P L D 2005 Supreme Court 244 (PLP)

Muhammad Riaz Ahmed, Advocate‑on‑Record for Petitioner. Jehanzeb Jadoon, Advocate Supreme Court and M.W.N. Kohli, Advocate‑on‑Record (absent) for Respondent. Date of hearing: 11th November, 2004. IFTIKHAR MUHAMMAD CHAUDHARY, J.‑‑‑Petitioner seeks leave to appeal against the judgment of the High Court of Balochistan, Quetta, dated 3rd October, 2003.

2. Precisely stating the facts of the case are that the respondent instituted a suit against petitioner for declaration rendition of accounts and cancellation of agreement dated 30th September, 1989. The suit was contested by the petitioner and learned Qazi vide judgment dated 27th September, 1999, dismissed the same and on appeal filed by respondent Majlis‑e‑Shoora passed the following order:

3. As a result of above decision the suit filed by the respondent was decreed and a mode was prescribed by the Majlis‑e‑Shoora for settling the accounts between the parties. It seems that Assistant Commissioner. Mastung was appointed to do needful but he could not do so. As such learned Qazi himself decided to inspect the site in accordance with the provisions of Order 18, Rule 18 of C.P.C. As a result of inspection of the site, certain calculations were made and after deducting the expenditures incurred by the petitioner/defendant, plaintiff/respondent was directed to pay Rs.1,50,000 to the petitioner and latter was asked to hand over the vacant possession of the disposed property, description of which is mentioned in the order of the learned Qazi dated 29th March, 2001. The petitioner challenged the above decision before the Majlis‑e -Shoora but without any success as the same was dismissed on 5th July, 2001. The revision petition filed against this order also met the same fate vide impugned judgment. As such instant petition for leave to appeal has been filed.

4. Learned counsel for the petitioner contended that after remand of the case by the Majlis‑e‑Shoora vide judgment dated 29th February, 2000, the learned Qazi may have appointed some commission to settle the accounts instead of inspecting the site himself and if he at all had decided to inspect the site then he should have recorded the evidence and on the basis of the same, a report should have been compiled but the learned Qazi prepared a report merely on the basis of surmises and conjectures. As such, report was not admissible under the law and no decree could have been passed on the basis of the same. Reliance in this behalf has been placed by him on the cases reported as Ugam Singh v. Kesrimal AIR 1971 SC 2540 and Hatim v. Elahi Bakhsh 1986 CLC 798(2).

5. On the other hand learned counsel stated that the report was prepared with the consent of the parties' counsel and according to the contents of the report the respondent/plaintiff was held liable to make payment of Rs.1,50,000 to the petitioner/defendant, therefore, they should not feel aggrieved from the judgment passed by learned Qazi on the basis of such report.

6. We have heard the learned counsel for both the sides and have also gone through the relevant provisions of law i.e. Order XVIII, Rule 18, C.P.C. Undoubtedly the Court is empowered to inspect the site but simultaneously it is under an obligation to record the evidence of the parties with opportunity to the other side of cross‑examining the witnesses if it wanted to form an opinion in respect of particular factual controversy. In the instant case admittedly no evidence was recorded nor opportunity of cross‑examination was given. It is also one of the grievance of the learned counsel for the petitioner that after compiling the report before passing decree, no opportunity of hearing was given to the petitioner. Thus following the guidelines noted in the judgment in the case of Ugam Singh (ibid), we are inclined to agree with the contention put forward by the learned counsel for the petitioner.

7. Thus for above reasons, the petition is converted into appeal and allowed. As a result whereof the impugned judgment passed by the learned High Court as well as the Majlis‑e‑Shoora and the Court of Qazi, are set aside and the case is remanded to the learned Qazi, Sarwan, Mastung, Sub‑Division Dusht to proceed afresh in accordance with the provisions of law and dispose if of expeditiously as far as possible within a period of three months preferably from the stage of remand of the case by the Majlis‑e‑Shoora vide judgment dated 29th February, 2000. Parties are left to bear their own costs. M.B.A./M‑190-S Case remanded.