1. ADNAN IQBAL CHAUDHRY, J.---This application for appointing a commissioner for recording evidence in the suit is opposed by the defendant on grounds (a) that under Order X, Rule 1-A(ii), C.P.C., such commission can issue only with the consent of the parties; and (b) that such commission can issue only for reasons specifically mentioned in Order XXVI, Rule 1, C.P.C. Order X, Rule 1-A, C.P.C. which was inserted in the C.P.C. by an amendment in the year 2002 reads: "The Court may adopt any lawful procedure not inconsistent with the provisions of this Code to:--
(i) ............................
(ii) issue, with the consent of the parties, commission to examine witnesses, admit document and take other steps for the purpose of trial;
(iii) ...............................
2. Under the C.P.C., the power to issue a commission "(a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; or (d) to make a partition" stems from section 75 which power is "subject to such conditions and limitations as may be prescribed". Such conditions and limitations are prescribed by Order XXVI, C.P.C.,. and insofar as the power to issue commission "to examine any person" is concerned, as distinct from a commission for local inspection., accounts and partition, such power is delineated in Rules 1 to 5 and 19 of Order XXVI. C.P.C. Order XXVI, Rule 2, C.P.C. expressly empowers the Court to issue a commission for examination of a witness on its own motion. This provision reads: "An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined."
3. Thus before the insertion of Rule 1-A in Order X, C.P.C., the question that a commission may issue only by consent of the parties, did not arise. After the introduction of Rule 1-A in Order X, C.P.C., the said question arose in the case of Shahnaz v. Hamid Ali Mirza (2006 CLC 1736) wherein a Division Bench of this Court, after reconciling the provisions of Order X, Rule 1-A, C.P.C. and Order XXVI, C.P.C.; rejected the argument that after Order X, Rule 1-A, C.P.C. a commission for examining witnesses can issue only with consent of the parties. Also on the same point is another Division Bench order of this , Court in the case of Khawaja Feroz v. Muhammad Dawood (PLD 2008 Karachi 239). Therefore, the first argument of the defendant that a commission for examination of witnesses can issue only with consent of the parties, is answered in the negative.
4. This brings us to the second argument of the defendant and the question that even though a commission to examine witnesses may issue without consent of the parties, is such commission to issue only for reasons mentioned in Order XXVI, Rules 1 and 4, C.P.C. i.e. where a person is exempt from attending Court, is sick, infirm, resides beyond the local limits of the Court's jurisdiction, is about to leave such limits, or being in the service of the State cannot attend without detriment to public service. Such question did not arise in the case of Shanaz v. Hamid All Mirza supra in which case one of the reasons stipulated in Order XXVI, Rule 4, C.P.C. was attracted viz the defendant was not able to attend Court without causing, detriment to public service. However, the said question was addressed by a learned single Judge of this Court in the case of Shagufta Noor v. Ishrat Jehan (2012 CLC 1902) wherein it was held that the power of the Court under Order XXVI, Rule 2, C.P.C. to issue a commission to examine witnesses on its own motion was independent of Order XXVI, Rule 1, C.P.C., i.e. a commission may issue for reasons other than the ones set-out in Order XXVI, Rule 1, C.P.C. as the reasons envisaged in the said Rule were not exhaustive of the instances where a commission may issue. In the case of Badar Rahim v. Hammad Asif Dosslani (2009 CLC 459) a Division Bench of this Court went further and held that were no cogent reason was given for opposing the recording of evidence on commission, and where its opposition appeared only to delay the matter, the commission may issue even under the inherent powers of the Court for the advancement of justice and for expediting decision in the matter.
5. I too subscribe to the view taken in the case of Shagufta Noor v. Ishrat Jehan (2012 CLC 1902) that when the Court exercises power under Order XXVI, Rule 2, C.P.C. to issue a commission to examine witnesses on its own motion, such is largely a matter of the discretion of the Court not circumscribed by the conditions set-out in Order XXVI, Rules 1 and 4, C.P.C. Apart from the technical grounds discussed in the para first above, the counter-affidavit of the defendant does not explain how the defendant would be prejudiced if evidence is recorded on commission. Rather, the grievance vented in the counter-affidavit seems to be that since the matter has been delayed by the plaintiff itself, the plaintiff should also suffer due to the delay. That by itself gives sufficient cause to this Court to exercise discretion under Order XXVI, Rule 2, C.P.C. and order on its own motion the recording of evidence on commission so that this suit which is pending since 2011 can be decided at the earliest.
6. For the foregoing reasons, Mr. Abid Feroze Advocate, whose name appears in the Circular of approved commissioners, is appointed commissioner to record evidence in this suit. The commissioner's fee is fixed as Rs.20,000/- per witness to be borne by the parties for their respective witnesses. The parties may lead evidence by way of affidavit-in-evidence. The commission to return within three months. The office to intimate this order to the commissioner. Having issued the said commission on own motion, C.M.A. No.14915/2017 has become infructuous and is dismissed as such.