ZAFAR AHMED RAJPUT , J.----The respondent herein filed a Civil Suit bearing No. 750 of 2016 against the appellants before this Court in its original jurisdiction for declaration, permanent injunction, direction, recovery and damages/compensation, alleging therein that in the year 1998 he took over the charge of Managing Director of the respondent No.2, namely , SGS Pakistan (Pvt.) Limited; however , on 14.03.2016 his services were abruptly terminated. On 02.10.2017, issues were framed by the learned Single Judge of this Court and; thereafter , the respondent filed C.M.A. No. 13637 of 2017 for the appointment of a Commissioner to record evidence of the parties and their 'respective witnesses in order to expedite the matter . Appellants Nos. 2 to 4 opposed the said C.M.A. by filing counter affidavit inter alia on the ground that under the rules of natural justice pertaining to "fair trial" and "due process" they could not be forced to have their evidence recorded by a Commissioner at the behest of the respondent. The learned Single Judge of this Court vide order dated 23.02.2018 allowed the said E M.A. and appointed Ms. Rukhsana Ahmed, Advocate as Commissioner for recording evidence of the parties. It is against that order; the instant High Court Appeal has been preferred by the appellants.
2. Learned counsel for the appellants has contended that as per Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution "), Order XVIII, Rule 4, C.P.C., Order X, Rule 1A(ii) C.P.C. and settled principle the evidence should be recorded in a court by a public trial in the normal course of dispensation of justice and under the rules of natural justice relating to fair trial, except where a Commissioner is agreed by the consent of the parties. He has further contended that the appellants under the law cannot be forced to have their evidence recorded by a Commissioner at the behest of the respondent and without their consent. He has also contended that the learned Single Judge of this Court failed to apply the settled principle of law that when a thing is required to be done in a particular manner under the law, it should be done in that manner alone, as doing otherwise would make the whole proceedings void; hence , for the said reason, the Court cannot abdicate its judicial functions of recording evidence to a Commissioner . While elaborating his point of view, learned counsel has further contended that the Court by appointing a Commissioner fails to meet the basic ingredient of "due process of law" and "fair trial" which inter alia requires that (i) all persons shall be equal before the Courts in the determination of their rights and obligations and (ii) procedure of trial as provided by the Statute shall be followed; therefore, under the doctrine of equality as prescribed under Article 25 of the Constitution, the appellants assert their fundamental right to have their evidence recorded in the normal course of a trial by the Court and in this regard the Court cannot delegate its power to a Commissioner as envisaged in Order X, Rule IA (ii), C.P.C. without the consent of both the parties, which has been done by the Court through impugned order; as such, the same suffers from material irregularity besides being outside the scope of applicable law. He has also contended that the learned Single Judge of this Court in the impugned order has wrongly relied on the case of Mrs.Badar Rahim v. Hammad Asif Dosslani and another (2009 CLC 459), wherein the Division Bench of this Cour t recognizing that a Commissioner can only be appointed by the consent of the parties held that if the Court is of the opinion that one of the parties will be benefited by delaying proceedings, the Court in exercise of its inherent power can order to record evidence on Commission, which circumstances are not available in the present case. He has also contended that the impugned order being misconceived, erroneous and devoid of factual and legal merits is liable to be set-aside by allowing this appeal. In support of his contention, he has relied on an unreported order of this Court dated 01.09.2015 passed in H.C.A. No. 230 of 2014, whereby the order passed by a learned Single Judge of this Court on the original side for appointment of a Commissioner for recording evidence of the parties was set-aside by observing that the same was passed without appellant's consent even issuance of notice, which was not desirable under Order X, Rule 1(A), C.P .C .
3. On the other hand, learned counsel for respondent while supporting the impugned order has asserted that the same being well reasoned on facts and law is liable to be maintained. He has also asserted that the respondent filed civil suit on 30.03.2016 challenging the letters of his termination dated 14.03.2016 and 21.03.201.6, wherein the respondent filed application for appointment of a Commissioner in order to expedite the matter as the respondent was suffering from financial losses. While referring the case of Mr. Radar Rahim (supra) he added that normally Commissioner can be appointed for recording evidence by the consent of the parties to decide the case expeditiously in terms of Order XXVI, Rule 4, C.P.C. and Order X, Rule 1A(ii), C.P.C.; however , if the Court is of the opinion that one of the parties will be benefited by delaying proceedings and by not giving consent for recording of evidence on Commission, the Court in exercise of its inherent powers can order to record evidence on Commission for the advancement of justice, which will not prejudice the interest of opposite party. Referring the case of Jamil Ahmed v. Late Saifuddin through legal representatives (1997 SCMR 260), learned counsel has also asserted that it is now well settled that the procedure of law is meant for the advancement of justice and to expedite the decision of disputes, rather than to delay grant of right to a party and that principal object behind all legal formalities is to safeguard the paramount interest of justice and mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice.
