' The present petitioners are defendants Nos. 4 to 11 and 20 in Civil Suit No,199 of 1992 pending in the Court of Ch. Asad Raza, learned Additional District Judge, Rawalpindi. The dispute is now between the liquidators of BCCI and one Dr. Ghaith Pharaon over the shares of the Attock Oil Company. The petitioners made an application dated 11-7-1996 for issuance of a Commission for examination of Mr. H.M. Kazmi who has been incarcerated at Abu Dhabi. The petitioners also filed a similar application in another suit No,35 of 1993 before the same learned Judge for the same purpose. The application for issuance of Commission was allowed on 25-11-1996 in so for as Civil Suit No,35 of 1993 is concerned and Mr. Justice (Retd.) Ch. Fazal Karim, a retired Judge of the Hon'ble Supreme Court of Pakistan has been appointed as a Local Commission to examine Mr. Kazmi at Abdu Dhabi.
However, by the impugned order dated 11-7-1996, the learned trial Court has declined to issue a Commission under Order XXVI, Rule 5, C.P.C. The present revision is directed against the order dated 11-7-1996 passed by the learned trial Court whereby the issuance of Commission has been refused.
2. Mr. Raza Kazim, Advocate, the learned counsel for the petitioners has argued that the petitioners were not aware of the importance and relevance of the evidence of Mr. Kazmi for the just and proper decision of the main suit. They came to know only after May, 1996 as shown in letter dated 16-7-1996 received from Washington which has been attached with Civil Miscellaneous No,1780 of 1996 moved in this Court. The learned counsel further submitted that in the other suit in which the written statements by the petitioners were submitted subsequently, the name of Mr. Kazmi had been duly included in the lists of witnesses. He further argued that Mr. Justice (Retd.) Ch. Fazal Karim of the Hon'ble Supreme Court of Pakistan has already been appointed by the learned Additional District Judge, Rawalpindi, as a Commission to examine Mr. Kazmi in the other Suit No,35 of 1993 and there was no justification for the learned trial Court to apply a different yardstick by refusing to appoint him as a Commission for the purpose of examination in the other Suit No,199 of 1992. He pointed out that it was necessary for the just and proper decision in the matter of great importance. He further stated that only one witness, namely, Mr. John White-Head has been examined as P. W.1 by the present petitioners and the remaining evidence is yet to be recorded. He relies on the case of Ch. Muhammad Idrees and others v. Michael Noel and another PLD 1988 Lahore 294 wherein it was held that the provisions of Order XXVI, Rule 5, C.P.C. Did not spell out any constraint on issue of Commission to a party in suit and all procedures were meant for advancing cause of justice. The order of the trial Court allowing application, it was held did not suffer from any jurisdictional irregularity or any other illegality.
3. On the other hand, Mr. Muhammad Afzal Siddiqui, Advocate, the learned counsel for the contesting respondents/plaintiffs has submitted that the examination of Mr. H.M. Kazmi in Suit No,199 of 1992 was not very much material and that the impugned order dated 11-7-1996 rejecting the application of the petitioners under Order XXVI, Rule 5, C.P.C. Was not a case decided within the meaning of section 115, C.P.C. So as to be amenable to the revisional jurisdiction of this Court. He further stated that the discretion exercised by the learned Additional District Judge did not call for any interference and that the Commission, if appointed, would cause the delay in the expeditious disposal of the Civil Suit. He relied on the cases of Gambhir Mal Pandya v. George Anthony John AIR 1934 All. 37; Mirza Iqbal Ali Beg v. Dr. S.Abdul Ali AIR 1942 Oudh 344 wherein it was held that an order under Order 26, Rule 5, C.P.C. Rejecting the application to appoint a Commission was not an order without jurisdiction nor a case decided within the meaning of section 115, C.P.C.
