1. ORDER MUHAMMAD ALI MAZHAR, J.---The plaintiff has brought this application for the appointment of Commissioner for recording evidence on the ground that it will save time of this Court and expedite the matter which is pending since 2007 and awaiting its due turn for evidence. In the supporting affidavit it is submitted that despite lapse of almost two years since the date of filing of the instant suit, the same is still awaiting its turn and there is no likelihood of it being fixed for evidence in near future. The suit pertains to employment severance dues and provident fund as such unnecessary delay would cause hardship to the plaintiff.
2. The defendant in its counter-affidavit submitted that the plaintiff has not provided any legal ground for the appointment of Commissioner. The suit involves intricate details and other legal issues, the evidence shall be recorded in the Court and not before a Commissioner. Both the parties shall wait for this suit to come up before this Court for evidence. The defendant also denied that it owes any severance dues and/or provident fund to the plaintiff but it is alleged that each and every amount owed by the defendant to the plaintiff has been paid and there is no unnecessary delay. It is crucial that the demeanor of the plaintiff and his witnesses should be seen by this Court to decide the veracity of the allegations made by the plaintiff in its plaint.
3. I have heard the learned counsel for the parties. Mr. Arshad Tayeb ALI, the learned counsel for the plaintiff argued that the plaintiff has claimed severance dues. Issues have been settled in this suit and for the last two years the matter is waiting for its turn. In order to expedite the matter for an early disposal, the plaintiff has moved this application. He further argued that if the Commissioner ' is appointed, no prejudice will be caused to the defendant as the plaintiff is ready to bear the entire cost of Commission from his on pocket. In support of his arguments, he relied upon the following case-law:-
(1) PLD 2008 Karachi 239 (Khawaja Feroz v. Muhammad Dawood and others). In this case, the learned Divisional Bench of this Court has held that taking steps for early decision in the matter and recording evidence on Commission to save time of the parties could not be termed to be erroneous or an act against principles of natural justice. Order of appointment of local commission was not likely to cause any prejudice to defendant in any way, as both the parties would have the opportunity to adduce their evidence and cross examine the witnesses. It is further held in the same judgment that order for recording of evidence by Local Commission can be passed through consent of parties but there is no bar on the Court passing the order without consent.
(2) 2009 CLC 459 (Mrs. Badar Rahim v. Hammad Asif Dosslani and another). In this case again the learned Divisional Bench of this Court has held that normally commission can be issued for recording of evidence by consent of the parties to decide the case expeditiously. However, if the learned Judge is of the opinion that one of the parties will be benefited by delaying proceedings, as in the instant case the appellant is in possession of the property in question enjoying part payment, and by not giving consent for recording of evidence on Commission, in exercise of inherent power can order to record the evidence on Commission. Such directions can be exercised for advancement of justice and should not prejudice interest of one of the parties. Procedural law is meant for advancement of justice and expedite decision of dispute, rather than to delay grant of right to a party. Civil Procedure Code provides a procedural code with an overriding object to enable Court to deal with cases justly, to provide justice to the parties according to law, within a reasonable timeframe, to meet requirement of Article 37(d) of the Constitution of Islamic Republic of Pakistan.
4. Mr. Khawaja Mansoor, the learned counsel for the defendant opposed the application and argued that there is no urgency in this matter to appoint Commissioner and let it be fixed for evidence on its due turn according to Roster. He further argued that the suit involves intricate details and other legal issues, therefore it would be appropriate to record the evidence by this Court rather than to appoint any Commissioner. He further denied that no severance dues and or provident fund is liable to be paid by the defendant to the plaintiff. There is no compelling circumstances in which the Court can exercise the power for appointment of Commissioner and it is crucial that the demeanor of the plaintiff and his witness should be seen by this Court which cannot be seen by the Commissioner. In support of his arguments, the learned counsel relied upon the following case- law:-
(1) PLD 1951 Sindh 22 (Archibald Campbell Mackillop v. Tobacco Manufacturers (India) Ltd. In this case, the learned Single Judge held that when it' is important that the demeanor of the witness should be seen and his precise answer to the question put to him should be heard by the Judge, or the Judge or jury, who have to decide the case, and that the defendant should have the fullest opportunity of cross-examining him, they being really only able to do that effectually when the witness is in Court and his demeanor and the way in which he answers the questions, can be judged of by the Judge and by the jury, it would not be just to issue a Commission for the examination of witness. In my view, the facts of this case are totally distinguishable. The application was opposed in this case on the ground that the plaintiff was in Karachi on 4th September, 1948 when the plaint was presented. The written statement was filed on 4th November, 1948. Affidavit of the plaintiff himself dated 8th June, 1949 showed that the plaintiff left Karachi in February, 1949.
