1983 PLP 254 (CLC)

O. XXV1, rr. 9 &. 10 - Commission's report-Commissioner making local inspection in absence of plaintiff and allowing him no representation-Showing wrong title of case and examining vendor, deeming him plaintiff pre-emptor-Trial Court not affording oppor tunity to plaintiff to file objections-Commissioner working out price of even installed in shop on information from certain experts without recording their evidence-Report of Commissioner, held, made against warrant of Commission and totally worthless. Muhammad Habib Khan for Petitioner. Respondent No. 1 in person. Date of institution : 24th February, 1982. This revision petition is directed against order dated 6-1-1982 made by the Sub-Judge Bagh. A suit of pre-emption in respect of the land in suit is pending between the parties in the said Court of the Sub-Judge, during trial of which one Qazi Zahoor Ahmed was appointed as a Commissioner on an application of the vendee-defendant. The abovesaid Qazi Zahoor Ahmed visited the spot and made an inspection of the property of which the value was to be ascertained in relation to the alleged improvement effected. He was ordered by the trial Court to assess the value of shops in question in presence of the parties. He submitted a report which on its very face is manifestly perverse. It was in absence of the plaintiff that the local inspec tion was made by the Commissioner and no representation as such was allowed to the plaintiff as warranted by law. The title of the case is shown h by the Commissioner as Abdul Latif v. Muhammad Afsar whereas this is not the title of the case. The title of the case is kehmood Khan v. Muhammad Afsar Khan and Abdul Latif. The vendor was deemed by the Commissioner as the plaintiff whose presence taking as such, the local inspection was made, during which he was also examined as a plaintiff as if he was the pre-emptor to sue. Obviously, the report was made against the warrant of Commission under which both the parties i.e. the plaintiff pre emptor and vendee-defendant were to remain present before the Commis sioner while the matter was under his investigation. After the report was submitted by the Commissioner, the trial Court was enjoined to give oppor tunity to the parties to file objections but no such opportunity was afforded to the plaintiff, who considered the report submitted as against him. The report was favourable to the vendee-respondent which was mostly at his instance and in a way it was one-sided and so it was not necessitated on his part to file objections to it. The Commissioner was also examined by the trial Court as a witness. In the circumstances above, the application for appointment of a new Commissioner was absolutely necessary so as to make use of the report so obtained in accordance with law. The report of first Commission is totally worthless. The Commissioner worked out price of even installed in the shop on some infor mation received from certain experts but their evidence was not reduced to writing. The entire proceedings taken and report made thereof by the Com. missioner were highly unsatisfactory which are vitiated hereby. That being so, the impugned order is set aside and the application of plaintiff for appointment of a second Commissioner is accepted. The trial Court shall appoint such a person as a Commissioner who will be acquainted with the work entrusted to him for the purpose. The parties shall appear before the trial Court on 26-7-1982 when after going through Order XXVI, C. P. C. and the relevant Rules framed thereunder, the Sub-Judge shall proceed to issue a Commission as prayed by the plaintiff. K. M. A. Petition allowed.