4. I have heard the learned counsel for the parties and have also perused the relevant record available on the file. The mere fact that the name of Mr.Kazmi had not been mentioned in the list of witnesses of the petitioners was to be no ground of refusing the appointment of a Commission for examination of Mr. H.M. Kazmi who is in the prison at Abdu Dhabi and at one time was amongst the senior most officers of BCCI. His examination is essential for the just and proper decision of the civil suit. That is why, the learned trial Court itself thought it fit to appoint Mr. Justice (Retd.) Ch. Fazal Karim of the Hon'ble Supreme Court of Pakistan as a Commission for the same purpose in another Civil Suit No,35 of 1993. It has also been established by Civil Miscellaneous No, 1780 of 1996 and the letter dated 16-7-1996 by their learned counsel from Washington that Mr. Kazmi had been employed by the ICIC Group and that he had bcen examined by their Washington counsel. This position has not been controverted by the learned counsel for the respondents herein. The question of delay as taken into consideration by the learned Additional District Judge is not much significant in this. Case inasmuch as the Commission had already been appointed by the learned trial Court in the other civil suit. It is now well-settled that the justice cannot be sacrified at the altar of technicalities and to avoid substantial justice in the present case. I consider that it will be conducive to the just and proper decision of the case if the Commissioner is appointed in accordance with law for the examination of Mr. H.M. Kazmi at Abu Dhabi. In my view, the impugned order suffers from illegality causing miscarriage of justice and is not sustainable. An order of a Civil Court under the provisions of Order XXVI, Rule 5, C.P.C. Declining to appoint a Commission is a case decided and is amenable to the revisional jurisdiction of this Court under section 115, C.P.C. In the cases of Rehman Dad and another v. Major Raja Sajawal Khan etc. 1970 SCMR 350; Muhammad Ismail v. District Judge, Sargodha and 4 others 1981 CLC 361 (Lahore); Begum Farkhanda Akhtar and others v. Capt. M. Asif Akhtar and others 1995 CLC 75 (Lahore); M.J. Sheth & Co. v. Ramiza Bi and another AIR 1938 Mad. 646; N.P.Subbiah Pillai v. M. Nellayappa Pillai AIR 1993 Mad. 366; Hukumal v.
Manghoomal AIR 1953 Ajmer 27; Amina Bivi v. Abdul Jabbar AIR 1979 Mad. 121 and Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam AIR 1986 Mad. 33, it was held that an order refusing to appoint a Commission under Order 26, C.P.C. Was revisable under section 115, C.P.C. A similar view has been taken in the case of Mrs. Zohada Begum Saheba v. Messrs Haji Dawood Ayed Firm and others AIR 1940 Pat.
437. In the cases of Kumar Sarat Kumar Ray v. Ram Chandra Chatterjee AIR 1922 Cal. 42 and Akbar Ali Khan v. Herbet Francis 1925 Pat.
125. It was further held that an application for appointment of Commissioner under Order 26, Rule 5, C.P.C. Made by a defendant was to stand on entirely different footing than application made by a plaintiff and that the revision was competent in such cases. It may also be mentioned here that the expression "case decided" does not mean the decision of the whole matter in issue or civil suit and the term has been interpreted to include even interlocutory orders. Reliance can be placed on the cases of Bibi Gurdevi v. Chaudhri Muhammad Bakhsh AIR 1943 Lah. 65 (by a Full Bench of seven Judges), Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507; Chaudhry Ahmad Din v. Australasia Bank Ltd. Bhalwal 1970 SCMR 507; Bahadur Shah and 2 others v. Sharaf and 9 others PLD 1973 Lah. 513 and The State v. Anayatullah PLD 1983 FSC 191.
5. In view of the above discussion, this civil revision as well as the application of the petitioners under Order XXVI, Rule 5, C.P.C. Are accepted and the impugned order dated 11-7-1996 passed by the Court of Ch. Asad Raza, learned Additional District Judge, Rawalpindi, is set aside. The learned trial Court is directed to appoint the Commission without any further delay in accordance with law.
The parties shall bear their own costs.