4. We have heard learned counsel for the parties and perused the material available on record.
5. We deem it appropriate to reproduce here the relevant observations of learned Single Judge recorded in paragraphs Nos. 8 and 1 1 to 14 of the impugned order , as under:- "8. The function of the court is to do substantial justice between the parties after providing ample opportunity of hearing which is one of the significant components and virtue of fair trial. The court is not servitude or depended upon the archaic and antiquated principles which have acute tendency and leaning to frustrate the dispensation of justice ---- As in this case the predominant argument is that the commissioner may not be appointed without consent ---- The court is not helpless that in case of no consent, no commissioner can be appointed rather the court has to appreciate and become conscious whether the non-grant of consent is a sequel of some mala fide on the part of the defendant who merely wants to delay the proceedings so that the claim of the plaintiff may be frustrated by efflux of time --- If commiss ion is appointed for recording evidence, it will not cause any prejudice or impairment to the defendants.
11. It is quite obvious from the daily cause list at original side of this court that more than sixty cases are being fixed daily before each Hon'ble Judge for different purposes. In most of the cases due to numerous miscellaneous applications in the suits, it becomes somewhat difficult for the courts to reach at evidence cases. Even in the regular benches constituted to deal with the old cases, it might be difficult to reach evidence cases after hearing the cases ripe for arguments. After settlement of issues, much time is consumed to ripen the cases in the courts calendar for evidence. The cases in the court docket are increasing manifold due to upsurge and outpouring litigation in the diversified fields. So in order to provide swift and expeditious justice, the appointment of commissioner is extremely a vital tool and stratagem to overcome the pendency and to at least curtail the tenure of litigation. Though in one provision as cited above, the commissioner may be appointed by consent, contrariwise, the court has to pay a visit also to the circumstances and situation where without any lawful justification or rationale the other side is opposing and not agreeing to accord consent for appointment of commissioner .
12 The defendants totally failed to elucidate as to what loss or damage they will sustain if evidence is recorded speedier by means of appointment of commissioner . The law must not become stagnant or archaic while society moves forward. It must be accessible, intelligible and must change with the times responding to the realities of modern life. I am also unable to perceive as to how the fundamental right of fair trial of any person is breached or contravened if he is asked to appear for recording evidence before the commissioner . On the contrary , before the commissioner the parties may appear opportunely on given date and time with their convenience.
13. The annotations of a book Judicial Reflections of Justice Bhagwati, 2008 Edition, accentuate that the judiciary has to devise new methods, forge new tools and innovate new strategies for the purpose of reaching social justice to the common man. It must abjure reactive approach and adopt a proactive role. It must respond to the demands and urges of the large masses of people for social justice, and by adopting a creative and activist approach, it must mould and develop the law and bring it closer to the people so that the rule of Jaw becomes meaningful and social justice a reality for them.
14. In the case of Messrs United Bank Limited v. Messrs Plastic Pack (Pvt.) Ltd. and others , reported in 2012 CLC 229, (D.B Judgment authored by me) the court while dilating upon the niceties of Section 151, C.P.C., held that "The Court has also inherent powers under Section 151, C.P.C., to make such orders, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. These are all enabling provisions; the powers thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which C.P.C. has been designed, but despite the best efforts of the draftsman, to cater for all possible situations, if it is found lacking in meeting some eventualities, the Court can act ex delicto justified, supply the omission in the procedure, adopt methodology , for effectually carrying out the purpose in view." In the case of Falah-ul-Momineen Trust v. V.P. Abdullah , reported in PLD 1970 Karachi 179, the court held that the legislature has in the Civil Procedure Code provided for all possible eventualities and to such matters which were not foreseen at that time, a provision like section 151, C.P.C. was enacted to empower the Courts to meet such an unforeseen eventuality .
6. In order to appreciate the contentions of learned counsel for the parties, the provisions of Older XVIII, Rule 4, C.P.C., Section 75, C.P.C., Order X, Rule 1 A (ii), C.P.C. and Order XXVI, Rule 1 and 2, C.P.C. are Produced, as under: ORDER XVIII: HEARING OF THE SUIT AND EXAMINA TION OF WITNESSES
1. .....................
2. ....................
3. ....................
4. Witnesses to be examined in open Court .---The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.
SECTION 75; C.P .C:
75. Power of Court to issue dommissions.--- Subject to such conditions and limitation as may be prescribed, the Court may 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.
