1989 PLP 374 (CLC)

3. In support of the above petition, Mr. Gulab M. Rang, learned counsel for the petitioner, has contended that the learned counsel for the respondent No.1 had conceded on 13‑3‑1988 that the Rent Controller had no power to issue commission for the inspection and that the only questions are, whether the learned Rent Controller in the present case should have decided the objections of the petitioner to respondent No. l s aforesaid application for inspection of the site and whether a cent Controller could substitute his personal impression about the inspection of the site in place of evidence. On the other hand Mr. Munawar Malik, learned counsel for the respondent No.l, has submitted that he had conceded that the Rent Controller had no power to issue the commission for the inspection in order to avoid the delay in the disposal of the case but factually there is nothing illegal if a Rent Controller issues a commission for inspection. He has further submitted that this is not a grievance of the petitioner pleaded in the writ petition that the Rent Controller failed to decide the objections and that the plea that Rent Controller had no power to issue the commission or to inspect the site.

4. Adverting to the first submission of Mr. Gulab M. Rang, learned counsel for the petitioner, that learned counsel for the respondent No.l had conceded on 13‑3‑1988 that the Rent Controller had no power to issue a commission for the inspection of the site, it may be observed that any concession of a counsel on legal point is not binding on the Court apart from the question whether it can bind his client. In the instant case, the Court will have to decide whether the Rent Controller has the power to issue commission for a inspection of the site keeping in view the provisions of the Ordinance and the other relevant enactment. In this regards, it may be pertinent to refer section 20 of the Ordinance, which provides as follows:‑ Sec. 20 Power of Civil Court. (1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance, have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the matters, namely:‑ (a) summoning and enforcing the attendance of any person and examining him on oath:‑ (b) compelling production or discovery of documents; (c) inspecting the site; and (d) issuing commission for examination of witness or documents.

5. A plain reading of the above section indicates that the Controller and the appellate authority for the purpose of any case under the Ordinance have been conferred powers of a Civil Court under the Code of Civil Procedure, 1908 in respect of only the matters mentioned in sub‑clauses (a) to (d) namely, summoning and enforcing the attendance of any person and examining him on oath; compelling production or discovery of documents; inspecting the site; and issuing commission for examination of witnesses or documents. If we were to construe the above provision of the Ordinance strictly the contention of Mr. Gulab M. Rang, learned counsel for the petitioner, that the Rent Controller has no power to issue a commission for the inspection of the site seems to be correct. The power is given to the Rent Controller and the appellate authority to inspect the site. Mr. Gulab M. Rang has referred to Rule 18 of Order XVIH cfthe Code of Civil Procedure, 1908 which empowers a Court to inspect any property or thing concerning with any question which may arise at any stage of a suit. The above provision seems to be parallel to clause (c) of section 20 of the Ordinance, which entitled the Rent Controller and the Appellate Court to inspect the site. Whereas, Mr. l4unawar Malik, learned counsel for the respondent No.l, has referred to Rule 9 of Order XVI of the Code of Civil Procedure, 1908, which provides that in any suit in which the Court deems a local investigation to be. requisite or proper for the purpose of elucidating any ‑matter in dispute, or of ascertaining the market value of any property or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. If the above provision is applicable to a proceeding before the Rent Controller, the Rent Controller would be competent to issue a commission for the inspection of the site. However, we find from the language used in section 20 of the Ordinance that the Rent Controller and the appellate authority have been conferred powers of a Civil Court only in respect of the matters mentioned in clauses (a) to (d) of section 20 of the Ordinance and not in respect of any other matter. The power to issue a commission is confined to the issuance of commission for examination of the witness under clause (d). of section 20 of the Ordinance, which powers will not include the power p to issue a commission for the inspection of the site, which is to be done by the Rent Controller or by the appellate authority itself. The use of word only in section 20 of the Ordinance is indicative of the fact that the law‑makers did not wish to vest in or confer the powers of the Civil Court to the Rent Controller and the appellate authority in respect of all the matters, which are provided for in the Code of Civil Procedure, 1908 but the powers were given only for limited purposes specified therein.

6. We are. therefore, of the view that the first order passed by the Rent Controller for the inspection of the site was inconsonance l with the provisions of the Ordinance but the second order directing the party to name an Advocate for inspection of the site was not inconsonance with the provision of the Ordinance and, therefore, we allow the above petition to the extent of declaring the impugned order dated 13‑9‑1987 as being without lawful authority and of no l legal effect. However, it will be open to the learned Rent Controller to inspect the site personally herself in case she wishes to inspect the same in terms of the order dated 21‑7‑1987.

7. We are not impressed by the arguments of the learned counsel for the petitioner that the Rent Controller while passing the first impugned order dated 21‑7‑1987 has not adjudicated upon the objections raised by the petitioner in their objections. The learned Rent Controller has given reason in the above order for allowing the application for the inspection of the site mainly, in order to appreciate the evidence adduced by the parties.

8. The petition stands disposed of in the above terms with no order as to costs. M . Y . H . /P‑79 / K Petition allowed.