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Civil Appeal No. 10-D of 1960, decided on 1st June, 1960.
(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 13th January, 1959, in Civil Rule No. 1214 of e1958/Application for Leave to Appeal to the Supreme Court No. 41 of 1959).
Foreign witness in foreign country-No reciprocal arrangement for examination of witness by Commission-Letter of request proper method Court's discretion-Letter of request to Greece-Civil Rules and
Orders (Dacca), r. 298.
The law does not make the issue of a letter of request dependent on reciprocal arrangement.
The law in Order XXVI, rule 5, C.P.C. 1908 authorises the Court to issue a letter of request to examine witnesses in any country out side Pakistan, and in the Civil Rules and Orders for the guidance of the Civil Courts and officers subordinate to the High Court it has been laid down in rule 298 that the most strictly proper method for the Courts of one country to adopt in order to obtain evidence in another is the method of letter of request addressed to the proper Court in the foreign country, and then in the following rule some countries are mentioned who will accept commissions and to whom commissions may be issued. There is thus nothing in law which prevents a Court from issuing a letter of request, Levant which is not attended with the same ditticutties in its execution as a commission. The Court has always the discretion to issue a letter of request, and the fact that there may be reason to believe that the country to which the letter of request is proposed to be issued might not honour the request, may induce the Court in proper cases to refuse the application for the issue of a letter of reqnest.
Where the witness to be examined was a Greek national residing in Greece, and there were no reciprocal arrangements for the execution of a commission between Pakistan and Greece, a letter of request was directed to be issued in view of the fact that the Royal Consulate General, Greece, seemed to have no objection regarding examination of witnesses in Greece. -
Hanover Fire Insurance Company v. Muralidhar Banechand P L D 1958 S C (Pak.) 138 ref.
National Fire and General Insurance Company Ltd. v. Mool Singh Gurdev Singh A I R 1951 Simla 227 considered.
Adu Md. Abdullah and S. M. Hussain, Advocates Supreme Court (M. I. Jaffar, Advocate High Court, with Abu Md. Abdullah under rule 5, Order IV, S. C. R.) instructed by A. N. M. Nasiruddin, Attorney for Appellant.
A. B. Mahmud Hussain, Senior Advocate Supreme Court (Jane Alam, Advocate Supreme Court, with him) instructed by Shahabuddin Ahmad, Attorney for Respondent.
Date of hearing : 1st June 1960.
-This is an appeal,. by special leave of this Court, from a judgment and order of the High Court of East Pakistan upholding in revision an order of the Subordinate Judge, Chittagong, refusing the plaintiff's application to issue a letter of request for the examination of a witness residing in Greece.
The appellant-Company filed a Money Suit in the Third Court of the Subordinate Judge, Chittagong, against the State of Pakistan, claiming as damages a sum of Rs. 22,545-14-8. Its vessel, S. S. Madeleine, was moored at No. 2 B. O. C. Mooring, Chittagong on 10th October, 1956, when the. Lighter No. Pak-21 belonging to the defendant drifted down stream unattended on the ebb-tide and struck the vessel causing damage to it. The suit was contested by a written statement in which t was-contended that the collusion was due to act of God and nA to any negli gence on the part of the defendant's servants or agents. Shortly after filing the suit the Appellant-Company filed a petition for issue of a letter of request to the appropriate authority in Greece for examination of the Master of the vessel who was residing there. The petition was rejected by the Subordinate Judge on the ground that there was no reciprocal arrangement for execution of commissions or other processes of the Court between Greece and Pakistan. In dealing with the case in revision the High Court agreed with the Subordinate Judge and held that as there was no reciprocal arrangement between Pakistan and Greece for issue of a commission or a letter of request, the Subordinate Judge was right, rep using io issue a letter of request. n its judgment the High Court relied on the following observations of this Court made in the case of Hanover Fire Insurarxe Company v. Muralfdhar Pakistan Banechand (P L D 1958 S C (Pak) 138) with reference to Order XXVI, rule,5 :-
"It only gives Courts a discretion in the matter. It says that Courts may issue a commission or a letter of request and the only judicial way of exercising this discretion is to ascertain the reciprocal arrangements between Pakistan and the foreign country concerned and act in accordance with that arrange ment."
The High Court also relied on the decision of the East Punjab High Court in National Fire and General Insurance Company Ltd. v. Mool Singh-Gurdev Singh (A I R 1951 Simla 227). We are unable to agree with the High Court. In the case of the Hanover Fire Insurance Company the only reciprocal arrangement between Pakistan and India, which was the country concerned in the case, which was brought to the notice of the Court, was a letter, dated the 20th January, 1956 from the Solicitor to the Government of Pakistan to the Secretary to the Government of East Bengal, by which the Courts in Pakistan were enabled to obtain in several proceedings evidence of Pakistani nationals residing in India by issuing commis sion to the Pakistan's diplomatic representatives in India and the same facilities were available in the case of Indian nationals residing in Pakistan ; but as in that case the witness to be examined in India by the Pakistan Court was not a Pakistani national but an Indian national, the reciprocal arrangement did not apply to him at all. It was in these circumstances that this Court held that a letter of request and not a commission could be issued. In the present case also there, is no reciprocal agreement in this behalf but by our leave the learned Advocate for the appellant has produced before us a copy of a letter No. Ac. Port. No. 90/58, dated the 9th December, 1958, from the Royal Consulate General of Greece to Messrs Orr. Dignam & Company, which runs thus .-
"With reference to your letter No. 2023 of 10th October, I just received reply from the- Ministry of Foreign Affairs Athens.
They explain to me that though there is no reciprocal arrange ments between Greece and Pakistan, still there is no objection regarding examination of witnesses. Only you have to do so through the diplomatic channels.
Please therefore arrange if you so desire accordingly."
The law in Order XXVI, rule, 5, authorises the Court in this country to issue a letter of request to examine witnesses in any country outside Pakistan, and in the Civil Rules and Orders for the guidance of the Civil Courts and officers subordinate to the High Court it has been laid down in rule 298 that the most strictly proper method for the Courts of one country to adopt in order to obtain evidence in another is then method of letter of request addressed to the proper Court in the foreign country, and then in the following rule some countries are mentioned who will accept commissions and to whom commissions may be issued.
There is thus nothing in law which prevents a Court from issuing a letter of request, which is not attended with the same difficulties in its execution as a commission, as pointed out in the case of The Court has always the discretion to issue a letter of request, and the fact that there may be reason to believe that the country to which the letter of request is proposed to be issued might not honour the request, may induce the Court in proper cases to refuse the application for the issue of a letter of request. In the present case the letter from the Royal Consulate, General of Greece states that there is no objection regarding examination of the witnesses. The view expressed in the East Punjab case that a letter of request cannot be issued to a country with which there is no reciprocal arrangement, by a single Judge of the High Court, and which has been relied upon by. the High Court, is not acceptable, in view of the law which does not make the issue of the letter dependent on reciprocal arrangement. The appeal is, therefore, allowed with costs, and the Subordinate Judge is directed to issue a letter of request for the examination of the witnesses through proper channels.
A. H. Appeal allowed.
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