AL-MOIZ INDUSTRIES LIMITED Versus DIWAN MUHAMMAD YOUSUF FAROOQI
QAISER RASHID KHAN, J.--- Through the petition in hand, the petitioner has made the following prayer:--
It is, therefore, humbly prayed that by issuance of an appropriate writ and on acceptance of present writ petition, the impugned judgment/orders of the respondents Nos.2 and 3 may very graciously be set aside and thereby the application for appointment of local commission may graciously be dismissed with costs throughout.
2. Briefly stated facts of the case are that the respondent No.1/plaintiff filed a pre-emption suit against the petitioner/defendant regarding agricultural land situated at mauza Beli Wala, Tehsil Paharpur, District D.I. Khan as detailed in the plaint. The petitioner/defendant on being served submitted written statement. During the pendency of the suit, the respondent No.1/plaintiff submitted an application for appointment of commission for the purpose of recording statements of the respondent/plaintiff and his other witnesses to which replication was filed by the petitioner and finally the said application was allowed vide impugned judgment/order dated 14.01.2012 by the learned Civil Judge-II, Paharpur, whereagainst a revision petition was preferred by the petitioner/defendant which was partially allowed by the learned Additional District Judge, Paharpur vide judgment/order dated 07.3.2012 by modifying the impugned judgment/order to the extent of enhancement of fee of the counsel for the petitioner/defendant.
3. Learned counsel for the petitioner argued that the impugned judgments/orders of both the courts below are illegal, without jurisdiction and violative of the provisions of law of pre-emption; that both the courts below have not appreciated the correct legal position while ordering for appointment of commission for recording of the statements of pre-emptor as well as the other witnesses at Karachi; that instead of recording the statements of the witnesses at Karachi, it was the bounden duty of the pre -emptor to adduce his entire evidence before the learned trial Judge at D.I. Khan; that the learned counsel for the petitioner without the consent of the petitioner had wrongly taken an alternate prayer in his revision petition for which the petitioner is not bound as his learned counsel acted against his interest; that the respondent had not agitated any ground for the appointment of commission to record the statements of the respondent/plaintiff and his witnesses at Karachi; that the order sheets of the learned trial court reveal that the respondent/plaintiff had never appeared before the learned trial court in person and lastly prayed that the impugned judgments/orders regarding the appointment of commission be set aside.
4. Learned counsel for the respondent/plaintiff on his turn defended the impugned judgments/orders of the learned courts below and argued that the respondent/plaintiff is unable to record his statement before the learned trial Judge at D.I. Khan and moreso some of his witnesses are from district Thatha and the respondent/plaintiff would ensure their presence at the time when their statements are recorded by the commission at Karachi and that all the travelling, boarding and lodging expenses of the learned counsel for the petitioner/defendant would be borne by the respondent/plaintiff.
5. Arguments heard and record perused.
6. The main controversy in the instant matter is the application submitted by the respondent/plaintiff before the learned trial court for the appointment of commission to record the statements of witnesses of talb-e-ishhad as well as of the postman. The only plea taken in the application is that since the respondent/plaintiff and his witnesses reside at Karachi and are thus unable to record their statements before the learned trial court, therefore, a commission be appointed to record their statements at Karachi. Mere residences of the respondent/plaintiff and his witnesses at Karachi per se do not entitle them to ask for the appointment of a commission to go all the way from D.I. Khan to Karachi to record their statements. At this stage, we cannot lose sight of the fact that pre-emption law is a special law in which the performance of talb-e muwathibat and talb-e-ishhad are the determining factors for the success of the suit. Barring the place of residence at Karachi, no ground worth the name has been forwarded which would warrant the appointment of a commission to record the statements of the respondent/plaintiff and his witnesses at Karachi as against before the learned trial court. Law provides for the trial in an open court through the recording of the statements of the witnesses where a fair opportunity is simultaneously afforded to the opposite party to cross-examine the rival witnesses.
7. In the list of witnesses furnished by the respondent/plaintiff, some of the witnesses hail from Karachi as against the others who come from district Thatha and similarly from District Haripur, Islamabad as well as Tehsil Paharpur, District D.I. Khan. All the order sheets of the learned trial court bear testimony to the fact that the respondent/plaintiff has never for once appeared before the learned trial court and that it is not left to the sweet will and prerogative of the respondent/plaintiff to examine himself and his witnesses at the time and place of his choosing. The only ground which prevailed with the learned Civil Judge-II, Paharpur was that since the respondent/plaintiff and his witnesses are the residents of Karachi and they have shown their inability to attend the court and record their statement, as such their application was allowed. The respondent/plaintiff has only pleaded his inability to attend the learned trial court at D.I. Khan. However, he has not pinpointed any disability which deters him from doing so. No doubt, law provides for recording such statement under Order XXVI, Rule 4(1)(a), C.P.C. through the issuance of a commission by the court, when the person resides beyond the local limits of its jurisdiction. However, the same is not for the unrestricted and liberal exercise of such powers as it is not mandatory in nature. In the case in hand, the respondent/plaintiff in a way desires the holding of the partial trial and that too, of a pre-emption suit at his own residence at Karachi. Similarly, the learned Additional District Judge, Paharpur too, partially allowed the revision petition preferred by the petitioner/defendant before the said court when a concession was shown by the learned counsel for the petitioner/defendant who only requested for the enhancement of the fee of the petitioner's/defendant's counsel. Now when the petitioner's counsel is before us and he strongly controverts the concession so made by the then learned counsel for the petitioner/defendant before the learned Additional District Judge without seeking the assent and concurrence of the petitioner, the judgment of the learned Additional District Judge on that score is liable to be interfered with as he has not touched the legality of the appointment of the commission.
8. For the reasons mentioned above, this petition is allowed, the impugned judgments/orders of the courts below are set aside and the application of the respondent/plaintiff for the appointment of commission is dismissed.
ZC/381/P Petition accepted.