2008 PLP 1602 (CLC)

ALI AKBAR QURESHI, J.

The petitioners through the instant civil revision have challenged the validity of the judgment and decree dated 30-10-2007 passed by the learned Courts below respectively whereby the suit of the respondent was decreed.

2. Shortly, the facts are, that the respondent filed a suit for mandatory injunction against the petitioners wherein it was contended that the petitioners/WAPDA authority are bound to provide and sanction the electricity connection to the respondent without imposing condition of installation of transformer. It was further contended by the respondent that he is owner of few shops and the building constructed by the respondent in any case does not fall in the definition of Plaza so the condition of installation of transformer cannot be imposed. The said suit was contested by the petitioners asserting therein that transformer is technically required to be installed to provide the energy to the respondent and in the absence of this, the electricity connection cannot be sanctioned. The learned trial Court to resolve the controversy framed as many as seven issues, out of the pleadings of the parties. Thereafter, the respondent/plaintiff filed an application for the appointment of Local Commission to inspect the site so as to ascertain necessity of installment of transformer at the site. The said application was allowed with the consent of the learned counsel appearing on behalf of the petitioners/ WAPDA on 15-2-2007. The Commission so appointed by the learned trial Court, inspected the site and during inspection also recorded the evidence and finally submitted his report observing therein that there is no need to install transformer at the spot to provide the electricity to the respondent. In spite of the fact the learned trial Court invited the objection upon the report of the Local Commission but no one objected on the report. Thereafter on 26-7-2007 both the learned counsel appearing before the learned trial Court, recorded their statements to the effect that they would have no objection if the case is decided on the basis of the report of the Local Commission. It has also stated by both the learned counsel that to decide the case, the evidence recorded by the learned Local Commission be evaluated and referred. The learned trial Court in view of the statement recorded by the learned counsel for the parties, decreed the suit on the basis of the report and the evidence recorded by the Local Commission. Being aggrieved of the said judgment and decree, an appeal was preferred by the petitioners mainly on the ground that the learned trial Court has committed glaring jurisdictional defect while passing the impugned judgment and decree without recording evidence. The learned appellate Court after hearing the arguments of the parties upheld the judgment and decree of the learned trial Court, hence this civil revision.

3. Learned counsel for the petitioners contended that the judgment and decree passed by the learned Courts below suffers from jurisdictional defect, legal infirmity, material irregularity and illegality, that the learned trial Court without recording the evidence has decreed the suit on the basis of the statements made by the counsel for the petitioners/WAPDA that the counsel appearing before the learned trial Court had no authority to give such type of statement, that the Local Commission transgressed the terms of reference made by the learned trial Court at the time of his appointment, that the learned Local Commission was only supposed to inspect the site so as to ascertain whether the transformer is required but the Local Commission recorded the evidence of the respondent, that such type of the report could not be made basis to pass the decree impugned herein; the learned counsel for WAPDA had no authority in law to record the statement before the learned trial Court without written instructions; that both the learned Courts below have committed jurisdictional error by not taking the cognizance on the legal points involved in the matter and the judgment and decree is not sustainable. Reliance is placed on Kaniz Bibi v. Muhammad Ashraf and another 2008 YLR 159, Mst. Rasool Bibi through legal heirs v. Additional District Judge, Sialkot and another PLD 2006 Lahore 181, Muhammad Ameen v. Sardar Ali PLD 2006 SC 318, Noor Hussain and others v. Mst. Hussain Bibi and others 2007 SCMR 378, Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247, The State through Force Commander, Anti-Narcotics Force, Quetta v. Abdul Qahir PLD 2002 SC 321 and Abdul Shakoor and others v. Haroon and others 2008 SCMR 896.

