' On 17-11-1982, in Suit No,1239 of 1980, by consent of the parties, Mr. Ahmad Saeed Qureshi, Advocate High Court was appointed sole Arbitrator to resolve the dispute of that suit which was between the present parties. On 21-6-1993, the Award was pronounced and through instant suit it was made rule of the Court vide judgment, dated 29-3-1984. The appeal filed against the aforesaid order bearing No,HCA-22 of 1984 was also dismissed in limine by a learned Division Bench of this Court vide order, dated 9-8-1984. Thus the finding of the sole Arbitrator has attained finality. The terms of Award were as follows:-
(i) That the plaintiff was the financing partner and the defendant was the working partner of the firm 'Self Enterprise' that was carrying on business at L.R.4/17, Carry Street, Off Nishtar Road, Karachi.
(ii) That the plaintiff contributed finances and materials to carry on partnership business and the defendant utilised the same to carry on the partnership business.
(iii) That the said partnership firm was constituted for a fixed period of one year commencing from 15-2-1979 and stood dissolved by operation of law on 14-2-1980. During subsistence of partnership business the plaintiff and the defendant were to share the profits and losses of partnership business in equal shares.
(iv) That the defendant is the accounting party.
(v) That the following accounts be taken:--
(A) An account of the credits, property and effects as on 14-2-1980 belonging to the said partnership.
(B) An account of the debts and ' liabilities of the said partnership as on 14-2-1980.
(C) An account of all dealings and transactions between the plaintiff and the defendant between the period from 15-2-1979 to 14-2-1980.
(vi) That the goodwill of the said partnership Firm 'Self Enterprise' since its dissolution belongs to the defendant and the plaintiff has no interest in the same.
(vii) That the above accounts shall be taken and all other acts required to be done shall be completed' by the commissioner for taking accounts, who will be appointed by the Hon'ble High Court...."
2. In furtherance of the Award, Mr. Amanullah Khan, Advocate was appointed as Commissioner to take accounts who vide his detailed report, dated 16-11-1985 declared that the plaintiff was entitled to a sum of Rs,17,572.17. On 15-2-1987, the report of Commissioner was accepted and approved by this Court and final decree was passed for the above sum in favour of the plaintiff. Being dissatisfied by the final decree, dated 15-2-1987 passed by this Court, the plaintiff preferred appeal before a Division Bench of this Court (H.C.A. No,24 of 1988) comprising Syed Haider Ali Pirzada and Hussain Adil Khatri, J1. (as they then were). Through the judgment, dated 12-3-1992 in the H.C.A.
No,24 of 1988, the final decree, (dated 15-12-1987) was set aside and the matter was remanded to this Court again to reconsider the Commissioner's report in the following manners:-- "Both the leaned counsel, therefore, conceded that the impugned judgment and decree may be set aside and the case be remanded to the learned Single Judge for deciding the case afresh on merits.
' We accordingly set aside the impugned judgment and decree, dated 15-12-1987 and remand the case, to the learned Single Judge for consideration of the objections filed by the appellant against the report of the Commissioner and the counter-objection raised by the respondent that the objection filed by the appellant were barred by time...."
3. On 12-12-1993, the Commissioner's report was heard by this Court in presence of the plaintiff when none appeared from the defendant's side. The judgment was kept reserved till 27-2-1994 when the following order was passed:-
(5) The above mentioned observations of the Division Bench indicate that the objections filed by the plaintiff on the report of the Commissioner would be considered in the light of the counter- objections filed by the plaintiff were time-barred while perusal of the record of this suit, it was found that the Commissioner submitted his report on 16-11-1985, and the defendant submitted his objections on the aforesaid report on 18-11-1985. Though the objections, dated 23-1-1986 filed by the plaintiff are also on record, but the order sheet does not show as to on which date the same were filed. Rule 208 of Chief Court of Sindh Rules lays down that objections on the report of the Commissioner are to be submitted within ten days of the submission of the said report. Prima facie, the objections filed by the plaintiff on the report of the Commissioner appear to be time-barred.
However, I would like to hear the parties on this point. Issue notice to the parties as well as their advocates to be present on the next date of hearing...."
4. It would be advantageous if Rule 208 of the. Sindh Chief Court Rules (Original Side) (hereinafter referred to as the O.S. Rules, is reproduced and considered. It reads as follows:-- "Rule 208. (1) On receipt of the report of the Commissioner other than the report forwarding the deposition of a witness recorded by him, the Registrar (0.S.) shall give notice to the parties to the suit or matter of the filing of the report.
(2) Any party desiring such report to be discharged or varied shall, unless the Registrar (O.S.) otherwise directs, within ten days from the date of the service of such notice on him, file his objections thereto, and serve a copy of the same on the other parties to the suit or matter. After the objections have been filed as aforesaid, the suit shall be set down for hearing of such objections. If any party, after having filed objections, abandons or does not proceed with them, any other party in the same interest shall be at liberty to proceed with such objections..."
