2019 PLP 991 (CLC)

GHULAM MUSTAFA MUGHAL, J.

The captioned petition for leave to appeal is directed against the order passed by the Azad Jammu and Kashmir High Court in Revision Petition No.228 of 2017, dated 23.05.2017.

2. Precise facts forming background of the captioned petition for leave to appeal are that Malik Naseem, respondent No.1, herein, filed a suit for declaration-cum-perpetual injunction and cancellation of sale-deed dated 19.12.2016, against the petitioners, herein, in the Court of Civil Judge (Court No.1) Muzaffarabad on 15.06.2017, claiming therein, that the land comprising Survey No.101, which has been renumbered as 381, measuring 6 kanal, situate in Narrul, is a Shamilat-Deh land. It was alleged that the plaintiff and proforma-respondents are co-sharers in the village and are in possession of the suit land. It was claimed that the defendants, petitioners, herein, have no concern with the suit land, rather they are the residents of village Awan-Patti, They have illegally transferred the suit land in favour of defendants Nos.1 and 2 vide sale-deed 19.12.2016. They also filed an application for grant of interim injunction, which was initially granted by the trial Court subject to the objections. The defendants-respondents filed the objections and the learned trial Court after hearing the parties vide judgment dated 12.07 2017, vacated the same. The plaintiff-respondent No.1, herein, feeling aggrieved from the judgment, challenged the same by way of an appeal before the District Judge Muzaffarabad on 15.07.2017. The learned District Judge after hearing the parties, accepted the appeal, set aside the order passed by the learned Civil Judge (Court No.1) Muzaffarabad, vide judgment dated 10.10.2017 and directed the Civil Judge to appoint a Commission and decide the case afresh after having the report of the Commission. This order was challenged through a revision petition before the Azad Jammu and Kashmir High Court. The learned High Court through the impugned order dated 23.05.2018, dismissed the revision petition, hence this petition for leave to appeal.

3. Messrs Muhammad Yaqoob Khan Mughal and Ch. Muhammad Manzoor, Advocates, while appearing on behalf of the petitioners argued with vehemence that the orders passed by the District Judge and the learned High Court are not covered by any provision of law. They argued that the purpose of appointment of the Commission visualized by Order XXVI of the Civil Procedure Code is totally different and can be exercised in the manners as enumerated in the said Order. They argued that the Commission cannot be appointed for ascertaining the possession of a party while deciding the application for ad-interim relief. The learned Advocates submitted that the discretion exercised by the learned District Judge was illegal, erroneous and arbitrary, which should have been vacated by the High Court. The learned High Court also erroneously approved the same. They requested for grant of leave to appeal and grant of interim injunction.

4. Conversely, Mr. Maqoob-ur-Rehman Abbasi, the learned Advocate for respondent No.1, submitted that the District Judge has properly exercised the discretion vested in him and was competent to appoint the Commission for ascertaining the true position on the spot. The learned Advocate argued that where the valuable rights of the peoples are involved, they cannot be knocked out for technical reasons.

5. I have heard the learned Advocates representing the parties and gone through the record of the case. The contention of Mr. Muhammad Yaqoob Khan Mughal, the learned Advocate for the petitioner that the impugned order passed by the District Judge is not covered by any provision of law, is misconceived. The Civil Court is vested with the jurisdiction to appoint the Commission at any time while exercising the powers under section 75 of the Civil Procedure Code, read with Order XXVI, C.P.C. This power can be exercised for ascertaining the true position on spot in respect of the subject matter of dispute. The Civil Court even otherwise, has inherent jurisdiction to appoint the Commission for coming to just decision in the civil cases. Neither the learned District Judge has acted illegally while appointing the Commission nor the impugned order of the learned High Court is illegal or contrary to law. No legal question of public importance is involved in the case. The petitioners have failed to make out a valid ground for grant of leave. Resultantly, this petition for leave appeal along with the application for interim relief stands dismissed with no order as to costs. ZC/19/SC(AJ&K) Appeal refused.