' SALMAN HAMID, J.---It seems that this report of the Commissioner dated 18-5-2010 has been wrongly filed in present case inasmu ch as it pertains to Suit No,627 of 2006. Office is directed to take out this report and file it in the correct file.
2. Through this report dated 10-6-2011, the Commissioner has reported that on 9-6-2011 examination in chief and part cross-examination of the plaintiff was recorded and the matter was adjourned to 8-9-2011 by consent of all the parties/advocates when the learned counsel for defendant No,1 (Mr. Farooq Hashim) wanted to avail summer vacations of two months and that even the learned Commissioner was on general adjournment w,e,f, 11-6-2011 to 30-7-2011. The plaintiff also requested that owing to the holy month of Ramazan she would not be available for her cross-examination. With consent of the learned counsel appearing for the parties, the matter was adjourned to 8-9-2011 (a date yet to arrive). Mr. Farooq Hashim, learned counsel for defendant No,1, despite the above exposition, has objected to the grant of further time to the Commissioner in concluding the evidence. Looking at the above, the objection of the learned counsel for defendant No,1 is uncalled for. The Commissioner is allowed further 60 days' time to conclude evidence of the parties, , to be reckoned from 8-9-2011. The report of the Commissioner is disposed of in terms of the above.
3. Order dated 23-2-2010 would disclose that the parties to the lis in the first instance had agreed to the proposal made by the court for disposal of the case on special oath when the case was called in the morning on that date. It would also be evident that, when the matter was again called in the latter part of the day on that date the learned counsel for the plaintiff and defendants agreed that the matter be referred to the learned Commissioner for recording evidence. Consent issues were framed on that day and Syed Iqbal Rizvi, advocate was appointed Commissioner.
SubsequentIy upon defendant No,l's request on 13-5-2011 Mr. Feroze K. Allana was appointed Commissioner (a name suggested by Mr. Farooq Hashim, advocate) for recording evidence of the parties as in Mr. Rizvi he expressed his no confidence. It is evident that the parties appeared before the Commissioner. The plaintiff filed affidavit in evidence where after she was partly cross examined by the learned counsel for the defendant No,l. It is also patent from the record that despite above Orders whereby the learned Commissioners were appointed and re-appointed to record evidence of the parties, present CMA was filed by defendant No,1 with the prayer that prior in time since the parties had agreed for disposal of the case on special oath, such application should take preference. Learned counsel for the defendant No,1 in support of his arguments relied upon the case of Atiqullah v. Kifayatullah (1981 SCM R 162) and Nazir Ahmed v. Muhammad Ahmed and others (1984 CLC 2658) to contend that once the parties have agreed for decision and/or disposal of the case on special oath, they cannot rescind from the same. However, gauging the two precedents from the facts and circumstances of the present case, it would be evident that on 23- 2-2010 the parties consented to lead evidence in the case and also consent issues were framed on that date and the matter was referred to the learned Commissioner for such purpose. In the case of Atiqullah (supra) the Hon'ble Supreme Court held that once party undertaking to be bound by evidence given on special oath by opposite party could not back out of such agreement unless contract void or frustrated. In the present case it would be evident that the parties agreed to have the matter decided after leading evidence and in such respect also consented to the appointment of Commissioner and the plaintiff has been partly cross-examined by the learned counsel for the defendant No,1 shows that the proposal made by the court frustrated. In the case of Nazir Ahmad also it was held by the Lahore High Court that agreement of a decision of a case would hold ground as long as the agreement was rendered void or frustrated. Again the act of the parties to the present case would show that the offer that was made by the court (not by any of the parties to the lis) came to an end and/or frustrated when by consent it was agreed that the matter be referred to the commissioner for evidence. The case-law relied upon by the learned counsel for the defendant No,1 does not further his case. Needless to mention that the defendant No,1 was not aggrieved by Order dated 23-2-2010 inasmuch as apparently no appeal was preferred there against.
For what has been observed above, this application is meritless and is, therefore, accordingly dismissed.