5. Rules 194 to 200 (Chapter XIII) of the Sindh Chief Court Rules deal with the commission for examination of witnesses. Rules 201 to 208 deal with the commission for taking accounts and for local investigations and partition of immovable properties. These Rules are to be read subject to the provision of section 75 of the Code of Civil Procedure, 1908 (C.P.C.) and in reference to the provisions of Order XXVI, C.P.C. For the present controversy, it is Rules 9 and 11 of Order XXVI, C.P.C: which would be relevant. Rule 12 of Order XXVI lays down that the Court shall issue necessary instructions for the purpose of holding inquiry. Sub-rule (2) of Rule 12, C.P.C. Further provides that the proceedings/report of the Commissioner shall be treated as evidence in the suit and that where the Court has reasons to be dissatisfied with such report, it may direct further inquiry as it shall think fit. Thus, Order XXVI, Rule 12(2), C.P.C. Makes it discretionary for the Court to accept or reject a Commissioner's report if it is to the dissatisfaction of such Court. In support of this view, I would like to cite a decision of a Division Bench ,of Lahore High Court in Muhammad Baldish v.
Nizam Din.(PLD 1978 Lahore 31 at 46) where it was held inter alia as follows:- "41. Now this is established law that section 75 as well as Order XXVI, do not allow delegation of powers by the Court to the Local Commissioner to decide material issues. His report cannot be considered to be a finding. It is only the proceedings of an inquiry for the information of the Court after which the Court is bound to give its own finding on each and every issue. It is only an evidence under Order XXVI, Rule 12 and not a decision. Tincowri Dehi v. Suttya Doyal Banerji and another (6 Cal. LI 105), Sawan Mal v. Raunaq Mal ( AIR 1922 Lah. 47), Firm of ,Seth Vishindas v.
Nazarali Samji (AIR 1924 Sind 9), Assarmal and another v. Hundomal and another (AIR 1925 Sindh 265), Bharat Chandra Chakarbarty v. Kiran Chandra Bai (AIR 1925 Cal. 1069), Tulsi Ram v. Dina Nath and others (AIR 1926 Lah. 145), Bholanath Roy v. Bata Krishna Roy and others (AIR 1927 Pat. 135), Nalini Kumar Chakarbarty v. Gadadhar Chaudhry and others (AIR 1929 Cal. 418), Ugra Narain Choudhry and others v. Haribans Choudhry and others (AIR 1930 Pat. 557), Dargahan Bibi v. Jyott Prasad Singh Dev (AIR 1934 Pat. 35), Ram Krishna Dalmia and others v. Chand (AIR 1960 Punj. 430)."
' For further reference, see the case of Khatoon Begum and 4 others v. Hyesons Commercial and'
Industrial Corporation, Karachi and 4 others 1980 CLC 1666.
6. Indeed, it is correct to say that the Courts should not casually interfere with the result of a long, careful and local investigation and that sanctity should be attached to a Commissioner's report. It was held by Privy Council in the case of Chandan Mull Indra Kumar and others v. Chiman Lal Girdhar Das Parekh and another (AIR 1940 Privy Council 3 at 6); "...Interference with the result of a long and careful local investigation except upon clearly defined and sufficient ground is to be deprecated. It is not safe for a Court to act as an expert and to overrule an elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party". This view was followed by.a Division Bench of erstwhile Dacca High Court in Darhar Khan. Talukdar and others v. Babu Apurba Kumar Hazra and others (PLD 1959 Dacca 26).
7. Keeping in view the above rule, I have heard plaintiff Gulzar Hussain who has appeared in person.
It is to be noted that it was lastly on 29-11-1994, when the defendant's counsel, Mr.. Fida Muhammad Khan, Advocate had appeared when the matter was adjourned to a date in office with the direction that the Commissioner Mr. Amanullah should attend the Court. Since then, neither the defendant himself nor his counsel has appeared. Court motion notice was also issued for the hearing and re-hearing of this matter but on none of such occasions the defendant appeared.
Since the absence of the defendant is spread over some five years, this Court was left with no alternate but to proceed with the objections of plaintiff. It was argued by the plaintiff that the learned Commissioner was not authorised to go against the finding of the arbitrator which has attained finality. It was further contended that before the Commissioner the plaintiff has produced three witnesses while defendant did not produce a single witness including himself and, therefore, in absence of any denial/rebuttal to the plaintiff's evidence, the learned Commissioner should have upheld the accounts of the plaintiff. It would be pertinent to mention, at this stage, the final amount awarded by the Commissioner in favour of the plaintiff which reads as follows:-- "16. In view of the above discussion, the plaintiff is entitled to recover the following amounts from the defendant:
(a) Investment made in cash Rs, 17,000.00
(b) Price of the goods supplied to the defendant Rs, 13,929.25
(c) Amount incurred towards cartages of the goods Rs, 00,500.00
(d) Share of profit Rs, 03,142.92 Rs, 34,572.17 ' The amount received by the plaintiff from the defendant Rs, 17,000.00 Rs, 17,572.17."
