2000 PLP 507 (YLR)

Pir Muhammad Asif Rafi Shah for Petitioners. Chaudhry Ghulam Din Aslam for Respondents. Date of hearing: 22nd October, 1999. This Civil Revision calls in question the order dated 15‑4‑1997 of the learned Trial Court whereby an application filed by the petitioners for appointment of a Local Commissioner under Order XXVI, Rule 9, C.P.C., was rejected. The respondents had filed a suit for Specific Performance of an agreement to sell, dated 10‑3‑1989 against the petitioners. The suit is being contested. Issues were framed. Evidence of the respondents was recorded and completed on 18‑9‑1996 and then it was adjourned for recording the evidence of the petitioners. On 19‑2‑1997, the petitioners filed an application claiming that the documentary evidence produced by the respondents recording them to be in possession of the suit land is fabricated and that on the spot the petitioners are in possession and to verify the said fact, a Local Commissioner be appointed. This application was resisted by the respondents and has been dismissed vide the impugned order.

2. Learned counsel for the petitioners argues that the learned Trial Court has acted with material irregularity in exercise of its jurisdiction while passing the impugned order. According to the learned counsel, the Trial Court ought to have come to the aid of the petitioners in procuring evidence to rebut the entries in the Revenue Record relied upon by the respondents. The learned counsel for the respondents on the other hand submits that in the first instance there is no controversy regarding possession and in the second, the same has no effect on the merits of the suit itself which is for Specific Performance of an agreement to sell. He also contends that a Local Commissioner cannot be appointed to enable a party to collect evidence.

3. I have gone through the certified copies of the record appended with the Civil Revision with the assistance of the learned counsel for the parties.

4. I find that the suit was filed on 11‑I1‑1992; evidence was produced and closed by the respondents on 18‑9‑1996 where s the application for appointment of Local Commissioner was filed on 19‑2‑1997. The precise prayer in the application was that the question of possession be got resolved through a Local Commissioner. I am afraid, a Local Commissioner cannot be appointed to decide the all important questions like one of possession. Besides, the suit was filed in the year 1992 and the Local Commissioner can only report as to the possession existing in the year, 1997 and for that matter whenever he goes to visit the spot. This would certainly be a dangerous course and cannot form the basis of decision pertaining to the question of possession. I also agree with the learned counsel for the respondents that question of possession is not involved in the suit at all. It A is a suit for Specific Performance of the contract, even if the respondents are not in possession, if they succeed in suit then the Court as a corollary to the main relief of Specific Performance, shall grant all ancillary reliefs including the relief of possession. Thus, nothing turns in the suit on the question of possession. Besides, I find that the respondents alongwith the suit filed an application for grant of temporary injunction seeking to restrain the petitioners from interfering with their possession as alleged in the plaint. The learned counsel representing the petitioners in Trial Court got recorded his statement on 19‑1‑1993 that the petitioners will not make illegal interference in the possession of respondent and that they will resort to lawful proceedings for the purpose. I need not comment on the import of the said statement of fact made by the learned counsel for the petitioners. However, in presence of the said statement, what to speak of a report of a Local Commissioner, no other evidence is required to settle the question of possession. No grounds, therefore, have been made‑out for interference in the impugned order in exercise of power under section 115, C.P.C. The Civil Revision is dismissed leaving the parties to bear their own costs. H.B.T./A‑186/L Revision dismissed.