C. M. A. 3652/80 is an application moved by the defendants under Order XVI, rule 6 read with section 151, C. P. C. Seeking the production of the Report of the Enquiry conducted by the Deputy Conservator of K. P. T. Together with the statements of witnesses recorded by him under section 246 of the Merchant Shipping Act, 1923 for determining the cause of fire occurring on board the vessel "Banglar Baani", through the persons mentioned in the application. Mr. A. A. Fazeel, learned counsel for the plaintiffs, has no objection to grant of this application. It is accordingly ordered that a notice be issued, at the cost of the defendants, to the persons mentioned in C. M. A. 3652180 to produce the above record. The record to reach this Court on or before 30-1-1981.
2. C. M. A. 113/81 is an application under section 161, C. P. C. Moved on behalf of the plaintiffs praying that the examination of plaintiff's witnesses may be allowed to be recorded on interrogatories instead of viva voce examination. Earlier the plaintiffs had filed C. M. A. 3280/80, an application under Order XXVI, rule 5 read with section 151, C. P. C. For issuance of a Letter of Request for examination of six witnesses on commission, which application was disposed of by a consent order dated 11-12-1980. By consent it was ordered that one of the said six witnesses would be examined by the plaintiffs at Karachi, and out of the remaining five witnesses, three would be examined on commission in Singapore and the other two at London. It was further agreed that the plaintiffs would bear the costs of first class return air ticket for one counsel on behalf of the defendant of London and Singapore. By the present application (C. M. A. 113/81) the plaintiffs in effect seek an amendment of the consent order dated I1-12-1980 so that the examination of the aforesaid five witnesses may be recorded on interrogatories.
3. I have heard at some length the arguments of Mr. A. A. Fazeel, learned counsel for the plaintiffs and Mr. Sharaf Faridi who has opposed the application. Mr. A. A. Fazeel had first contended that although the order dated 11-12-1980 was a consent order, nevertheless being a consent order on a procedural matter, the same could be modified or varied in certain circumstances. Learned counsel had cited the following judgments in support of his contention in this regard :- "(i) Khitipati Roy v. Dharranl Mohan Mookerjee AIR 1921 Cal. 229. In this case by consent a pardanashin lady was allowed to be examined viva voce on commission. On an application by the plaintiff for change of venue of the viva voce examination, the Court held that it had power to vary the consent order and did vary the same in the circumstances of that case. It was observed that a consent order could be revised if the consent was, given under misapprehension or mistake.
(ii) Yusuf v. Abdullabhoy AIR 1930 Bom. 362. It wail held in this case that a Court has jurisdiction to set aside a consent order which is not in the nature of a final order or judgment but which is merely an interlocutory order in the suit provided proper grounds are made out. It was observed in the judgment in this case that it would be lamentable indeed if the Court is impotent to set w side such inter-- locutory orders even though they may be made big consent if on proper grounds the Court is satisfied that its interference is necessary to prevent an abuse of the process of the Court.
(i.e) In Allah Rakhi v. Raj Bibi PLD 1957 Lah. 72, Kaikaus, J., held that with respect to procedural matters there exists in the Court inherent jurisdiction to review, alter or amend orders relating to them."
4. Mr. Sharaf Faridi, learned counsel for the defendants, did not dispute that the Court has the power to amend or vary consent orders on interlocutary matter, but urged that in the present case there are no grounds at all for a variation. Of the consent order dated 11-I2-1980 sought by the plaintiffs. I will, therefore, start with the premises that this Court has1A the power and jurisdiction to amend or vary the consent order) dated 11-12-1980 passed by me.
5. Mr. A. A. Fazeel, learned counsel for the plaintiffs, has advanced two reasons why the consent order dated 11-12-1980 is liable to be varied. Firstly, it was urged that there is no longer any urgency in the suit, and Secondly, that in the circumstances it would save an expenditure in the region of about Rs.One lac if the plaintiff's witnesses are examined on interrogatories as then no Advocate would be required to go from Pakistan. According to learned counsel, apart from the present suit, the following other suits/proceedings are pending in this Court against the defendant vessel :- "(i) Suit 648/80 for Rs.2,81,730. Decree has been passed and on default or payment by the defendant, an application for sale of the ship has been made.
