Mrs. BADAR RAHIM vs HAMMAD ASIF DOSSLANI and another

ORDER

1. ' KHILJI ARIF HUSSAIN, J.--- Facts to decide the listed appeal can be summarized as that, respondent filed suit for specific performance claiming that appellant agreed to sell his house through Sale Agreement dated 7-8-2004, the appellant filed written statement admitted execution of sale agreement and alleged that time was essence of the agreement and since the respondent failed to pay balance within stipulated period of time, therefore, paid amount, to the extent of property in question was forfeited, transaction of sale of the subject property was cancelled. Vide order dated 22-10-2007 the appellant was restrained from alienating or encumbering the property in question which is admittedly in possession of the appellant but subject to deposit balance sale consideration of Rs.16,450,880 within one month's time. The respondent filed proposed issues on 10- 3-2008 whereas appellant filed proposed issues on 5-5-2008. The appellant thereafter filed an application under section 151, C.P.C. (C.M.A.7892 of 2008) to fix the matter at an early date or alternatively evidence of the parties may be recorded before Commissioner. The respondent filed counter affidavit to the said application alleged therein that the appellant is an influential person and thus can prejudice commission or commissioner and requested that that evidence may only be recorded by the Honourable Court itself. Learned Judge vide his order dated 13-10-2008, after hearing the parties appointed Justice (R.) Ata-ur-Rehman as Commissioner to record the evidence of the parties. While relying upon the case of Mrs. Shahnaz and others v. Hamid Ali Mirza reported in 2006 CLC 1737.

2. ' Heard Mr. Nasir J.R. Shaikh learned counsel for the appellant. Learned counsel for the appellant relied upon Order XXVI, Rule 4 and Order X, Rule 1-A, C.P.C. And argued that no commission can be issued for recording of evidence without consent of the parties.

3. ' We have taken into consideration arguments of the learned counsel for the appellant as well as perused the record. From the perusal of the record it appears that the respondent filed suit for specific performance in respect of the agreement of sale dated 7-8-2004 by which respondent agreed to purchase property in question in total sale consideration of Rs.18,450,800 and paid a sum of Rs.2,000,000 at the time of agreement and balance amount is to be paid to the appellant at the time of transfer of the said property in favour of the respondent. The appellant filed written statement and while admitting execution of the agreement of sale, alleged that time was essence of the contract and since the appellant failed to perform his part of obligation the agreement of sale was cancelled. The learned Judge vide his order dated 20-10-2007 granted injunction restraining the appellant from creating 3rd party interest but subject to deposit of balance sale consideration of Rs.16,450,800 which respondent admittedly has deposited with the Nazir of this Court.

4. 'In terms of Order, XXVI, rule 4, C.P.C. Commission for examination of evidence can be issued within the limit provided, however, by consent of the parties commission can be issued for examination of witnesses even in the matter which is not covered by rule 4 of Order XXVI, C.P.C. Order X-IA, C.P.C.

5. Which was inserted in the year, 2002, provided that with the consent of the parties Commission to examine parties can be issued.

6. ' Normally Commission can be issued for recording of evidence by consent of the parties to decide the case expeditiously. However, if the learned Judge is of the opinion that one of the parties, will be benefited by delaying proceedings, as in the instant case the appellant is in possession of the property in question enjoying part payment, and by not given consent for recording of evidence on Commission, in exercise of inherent power can order to record the evidence on Commission. Such directions can be exercised for advancement of justice and should not prejudice interest of one of the parties. Procedural law is meant for advancement of justice and expedite decision of dispute, rather than to delay grant of right to a party.

7. ' In the case of Jameel Ahmad v. Late Saifuddin through legal representative, 1997 SCM R 260 the Honourable Supreme Court held that:-- " It is well settled 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. C.P.C. Provides procedural code with overriding objection, to enable the Court to deal with the case absolute.

8. ' 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 timeframe, to meet requirement of Article 37(d) of the Constitution of Islamic Republic of Pakistan.

9. ' Be it may be, we are of the view that relief of specific performance is an equitable relief and delay in deciding the dispute not only adversely effect the interest of both the parties before the Court but may disentitle party asking relief for specific performance.

10. ' For the foregoing reasons appeal is dismissed in limine. These are the reasons of our short order dated 16-1-2009.