2006 PLP 1457 (MLD)

MUHAMMAD AKHTAR SHABBIR, J.

Brief facts giving rise to the present writ petition are to the effect that Tariq Mahmood plaintiff-respondent herein has filed a suit for permanent injunction with regard to the land in dispute restraining the respondents from raising any construction and changing the nature of the property. He asserted that he is in possession over the said property. The suit was contested by the petitioner, who filed his written statement stating that he is in possession over the property and he has already raised his construction. The petitioner has applied to the Trial Court for appointment of the local commissioner to ascertain his possession, which was declined by the Trial Court on 28-11-2005. Feeling aggrieved the petitioner preferred a revision petition which came up for hearing before the learned Addl. District Judge, Mianwali, who vide order, dated 10-4-2006 dismissed the same. Both these orders have been assailed by the petitioner through the instant writ petition.

2. The learned counsel for the petitioner contended that the controversy between the parties could be ascertained at the preliminary stage by appointing a local commissioner and both the Courts below have illegally declined the prayer made by the petitioner.

3. I have heard the learned counsel for the petitioner and perused the record.

4. Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction. The local investigation is usually ordered either for clarifying evidence on record or for obtaining on the spot information. Sometimes it is necessary that local investigation should be made to have a clear view and just decision of the matter. It may be issued in any case where the Judge deems it fit to do so. The discretion lies with the Court, whether to appoint a local commission or not and Court was not bound to appoint local commission in all cases. Where controversy could be resolved by producing evidence by the parties, then spot inspection through local commission was not permissible. The Court itself has to decide necessity of local investigation. Reference in this context can be made to the case of Kishwar Banoo v. Metropolitan Corporation, Lahore (2003 CLC 397). In case any question that who has made the construction on the property in dispute can only be proved by producing of evidence and the Court has no jurisdiction to ascertain possession or construction over the property through the local commission and the appointment of the local commission was the prerogative of the Court and the power of the Court to decide a matter cannot be delegated to the local commissioner. Reference in this context can be made to the case of Muhammad Saeed v. Muhammad Akram Munir (2001 YLR 919). The local investigation through the local commission could not be a substitute of legal evidence and an order or judgment could not be based on the local inspection unless the parties agreed to adopt such a course. Reference in this context can be made to the case of Akbar Dad Khan v. Muhammad Sharif (2001 YLR 1911). Both the Courts below have not thought it fit to appoint a local commissioner in the matter in dispute and the party who cannot establish his case by producing evidence the local commissioner cannot be appointed to till in the lacuna. In this case the dispute is with regard to the possession which is a question of fact that has to be proved by the party who alleges the possession. The petitioner could not seek appointment of local commission for his own convenience when not in position to prove his plea through evidence as laid down in the case of Jalal Khan and 10 others v. Khandoo Malik and 24 others (2003 SCMR 1351). Both the Courts below have rightly declined the prayer of the petitioner. The learned counsel for the petitioner has not been able to point out any illegality or jurisdictional defect or that the impugned orders have been passed without lawful authority. The learned counsel for the petitioner has miserably failed to persuade the Court to interfere with the impugned orders in exercise of its constitutional jurisdiction. 8(sic). For the foregoing reasons this writ petition being devoid of force is dismissed in limine. F.B./T-16/L???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.