1970 PLP 506 (SCMR)

WAHIDUDDIN AHMAD, J.‑This petition for special leave to appeal arises from the order of a learned Single Judge of the High Court of West Pakistan, in Revision Application No. 354 of 1968, decided on the 28th April 1969. The High Court, by this order, has remanded the case to the learned Civil Judge, Mirpurkhas, for decision of the petitioner's case under Order XXXIX, rule 1, C. P. C., after giving full opportunity to the parties to adduce evidence in support of their contentions. The dispute between the parties is in respect of 81.26 acres of land in Deh Phadro Taluka Mirpurkhas. This land belongs to the petitioner. He has developed a garden on this land. His allegation is that his garden is under the threat of complete ruination due to the options of the respondents in functioning a brick kiln on their land nearby. His allegation is that the burning of the brick kiln produces clouds of smoke and also creates an atmosphere very dangerous to the growth of the young plants and the trees in his garden. As the damages likely to be caused could not be measured in money, the petitioner brought a suit for permanent injunction against the respondents restraining them from functioning their brick kiln. The Civil Judge, Mirpurkhas, in Suit No. 85 of 1968, issued a temporary injunction to the respondents and confirmed it by an order dated the 1st October 1968. This order was upheld by the learned District Judge in appeal. The matter was then taken in the High Court in the above‑mentioned revision petition and the learned Single Judge has set aside the orders of the Courts below on the ground that they have relied upon an expert opinion which is not supported by any legal evidence on the. record. The petitioner seeks permission to file an appeal against the said order. After hearing the learned counsel for the petitioner, we are satisfied that the High Court has approached the question before it in a proper manner. Admittedly both the Courts below have relied on a certificate issued by the Assistant Director, Agricultural, Mirpurkhas. This very gentleman, later on, issued another certificate which contradicted the one on which the Courts below have relied. Unfortunately, the certificate produced before the Courts below was not supported by any, affidavit or any other independent evidence on the record. In view of this, the High Court held that the Courts below have acted on inadmissible evidence. In this connection, the learned Single Judge observed as under :‑ "The learned District Judge also relied upon the first certificate issued by the expert, rejecting the second certificate but it would be seen that by the second certificate the expert had resiled from his previous opinion. Both these certificates by themselves had no legal value for these could not be considered without their author being produced as a witness in Court and subjected to cross‑examination by the opposite‑party. Since reliance has been placed by the two Courts below on the opinion of the expert on the basis of the documents which are inadmissible in law and the opinion formed on the basis of these inadmissible documents has gone a long way in affecting the decision in the case, the orders passed by both the Courts must be set aside and the case should be remanded to the trial Court for disposal of the controversy on merits after the expert is examined as a witness." No exception can be taken to the above observation of the High Court. The case has been remanded to the learned Civil Judge for decision of the dispute between the parties on merits. In this way, no prejudice has been caused to the petitioner. We, therefore, do not consider this as fit case for interference in our special jurisdiction. The petition is dismissed. Leave refused.