2018 PLP 1262 (MLD)

QALANDAR ALI KHAN, J.

In a suit for possession through partition of the two houses mentioned in the suit, being legacy of the late father of the petitioner and respondents Nos.1 to 4, late Ashiq Hussain, besides permanent injunction and recovery of mesne profit by respondents Nos.1 to 3/plaintiffs against the petitioner and respondent No.2, the petitioner/defendant No.1 moved application for appointment of local commission for ascertaining improvements/construction of the petitioner/ defendant No.1 after the death of his late father and predecessor, Ashiq Hussain, which was resisted by the respondents/ plaintiffs, and dismissed by the learned trial Court/Civil Judge-XVI, Peshawar, vide order dated 06.04.2016. The appeal of the petitioner also met the same fate and was dismissed by the learned Appellate Court/ District Judge, Peshawar, vide impugned judgment dated 25.02.2017; hence the instant writ petition.

2. The learned trial Court/Civil Judge-XVI, Peshawar, dismissed the application of the petitioner for appointment of the commission on the grounds that issue relating to determination of the mesne profit as per market value had already been framed by the Court which was also in line with the contentions of the petitioner, and evidence of the defendant had already been recorded. The learned trial Court, therefore, observed that application of the petitioner was just meant to fill the lacuna and to prolong the proceedings in the case, which amounted to wastage of time; while the learned appellant Court/District Judge, Peshawar, dismissed the appeal on the grounds that, admittedly, the plea of family settlement was specifically raised by the appellant/petitioner in his written statement but it was within the domain of the trial Court to give any findings on that issue at the time of final judgment. The learned appellant Court observed that both the parties had recorded their evidence and that the trial Court in case of passing the preliminary decree would also determine the rights and the respective shares of each owner in the suit property and thereafter the preliminary decree would be followed by final decree and further that during final decree in order to determine the mode of partition and any construction raised by either of the parties in the suit, the Court would certainly appoint local commission who would inspect the spot, and further that, at present, the trial of the case will not only be prolonged but appointment of local commission was also premature at this stage and would serve no useful purpose for either of the parties. The learned Appellate Court concluded the impugned order with the remarks that let the case be decided first and, thereafter, in case of preliminary decree, the appellant/petitioner would still be having the opportunity to file similar application at the time of final decree. The appeal was dismissed with further remarks that it was open for the appellant to move such like application during the proceedings of the final decree.

3. The perusal of both the orders of the learned trial Court dated 06.04.2016 and that of the learned Appellate Court 25.02.2017 would show that the said impugned orders are based on proper appreciation of facts and circumstances of the case as well as the law applicable thereto. Besides, the powers of appointment of commission for making local investigation under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908, fall within the discretion of the Court which may issue a commission if it "deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits". In other words, appointment of local commission was not a vested right of a party so as to invoke the constitutional jurisdiction of High Court for enforcement of such a right.

4. Having said that, the learned appellant Court aptly observed that in a suit for possession through partition, preliminary decree is passed in the first place, and at the stage of final decree, a party can move the Court for such an order; but that stage has not yet come in the instance case. Therefore, even otherwise, the petitioner, having the alternate remedy of moving application for appointment of local commission, had no right to invoke the writ jurisdiction for appointment of local commission at a stage when even preliminary decree for possession through partition had not yet been granted; and the learned trial Court did not deem it proper to appoint a local commission at the early stage of preliminary decree.

5. Consequently, the writ petition, being bereft of substance and merit, is dismissed in limine. ZA/79/P Petition dismissed.