' KHILJI ARIF HUSSAIN, J.--- Brief Facts for the purpose of deciding the Appeal are that appellant, which is incorporated in USA, filed Suit bearing No,1191 of 2003 for recovery of US $240,524 equivalent to Pak Rs,13,950,392 as damages, compensation on account of rescession of contract against the respondent. After filing written statement, (respondent debarring liabilities), issues.
Were framed. The appellant thereafter filed an application for examination of appellant/ plaintiff on interrogatories under Order XI, rule 2, C.P.C. Read with rule 195 of Sindh Chief Court Rules (O.S.).
The defendant filed objection to the maintainability of the application. After hearing learned advocates for the parties learned Single Judge vide his order dated 6-11-2006 dismissed the application. Aggrieved by the order of dismissal of application under Order XI, rule 2, C.P.C., the appellant preferred this appeal.
' Heard Mr. R.F. Virjee learned advocate for the appellant and Mr. Tasawar Ali Hashmi learned advocate for the respondent.
' Mr. R.F. Virjee learned advocate for the appellant argued that at the time of framing of issues time was granted for commission and for filing of the document. The appellant filed application for recording the evidence of appellant on commission within time. It was argued by Mr. Virgee learned advocate for the appellant that admittedly the appellant/plaintiff is not residing in Pakistan and it is the right of the plaintiff to be examined on commission for which Court has to issue same. In support of his contention Mr. Virjee relied upon the cases of International credit and Investment Company (Overseas) Ltd. Attock Oil Company Ltd. And another PLD 1997 Lah.480, PLD 1988 Lah.294, PLD 1988 Lah. 495 and Mr. Hashmi relied upon the cases of Akbar Ali Khan v. Herbert Francisi AIR 1925 Pat.125, Fariduddin Ahmed v. Abdul Wahab, AIR 1926 Pat. 277, Nadin v. Basset. 25 Ch. Div.21.
' Mr. Hashmi, while supporting the order, argued that plaintiff instead of filing the suit for recovery in USA chose to file the suit in Pakistan and now cannot deprive the defendant of his right to cross- examine the plaintiff/appellant.
' We have taken into consideration arguments advanced by the learned advocates for the parties, perused the record.
' In order to appreciate respective contention of the learned advocates for the parties, we would like to reproduce Order XI, rules 1, 2, and 6 and Order XXVI, rules 1, 4, and 5, C.P.C. And Rule 195 and Rule 196 of the Sindh Chief Court Rules (OS).
"Order XI, rule 1.
(1) Discovery by interrogatories.--- In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite-parties or any one or more of such parties, ' And such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such person is required to answer: Provided that no party shall deliver more than one set to the same party without an order for that purpose: Provided also that interrogatories which do not relate, to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination if a wetness. Rule 2.
' Particular interrogatories to be submitted.--- On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.
Rule 6.
6. Objection to interrogatories by answer.--- Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficient material at the stage, or on any other ground, may be taken in the affidavit in answer. Rule 8.
8. Affidavit in answer, filing.--- Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the Court may allow. "Or Otherwise". The term 'or otherwise' contained in Order XII rule 6 covers usually situations where Courts ascertain fact on examination of parties as contemplated under Order XI, rule 8 of the Code.
Order XXVI Rules 1, 4 and 5
1. Cases in which Court may issue commission to examine witnesses.--- Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it.
4. Persons for whose examination commission may issue.--- (1) Any Court may in any suit issue a commission for the examination of---
(a) any person resident beyond the local limits of its jurisdiction;,
(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and (c ) any person in the service of the (State) who cannot in the opinion of the Court, attend without detriment to the public service.
(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or other person whom the Court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.
5. Commission or request to examine witness not within Pakistan--- Where any Court to which application is made for the issue of commission for the examination of a person residing at any place not within {Pakistan} is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.(Underlines are mine)
Sindh Chief Court Rules (OS)
195. Commission on interrogatories.--- (1) Application for the issue of commissions to examine witnesses on interrogatories shall be made by a party within the time allowed by the Court, and shall be supported by an affidavit and be accompanied by interrogatories. Copies of such application, affidavit and interrogatories shall be served on the opposite party.
(2) if the opposite party objects to the issue of the commission, he shall, within 7 days of the service on him of the aforesaid documents, file his objections.
(3) if the objections to the issue of the commission are disallowed by the Court or if the opposite party does not object to the issue of the commission, such party, shall, within 7 days of the dismissal of the objections or of the service on him of the interrogatories, as the case may be, file cross interrogatories, and serve copies thereof on the other party, who shall, within 7 days thereafter, file re-interrogatories if any. The objections, if any, to the cross interrogatories and re- interrogatories will then be heard and disposed of by the Court.
