International Lawyer Law Firm

PLJ 2007 Lahore 870

Present: Muhammad Akhtar Shabbir, J.

ALI HASSAN--Petitioner

Versus

SHER MUHAMMAD and another--Respondents

C.R. No. 194 of 2004, heard on 6.3.2007.

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

----S. 75, O. XXVI, R. 10--Report--Local Commission--Objections--Reliability--Disposing of the objections condition precedent--Objection on the report of local commissioner has not been disposed of and the Court has not given its findings separately before the final judgment that whether the report was maintainable and is liable to be rejected in the eyes of law--Held: Report of local commission cannot be relied upon without disposing of the objections to the report.     [P. 872] A

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

----S. 75, O. XXVI, Rr. 9 & 10--Credibility of report--Local Commission--Determination--Objection--Findings--Maintainability--Judicial or quasi-judicial authority--Once the report was accepted, same would carry no ordinary weight--Acceptance of report could be on the basis of rejection of objection to that report or alternatively on no objection having been raised at all.     [P. 872] B

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

----S. 75, O. XXVI, R. 10(3)--Report of Local Commission--Objections--Dissatisfied--Confirmation--Without accepting or turning down the objections and without confirmation of the report of the local commissioner, it could not have been relied for the decision and for this purpose. Trial Court had to apply its judicial mind for passing a specific order.      [Pp. 872 & 873] C

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

----Ss. 115 & 75, O. XXVI, Rr. 9 & 10--Revisional Jurisdiction--Objections on the report of Local Commission--Validity--Court was under legal obligation to accept or reject the report of the local commissioner but no such exercise was taken by the learned trial Court or appellate Court and unconfirmed report of the local commissioner had been relied upon--Held: Judgements and decrees of the Trial Court as well as Appellate Court were passed with material irregularities and illegalities calling for invocation of revisional jurisdiction by this Court, hence are set aside.    [P. 873] D

NLR 1993 UC (Civil) 792, 1991 MLD 1774 and 2004 MLD 1107 (ref.)

Hafiz Khalil Ahmad, Advocate for Petitioner.

Mr. Khan Imtiaz Ali Khan, Advocate for Respondent No. 1.

Mian Ghulam Rasool, Advocate for Respondent No. 2.

Date of hearing: 6.3.2007.

Judgment

This revision petition under Section 115 C.P.C. has been filed to call in question the judgments and decrees dated 6.9.2001 and 17.1.2004 passed by the Courts below.

2.  Brief resume of the case is that Sher Muhammad Plaintiff/Respondent No. 1 herein had instituted a suit for declaration to the effect that he is owner-in-possession of Plot No. 9/244-245 situated in Rectangle Nos. 7220, 7221 and 7215 of Mohallah Khanianwala, Bhera Tehsil Bhalwal, District Sargodha. Further asserted in the plaint that the said plot had been obtained by him from Settlement Department and that the construction on the said plot had fallen and he started the

re-construction of the plot, the defendant/petitioner Ali Hassan had no concerned with the said plot. The suit was contested by the defendant/petitioner; who filed his written statement denying the averments of the plaint.

3.  From the factual controversy appearing on the pleadings of the parties, learned trial Court led to frame the various issues.

4.  After recording and appreciating the evidence of the parties, learned trial Court dismissed the suit vide judgment and decree dated 23.10.1997. Feeling aggrieved thereby, an appeal has been filed before the appellate Court. The learned appellate Court appointed the Local Commissioner for determination of the question in dispute and thereafter remanded the case. The Local Commissioner appointed by the learned trial Court submitted his report and thereafter, the trial Court, vide its judgment and decree dated 6.9.2001 decreed the suit of the plaintiff/respondent. The appeal filed by the petitioner had also been dismissed.

5.  Learned counsel for the petitioner contends that the trial Court has called the objections qua the report of the Local Commission, who before passing the final judgment has not disposed of the objections of the petitioner. Further contends that the Court has based its findings on the report of the Local Commission without being decided the maintainability of the same.

6.  On the other hand, learned counsel for the respondents have vehemently opposed the arguments of the learned counsel for the petitioner contending that non disposal of the objections of the petitioner is not a ground to set-aside the concurrent findings of the Courts below.

7.  I have heard the arguments of the learned counsel for the parties and perused the record.

8.  It is an admitted position that the petitioner has filed the objection against the report of the Local Commissioner. The Local Commissioner has also been examined as a Court witness by the learned trial Court on 25.1.2001 and the case was adjourned for the arguments on the point of maintainability of the report of Local Commissioner in the eyes of law to 4.9.2004. The record of the trial Court was requisitioned and examined. From perusal of the order-sheet, it reveals that on 25.7.2001, the case was adjourned to 4.9.2001. The order is re-produced as under:-

"Arguments heard. Now to come up for orders on 6.9.2001."

The above-said order is un-signed order and the next date i.e. 6.9.2001 whereby the suit was decree is also un-signed.

9.  From minute scrutiny of the record, it is established that the objection on the report of the Local Commissioner has not been disposed of and the Court has not given its findings separately before the final judgment that whether the report was maintainable and is liable to be rejected in the eyes of law. It is settled preposition of law by the superior Courts that the report of local commission cannot be relied upon without disposing of the objections to the report. In this context reliance can be made to the case of Muhammad Sharif Vs. Addl. District Judge, etc. (N.L.R 1993 UC (Civil) 792). In the case of Messrs Kausar & Co. Vs. Messrs Universal Insurance Co. (Pvt.) Limited (1991 M.L.D 1774), the credibility of report of Commissioner has been dealt with and it has been observed that the Commissioner was always a neutral person and what he would opine in a report duly submitted by him, would have the stamp of an impartial and non-partisan approach to the question entrusted to him and if it was otherwise, it was open to a disputant to lodge due objection whereupon it would come before the judicial or quasi-judicial authority, as the case may be, to determine how far the Commissioner's version was acceptable, on being duly tested. Once the report was accepted, same would carry no ordinary weight. Acceptance of report could be on the basis of rejection of objection to that report or alternatively on no objection having been raised at all. In another case of Muhammad Yousaf alias Bala Vs. Khuda Dad and 11 others (2004 M.L.D 1107), it has been observed that the trial Court was obliged under Order XXVI Rule 10 (3) CPC to decide objection to the report of the Local Commissioner and while doing so, to confirm it or if dissatisfied for any reason, to direct such further inquiry as may be necessary. In that case, it  has  further  been  observed  that  without  accepting  or turning down the objections and without confirmation of the report of the Local Commissioner, it could not have been relied for the decision and for this purpose, trial Court had to apply its judicial mind for passing a specific order.

10.  In the instant case, the petitioner has filed the objection, reply to the same has also been filed by Respondents No. 1 & 2 but the Court has not disposed of the objections filled by the petitioner either the Court was under legal obligation to accept or reject the report of the Local Commissioner but no such exercise was taken by the learned trial Court or appellate Court and un-confirmed report of the Local Commissioner had been relied upon. In the circumstances, I am constrained to set-side both the judgments and decrees dated 12.9.2001 and 17.1.2004 passed by the learned Trial Court as well as lower appellate Court, respectively, which have been passed with material irregularities and illegalities calling for invocation of revisional jurisdiction by this Court.

11.  For the foregoing reasons, this revision petition is accepted and the judgments and decrees dated 12.9.2001 and 17.1.2004 passed by the learned Trial Court as well as lower appellate Court, respectively are set-aside. The case is remanded to the learned trial Court for decision afresh after deciding the fate of the report of Local Commissioner and taking into consideration the objections raised by the petitioner.

(R.F.K)     Petition accepted.