P L D 1971 Karachi 649 (PLP)

"(1) He should take all the accounts maintained in accounts books as well as not so maintained but are otherwise in existence. (2) He should take the accounts from Kharif 8‑12‑59 to 31‑3‑1966 (Rabi). (3) Statements on accounts is to be filed by the defendant judgment‑debtor and that of objections and surcharges by the plaintiff/decree‑holder. (4) The accounts before the Commissioner are to be filed within the period as he fixes up."

4. The learned Civil Judge, while reaching to this conclusion gained support and followed a judgment of my Lord Mr. Justice Ortcheson reported as in the case of Rehmatullah & Sons v. Sh. Hafizullah (P L D 1958 Lah. 451). The present revision application is directed against the above order of Civil Judge dated 11‑7‑1968.

5. The main ground of attack of the applicant against order of learned Civil Judge is, that he misinterpreted the pro visions contained in rule 125 (7) of Sind Civil Court Rules, wherein according to learned counsel for applicant, the Com missioner had power to decide the question of genuineness or otherwise of the document Exh. C. 71, and also, under Rule 125 (8) the Court could not reject the report of the Commissioner. It was further contended that Court should have taken evidence on the genuineness or otherwise of Exh. C. 71 and thereafter should have heard the objections and decided them. As these principles were not followed, it is urged that order of learned Civil Judge is illegal.

6. On the other hand counsel for respondent, in his reply relied on P L D 1958 Lah. 451 cited above and vehemently argued that the facts of this case are on all fours with the Lahore judgment therefore, he urged that the learned Civil Judge very rightly cancelled the report of first Commis sioner and referred the matter to a new Commissioner to which arrangement, it is urged the applicant himself agreed, as is apparent from an order of learned Civil Judge on the file dated 11‑7‑1968. And it was submitted that there is no occasion for this Court to interfere at this stage. It seems to me, that there is sufficient substance in the argument of learned counsel for the respondent, particularly when, it appears to me that no violation of Rule 125 (7) and (8) of Sind Civil Courts Rules has been committed by the learned Civil Judge, as the learned counsel for applicant wants me to believe Rules 125 (7) and (8) are as under "125 (7). When the case before him is ready for hearing, the Commissioner shall, after reading the statements filed before him and after examining the parties, if necessary, ascertain the points on which the parties are at issue and require them to produce their oral and documentary evidence on such points. (8) After the evidence has been duly taken and the parties have been heard, the Commissioner shall submit his report together with a statement in the form of a diary of the proceedings had before him. The report shall state (a) the contested items allowed or disallowed by the Commissioner, (b) the reasons for allowing or disallowing them, (c) the amount found due, (d) the name of the party to whom it is due and (e) the name of the party by whom it is due."

7. On the contrary it appears, the Civil Judge, by cancelling the first Commissioner's report, on the grounds stated in hi s order, has done so, in consonance and proper application of Order XXVI, C. P. C. read with Rule 125 of Sind Civil Courts) Rules.

8. Then there is weighty judgment of the Lahore High Court of 1958. In that judgment, it was held: "A perusal of the report shows that it goes far beyond the proper functions of a Commissioner for the examination of accounts. For example, the Commissioner decided that a certain important document (Exh. D. I/A) was genuine, and not false as alleged by the plaintiff and considered the question of the probative value of the evidence led before him. In other words, the Commissioner did not confine himself to determining the quantum, but also examined the question of the factum, of liability. Indeed, were it not known that the document in question is the report of a local Commissioner, it could very easily be mistaken for the judgment of a Court."

9. No doubt, in that case, the order of Civil Judge appoint ing a new Commissioner was ultimately set aside, but this was done, on the grounds that the Civil Judge, failed to give the new Commissioner any instructions or exact terms of reference, which is the reverse in this case, as here clear instructions are set out for guidance of new Commissioner, therefore, in my opinion, the principle laid down in the above case equally applies to the case before me, and I respectfully follow this judgment, and hold that, this revision application is without any substance.

10. As no violation of any law or rule has occurred by the order of learned Civil Judge, Naushahro Feroz dated 11‑7‑1968, consequently I uphold it. Therefore, this revision application fails and is hereby dismissed with costs. K. B. A. Petition dismissed.