5. Defendant No.2 objected that it was open for the plaintiff to have himself examined de bene essee under Order XVIII, Rule 16, C.P.C. And having failed to do so, the interests of justice do not require or make it necessary that a commission should issue to examine the plaintiff in the United Kingdom.
(2) PLD 1961 (W.P.) Peshawar 36 (Gul Hasan v. Mst. Fatima). In this case, the learned Single Judge of the Peshawar High Court held that under Rule 1 of Order XXVI, C.P.C., issuing of Commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the Court, or who from sickness or infirmity is unable to attend it, gives a discretion to the Court to act or not to act under this rule, according to the circumstances and the justice of the case may require. Such Commission should be issued on account of necessity and not as a matter of mere indulgence, and not without regard for the mutual convenience of the parties. The facts of the case are also distinguishable. In this case Commission was issued to record evidence of Maulvi Muhammad Hassan, who was allegedly an important witness as real tenant of the suit premises. The application was allowed by the learned Senior Sub- Judge on 14th December, 1960 on payment of costs to the opposite party in the sum of Rs.25 and an Advocate was appointed as Commissioner on the fee of Rs.25 to record the statement of Muhammad Hassan: The Advocate appointed as Commissioner was not satisfied with the fee, therefore his fee was increased to. Rs.65 and it was ordered by the learned Senior Sub- Judge that petitioner should pay a sum of Rs.50 to the counsel for the opposite party but it was not mentioned in the order as to why this sum was being allowed to the counsel but it was apparent that it was made to cover his expenses. Order passed by learned Sub-Judge was challenged in the Revision Petition. Even in this very judgment cited above, the learned Single Judge of Peshawar High Court has held that an order under this Rule becomes a matter of judicial discretion to be exercised with all due considerations that determine judicial discretion, and if in the exercise of that discretion the Court is of the opinion that certain conditions should be imposed for issuing a Commission for the examination of a witness at the instance of a certain party, it has full powers to do so. If for example, the Court considers that the examination of a witness on Commission at the instance of one party puts the other party to an unnecessary hardship, including the payment of an extra fee to its counsel to be present before the Commissioner for the examination of a witness, it can order that the expenses of the counsel be paid by the other party for whose benefit the commission is being issued.
(3) AIR 1935 Patna 220 Babu Gulab R.I Ghutghutia v. Babu Mahendra Nath Sreemani. In this judgment Patna High Court has held that when the plaintiff has a choice of forum and has filed a suit in the forum of his on choice, he is not entitled to have a Commission issued, unless under very exceptional circumstances. In this case, the plaintiff filed the suit in Jamtara but his application to the Subordinate Judge was to the effect that he was old and too unwell to undertake a journey from Calcatta to Jamtara and the Subordinate Judge has on this application passed the order appealed against. The facts of this case are also distinguishable as defendant has not taken any plea to oppose the application on the basis of choice of jurisdiction. Since this case was decided on the basis of choice of jurisdiction of the plaintiff, therefore it is also not applicable. Even in this matter the first part of the order of Subordinate Judge was upheld in the appeal and appointment of Commissioner was upheld subject to payment of cost to the defendant for making adequate arrangement.
(4) AIR 1933 Madras 48 (Thiagaraja Mudaliar v. Vedathanni). In this case, the Divisional Bench of Madras High Court held that especially in a claim involving thousands the parties even if they are women should rarely be allowed to be examined on Commission. They should be required to give their evidence direct to the Court even if it had to be taken in chambers unless there is good reason for not doing so. This case pertains to the claim of maintenance for a period of nearly 11-1/2 years at the rate of Rs.10,000 per annum. The facts of the case are also distinguishable and not helpful in the facts and circumstances of this case.
6. Order XXVI, Rule 1, C.P.C. Deals with the circumstances for the issuance of Commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the Court or who is from sickness or infirmity unable to attend it. Rule 2 of the same Order provides that order for the issue of Commission for the examination of a witness may be made by the Court either on its on motion or on an application by any party to suit or of the witness to be examined. Rule 4 provides that persons for whose examination Commission may issue. Another important aspect should also be kept in mind that in order to expedite the matter for an early disposal of the suits, it has become quite common phenomenon that immediately on settlement of issues, in most of cases the advocates appearing for the parties even on oral motion jointly suggest the appointment of a Commissioner for recording evidence and this Court is continuously and regularly appointing Commissioners for recording evidence in number of cases without awaiting the formal application in this regard. Sometime where Commissioner is appointed on the insistence of the plaintiff, and the defendant's counsel shows reluctance in the appointment on any ground, this court use to pass the orders that the fee of the Commissioner shall be paid by the party on whose insistence or request, Commissioner is appointed. It is also quite common that in many cases the plaintiffs do accept the liability of payment for the entire Commission subject to the adjustment of fee in the cost, if any granted at the time of final adjudication of the suit. In the present case also, the plaintiff is ready to bear the entire cost of Commission. In PLD 2008 Karachi 239, supra, the learned Divisional Bench of this Court has already held that taking steps for early decision in the matter and recording evidence on Commission to save time of the parties could not be termed to be erroneous or an act against the principles of natural justice and the order of the learned Single Judge was affirmed, who said to have rightly held that it would be in the interest of both the parties if they came out of litigation as early as possible. Order of appointment of Local Commission was not likely to cause any prejudice to defendant in any way as both the parties would have the opportunity to adduce their evidence and cross examine the witness. In the aforesaid reported judgment, an order of learned Single Judge appointing the Commissioner was assailed and the learned divisional bench dismissed the appeals. So far as the question of demeanor of the witness is concerned that aspect has already been considered and answered in the order of the divisional bench and it is held that such conditions are available in all cases where recording of evidence on Commission had been ordered. If such had been a valid reason, then appointment of Local Commissioner for evidence would have been discouraged in all cases.
