2003 PLP 397 (CLC)

The brief facts out of which the present revision petition arises are that the petitioner filed a suit for declaration and permanent injunction before the Civil Judge, 1st Class, Lahore alongwith an application for interim relief. The respondents filed the written statement controverted the allegations leveled in the plaint. The trial Court passed the ad interim order on 12‑12‑2000. Subsequently the trial Court dismissed the application of interim relief of the petitioner vide order, dated 14‑1‑2002. The petitioners being aggrieved filed appeal before the Additional District Judge, Lahore. The petitioners also filed application under Order 26, rule 9, C.P.C. read with section 151, C.P.C. on behalf of the petitioners/appellants. The application was dismissed by the Additional District Judge, Lahore vide his order, dated 20‑6‑2002, hence, the present revision petition.

2. The learned counsel of the petitioners submits that the First Appellate Court was erred in law to dismiss the application of the petitioners without any justification. He further submits that documents relied upon by both the parties are same, therefore, it is the duty cast upon the Court to appoint the Local Commissioner to find out the ground realities but the First Appellate Court was erred in law to dismiss the application of the petitioner to violation of the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:‑‑ Zahooruddin v. Haji Hussain and others PLD 1991 Kar. 205, P. Moosa Kutty's case AIR 1953 Mad. 717.

3. Kh. Muhammad Afzal, Legal Advisor of respondents entered appearance on Court's call, he submits that the impugned order is valid in the eyes of law.

4. I have given my anxious consideration, to the contentions of the learned counsel of the parties and perused the record myself.

5. It is better and appropriate to reproduce the Order 26, rule 9, C.P.C. to resolve the controversy between the parties:‑‑ "Order 26, Rule

9. Commissions to make local investigations.‑‑ In any suit in which the Court deems a local investigation to be requisite or proper for the purpose or 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: Provided that, where the (Provincial Government) has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." Mere reading of Order 20, Rule 9 it reveals that it is the discretion of the Court to appoint a local commission or not. It is settled principle of law that in case the controversy be resolved by producing evidence by the parties then spot inspection through local commission is not permissible. In arriving to this conclusion, I am fortified by the following judgments:‑‑ Ghulam Rasool and others v. Khuda Bakhsh and others 1995 CLC 26, Ghulam Rasool v. Canal Authorities 1995 MLD

999. It is also settled principle of law that Court has a discretion to order a local investigation or not. It is not bound to do it in all cases. In arriving to this conclusion, I am fortified by the law laid down in the case of Dharmodas Mondal v. Kashi Nath De AIR 1959 Cal.

243. The aforesaid provision of law is for the Court to decide the necessity of local investigation. The Court is within its discretion in directing the holding of a local investigation and is justified in directing the parties to pay the fee of the commissioner. In arriving to this conclusion, I am fortified by the following judgment 20 DLR

301. Belated application to appoint local commissioner is not permissible. In arriving to this conclusion I am fortified by the law laid down in the case of Waleed Haider v. Additional District Judge and others 1994 MLD 1246. It is also settled principle of law that local commissioner cannot be appointed by the Appellate Court just in routine without judicial application of mind to the facts of a particular case as per principle laid down by this Court in the case of Muhammad Khalid v. Sabir Hussain and 12 others 1994 CLC 1343. It is better and appropriate to reproduce the operative part of the order of the First Appellate Court to resolve the controversy between the parties:-- "Under Order 26, Rule 9, C.P.C. the local commission may be appointed where the Courts deem local investigation to be requisitioned or proper for the purpose of elucidating any matter in dispute. In the present case the parties are required to prove their contention by producing documents rather than seeking an appointment of local commission for decision of appeal. The documents are more reliable as compared to the report of the local commission after spot inspection. No useful purpose would be served by appointment of local commission in the present circumstances, thus petition is meritless. " The aforesaid operative part clearly reveals that the First Appellate Court passed the impugned order after applying its independent mind in accordance with the dictum laid down by the superior Courts. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law and do not support the cause of the petitioner.

6. In view of what has been discussed above, this revision petition has no merits and the same is dismissed. H.B.T./K-161/L Revision dismissed.