1991 PLP 663 (MLD)

Ch. Mazharul Haq Bhatti for Petitioner. Syed Laqa Haider Zaidi for Respondents. Date of hearing: 15th September, 1990. On 21-9-1986 Mehr Lal Khan petitioner filed a suit for possession of land measuring 3 marlas situated in village Bhowana, Tehsil Chiniot, District Jhang against Haji Ahmad and others, respondents, in the Court of Civil Judge Chiniot. The suit was resisted. Issues were framed and the parties led their evidence. The trial Court dismissed the suit on 17-11-1988. The plaintiff/ petitioner filed appeal against this judgment and decree which was entrusted to the learned Additional District Judge, Jhang, who while hearing the appeal on 10-9-1988, appointed Assistant Clerk of his Court as a Local Commissioner and directed him to inspect the spot, take measurement, prepare site plan and submit a detailed report in the light of directions given to him. The Local Commissioner inspected the spot and submitted his detailed report. The petitioner/appellant filed objections to the report of the Local Commissioner which were overruled. After hearing the arguments of the learned counsel for the parties and perusing the report of the Local Commissioner in aid of the evidence on record, the learned Additional District Judge dismissed the appeal on 3-9-1989, hence this revision.

2. Raising preliminary objection, the learned counsel for the respondents submitted that since the petitioner has not annexed the complete documents with the revision as required by proviso to section 115, C.P.C. therefore, the revision was not maintainable.

3. I have considered this objection carefully. I do not agree with him. The petitioner has filed the copies of the pleadings and copies of the orders of the Courts. However, he had not filed the copies of the documents. So the Court at the worst can refuse to consider the documents but cannot dismiss the revision as a whole. With these observations, the preliminary objection is overruled.

4. The learned counsel for the petitioner relied on rule 4, Chapter 10-A, Part-B, Vol.l of the High Court Rules & Orders (Lahore), to contend that the learned Additional District Judge could not have appointed the Assistant Clerk of his Court as a Local Commissioner for inspecting the spot and making report according to the direction given to him. Conversely, the learned counsel for the respondents argued that since the petitioner/plaintiff was not prepared to accept the Revenue Officer as Local Commissioner, therefore, there was no option for the learned Appellate Court but to appoint the official of the Court as Local Commissioner. Furthermore, the parties were present at the time of the appointment of official of the Court as a Local Commissioner, but they did not raise any objection. Reliance has been placed on PLD 1978 Lahore 458, PLD 1978 Kar. 360, 1989 CLC 1, 1981 CLC 364 and 1990 Law Notes 885.

5. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. Be that as it may the fact remains that the Local Commissioner appointed by the learned Appellate Court was a Clerk of his Court, which could not have been appointed as a Local Commissioner under the relevant High Court Rules and ' Orders (Lahore). The relevant rule may be reproduced advantageously:-- Rule 4. "Court Readers or other Ministerial Officers should never be appointed to make local investigations, such as finding out the market value of the property, etc. Such Commissions should be issued wherever possible to retired Revenue 'Officers or professional men, such as engineers, contractors, auctioneers and accountants. Legal Practitioners arc not excluded from appointment as Local Investigation Commissioners, but the best man for the particular commission in question should be appointed. Revenue Officers in service such as Tehsildars and Naib-Tehsildars should not, as a rule, be appointed when retired officers suitable for the work are available." Since there appears a wisdom behind the prohibition for appointment of an official of the Court as a Local Commissioner, therefore, the failure on the part of the parties to raise objection at the time of his appointment as a Local Commissioner is of no consequence. The case-law relied upon by the learned e counsel for the respondents is bit distinguishable. Pursuant to the above discussion, the revision application is accepted. The judgment and decree of the Appellate Court is set aside and the case is sent back to him for fresh decision of the appeal in accordance with law. The parties shall bear their own costs. A.A./L-110/L Revision accepted.