This is a petition to revise the order of the trial Court dated 14-6-1978, whereby an application moved by the petitioner under Order XXVI, rule 4, C. P. C., was dismissed.
2. No copy of the application has been furnished, but it is submitted that the petitioner who is defendant in the suit, had asked, by the application, for examination of her two witnesses, namely, Haji Majid Musa and Syed Muhammad through a Commission at Karachi, where the said witnesses were residents and conducting business. The reason for rejection of the application, as given by the trial Court is "In this case no doubt the witnesses are residing beyond the local limits of the jurisdiction of this Court. But they are not definitely in the service of the State. If the application is allowed, the case will be further delayed to a considerable extent, although the matter has already been delayed too much. Even otherwise it is not sufficient ground for examining the witness through commission that the witness is residing outside the local limits of the jurisdiction of the Court, Nothing has been said about the physical inability of the witness to appear in Court."
3. The contention is that the reasoning of the trial Court is based upon misreading of the law, that the conditions for issuing a commission are given in clauses (a), (b) and (c) of sub-rule (1), rule 4 of Order XXVI, C. P. C. Which are independent of each other and as such the fulfilment of all the conditions together was not necessary and that the condition at clause (a) having been fulfilled, the application ought to have been allowed. It is also urged that once any of the conditions for issuing a Commission is present, it becomes a matter of right for the party to have a Commission issued and it no more remains a matter of discretion with the Court. Reference in this connection is also made to the provisions of Order XVI, rule 19 and Order V, rule 4.
4. The relevant portion of Order XXVI, rule 4 reads : "(1) Any Court may in any suit issue a commission for the examination of
(a) any person resident beyond the local limits of its jurisdiction ;
(b) any person who is about to leave such limits before the date on which he is required to be examined in Court ; and
(c) any person in the service of the State who cannot, in the opinion of the Court, attend without detriment to the public service.
It is apparent from the reading of the above that the requirements to be me for issuing a Commission as contained in clauses (a), (b) and (c) can be read as being independent of each other. It would certainly be correct to say that a person is not to satisfy all the requirements of clauses (a), (b) and (c) before a Commission can issue for his examination. If he fulfils any of the requirements, he is entitled to ask for a Commission but he is not entitled to obtain an order for Commission as a matter of right under this rule. In other words, although a party to a suit has a right to ask for issuing Commission to examine a witness residing beyond the limits of the Court' jurisdiction, yet the Court may refuse the prayer if it is satisfied that issuing of the Commission would be a mere abuse of the process of the Court or was otherwise unnecessary. The words "may issue" give the Court a discretion in the matter, though the discretion has to be exercised judicially. In Castelli v. Groome ((1852) 21 L J Q B 308) Lord Campbell C. J., held that "it lies upon the person applying to the Court to show that it would be conducive to the due administration of justice that the commission should issue" and went on to remark that it would lead to most vexatious consequences if constant recourse could be had to this power, and "it would be so in all cases where the authorities wished to avoid the process of examination here". Similarly, in Armour v. Walker ((1884) 25 Ch. D 673), it was laid down that a commission for examination of witnesses abroad should not issue "unless some reason is shown why they cannot be examined hire, nor unless the Court is also satisfied that there are material witnesses abroad whom the party wishes to examine". In Coch v. Alcock ((1888) 57 L J Q B 489) the Court of Appeal observed that it was a matter for the judicial discretion of the Judge whether a commission for examination of a witness abroad should issue, and such an order would only be made upon reasonable cause being shown, which would depend upon no rule, but upon all the circumstances of the particular case, being the duty of the Judge who grants a commission to see that there is "no oppression on the part of the party making the application and that the other party whether plaintiff: or defendant will not be prevented from putting his case fairly before the Court at the trial." These observations had been fully endorsed in Sultan Ali Nanghiana v. Nur Hussain (AIR 1949 Lah 131) where it had been held that "the discretion to be exercised by a Court acting under rule 4 of Order XXVI, Civil P. C. Is a judicial discretion which must be related to the circumstances of the case". There can be many a situation where the Court may justifiably refuse to issue a Commission even though the person fulfils one or the other of the requirements of this rule. For example, where the Court finds that the evidence of the person was not material, or where the party can produce the witness before the Court, or the application is made belatedly to delay the proceeding or to harass the other party.
5. It will be relevant in this connection to refer to the provision of Order XVI, rule 19, which before its amendment was as follows: "No one shall be ordered to attend in person to give evidence unless he resides
(a) within the local limits of the Court's ordinary original jurisdiction, or .
(b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixth of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court-house."
The rule was substituted by the following in 1972 by Ordinance X11 :.
"A person shall not be asked by a Court to attend in person to give evidence unless he resides at any place in Pakistan."
6. The provision by Order V, rule 4, is couched in language similar to that of the earlier rule 19 of Order XVI and reads "No party shall be ordered to appear in person unless he resides-,
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixth of the distance between the place where he resides and the place where the Court is situate), less than two hundred miles distance from the court-house."
No change was, however, introduced by the said Ordinance XII of 1972 in Order V, rule 4. The reason apparently is that whereas the provision o Order V, rule 4 applies to a party, the provision of Order XVI, rule 19 is no restricted to a party but covers every person who has to give evidence. The distinction between a party and a witness in the matter of appearance in Court, as brought about by Ordinance XII of 1972, is not without significance. Thus, while a party in a suit cannot be ordered to appear in person. Unless the conditions laid down in Order V, rule 4 are met, the similar inhibition of the Court, as regards a witness, has since been removed: As the matter before me concerns witnesses, the provision of Order V, rule 4 is not attracted. Under Order XVI, rule 19 as now amended, the exception is only for a person who is not residing in Pakistan. A person residing anywhere in the country can, thus, be summoned to attend the Court for his examination as a witness unless the Court in its discretion permits him to be examined through a Commission.
7. Apart from the 'assertion that the witnesses in question resided and conducted business at Karachi, no proper case, as appears from the impugned order, was made out justifying the issue of Commission for their examination. The Court below has also observed that issue of a Commission would further delay the proceeding "to a considerable extent although the matter has already been delayed too much" In these circumstances, the propriety of the exercise of the discretion by the Court below cannot be called in question.
8. The petition is dismissed in limine.