(ii) Similar is the situation in Suit 930/80 where decree for Rs.1,38,650 has been passed.
(i.e) Suit No. 1202/80 filed for recovery of Rs.One lac where an order arrest of the ship has been made.
(iv) Suit 611/80 for Rs.85,626. It has been settled.
(v) Suit 643/80 for Rs.1,28,351 also settled.
Apart from the above, according to Mr. Fazeel, there are claims of K. P. T. Customs and Income-tax Department against the defendant. Learned counsel has contended that as the ship is under arrest in other cases also and applications for sale of the ship have been made in other proceedings there is no longer any urgency in the proceedings of the present suit and, therefore, the consent order, dated 1 i-12-1980 be amended as prayed. According to counsel, at the time the consent order was passed, the plaintiffs. Were not aware of the aforesaid proceedings and/or the stages of the some.
6. The only other ground advanced by counsel for the plaintiffs is that in view of the various proceedings filed/pending against the defendants, it is highly unlikely that the plaintiff's decree if passed in the present suit would be satisfied and, therefore, it is necessary for the plaintiffs to save the expense of a viva voce examination in Singapore and London. It is for this reason also, it 'is contended, that the consent order dated 11-12-1980 be amended from viva voce examination of the plaintiff's five witnesses to their examination on interrogatories.
7. I find no strength in the two arguments. It is first to be noted that the testimony , of the five witnesses to be examined on commission will mainly be oral testimony. This would be evident from the pleadings of the parties. And the issues that would arise for determination by this Court.
Although issues have not yet been framed, but I reproduce here this issues proposed by the plaintiffs on 25-11-1980 :-
(1) Whether the suit as framed is not maintainable ?
(2) Whether the defendant vessel was berthed alongside the plaintiff's vessel, m.v. "Banglar Baani" at the time of incident under the direction of K. P. T. If so, what is its effect?
(3) Whether the sparks were seen emitting from the funnel of the defendant prior to 1-8-1980?
(4) Whether the damages to the cargoes on board of plaintiff---s vessel and damages to the plaintiff's vessel resulted from the sparks emitting from the funnel of the defendant's vessel and coming in contact with the cargoes on board of the plaintiff's vessel and causing the fire?
(6) Whether the jute cargoes cannot catch fire due to the place where the fire originated?
(6) Whether the defendant's Master and crew were informed that the sparks were seen emitting from the defendant's funnel and they should ensure that no further sparks should emit and whether the defendant's Master took any steps to stop emitting the sparks ?
(7) What is the extent of damages suffered by the plaintiff on account of damages to the cargoes and to the plaintiff's vessel?
(8) Whether the damages suffered by the plaintiff are not recoverable from the defendant?
(9) To what relief/reliefs the plaintiff is entitled?
8. Where evidence to be recorded on commission is going to be mainly oral testimony, for the witnesses to be examined effectually, viva voce examination is eminently suited and not examination on interrogatories. The plaintiffs propose to prove their case with the help of testimony of their witnesses to be recorded on commission and as a principle of natural justice it is imperative that the defendants have adequate opportunity for cross-examining these witnesses.
In my view in the present case, on the basis of the pleadings and the issues that arise for determination, the defendants would be deprived of their right to cross-examine effectually the plaintiff's witnesses if examination is on interrogatories. I may further add that the weakness of the case of defendants, the possibility of the plaintiffs eventually not been able to satisfy the decree that be passed in the present suit, urgency or non-urgency of the case and saving of expense by the plaintiffs are no grounds or consideration on the facts of the present case for amending or varying the consent order, dated 11-12-1980 for viva voce examination of the plaintiff's witnesses.
9. C. M. A. 113/81 filed by the plaintiffs has, therefore, no merit and is dismissed with costs.