2010 PLP 1351 (MLD)

ABDUL AZIZ KUNDI, J.

Suit of Khan Muhammad plaintiff-petitioner, for grant of decree for permanent injunction, completion and specific performance of agreement, dated 26-5-1999, against defendants-respondents was tried by Civil Judge/IllaQa Qazi, Timergara, camp Court Samar Bagh and decreed vide judgment and, dated 27-6-2003. On appeal by defendants-respondents, the said judgment and decree were, however, set aside by District Judge/Zilla Qazi, Dir Payeen, camp Court Samar Bagh, vide judgment, dated 11-2-2004, passed in Civil Appeal No.43/13 of 2003 and remanded the case to trial court with the following directions:-

2. This judgment of the appellate Court, passed on 11-2-2004, was assailed by the plaintiff-petitioner before this court, which C.R. No.290 of 2004, was dismissed by a learned Judge of this Court on 20-9-2005.

3. Pursuant to the remand order aforestated, the learned Judge of the trial court appointed one Mohibullah, Advocate, Samar Bagh, as local Commissioner to visit the spot and do whatever had been directed by the appellate court. The local Commissioner after spot inspection submitted his report, dated 25-2-2007, which was objected to by defendants-respondents and plaintiff-petitioner had filed no objection on the said report. The local Commissioner was examined in Court, whereafter vide order, dated 31-3-2007, incorporated in the order sheet of the said date, the report of the local Commissioner was confirmed and through a separate judgment of the same date, suit of the plaintiff-petitioner was once again decreed.

4. Defendants-respondents being aggrieved of the said judgment and decree passed by the trial Court on 31-7-2007, assailed the same through their Civil Appeal No.19/13 of 2007, which came up for hearing before Additional District Judge/Izafi Zilla Qazi (Awal), Dir Payeen, camp Court at Samar Bagh, who once again while accepting the appeal of the defendants-respondents, vide his judgment, dated 16-1-2008; remanded the case to the trial Court with the direction to appoint a fresh commission for strict compliance of the earlier order, dated 11-2-2004 passed by District Judge/Zilla Qazi, Dir Payeen, camp court Samar Bagh.

5. Plaintiff-petitioner has assailed the said judgment of the appellate court through the instant revision petition.

6. Arguments of the learned counsel for the parties heard. Record perused.

7. The suit of the plaintiff-petitioner is in respect of a thoroughfare, leading to his house and which, as per averments of the plaint, has been closed by defendants-respondents, which led to proceedings before Qazi Court, Samar Bagh under section 133, Cr.P.C., where the parties compromised the matter, vide compromise deed, dated 26-5-1999.

8. It is the case of the plaintiff-petitioner that respondents did not abide by the terms of compromise, thus compelling him to file the suit, out of which the present revision petition has been filed. .

9. Without going into the merits and demerits of case of either side, lest it may prejudice the parties, suffice it would be to hold that in this case parties have exhausted themselves by producing whatever evidence they intended to produce. Besides there are commission proceedings along with report commission for assistance of the Court. In my view the material available on record is sufficient for deciding the case one way or the other. Remand of the case to the trial Court for appointment of yet another Commission would just add to the agonies of both sides, who are litigating against each other since, 1999.

10. Since there are no findings of the appellate Court on the merits of the case, therefore, I feel handicapped to enter into merits of the case and conclusively decide this revision petition. Remand of the matter to the appellate Court for decision of the appeal afresh on merits is thus inevitable.

11. Consequently, while allowing this revision petition, I set aside the judgment, dated 16-1-2007, passed by Additional District Judge-I/ Izafi Zilla Qazi, (Awal) Dir Payeen at Samar Bagh, passed in Civil Appeal No.19/13 of 2007 and send the appeal back to District Judge/Zilla Qazi, Dir Payeen, who shall himself decide the appeal afresh within a period of two months in accordance with law and after affording the parties opportunity of proper hearing.

12. Parties are directed to appear before the District Judge/Zilla Qazi, Dir Payeen on 15-6-2010. Office shall immediately send the record to the said Court along with copy of this judgment. H.B.T./170/P Case remanded.