PLJ 2023 Lahore (Note) 129
Present: Shujaat Ali Khan, J.
AHMED UMAIR ASIM CH.--Petitioner
versus
INSURANCE TRIBUNAL, LAHORE/ADDITIONAL DISTRICT JUDGE-I, LAHORE etc.--Respondents
W.P. No. 259345 of 2018, heard on 21.3.2023.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXVI R. 1--Insurance Ordinance, (XXXIX of 2000), S. 123--Application for recording of evidence through local commission and closing of right to produce evidence by petitioner--Dismissed--Petitions for recovery of unsatisfied claim--Physical infirmity of petitioner--Challenge to--Consolidated order-- Order XXVI Rule 1 CPC permits a Court to record evidence of a witness through local commission but Tribunal failed to exercise jurisdiction vested in it--Petitioner sought recording of his statement as well as those of his witnesses through Local Commission on account of his physical infirmity--Petitioner was declared permanently unfit for flying and ground duties--Petitioner, did not attach any material to justify non-appearance of rest of his witnesses before Court--Request of petitioner for recording of his entire evidence through Local Commission is not justified--There leaves no ambiguity that Tribunal misdirected itself while turning down request of petitioner to record his evidence through Local Commission--Petition partially accepted. [Para 2, 4, 5 & 6] A, B, C, D & E
Ref. PLD 2020 SC 401, 2006 CLC 1053, PLD 2018 Sindh 327,
2018 YLR 363.
Mr. Tariq Masood, Advocate, for Petitioner.
Nemo (Ex-parte vide Order, dated 10.3.2020 for Respondents.
Date of hearing: 21.3.2023.
Judgment
Briefly put, the petitioner filed a petition against Respondent No. 2, for recovery of unsatisfied insurance claim and Respondent No. 3 was added later on. During proceedings before the learned Additional District Judge-I/Insurance Tribunal, Lahore, the petitioner submitted application for recording of his evidence through commission, on the ground of his disability. On the other hand, Respondent No. 2 also filed an application praying for closure of right of the petitioner to produce evidence. Both these applications were consolidated and after hearing respective arguments of both sides, learned Insurance Tribunal, Lahore, vide order, dated 19.11.2018, turned down request of the petitioner; hence this petition.
2. Learned counsel for the petitioner submits that while turning down request of the petitioner to record his evidence through Local Commission, learned Tribunal omitted to note that the Chief of Aviation Medicine, Headquarters Pakistan Civil Aviation Authority, Karachi, declared the petitioner permanently unfit for flying and ground duties. Adds that the observation of the learned Tribunal that no document showing inability of the petitioner to appear before the Court was attached with the application stands negated from the contents of the medical certificates, attached with the application. Further adds that Order XXVI Rule 1 CPC permits a Court to record evidence of a witness through local commission but the learned Tribunal failed to exercise the jurisdiction vested in it. Argues that according to Section 123 of the Insurance Ordinance, 2000, procedure before the Tribunal is to be governed under CPC. To fortify his contentions, learned counsel has relied upon the cases reported as Mrs. Zakia Hussain and another v. Syed Farooq Hussain (PLD 2020 SC 401), Ijaz Hussain Shah v. Muhammad Din and another (2006 CLC 1053), Syed Farukh Mazhar v. SGS Headquarters and others (PLD 2018 Sindh 327) and BBC Pakistan (Pvt.) Ltd. and another v. Masud Alam (deceased) through L. Rs and others (2018 YLR 363).
3. Since nobody entered appearance on behalf of Respondents No. 2 & 3, despite their substituted service through publication in daily “Nawa-e-Waqt”, they were proceeded against ex-parte vide order, dated 10.03.2020.
4. After hearing learned counsel for the petitioner and going through the documents, appended with this petition, I have noted that the petitioner sought recording of his statement as well as those of his witnesses through Local Commission on account of his physical infirmity. Order XXVI Rule 1 CPC empowers a Court to issue commission to examine a witness especially when appearance of the witnesses before the Court is impossible due to justifiable reasons. Insofar as case in hand is concerned, admittedly, the petitioner was declared permanently unfit for flying and ground duties meaning thereby that he is unable to appear and face the rigors of making statement before the Court. Moreover, the medical certificates, available at pages No. 65 & 66 of this petition show that the petitioner has been advised complete bed rest by the medical practitioners. In this backdrop, the learned Tribunal was not justified to turn down request of the petitioner for issuance of Local Commission to record his evidence.
5. Insofar as rest of the evidence of the petitioner, is concerned, suffice it to note that he did not attach any material to justify non-appearance of rest of his witnesses before the Court. In this scenario, request of the petitioner for recording of his entire evidence through Local Commission is not justified.
6. In the case of Mrs. Zakia Hussain and another (Supra), the Apex Court of the country, while dealing with powers of the Court to issue Local Commission for recording evidence of the parties, has inter-alia held as under:--
“8. ..... A kind of sickness or infirmity of a witness may compel the Court to issue commission for recording of evidence of such witness. Sometimes a witness is within the jurisdiction of the Court but cannot appear for any compelling reasons or a person outside the jurisdiction of the Court or is going to leave the jurisdiction or a person in the service of state can be examined through a commission. Even a commission can be issued to a Court to record the evidence of a person residing within its jurisdiction. This entire procedure is provided in Sections 75 to 78 read with Order XXVI of C.P.C. Even a local commission can be issued with consent of the parties. The provision of Rule 8 of the Order ibid would make it clear that an evidence taken under a commission cannot be read as evidence in the suit but with the consent of the party against whom the same is offered. It is for the Court to satisfy itself regarding the conditions necessary for issuance of commission and on return of commission with deposition of witnesses, Court can order it to be made part of the record of the suit. Even a High Court may issue a commission for recording of evidence of a witness under Rule 19 of Order ibid. So, in view of the above discussion, we can say that it is the Court seized of the matter to take a decision for issuance of commission by keeping in mind the facts and circumstances of the case.”
If the validity of the impugned order is adjudged in the light of the afore-quoted judgment of Hon’ble Supreme Court of Pakistan there leaves no ambiguity that the learned Tribunal misdirected itself while turning down request of the petitioner to record his evidence through Local Commission.
7. For what has been discussed above, instant petition is partially accepted and the petitioner is allowed to record his own statement through the Local Commission whereas he shall produce rest of the evidence before the Court.
(Y.A.) Petition partially accepted
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