2015 PLP 447 (CLC)

SHAHID JAMIL KHAN, J.

Petitioner has challenged order dated 14-5-2014 whereby District Judge, Chakwal allowed revision petition filed by respondents Nos.1 to

3. Learned District Judge set aside the order dated 11-4-2014 passed by Civil Judge, Chakwal, dismissing application for appointment of Local Commission.

2. Facts briefly are that respondents Nos.1 to 3 filed a suit for declaration, challenging the Mutations Nos.2452 and 7051 on the allegation that same were result of misrepresentation and fraud. At initial stage, an application for appointment of local commission was filed by respondents Nos.1 to 3 which was dismissed vide order dated 26-4-2013, revision against this order was also dismissed by Additional District Judge, Chakwal. Another application for appointment of local commission was moved by respondents Nos.1 to 3 when entire trial was completed after recording of evidence by both the parties. The second application was also dismissed by trial court, vide order dated 11-4-2014, holding that evidence of both the sides had already been recorded, therefore, the plaintiffs should prove the case through their own evidence. Respondents Nos.1 to 3 filed a revision against this order which was allowed and order of the trial court was set aside. The petitioner has challenged this order through instant petition.

3. Learned counsel for the petitioner submits that learned District Judge was not justified to accept the application for appointment of local commission by allowing the revision petition when evidence of both the parties had been recorded. Further submits that dismissal of earlier application has totally been ignored. He has relied on the judgment by this Court in Dr. Tahir Mahmood Awan v. Tariq Mahmood and another (2006 MLD 1457 Lahore) to contend that local investigation cannot substitute legal evidence. He further contends; when sufficient evidence was available on record to decide the case, appointment of Local Commission was not justified. For this submission, he has relied on Jalal Khan and 10 others v. Khandoo Malik and 24 others (2003 SCMR 1351).

4. Heard learned counsel for the petitioner at preliminary stage.

5. Perusal of orders below shows that the trial court dismissed the application for appointment of Local Commissioner by observing:

"Evidence of both the parties has been recorded and the suit was fixed for documentary evidence of the defendants when the application was submitted. Plaintiffs may prove their version through their own evidence and the application is not justified by law as well as fact which is hereby rejected." Whereas, learned District Judge discussed the merits in detail. He observed that the mutations challenged in Suit were made in exchange of properties. The property of the plaintiffs (respondents Nos.1 to 3) was placed at a very valuable area whereas, nobody knew about the location of property which had been mutated in exchange. He referred to the evidence recorded by respondents Nos.2 and 3 (respondents Nos.4 and 5 in this petition), who accepted that whereabouts of the property given to the plaintiffs was not known. It was also admitted in evidence that the property which was owned by the plaintiffs was situated along the road side and is valuable. Learned District Judge concluded that in his opinion; by appointment of Local Commission, the court would be in better position to decide the lis as it was not possible to prove before the court without spot inspection about exact location of both the properties, exchanged inter se.

6. The judgments referred by learned counsel are also perused. In Dr. Tahir Mahmood Awan's case (supra), application for appointment of Local Commission, moved by the plaintiff was dismissed by both the courts below with concurrent findings. This Court observed that appointment of local commission is discretion with the trial court under the facts of a particular case. Further observed that local investigation is usually ordered, either for clarifying evidence or for obtaining on spot inspection. In certain cases, Commission for local investigation is appointed to have a clear view of the evidence led for arriving at a just decision. The petition, against rejection of the application for appointment of Local Commission was dismissed due to concurrent findings by the courts below. This case in fact supports the reasoning given by learned District Judge in the impugned order. In Jalal Khan's case (supra), a petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 was moved against the decision of Peshawar High Court in revisional jurisdiction, dismissing the petition against rejection of application for appointment of commission by the lower appellate court. The Hon'ble Supreme Court of Pakistan dismissed the CPLA, observing that petitioner was not justified to emphasize before the appellate court for appointment of Local Commission without producing any evidence in support. It was found that the request for appointment of Local Commission cannot be accepted for convenience of the parties when the claim is not substantiated through cogent evidence. Discretionary exercise by the appellate court was upheld. This judgment is also not relevant on facts of the instant case.

7. Exercise of discretion by a court in appointing a Local Commission was considered by the apex Court in case Rehman Dad and another v. Major Raja Sajawal Khan and others (1976 SCMR 350), to understand the spirit of enunciation, relevant excerpt from the judgment is reproduced; "...We do not see how by mere resisting the earlier application the first respondent was debarred from, filing an application for the appointment of a Local Commissioner or for that matter it would have caused delay in the disposal of the case. In a case of this nature the report of the Local Commission subject to the objections, if any, would have facilitated the Court to formulate its opinion on the question and as such it would have been a judicious exercise of discretion if the application was allowed. The delay was therefore, not a factor which could have come in the way of the exercise of discretion for such a course would have advanced the cause of justice. It is not the practice of this Court to interfere with discretionary orders unless they are palpably, unjust of capricious or perverse...."

8. Appointment of Local Commission to make local investigation is governed by section 75(b) read with Order XXVI, Rules 9 and 10 of the Code of Civil Procedure. In section 75 for issuance of a commission word "may" is used. Similarly, language of the Rule 9, Order XXVI explicitly tells that the appointment in the given circumstances can only be made if the court deems it requisite or proper for the purpose mentioned in the Rules. The purpose of appointing a Commissioner for local investigation is to obtain clear view of evidence through spot inspection for arriving at a just decision. Learned District Judge has well explained this purpose in his judgment. Dismissal of earlier application for appointment of Commission, delay in concluding the suit or recording of evidence of parties cannot be a ground to reject the application, when local investigation/ inspection was necessary in the opinion of court.

9. Conclusion of the discussion is that appointment of Local Commission is a discretion lying with the court, to be exercised in backdrop of the facts of a particular case. The discretion cannot, ordinarily, be interfered with in constitutional jurisdiction, unless exercised in perverse or capricious manner. No defect in exercise of jurisdiction/discretion is found, therefore, interference in the impugned order is declined.

10. This petition is, therefore, dismissed in limine. AG/I-15/L Petition dismissed.