4. Conversely, the learned counsel for the respondent contended that the judgment and decree passed by the learned Courts below is well reasoned and in accordance with law. Further contended that no illegality has been committed in passing the judgment and decree as the petitioners through their counsel given the consent to decide the case on the basis of the report of the Local Commission. Also contended that thereafter the petitioners/WAPDA neither objected nor taken any action against the counsel. The learned counsel for WAPDA made the statement so it can safely be presumed that the statement was given by the learned counsel under the instructions of the petitioners/WAPDA. The learned counsel also substantiated his arguments that the Local Commission prepared a detailed report and finally observed that there is no need at the spot to install the transformer. Further, the said report was not objected by the petitioners so at this belated stage, the said report cannot be questioned or objected and the decree passed by the learned trial Court on the basis of said report, in any case, cannot be interfered. As regards the concurrent findings on facts, the learned counsel for the respondent submitted that the concurrent finding cannot be interfered with while exercising the jurisdiction under section 115 C.P.C. Reliance is placed on Mushtaq-ur-Rehman and 4 others v. Muhammad Akbar and 5 others 1981 CLC 364, Bildar Khan v. "Faridoon Khan and other PLD 2003 Peshawar 23, Muhammad Khan v. Nazir Ahmed 2003 SCMR 1911 and Barkat Masih v. Barkat Bibi and 3 others 1999 YLR 1215.

5. I have heard the learned counsel for the parties and perused the record.

6. The controversy involved in this case as revealed from the record as to whether a transformer is required to be installed at the site to provide the electricity for commercial purpose to the shops of the respondent, There is no cavil with the proposition that the controversy involved in this case required technical assistance and detailed evidence whereas in this case undeniably with the consent of the learned counsel for the parties, a Local Commission was appointed who visited the spot and also recorded the evidence at the site. The said Local Commission although was not asked to record the evidence but anyhow the said Local Commission submitted a report wherein he observed that there is no need or requirement to install the transformer at the site to provide the electricity to the respondent. Thereafter on the statement of both the learned counsel, the case was decided on the basis of the report of the Local Commission. Admittedly, in this case neither the Local Commission appeared in the witness-box nor he stated on oath anything as regard to his report.

7. Both the learned Courts below have completely ignored while recording the concurrent finding that the instant case cannot be decided without the technical assistance. The installation of the transformer at the spot as prayed by the respondent can be decided only by the expert in the field, whereas in this case neither any technical person was appointed as Local Commission nor any evidence to this affect was produced by both the parties. Thus the decision of the case on the report of non-technical persons (Local Commission), who did not even appear in the witness-box can hardly be relied upon or made basis to resolve the controversy. The trial Court instead of recording the evidence of the parties, elected to decide the case on merits and also recorded issue-wise findings relying upon the report of the Local Commission. I am afraid, that in such-like situation, the issue-wise findings could not be recorded by any Court wherein no evidence has been recorded. The learned trial Court while recording the issue-wise finding has only referred the report made by the Local Commission instead of calling the evidence of the parties particularly from the petitioner side or any independent expert in the relevant field. In any case, the learned trial Court was under legal obligation to see the factual controversy involved in the matter, whereas in this case, the learned trial Court did not put any effort to resolve the controversy factually involved in this case. As regards the findings of learned appellate Court, those are also result of jurisdictional defect and material irregularity. The learned appellate Court before whom the appeal/complaint was filed against the judgment and decree of the learned trial Court, should have exercised the jurisdiction vested with him whereas the learned appellate Court has simply upheld the judgment of the learned trial Court without going into the merits of the case and has not uttered even a single word on this point. To my mind the controversy involved in this case can only be decided by recording a detailed evidence particularly the expert of the field. So the judgments impugned herein which have been delivered on the basis of the report of the Local Commission, are not sustainable. Without further commenting on the merits of the case it is appropriate to remit the case to the learned trial Court for afresh decision after recording the evidence of the parties. The learned trial Court shall decide the matter within a period of three months after receiving the order of this Court.

8. Resultantly, this civil revision is accepted, the judgment and decree passed by the learned Courts below is set aside and the case is remanded to the learned trial Court for afresh decision strictly in accordance with law. M.B.A./W-16/L Case remanded.