IN THE HIGH COURT OF SINDH, KARACHI

High Court Appeal No.277 of 2021

PRESENT:

MR. JUSTICE AQEEL AHMED ABBASI

MR. JUSTICE ABDUL MOBEEN LAKHO

Muhammad Hanif & another

Vs.

Hameed A. Haroon & others

Appellants: through Mr.Tahmasp R. Razvi, Advocate.

Respondents: through Mr. Faisal Siddiqui, Advocate

Date of Hearing: 13.04.2022.

Date of Order: 13 .04.2022.

O R D E R

Through instant High Court Appeal the appellants have impugned order dated 15.11.2021 passed by the learned Single Judge in Suit No.264/2007 filed by the respondent No.1, seeking declaration, injunction and cancellation, wherein, CMA No.7883/2020 filed under Order X Rule 1(A) read with Section 151 CPC by plaintiffs with the prayer to appoint Commissioner to record the evidence of the parties in the Suit, has been allowed.

2. Learned counsel for the appellants submits that the Suit No.264/2007 filed by the respondent No.1 for declaration, injunction and cancellation is totally misconceived and not maintainable as the plaintiffs in the suit have no locus standi or legal competence to file a suit in the above form, nor could disclose any cause of action, whereas, the Suit was also barred by law in terms of Article 120 of Limitation Act, 1908. Per learned counsel, the appellants filed application under Order VII Rule 11 CPC seeking rejection of plaint on various grounds including the above legal ground, however, such application was dismissed by the learned Single Judge and the appellants filed HCA Nos.235 and 239 of 2009 before the Divisional Bench of this Court, however, the learned Divisional Bench of this Court vide order dated 17.02.2020 dismissed such High Court Appeals. Consequently, the appellants preferred Civil Appeals No.894 & 895 of 2020 before the Hon’ble Supreme Court, which are still pending decision. According to learned counsel for the appellants, during pendency of above appeals before the Hon’ble Supreme Court the respondent No.1 filed an application under Order X Rule 1(A) read with Section 151 CPC bearing CMA No.7883/2020 for appointment of the Commissioner to record the evidence, wherein, the appellants filed Counter Affidavit while raising objection that the issues framed by the learned Single Judge vide order dated 24.09.2020 are subjudiced before the Hon’ble Supreme Court, therefore, the application for recoding evidence through Commissioner may be dismissed. It has been further contended by the learned counsel for appellants that recording of evidence in the above Suit will otherwise be a futile exercise for the reason if Civil Appeals filed by the appellants before the Hon’ble Supreme Court are allowed, and the plaint of the respondent in the above Suit is rejected, then evidence so recorded by the Commissioner in the suit will have no legal implications. According to learned counsel for the appellants, in view of above facts and circumstances of instant case, the learned Single Judge was not justified to allow the request of respondent No.1 for recording of evidence in a Suit which is totally misconceived and not maintainable. While concluding his arguments, learned counsel for the appellant has further submitted that the provisions of Order X Rule 1(A) CPC, are otherwise dependent on the consent of the parties, whereas, in the instant case there was no consent of the appellants. It has been prayed that the impugned order may be set-aside.

3. Conversely, learned counsel for respondent has vehemently opposed the contention of the learned counsel for appellants and raised objection as to maintainability of instant High Court Appeal, which according to learned counsel for respondent, is without any merits and does not disclose any valid cause of grievance, hence, liable to be dismissed in limine. Per learned counsel, the appellants have failed to point out any factual error and legal infirmity in the impugned order passed by the learned Single Judge while allowing CMA No.7883/2020 filed under Order X Rule 1(A) read with Section 151 CPC with a prayer to appoint Commissioner for recording evidence of the parties in the Suit. According to learned counsel for the respondent, the subject Suit filed by the respondent No.1 in the year 2007 is based on documentary evidence and involves substantial legal issues, which can only be decided after recording of evidence, however, in view of frivolous applications filed by the appellants regarding maintainability of the Suit, the case could not proceed and decide on merits. Per learned counsel, the application filed by the appellants under Order VII Rule 11 CPC has already been dismissed by the learned Single Judge, which order has also been confirmed by the Divisional Bench of this Court in the aforesaid High Court Appeals. According to learned counsel for the respondent, the appellants could not get the order passed by the learned Single Judge as well as learned Divisional Bench of this Court set-aside, nor could obtain any ad-interim order from the Hon’ble Supreme Court, however, preferred instant High Court Appeal by raising similar grounds. According to learned counsel, through impugned order dated 15.11.2021, the learned Single Judge has been pleased to hold that with consent of the parties issues were framed on 24.09.2020 and since then the matter is listed for appointment of Commissioner, whereas, the Suit is pending since 2007, the judicial proprietary demands that in this matter, evidence shall be recorded and lis shall be decided on merits. According to learned counsel for the respondent, no valid reasons were disclosed nor any legal objection was raised by the appellants with regard to recording of evidence through Commissioner, whereas, on the fateful date when the impugned order was passed, time was sought by the counsel for the appellants for want of instructions. According to learned counsel for the respondent, Court has the inherent powers to pass an order for recording of evidence through Commissioner and can also adopt an alternate procedure in terms of Order XVI CPC for appointment of Commissioner, therefore, the contention of the learned counsel for the appellants that order for recording evidence through Commissioner could have only be passed if the parties may consent, is misconceived. Moreover, according to learned counsel for respondent, no prejudice will be caused to the appellants if the evidence is recorded through Commissioner and the Suit is decided on the basis of evidence as may be produced by the parties in accordance with law, whereas, keeping the Suit pending on technicalities is otherwise prejudicial to the interest of both the parties. It has been prayed that instant High Court Appeal, being devoid of any merits may be dismissed. In support of his contention, learned counsel for the respondent has placed reliance on the case of MRS. BADAR RAHIM v. MUHAMMAD ASIF DOSSLANI [2009 CLC 459].