196. Commission for viva voce examination. Application for issue of commission for viva voce examination shall be made by a party within 7 days of notifying his intention under rule 194, and shall be accompanied by an affidavit disclosing the nature of the evidence sought for from the witness.
' Order XI, rule 1, C.P.C. Relates to discovery from other party by interrogatories. The object of interrogatories is to save expenses by enabling a party to obtain from his opponent information as to the facts material to the question in dispute amongst them and not meant for the purpose of obtaining evidence. In exercise of powers under Order XXVI, rules 4 and 5 Court can issue commission for examination through interrogatories or otherwise to a person residing within the local limits of its jurisdiction and is exempted under Code from attending the Court or who from sickness or infirmity exempted from attendance. On reading rule 1 of Order XXVI one can see that under rule 1 Court can issue commission for examination on interrogatories or otherwise of any person residing within the local limits of Court's jurisdiction and who is exempted from attending under the Code or who is from sickness or infirmity unable to attend Court.
' Unlike rule 1 of Order XXVI commission for examination of witnesses can be issued by Court on its own motion or on an application supported by an affidavit or otherwise to any person if the person is residing within local limits of its jurisdiction or outside Pakistan whom Court think evidence of such person is necessary.
' Under Rule 1 of Order XXVI examination on interrogatories or otherwise on commission can be ordered of any person residing within the local limits of Court jurisdiction or that due to sickness, infirmity not to attend the Court, whereas under rule 2 read with rule 5 only commission for examination of witnesses can be issued so as to provide right of cross-examination to other parties.
' Mr. Virjee learned advocate for the appellant in support of his contention relied upon the case of International Credit and Investment Company (Overseas) Ltd. And another, (supra), the Court issued commission for examination of plaintiff's witness at Dubai and appointed a retired Judge of the Honourable Supreme Court as Commissioner to record evidence.
' On reading Order XI and Order XXVI, rule 1 together, it appears that other party to the proceeding by interrogatories can be asked to discover the matter in suit who shall answer the interrogatories by affidavit, whereas under Order XXVI, C.P.C. Court can issue commission on interrogatories for examination of any person residing within the local limits of its jurisdiction and person residing out of Pakistan their evidence can be recorded on commission.
' However, rule 195 of S.C.C.Rs, (0.S.) provided for issuance of commission for examination of witness on interrogatories without any restriction whether the witness resides within the local limits of the jurisdiction of the Court or resides outside Pakistan. When an application is made under rule 195 of S.C.C.Rs, (O.S.) and opposite party objects for issuance of commission, then the Court has to decide whether the examination of witness to the facts and the issues raised are relevant in the case and that party applying for commission satisfied the Court that he has no control over the witness or personal appearance of the witness is not possible and further that defendant will not be prevented by issuing commission from putting his case fairly before the Court then Court can issue commission to examine witness on interrogatories. The Legislature under Order XXVI, rule 1 used the word "person" to whom interrogatories can be issued if resides within its local limits of jurisdiction, but Rule 5 of Order XXVI required issuance of commission to examine the person residing outside Pakistan, as against Rule 195 of S.C.C.Rs, (0.S.) that commission can be issued for examination of witnesses interrogatories. In the instant case the plaintiff Company was incorporated in USA filed suit through his Attorney a Pakistani national residing within the local limits of this Court. The attorney way authorized to give evidence. Since the plaintiff himself appointed his attorney to file the suit, verify the plaint, swear on oath, file affidavit, counter affidavit and give evidence on behalf of the plaintiff, therefore, he now cannot ask for examination of person. In the application filed by the appellant for examination of President/CEO of plaintiff's interrogatories no reason what to say cogent reason ha been given by the examination of the plaintiff CEO is necessary in the suit and while he cannot appear in Court to give evidence the Court in appropriate cases where it appears end of justice and where it is not convenient for the witness to appear in Court and give evidence if sufficient cause is shown can order for examination of witness on commission through interrogatories but such commission to examine party to the proceedings or their witnesses cannot be made as a matter of right it is the discretion of the Court to decide whether sufficient cause has been shown for non appearance of any person as witness and to examine him on commission. Since in the affidavit which was sworn by the attorney of the plaintiff who himself authorized to give evidence does not disclose any reason to why the plaintiff CEO be examined on Oath on interrogatories.. Listed application has no merits and learned single Judge rightly dismissed the same.
' The appeal is accordingly dismissed however with no order as to costs.