Wednesday, 30 May 2012

Court can appoint local commission suo moto

PLJ 2012 Lahore 67
[Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

ABDUL KHALIQ and 3 others--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, MINCHANABAD and 4 others--Respondents

W.P. No. 1763 of 2011, decided on 19.5.2011.

Civil Procedure Code, 1908 (V of 1908)--

----O. XXVI, Rr. 9 & 10--Procedure to appoint commissions--Report of commissioner and evidence taken by him--Validity--A Court to appoint commissions to make local investigations on request of a party and even suo motu--If the Court deems it appropriate for purpose of elucidating any matter in dispute--Procedure of commissioner so appointed for local investigations--Report of commissioner and evidence taken by him shall form part of record in the suit and any of the parties to suit might examine commissioner personally in open Court touching any of the matters referred to him or mentioned in his report which permission of the Court.           [P. 69] A

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), O. XXVI, Rr. 9 & 10--Extraordinary jurisdiction of High Court--Challenged the order passed by Courts below--Suit for possession on basis of ownership--Case of demarcation/hadbarari--During pendency of suit--Application for appointment of local commission in order to ascertain actual khata and killa number--Application was allowed and A.C. was appointed as local commissioner--As per report demarcation was not possible--Being dissatisfied with report Court directed DDOR to appoint senior revenue officer for demarcation--Civil revision was also rejected--Assailed through writ petition--Validity--Appointment of local commission was made without notice to parties--DDOR submitted report of demarcation in Court when case was adjourned while inviting objections, if any, upon report of local commission from parties--Petitioners had not been able to point out infringement of any right--Impugned order had rightly declined to exercise his revisional jurisdiction to interfere with order of civil judge for appointment of local commission--Writ petition was dismissed.           [Pp. 69 & 70] B

Mr. Abdul Majeed Bhatti, Advocate for Petitioners.

M/s. Ahmad Mansoor Chishti and Muhammad Khalid Shahid Buttar, Advocates for Respondents Nos. 3 to 5.

Date of hearing: 19.5.2011.

Order

Mr. Ahmad Mansoor Chishti and Mr.Muhammad Khalid Shahid Buttar, Advocates have filed their powers of attorney and accepted service on behalf of Respondents Nos. 3 to 5.

2.  Abdul Khaliq and others, petitioners, have invoked the extraordinary jurisdiction of this Court under Article 199 of the Constitution by challenging the order dated 15.11.2010 passed by learned Civil Judge 1st Class, Minchanabad and order dated 14.12.2010, passed by learned Additional District Judge, Minchanabad, District Bahawalnagar, on the grounds that the same are illegal and without lawful authority.

3.  Brief facts leading to the filing of this writ petition are that Muhammad Saleem and others (Respondents Nos. 3 to 5 in this petition) lodged a suit for possession against Abdul Khalid and others (petitioners in this petition) on the basis of ownership with regard to property comprising Khata No. 83, Killa Nos. 4 and 5, and Khata No. 91 and 365, situated in Mouza Minchanabad. The suit was resisted by the defendants with the contention that the disputed property is owned by the defendants vide registered sale-deeds dated 24.6.1984 and 18.2.2009. Considering it a case of demarcation/Hadbarari, during the pendency of the suit plaintiffs lodged an application for appointment of the local commission in order to ascertain the actual Khata and Killa numbers in which the suit property is situated. Application was resisted by the defendants. However, learned Civil Judge allowed the application and appointed the Assistant Collector/Tehsildar, Minchinabad, as local commissioner to determine the khata and khasra number in which the disputed property is situated. In response thereof the local commission submitted the report that the disputed property is situated in the populated area of Minchanabad City therefore its demarcation as per revenue record is not possible. The learned Civil Judge being dissatisfied with the report of the local commission directed the Deputy Collector/DDO(R), Minchanabad to appoint some senior revenue officer for demarcation/Hadbarari to ascertain the actual Khata Number and Khasra Number of the disputed property vide order dated 15.11.2010.

4.  Being aggrieved of the said order of the learned Civil Judge, defendants (present petitioners) lodged a Civil Revision before the learned Additional District Judge, Minchanabad, on the ground that the impugned order is against the law and facts and without lawful authority for the reasons that the report of the Assistant Collector, Minchanabad has been rejected by the learned Civil Judge and the DDO(R) Minchanabad has been appointed as local commission without obtaining the objections of the parties. The learned Additional District Judge in his order dated 14.12.2010 observed that in fact no report was submitted by the local commission, i.e. Assistant Collector/Tehsildar Minchanabad regarding the demarcation, therefore, the learned Civil judge has rightly passed the impugned order for appointment of some competent revenue officer to do the job. Considering it a case having no irregularity or illegality, the learned Additional District judge declined to interfere in the order of the Civil Judge. Both the orders are assailed through this writ petition.

5.  I have heard the learned counsel for the parties and perused the record.

6.  Order XXVI, Rule 9 of the Code of Civil Procedure authorizes a Court to appoint commissions to make local investigations on the request of a party and even suo motu if the Court deems it appropriate for the purpose of elucidating any matter in dispute. Rule 10 of the Order XXVI ibid lays down procedure of the commissioner so appointed for the local investigations. It also declares that the report of the commissioner and the evidence taken by him shall form part of the record in the suit and any of the parties to the suit may examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report with the permission of the Court.

7.  The plea raised by the petitioners that the impugned order dated 15.11.2010 passed by the learned Civil Judge 1st Class, Minchanabad is against the law and facts and without lawful authority has no force for the reason that the learned Civil Judge has got the authority to appoint the local commission suo motu or on the application of any of the parties to the suit as provided in Rule 9 of Order XXVI of the Civil Procedure Code. Simultaneously, Rule 10 of Order XXVI ibid provides sufficient safeguards to the rights of the parties in order to utilize or otherwise any such report of the local commission as a piece of evidence, if so desired.

8.  Perusal of the record reveals that the order dated 15.11.2010, whereby the DDO(R)/Deputy Collector, Minchanabad was directed to appoint some senior official for demarcation/Hadbarari of the disputed property was passed in presence of the counsel for the parties, therefore, it cannot be said that the appointment of the local commission was made without notice to the parties. Record further reveals that the; Deputy Collector/DDO(R) has submitted report of demarcation in the Court on 28.02.2011 when the case was adjourned while inviting objections, if any, upon the report of the local commission from the parties. Therefore, the learned counsel for the petitioners has not been able to point out infringement of any right. In the above state of affairs learned Additional District Judge vide impugned order dated 14.12.2010 has rightly declined to exercise his revisional jurisdiction to interfere with the order of the Civil Judge for appointment of the local commission.

9.  As a sequel to the above discussion and reasons, I am of the considered view that the impugned order dated 15.11.2010 passed by the learned Civil Judge 1st Class and the order dated 14.12.2010 passed by the learned Additional District Judge, Minchanabad do not suffer from any illegality. Both the orders are passed in accordance with law in exercise of lawful authority and do not call for any interference by this Court in exercise of writ jurisdiction. This writ petition, therefore, is dismissed.

(R.A.)  Petition dismissed.


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