Judgement on the subject of "Recording of Evidence by the Commission.

A Court, under CPC, subject to such terms and conditions, as may be prescribed, may appoint a Commission to examine a person, make local investigation, take accounts, and/or make partition, The elaborate manner and procedure to record evidence by a Court is provided for under the, Codet. In normal circumstances, the evidence of a witness is to be recorded by a judge in open Courts, under his own hand, superintendence, and/or under his personal directions. The evidence of a witness is 'taken orally in open Court in the presence and under the personal direction and superintendence of the judge. The Court ordinarily records the deposition of a witness in writing in question and answer form, but in that of a narrative, generaily in the vernacular language of the Court, or in English, read over to the witness after which any discrepancies or error(s) are corrected before signing it.

There are two situations that are contemplated under the Code, where it is not necessary to také the evidence of a witness verbatim in writing but the judge is required to make 'memorandum of the substance of what each witness deposes' as the examination of each witness proceeds. One such situation that is provided for is, where 'the evidence is not taken down in writing by the judge" and secondly in unappealable coses Every memorandum so made forms part of the record. In cases where a judge. is unable to prepare such memorandum, he is required to record reasons for the same. On examining the scheme of Order XVIII CPC, and other enabling provisions of the. Code, it is clear that where the verbatim evidence is. being recorded in writing, there is no necessity of making any memorandum of the substance of what each vitness deposes. The recording of a memorandum of the substance of evidence means the essence, substance, or crux of the evidence that may be necessary for the just determination of the controversy in issue.

The manner and procedure for recordirng evicence through commission is elaborately provided for under Order XXVI CPC. Once the Commission, under the orders of the: Court, is executed and the evidence is recorded, the Commissioner shall return the Commission, together with his signed report, and the evidence recorded as per the direction and order of the Court. The evidence so recorded and talken by the Commission, subject to objections and decision of the court, forms part of the record, and is to be'treated and considered as if the evidence has been reordered; by the Court itself, It appears that the learned Bench did not appreciate the scheme of the provisions of the Code. The Learned bench of the High Court erred to rely on rule 3 of Order XVIII, CPC to discard the evidence recorded through the Commission appointed by consent.of the partics. Rule 8 of Order XVIII is not applicable in cases where the evidence is recorded, under the orders of the Court,. through Commission. Under the given facts and ciroumstances of the case, there was no justification to remand the case to the iearned Trial Court for de-novo trial or proceeding afresh. The trial Court/Judge may take into consideration the evidence or a memorandum of evidence, as the case may be, either recorded by. the court itself, the predecessor judge, or through Commission. Once such report of the commissioner, along with. the cyidence so recorded is taken on record, it' lorms part of the judicial record and is to be read at any hearing of the suit" and for making any order or pronouncement of Judgment. The provisions noted herein are mere enabling provision; relating to a matter of procedure and not affecting the jurisdiction of the Court.

Where a court, for any reasons, is dissatisfied with the proceedings of Commissioner, there is nothing in the Code, which prevents it from directing a further enquiry as it may cdeem fit, substituting the commissioner and/or recalling and examining a witness already examined by the commissioner, whose deposition is found to be illegible, ambiguous, or unclear, on any rmaterial particular affecting the merits of the case. A party cannot claim; nor appeal the decision of a revisional Court for de-novo trial as a matter of right.

It is not always. necessary that the. Court may record evidlence itself. For a variety of reasons, it may be recorded through a Commission.The Court as a principal may exeicise powers and delegate authority, under S. 75 or Order XXVIII, for personal appearance of a witness in front of the Commission either out of its own accord or on application of either party, However, it does not bar the Court itself of the authority to examine the witness where it is not satisfied. Under Rule 13 of Order XVII, it is provided that in cases where no appeal lies, the Judge may merely make a memorandum of substance of the evidence. Rule 15 of Order XVIII contains a general provision that a succeeding Judge can deal with any evidence or memorandum taken by his predecessor and proceed with the trial. The provisiorns of CPC relating to summoning, attendance, examination of witnesses, and producing of documents, the penalties imposed on the witness could be exercised by the Commissioner executing the order of the Court is deemed to be a Civil Court.

CP 510/19

Hassan Nawaz v. Atta Muhammad (decd) his LRs