2010 PLP 2987 (YLR)

PERVAIZ INAYAT MALIK, J.--Briefly stated facts as those emerge out of this appeal are that the appellant filed a suit for, specific performance of agreement to sell dated 28-7-1990 in respect of Property No.145-B, Gulgasht Colony Multan against Mahmood ul Hassan son of Chaudhry Chiragh Din predecessor in interest of the respondents on 19-12-1998.

2. The learned Trial Court upon divergent pleadings of the a prties framed as many as six issues. However, during the course of recording of evidence Mr. Ejaz Ahmad Taheem was appointed as Referee/Local Commission on the basis of whose report, the suit filed by present appellant was decreed vide judgment and decree dated 18-3-2003, where against an appeal was filed which was allowed by the learned Additional District Judge vide judgment dated 1-3-2008 and remanded the case to the learned trial Court with a direction to decide the suit on its own merits after recording the evidence of the parties in accordance with law which judgment has been assailed through this appeal.

3. It is inter alia contended that the learned Additional District Judge fell in error by disturbing the well-reasoned judgment and decree passed by learned Civil Court, the parties having agreed to the appointment of Referee or Local Commission, were bound by the report thereof and respondents could not be allowed to resile from their undertaking/ commitment.

4. Conversely, learned counsel for the respondents with vehemently opposes the submissions made at Bar and submit that the learned Trial Court committed serious illegality in decreeing the suit filed by the appellant/plaintiff, on the basis of report of the Local Commission, by treating it as opinion of the Referee and that the learned Additional District Judge rightly intervened and rectified the illegality committed by the learned Trial Court, which judgment calls for no interference.

5. Arguments heard. Record perused.

6. Admittedly the judgment and decree dated 18-3-2003 was passed by learned trial Court on the basis of report of the local commission by treating it an opinion of the Referee. The learned District Judge in his judgment has rightly observed that the learned trial Court in same breath has used two distinct terms of Referee and local commission and the different laws deal with both the above referred persons. Referee is appointed under Article 33 of the Qanoon-e-Shahadat Order 1984 whereas Order XXVI, C.P.C. deals with the appointment of the local commission. In my considered view, the learned District Judge rightly observed that learned trial Court fell in error by combining both the terms Referee and Local Commission together. In the matters of appointment of Referee, there is no cavil to the proposition that judgment and decree can be based upon its opinion, which is based on his personal knowledge. Admittedly the learned Advocate who was appointed as Referee had no personal knowledge about the controversy in issue before the learned trial Court, whereas, in the matter of appointment of Local Commission, objections are to be invited and thereafter petitions are to be decided by the learned trial Court. This was a material illegality and not a mere irregularity, not curable and touching the very foundation of the decree passed by the learned trial Court, therefore, in my considered view the illegality committed by learned trial Court in passing the decree impugned before the learned Additional District Judge was rightly rectified/corrected through the impugned judgment. It may be observed here that Mehmood ul Hassan son of Chaudhry Chiragh Din (since deceased) was real brother in law (Bahnui) of the appellant and the present respondent No.1 Mst. Shamim Akhtar widow is the real sister of the appellant, whereas respondents Nos.2 to 7 are real nephews of the appellant and sons and daughters of deceased Mahmood ul Hassan and Mst. Shamim Akhtar respondent No.1 is his widow.

7. In view of above, the impugned judgment being well-reasoned and perfectly in accordance with law calls for no interference. This appeal, therefore, being devoid of any merits is hereby dismissed. H.B.T./M-612/L Appeal dismissed.