Mrs. SHAHNAZ and others vs HAMID ALI MIRZA

ORDER

1. Granted.

1. 2 and 3. Since both learned counsel seem to be prepared, we decided to finally dispose of this appeal. The grievance of Mr. Rizwan Ahmed Siddiqui learned counsel for the appellants seems to be of two-folds i.e. he is aggrieved by the impugned orders of the learned Single Judge to the extent that:--

(a) the Commissioner to record evidence has been appointed;

(b) an interim injunction restraining the appellants from alienating or raising construction on the property has been granted.

2. With respect to the first contention, learned counsel emphatically contended that evidence could not be recorded on Commission as the appellants had not consented to issuance of Commission in terms of Order X, rule 1-A, C.P.C.

3. Indeed it is true that the aforesaid rule inserted in 2002 in the C.P.C. permits examination of witness on Commission with the consent of the parties. Nevertheless, it cannot be lost sight of that even prior to this insertion evidence could be recorded on Commission in terms of section 75 in accordance with prescribed Rules and the relevant Rules were laid down in Order XXVI. Under rule 4 of Order XXVI the following powers were available to the Courts:--

(4) Persons for whose examination Commission may issue.--- (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.

(2) Such Commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the Commission may appoint.

(3) The Court on issuing any Commission under this rule shall direct whether the Commission shall be returned to itself or to any subordinate Court.

4. Indeed it is not disputed that the respondent is an Honourable Judge of the Supreme Court of Pakistan and exigencies of his absence from that Court would impair his onerous public duties.

5. Moreover, his appearance before a Court as witness and the possibility of being cross-examined would have been a great source of embarrassment for any Court, Honourable Members of the Bar and the general public. For the foregoing reasons, we are satisfied that directions to record evidence on Commission were perfectly justified in terms of the powers available to the Court under Order XXVI, rule 4, C.P.C. Mr. Siddiqui attempted to argue that the aforesaid provision stood superseded by rule 1-A of Order X, but we are entirely unable to agree. In the first instance 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. Secondly the provisions can be harmoniously reconciled inasmuch as though powers under Order XXVI, rule 4, C.P.C. can be exercised within the prescribed parameters. Commission could be issued with the consent of the parties even if a matter did not fall within the limits of the earlier rule, as such we find no force in this contention.

6. Learned counsel then proceeded to argue that the interim injunction granted was not in accordance with the settled principles of law. Insofar restrain on alienation is concerned, Mr. Mushtaque Memon learned counsel for the respondent seems to be right in contending that the corpus of the dispute cannot be allowed to be destroyed. Therefore, we find the said restrain perfectly justified.

7. With respect to construction, however, we are of the view that when ostensible title has been transferred in favour of the appellants, who are also in possession of the disputed plot, it may not be altogether fair to deny them the benefit of its possession till such time that the matter is finally resolved and the respondent's claim is established. In Muhammad Shafi v. Kaniz Zohra Bibi 1983 CLC 2541, it was held by the Lahore High Court that a defendant "vendee has absolute right to enjoy his possession of the area in dispute for so long as the decree for Pre-emption is not passed against him and is not executed. If he makes an improvement prior to notice of the suit the pre-emptor is required to reimburse him but after such notice he can do so only at his own risk". The same view seems to have reiterated in Muhammad Akram v. Rehmat Khan PLD 1987 Lah. 68 relied upon by Mr. Siddiqui. For the foregoing reasons, we would modify the impugned order to the extent that the appellants may raise construction on the plot but entirely at their own risk and could be required to pull it down if so required by the respondents in case the suit is decreed. The appeal is dismissed with the aforesaid modification.