4. Heard the learned counsel for the appellant, perused the record and the impugned order passed by the learned Single Judge on CMA No.7883/2020 filed under Order X Rule 1(A) read with Section 151 CPC with their assistance. Since the facts as recorded hereinabove with the assistance of the learned counsel for the parties are not disputed, we would address the legal point involved in the instant appeal relating to authority of the learned Single Judge of this Court while exercising Original Civil jurisdiction, to pass an order for recording of evidence of the parties through Commissioner. Prima-facie, it is not the case of the appellants that the learned Single Judge has no authority to appoint Commissioner for recording evidence in a Suit, however, learned counsel for the appellants has mainly argued that since the very Suit filed by the respondent No.1 is misconceived and not maintainable for being barred by law, whereas, the appellants have raised such objection by filing an application under Order VII Rule 11 CPC, therefore, order for recording evidence through Commissioner could not have been passed till decision by the Hon’ble Supreme Court in CPLAs filed against the orders passed by the learned Single Judge and the Divisional Bench of this Court in the aforesaid High Court Appeals. It has been observed that the Suit filed by the respondent No.1 seeking declaration, injunction and cancellation, is pending since 2007, however no useful progress appears to have been made as the evidence of the parties could not be recorded in view of objection raised by the appellant relating to maintainability of the Suit, whereas, the application under Order VII Rule 11 CPC seeking rejection of the plaint by the appellant in the Suit was dismissed by the learned Single Judge. The order was assailed before the Divisional Bench of this Court in the aforesaid High Court Appeals, however, order passed by the learned Single Judge has been confirmed and the plea of the appellant seeking rejection of plaint stands dismissed by two forums. Though, the appellants have assailed the order passed by the Divisional Bench of this Court in the above High Court Appeals by filing CPLA before the Hon’ble Supreme Court, however, neither the orders passed by two Courts have been set-aside nor the appellants could get any ad-interim relief including suspension of the order passed by the Divisional Bench of this Court. It has been further observed that by consent of the parties issues were framed on 24.09.2020 in the subject Suit, whereas, no objection was raised by any party to this effect. However, the matter could not proceed further in view of pendency of CMA No.7883/2020 filed by the respondent No.1 seeking direction of the Court for appointment of Commissioner to record evidence in the Suit. There seems no serious objection raised by the appellants as reflected from the order passed by the learned Single Judge on 15.11.2021, when the aforesaid application was fixed for hearing, however, request for adjournment was made on behalf of the counsel for the appellant, who, whereas, was sought time for want of instruction. Under the facts and circumstance of the case as referred to hereinabove, the learned Single Judge, while exercising powers as vested in Court has been pleased to pass the impugned order while holding that “since the Suit is pending since 2007, therefore, under the facts and circumstances of the case, the proprietary demands that in this matter evidence shall be recorded and lis shall be decided on merit”. Accordingly, Mr. Justice (Retd.) Fahim Ahmed Siddiqui has been appointed as Commissioner for recording evidence and the parties have been directed to record the evidence before the Commissioner with further direction that the learned Commissioner shall complete the assignment preferably within a period of six (06) months and submit report. It has been further observed that the appellants have not raised any objection on the name of Commissioner so appointed by the Court, however, merely raised technical objection as to maintainability of suit, which objection stands overruled by two Courts in the instant case. Pressing the similar grounds and raising the same objection is misconceived and unwarranted. No substantial legal ground has been raised, which may require any interference by this Court with the impugned order passed by the learned Single Judge, as it will further delay the decision in the Suit and would, therefore, adversely affect the interest of the parties to the Suit. Accordingly, we do not find any substance in the instant High Court Appeal, which was dismissed vide our short order dated 13.04.2022 and above are the reasons for such order. It is however, clarified that disposal of instant High Court Appeal in the above terms may not effect, either the merits of the case or the legal instance of the parties, including the issue of maintainability of the Suit, which may be dealt with by the learned Single Judge if so agitated in the suit, in accordance with law.

JUDGE

Nadeem/Farhan