8. I have also scrutinised the Commissioner's file and the evidence recorded by him. The plaintiff has filed his claim to the extent of Rs,1,43,578.20 which was denied by the defendant except to the extent of an amount of Rs,12,000 which was admitted by the defendant to have been received in cash from the plaintiff. It was further admitted by the defendant that he had received a sum of Rs,1,26,584.86 during the subsistence of partnership business from the Control of Naval Accounts, Karachi. It was claimed by the defendant that he has invested an amount of Rs,1,07,597. In support of his claim, the plaintiff has examined himself as (Exh.A) Safdar Zama.n as (Exh.B) and his son Muhammad Arif as (Exh.C). These witnesses have also produced documents as Exh.A/1 to Exh.A/13, Exh.B/1 and Exh.C/1, respectively. Article C-1 is a cassette wherein the conversation between the plaintiff and the defendant was recorded. Defendant has raised objection to the same which was not considered by the learned Commissioner who left this question to this Court for its determination.
9. It will be seen that Article 164 of Qanun-e-Shahadat, 1984 permits a Court to allow to be produced in evidence all such material that may have become available because of modern devices or technics. In the matter of Collector of Customs and another v. Saeedur Rehman and others (PLD 1989 SC 249 at 257), it was held by a Full Bench of Hon'ble Supreme Court that production. Of video cassette in evidence is admissible and also conclusive and sufficient in some cases but not in all in view of Article 164 of Qanun-e-Shahadat. Even in the case of Zafar Iqbal and others v. Bashir Ahmed and another (PLD 1988 SC 109 at 114), it was held by the Hon'ble Supreme Court after reference to Article 164 of Qanun-e-Shahadat that undoubtedly an audio cassette could be made admissible in evidence. Earlier. To these cases even in the matter of Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. (PLD 1976 SC 57 at 113) production of tape-recorded speeches of some NAP leaders were held to be part of evidence and the same reports were accepted. In view of these decisions, I do not see any reason why the evidence of tape-recorded conversation was not accepted by the learned Commissioner and the question was left to the Court to decide the same.
8., Reverting to the claim of the plaintiff, it can be summarised in the following manner:-
(a) Claim for Rs,20,000 paid in cash to the defendant at the time of opening of Bank account of the partnership business.
(b) Cash payment of Rs,40,000 vide Exh. 1 .
(c) Payment of Rs,12,100 which was admitted by the defendant.
(d) Payment of Rs .5,000 through cheque.
' Payment of Rs,9,500 through two different cheques.
' Claim of Rs,45,495.75 on account of purchase of goods and materials delivered to the defendant vide Exh.A/4 to A/13.
' Claim of Rs,3,430 towards cartage charges..
' Claim for Rs,5,900 towards outstanding salaries, telephone charges and stationaries.
' Claim for Rs,10,062.25 as share of profit.
9. It is pertinent to note that the defendant had neither examined himself nor produced any witness in support of his denial against the above mentioned claim of plaintiff. According to Commissioner's report (Para. 9, page No,4), "it was agreed by the parties that the evidence and documents produced before the Arbitrator can be considered by me". Thus, the learned Commissioner had considered these documents and has come to a contrary finding to that of the Arbitrator. It was held in the award that the plaintiff contributed towards the finance and material of partnership business and that the defendant utilized the same. The learned Commissioner was not competent to give any finding which was contrary to the evidence of the Arbitrator which has been endorsed by this Court as well as by the Appellate Court. There was no evidence before him that the amount of Rs,12,000 was returned to the plaintiff by the defendant or that the amount of profit was paid to the plaintiff. In absence of any rebuttal through the process of evidence, the learned Commissioner ought to have allowed some of the claims of the plaintiff as on that point the defendant was not able to counter the plaintiff and his witnesses even in the cross- examination. The learned Commissioner while disallowing these claims has based his opinion on surmises and presumptions which cannot take place of the evidence. It was a case of no evidence against the claim of plaintiff.
10. As a result of above discussion, the Commissioner's report is disposed of and the claim of the plaintiff is accepted to the extent of R3.1,14,037.45. It is clarified that the claim of plaintiff vide para. 80) above is accepted up to the extent .Of Rs, l3,939.00 and another claim vide para. 8(h) is rejected while other claims are accepted.. In my view, the remaining claim of the plaintiff was rightly rejected by the learned Commissioner. Ordered accordingly.
11. Decree to follow in the above terms with no order as to costs and 12% interest till realization.