Tuesday, 19 November 2013

PLJ 2011 Peshawar 179
[D.I. Khan Bench]
Present: Attaullah Khan, J.
INAYAT ULLAH KHAN and 5 others--Petitioners
versus
ABDUL KARIM and 4 others--Respondents
C.R. No. 301 of 2009, decided on 7.6.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XXVI, R. 9--Appointment of local commissioner to investigate the facts of the case--Challenge to--Maintainability of revision petition--Report of commission is not exclusive and is always subject to objection of the parties--Court is not bound to accept or reject the same--Not adversely effected from such appointment--Validity--Even if report is accepted, it would not amount to evidence, but would only help the Court in reaching to a correct conclusion--No illegality or miscarriage of justice had been pointed out--Maintainability of the petition was also doubtful for reason that the impugned order was also doubtful for the reason that the order was not order in stricto senso nor it decide some issue between the parties finally--Appointment of local commissioner is for purpose to collect some facts which might not be in favor of any party--Revision petition was not maintainable--Petition was dismissed.
            [Pp. 180, 181 & 182] A, B & E
2005 CLC 1437 (SC & AJK)
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI, R. 9--Appointment of local commission--Principles of law--Held: Court can appoint a commission to make local inspection and its report is subject to scrutiny by the Court.          [P. 181] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Question of applicability--Revision would lie against a case decided and when the case is not decided, revision would not lie.    [P. 182] D
PLD 1993 SC 109, ref.
Mr. S. Mastan Ali Zaidi, Advocate for Petitioners.
Mr. Muhammad Ayaz Khan Qasuria, Advocate for Respondents.
Date of hearing: 7.6.2010.
Judgment
Through this civil revision petition, the petitioners have challenged the order dated 4/7/2009, passed by the learned Appellate Court whereby a Local Commissioner was appointed to investigate the facts of the case.
2.  Briefly stated facts of the case are that Abdul Karim Khan etc; respondents filed the suit for partition of the suit property on the grounds mentioned in the plaint. The suit was contested by the defendants and pleadings of the parties gave rise to the framing of six issues.
3.  After recording evidence, the suit was dismissed by the trial Court vide order dated 10/7/2008 which was challenged in appeal before the appellate Court. During the proceedings of appeal, the appellate Court appointed Mr.Nasrullah Khan Gandapur as Commission for inspection of spot in presence of parties, to prepare the site plan and investigate the true facts of the case vide order dated 4/7/2009 which is now impugned in this revision petition.
4.  Learned counsel for the petitioners argued that the appellate Court has delegated its powers to the Commission because the facts for which the Commission has been appointed are available in the evidence and there is no need for its appointment. According to him, the impugned order is the result of material illegality and is not sustainable under the law.
5.  On the other hand, learned counsel for respondents argued that the very petition is incompetent because the impugned order does not amount to order and also no case has been decided.
6.  I have gone through the record carefully and considered the arguments advanced at the bar.
7.  The first issue to be decided is in respect of appointment of the Commission to ascertain the facts including the ownership of hujra.
8.  It is correct that the parties are bound to produce evidence in respect of their cases and other options are rarely exercised which includes the appointment of Commission. Normally the Commission is appointed to bring on surface some facts which the parties have failed to disclose in the Court. Moreover, the report of Commission is not exclusive and is always subject to objection of the parties and the Court is not bound to straightaway accept or reject the same. The petitioner arenot adversely effected from such appointment. They have ample opportunities to bring their view points on record before the Court regarding their objections, if any. The Court would not straightaway accept  the  said  report  but  would  evaluate the objection of the parties.
Even if the report is accepted, it would not amount to evidence, but would only help the Court in reaching to a correct conclusion. So on this score also, the petition is devoid of force. Moreover, no illegality or miscarriage of justice has been pointed out.
9.  Apart from this, the maintainability of the revision petition is also doubtful for the reason that the impugned order dated 4/7/2009 is not an order in stricto senso nor it decide some issues between the parties finally. I may refer to 2005 CLC 1347 Supreme Court (AJ&K) wherein it has been held that:
"The Court can make appointment of a Commission if it deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute etc. under Order XXVI, Rule 9 CPC. The purpose is to clarify evidence on record or for obtaining the spot information. Sometimes it is necessary that local investigation be made to have a clear view. The relevant provision of law is also reproduced:
Order XXVI, Rule 9. Commission to make local investigation.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of or elucidating any matter in dispute, or ascertaining the market value of any property, or the amount or any means profit or damages or annual net profits, the Court may issue a Commission to such persons as it thinks fit directing him to make such investigation to report thereon to the Court".
"In the present case, the trial Judge made observations in respect of khasra girdawri recorded in favour of the respondent that the same was against the position at spot. It is correct that while making spot inspection or that a commission to be appointed by the Court the investigation is made for clarifying of appreciating the evidence on record. It may have a clear view for just decision of the matter. It may also be mentioned that the object of a commission is not to collect the evidence but to obtain evidence to elucidate the matter which is local in character. The question arises whether a revision petition was competent before the High Court".
10.  The above principles of law indicate that the Court can appoint a commission to make local inspection and its report is subject to scrutiny by the Court.
11.  In the same judgment, it has been further held that:--
"It may also be added that a revision lies against a case decided. The word case is more comprehensive than the word suit as to be understood in the broadest and most ordinary sense so as to include a part of a case or as issue or an interlocutory order. Reference in this regard may be made to a case reported as Pakistan Fisheries Limited Vs. United Bank Limited PLD 1993 SC 109."
12.  The above principles show that revision would lie against a case decided and when the case is not decided, revision will not lie. 
13.  To sum up, even on merits, there is no scope in the revision petition because the impugned order is not an order deciding a case. The appointment of local commissioner is for the purpose to collect some facts which may not be in favour of any party. The impugned order being not final or deciding a case, therefore, the revision petition in hand is not maintainable and also being without merit.
14.  Resultantly, I find no substance in this revision petition which is accordingly dismissed.
(R.A.)  Petition dismissed.

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