' The facts relevant to this order are that in present suit on 13-4-1998, the Court passed consent order that the evidence be recorded on commission. Mr. Babar Zahir, Advocate was appointed Commissioner for recording the evidence. The said Commissioner recorded the examination-in- chief of plaintiff witness Qasim Dossa after receiving his affidavit-in-evidence and fixed the matter for cross-examination on 31-10-1998. On that date the counsel for the defendant No,1 got the cross- examination postponed till 14-11-1998. The same learned counsel again got the case adjourned to 28-11-1998 for the same purpose. On that date the Commissioner passed order of closing the side of the defendant for cross-examination of that witness as none had appeared for him.
2. Learned counsel for the defendant No,1 appeared before the Commissioner and filed an application recalling his order whereby cross-examination was closed but the Commissioner did not decide that application as the plaintiff's learned counsel raised objection as to his competency to recall the order. The Commissioner, however, recorded further evidence and then submitted his report on 6-2-1999 along with the evidence recorded by him. Through the same report he also referred to Court the matter/request for recalling the order, dated 28-11-1998. The report was taken on record vide order, dated 22-2-1999 without objection from any side.
3. The arguments have been heard. Mr. Muneer ur Rahman, learned counsel representing the defendant No,1 contended that in fact he had rushed to appear in the matter and had stepped in the room when the learned Commissioner was dictating the order about the closure of their right of cross-examination. According to him, the Commissioner should have recalled the order providing him with an opportunity to cross-examine the witness but he referred the matter to the Court in the light of the objection raised by the plaintiff's learned counsel about his competency.
Addressing the aspect of the competency of the Commissioner, Mr. Muneerur Rahman argued that in fact the Commissioner had no authority to close the right of cross-examination as he was not authorized under the appointment order. In the alternate he contended that if the Commissioner had authority to close their right of cross-examination then he could recall that order.
4. It was next contended by Mr. Muneer ur Rahman that since the question of recalling the order and permitting the defendant No,1 to avail the right of cross-examination is before the Court it can accept the request/application keeping in view the fact that he had not neglected the case and had appeared before the Commission for cross-examination of the witness few minutes after the call. He also contended that it would be in the interest of justice to allow the defendant No,1 to exercise his right of cross-examination.
5. On the other hand, Mr. Iqbal Kazi, learned Advocate appearing for. The plaintiff argued that the order dated 28-11-1998 was relating to the recording of evidence, therefore, it was within the competency of the Commissioner who had express authorization to record the evidence whereas recalling of that order cannot become a part of the job of recording the evidence.
6. Mr. Kazi, further contended that the provisions of Order XXXIX, rule 8(a)(b) close the phase of the recording of the evidence on acceptance of the report of Commissioner. He further contended that even if it is assumed that this Court can recall the witness for the purpose of cross-examination then also recalling would amount providing the defendant No,1 with an opportunity to fill in the lacunas.
7. It deserves to be expressed first of all that although section 75, C.P.C. Authorizes the Court to issue commission for examination of any person and Order XXVI, C.P.C. Enumerates circumstances in which the commission to examine the witnesses is to be issued, but in present case the commission was issued with the consent of the parties, therefore, needless to examine the question of justification thereof.
8. After this I will directly deal with the question of the competency of the Commissioner to close the evidence of a witness without cross-examination due to absence of parties having right of cross-examination. In that connection the rule No,18 Order XXVI can be referred to. It read as under:-- "Rule 18. Parties to appear before Commissioner.--- (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence."
9. The above rule is among the general provisions i,e, rules 15 to 18 of Order XXVI, C.P.C. It relates to the powers of the Commissioner. At the very outset it gives out that the powers of the Commissioner are always subject to the order of the appointment. The Commissioner appointed for recording evidence is always within his competence to examine the witnesses. Obviously, the contesting parties are required to be present for the purpose of evidence/examination of the witness.
10. It is true that the examination of witness includes the examination-in-chief, cross-examination and re-examination but in view of above Rule 18(2) the Commissioner can proceed with the examination of the parties/witnesses and conclude them even in absence of parties who do not appear, if the circumstances at so.
11. It is not necessary to record any order closing the side of absentee party. In that respect his report is sufficient as it has to become part of the evidence. If he records any such order that does not vitiate the proceedings as substantially he completes the recording of the evidence produced before him.
12. However, if the party or his counsel appears before the closing of the deposition of any witness the Commissioner is not competent to deny him the right of cross-examination by recording an order of closing the right of cross-examination for his absence at the time of call or completion of the examination-in-chief.
13. After dealing with the above aspect I turn to the contentions of the learned counsel and deal with the first contention of Mr. Iqbal Kazi that in view of the provisions of rule 8 of Order XXVI, C.P.C.
The chapter of the recording the evidence stands closed on acceptance of the report of the Commissioner. For the appreciation of the contention rule 8 of Order XXVI, C.P.C. Is reproduced below:-- "When depositions may be read, in evidence.--- Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless--
(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a person in the service of the State who cannot, in the opinion of the Court, attend without detriment to the public service, or
(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission had ceased at the time of reading the same."
A bare look at the provisions reveals that they relate to the reading of the examination of the witness as evidence in the suit. They enumerate the circumstances in which the evidence is to be read in the suit without the consent of the parties against whom the same is offered. These provisions no where restrict the Court from calling and examining any witness or from recalling any of the witness for the purpose of further examination and cross-examination. No embargo is available to stop the Court from exercising its jurisdiction to call or recall any witness for examination, further examination or cross-examination. It can always exercise that jurisdiction in the interest of justice.
10. Here, as mentioned above, the request for recalling the witness Qasim Dossa for the purpose of cross-examination has been referred by the Commissioner to this Court for consideration and decision through his own report. The reference is deemed to be part of the report having already been taken on record. Obviously, the report has been accepted with the said reference and the same has to be decided by the Court.
11. There can be no two opinions in respect of the legal right of defendant No,1 to cross-examine the witness produced against him. It is also not open to debate that he was only to be provided with an opportunity to cross-examine the witness and then it was for him to avail it or not. In presence of the uncontroverted affidavit of the learned counsel for the defendant No,1 that he had appeared before the Commissioner at the time when the order was being dictated by him it will not be justified to say that he failed to avail of the opportunity. Also the deposition of witness Qasim Dossa itself shows that the same had not been concluded. It only contends that from 17-10-1998 the hearing was adjourned to 31-10-1998 for cross-examination. Had the same been concluded the position would have been different even if the Commissioner was dictating the order after closing/concluding the deposition. The recording of order of closing the side for cross-examination without completing the deposition as required by law and recording his certificate cannot be, accepted as an order to have been passed competently.
12. The decision of this Court in High Court Appeal No,48 of 1994 photostat whereof was produced by Mr. Kazi does not apply to the case in hand as in that case the side had been closed and the deposition completed by the Court due to absence of the Advocate of the party having right of cross-examination. The position in the present case, as highlighted above, is otherwise. It may also be expressed that providing a party with an opportunity of cross-examination recognizing its right does not amount filling in the lacunas.
13. Consequently, the prayer for recalling the witness Qasim Dossa for cross-examination by the learned counsel the defendant No,1 is accepted. Let the plaintiff produce him for the cross- examination before this Court on the coming date. However, if for valid reasons, the plaintiff's counsel request for recording of the witness on commission he can make such request within a week from this order. The matter to come up on 17-2-2005.