ORDER X, Rule IA (ii): EXAMINA TION OF PARTIES BY THE COUR T 1A. The Court may adopt any lawful procedure not inconsistent with the provisions of this Code to: -
(i) -----------------------------
(ii) issues, with the consent of parties, commission to examine witnesses, admit documents and take other steps for the purpose of trial;
(iii) --------------------------- ORDER XXVI: COMMISSIONS
1. Cases in which Court may issue commission to examine witness.--- 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:
2. Order for commission .---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.
7. It reveals from the perusal of above that Order XVIII, Rule 4, C.P.C. provides taking the evidence of the witness in attendance orally in open Court in the presence and under the personal direct ion and superintendence of the Judge. The words "witness in attendance " used in Rule 4 of Order XVIII clarify the position that the witnesses who are brought in the Court by the parties have to be examined by the Court. However , there is no embargo on the Court to issue the commission to examine the witnesses. Section 75, C.P.C. authorizes the Court to issue commission to examine any person. Order XXVI, Rule 1, C.P.C. enumerates the circumstances in which the commission to examine the person is to be issued by the Court seized with the matter , if the person, residing within the jurisdictional limits of said Court who is exempted under the C.P.C. from attending the Court or who is from sickness or infirmity unable to attend it. While, Order XXVI, Rule 2, C.P.C. specifies that a commission may be issued by the Court for the examination of a witness either suo mow or on the application of a party A to the suit or of the witness to be examined. As observed in the case of Mst. Shagufta Noor v. Mst. Ishrat Jehan and another (2012 CLC 1902 ), legislature in its own wisdom has divided two categories separately Rules 1 and 2 of Order XXVI, C.P.C. Hence, there is no restriction on passing of order suo motu or on the application of any party to suit to issue commission for examination of witness under Rule 2 of Order XXVI, C.P .C.
8. The main thrust of the arguments of the learned counsel for the appellant is that the commission cannot be issued by the Court without the consent of the parties and in this regard he has referred to the provisions of Order X, Rule 1A (ii), C.P.C. which allow the Court to issue, with the consent of parties, commission to examine witnesses, admit documents and take other steps for the purpose of trial. This provision was added in C.P.C. on 27.02.2002 by the Ordinance XXXIV of 2002, with cross reference to Section 89-A, C.P.C. which provides alternate dispute resolution in order to secure expeditious disposal of a cease. However , it does not supersede the provisions of Order XXVI, C.P.C. as it cannot be presumed that law-makers decided to make the judicial powers of a Court subject to consent of the parties litigating before it, and the said provisions can be reconciled harmoniously inasmuch as though powers under Order XXVI, C.P.C. can be exercised within the prescribed parameters; commission could be issued with the consent of the parties if a matter did not fall within the limit of the earlier rule.
Reliance in this regard may be placed on the case of Mrs. Shahnawaz and others v. Hamid Ali Mirza (2006 CLC 1736 ) and Mrs. Badar Rahim (supra).
9. The 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 time frame, to meet requirement of Article 37(d) of the Constitution. It is now well-settled that the Rules of Procedure are subservient to the cause of justice and they cannot be interpreted as a manner so as to whittle down the proce edings or to frustrate the ends of justice. In the case of H.M. Saya and Co. v. Wazir Ali Industries Limited (PLD 1969 SC 65), the Apex Court has held that a Court should proceed on the principle that every procedure which furthers the administration of justice is permissible even if there is no express provision permitting the same. In the case of Muhammad Hanif v. District Judge/Election Tribunal, Multan and others (1983 CLC 2965 ), it has been held that every Court and Tribunal possesses implied and inherent powers. It has also been held that in procedural law that which is not expressly excluded is impliedly permitted. It has been observed by a Division Bench of this Court in the case of Khawaja Feroz v. Muhammad Dawood and others (PLD 2008 Karachi 239) that a court in appropriate cases, to achieve the ends of justice and to prevent abuse of the process of the Court, can refer the matter for recording of evidence on commission even without the consent of the parties in exercise of its inherent powers.
10. The role of commissioner , as observed in the case of Talib Hussain Nakai v. Muhammad Hayat (PLD 2011 Lahore 207), is limited to the extent of taking down evidence of the parties. Any legal or procedural objections raised by either side during recording of evidence are brought before the Court for determination. The commissioner does not perform a judicial function nor does a Court delegate its power to decide the dispute to the commissioner . The commissioner only performs a ministerial functions, the exten t and scope of which is limited, narrow and clearly defined. The evidence recorded by the commissioner is placed before the Court. It is the Court alone which is empowered to record its findings on the basis of evidence before it and to determine question regarding believing and disbelieving evidence. We are; therefore, not impressed by other points of the arguments of learned counsel for the appellant i.e. that (i) the evidence should be recorded in a court by a public trial in the normal course of dispensation of justice and under the rules of natural justice as the court by appointing a Commission fails to meet the basic ingredient of "due process of law" and "fair trial" which inter alia requires that (i) all persons shall be equal before the Courts in the determination of their rights and obligations and (ii) procedure of trial as provided by the Statute shall be followed and (ii) the Court cannot abdicate its judicial functions of recording evidence to a Commissioner . Had it been a material consideration and valid grounds, then appointment of commissioner for recording of evidence would not have been provided for in the C.P .C. at all.
11. For the fore going facts and reasons, we do not find any illegality or irregularity in the impugned order requiring interference of this Court in its appellate jurisdiction; therefore, this appeal is dismissed, along with pending application, with no order as to costs.