advocate has pointedly made a reference to paragraph 8 in the order of the learned Single Judge, which appears at page 666 of the report, and reads as following:‑

18. Where evidence to be recorded on commission is going to be mainly oral testimony, for the witnesses to be examined effectually, viva voce examination is eminently suited and not examination on interrogatories. The plaintiffs propose to prove their case with the help of testimony of their witnesses to be recorded on commission and as a principle of natural justice it is imperative that the defendants have adequate opportunity for cross‑examining these witnesses. In my view, in the present case, on the basis of the pleadings and the issues that arise for determination, the defendants ‑would be deprived of their right to cross‑examine effectually the plaintiffs witnesses if examination is on interrogatories. I may further add that the weakness of the defendant /plaintiffs eventually not been able to satisfy the decree that may be passed in the present suit, urgency or non‑urgency of the case and saving of expense by the plaintiffs are no grounds or consideration on the facts of the present case for amending or varying the consent order dated 11‑12‑1980 for viva voce examination of the plaintiff's witnesses.

The process of reasoning adopted by the learned Single Judge is mainly based on the adequacy of opportunity for cross‑examining the witnesses. We must say with respect that, if an application for examination of a witness on commission is to be rejected solely on the ground that the quantum of opportunity to cross‑examine is lesser, when a witness is examined on commission, then, on principle, no commission need ever issue. This, in our view, is not correct in law. We are fortified in our view by the further observations, which we have made in the earlier part of the order, stating that, if the replies to interrogatories are not found sufficient it is always open to the Court to send supplementary interrogatories. However, saying that cross‑examination on interrogatories would invariably fail to achieve the object of producing evidence is stating the proposition too broadly. It will always depend on the facts and circumstances of each case, and the controversy, if ever arises, has to be resolved, on the basis that a party is not prejudiced in prosecution of his case. The learned Single Judge has also taken the view that saving of expenses is not a relevant factor in the allowing, or, disallowing request for examination on commission. Even to that extent, we have been unable to persuade ourselves to take the same view. There may be cases, where the claim is too small and the cost may be too large, so that the proportion that the cost bears to the claim cannot be said to be irrelevant. The next case, to which reference has been made by Mr. M.H. Kazmi, is a judgment from Lahore jurisdiction in the case of Bilqis v. Kohinoor Industries Ltd. Lahore, reported in PLD 1979 Lah. 387. We cannot see how this case can possibly support Mr. M.H. Kazmi. The relevant passage, which deals with the matter of examination on commission, will be found at page 389. All that the learned Single Judge has said in the judgment is as follows:‑

"In other words, although a party to a suit has a right to ask for issuing a Commission to examine a witness residing beyond the limits of the Court's jurisdiction yet the Court may refuse the prayer if it is satisfied that issuing of the Commission would be a mere abuse of the process of the Court or was otherwise unnecessary. The words 'may issue' give the Court a discretion in the matter, though the discretion has to be exercised judicially."

The learned Single Judge also referred to the judgment of Lord Campbell, C.J., in the case of Castelli v. Groome (1852) 21 L.J.Q. B. 308 and quoted the following sentence:‑

"It lies upon the person applying to the Court to show that it would be conducive to the due administration of justice that the commission should issue."

It would mean that the grant of a commission has to be decided on the basis of material, which affirmatively or, negatively show that the examination of witness on commission would meet the ends of justice. The third case, which is placed before us by Mr. Muhammad Naeem is a judgment of a learned Single Judge of this Court in the case of Nooruddin Hussain and another v. compound Vacuum Bottle Manufacturing Company Ltd. and another reported in 1984 C L C 1549. The learned Single Judge has taken the view that there are no hard and fast rules applying to grant of commissions and the Court has discretion in this regard, which has to be exercised in a judicious manner taking into consideration the relevant circumstances of the case. Reference has also been made to Nedon's case, reported in PLD 1981 Kar. 663. It would appear that the rule laid in Nedon's case by the learned Single Judge has, by implication, been softened in this case, for, while the observation in the case of Nedon was that examination by commission does not fulfil the requirements of cross‑examination, the learned Single Judge in the case of Nooruddin Hussain took the view that the same has to be considered in each individual case on the basis of its own merits.

We have already stated that, applying the above rules to the instant case, we find that there is nothing to show that effective cross‑examination cannot be done. Nor has it been shown to us that the discretion has been exercised by the learned Single Judge in a wrong manner. On the other hand, we would say that the order for examination on commission is in full accord not only with the requirements of law but even with justice in the circumstances of the case.

We see no reason to entertain this appeal, and dismiss the same in limine.

After the order was dictated in Court Mr. M.H. Kazmi stated that we should make an observation that, in case the appellant wishes to be represented by counsel at the time of examination of the witness the learned Single Judge may grant such permission. We are not inclined to make any observation one way or the other, but, if ever such a request is made, the same shall be considered by the learned Single Judge in a manner that may advance justice.

H.B.T./B‑28/K Appeal dismissed.

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