7. Every organ of the State under Article 29(1) Constitution of Islamic Republic of Pakistan has been conferred responsibility to act in accordance with the principles of policy enshrined in Part-II. Under Article 37(d), it is the responsibility of the State to ensure inexpensive and expeditious justice. The aims and objectives to formulate National Judicial Policy, 2009 is to initially reduce and ultimately eliminate, backlog at the level of superior as well as subordinate courts, and further, to fix time frame for disposal of civil and criminal cases. The Honorable Chief Justice of Pakistan and Chairman, National Judicial (Policy Making) Committee (NJPMC) in his introductory speech in the year, 2009 (Justice at the Grassroot Level) laid much emphasis on indispensable need of new judicial policy. I would like to reproduce excerpts from his lordship introductory speech as under:-- "The restoration of 3 November, (2007) judiciary has ushered in a new era, an era of hope that political dispensation in the country and governance shall be in accordance with the constitutional principles. The people of Pakistan have reposed great confidence in the ability of the judiciary to redress their grievance and grant them relief. They have very high expectations of the Courts to settle their disputes, restore their rights/ entitlements and maintain peace in society by sending the guilty behind bars. I thank the people for believing on us! We must strive to meet their expectations.
8. This is time to repay our debt to the nation. We could do so by addressing the perennial twin- problems of "backlog" and "delays" in the system of administration of justice. To achieve the objective, we need to formulate new judicial policy". I had asked the Secretariat of the NJPMC to prepare a framework of action for clearing the backlog and expeditious disposal of cases. The draft is before you".
9. "The key features of the National Judicial Policy are strengthening the independence of the judiciary by its separation from the executive and ridding the courts of the menace of corruption, thereby presenting a clean and positive image of judiciary. In the Policy, we have set high goals for ourselves. The goals are to initially reduce, and ultimately eliminate, backlog at the level of superior as well as subordinate courts, and further, to fix time frame for disposal of civil and criminal cases.
10. The criminal cases will get priority on account of the subhuman conditions in which under-trial prisoners are kept in jails. Writs for protection of fundamental rights i.e. Right to life, liberty, equality, property and freedom of thought, conscience, association, etc will also be maintained on fast track".
11. The bottom line of this discussion leads me to a conclusion that the defendant has no lucid justification to oppose the instant application. Taking steps for early decision in the matter and recording evidence on Commission to save time of the parties A could not be termed to be erroneous or an act against the principles of natural justice. It would be in the interest of both the parties if they came out of litigation as early as possible. According to the honourable Chief Justice of Pakistan, the main purpose of National Judicial Policy is to initially reduce, and ultimately eliminate, backlog at the level of superior as well as subordinate courts. In fact the appointment of Commissioner for an early disposal is a step ahead to curtail and/or minimize the backlog to some extent on original side of this court as immediately after recording evidence on Commission, the matter will be fixed for arguments. At this juncture, I would like to quote a landmark judgment reported in PLD 1963 Supreme Court 382 (Imtiaz Ahmed v. Ghulam Ali and others), in which the honourable Supreme Court has held that the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our on is based may be to certain extent technical but we are not to take from that system its defects. Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent.
12. The ideal must always be a system that gives it every person what is his. The plaintiff is ready to bear the expenses of Commission and no prejudice will cause to the defendant. The application is allowed. Mr. Asghar Farooqui Advocate is appointed Commissioner. The parties are directed to supply copies of pleadings along with affidavit in evidence and documents to the learned Commissioner. The fee per witness shall be Rs.7,500 which will be paid by the plaintiff subject to the adjustment in cost if any awarded at the time of final adjudication of the suit. Mr. Faroqui shall return the Commission to this court within three months. The learned Commissioner shall be allowed to impose heavy cost on unnecessary adjournments if claimed by the parties to delay the matter.