2015 PLP 222 (MLD)

MAHMOOD AHMAD BHATTI, J.

Through this writ petition, Nazir Ahmad, the petitioner has assailed the validity of the orders dated 18-12-2013 and 24-4-2014 passed by learned Civil Judge Muzaffargarh and learned Addl. District Judge, Muzaffargarh, respectively, whereby he dismissed his application for the appointment of a local commission moved in a suit for specific performance and a revision petition filed thereagainst was dismissed as well.

2. The plain facts are that the petitioner instituted a suit for specific performance in respect of land measuring 4 Kanals, situated at village Baraham Wali, District Muzaffargarh, seeking to enforce the alleged agreement to sell dated 13-2-2006. It was averred in the plaint that Gaman Khan, predecessor-in-interest of the respondents had made a sale agreement with the petitioner/plaintiff for the sale of the suit land for a consideration of Rs.500,000, out of which he had received an amount of Rs.300,000 as earnest money, while the balance of the sale consideration amounting to Rs.200,000 was to be paid by the petitioner/plaintiff at the time of the execution and registration of the sale deed. It was further maintained by him that possession was delivered to him in the wake of the execution of the alleged agreement to sell dated 13-2-2006.

3. Gaman Khan put in an appearance and filed written statement, denying vehemently all the averments made in the plaint. It was specifically denied by him that he ever entered into any agreement to sell with the plaintiff. It was maintained by him that earlier, pre-emption suits were instituted by the plaintiff against him as well as his son, and that when the plaintiff failed to achieve his object to secure the land in question by exercising his alleged right of pre-emption, he came up with a false, frivolous and vexatious suit for specific performance.

4. The plaintiff produced oral evidence in support of his case. Thereafter, the learned trial Court seized with the suit called upon him to produce documentary evidence. At that stage, he moved an application for the appointment of a local commission, stating that he had raised construction on the suit land and that it was not cultivable, as was claimed by the defendant. This application was opposed tooth and nail by the defendant. It was pointed out by him that the plaintiff intended to improve upon his case which is simply impermissible in law, for no party can be allowed to make a departure from the pleadings or the case set up by it therein. At the same time, it was emphasized that even in the course of his deposition, the plaintiff did not utter a single word as to the construction made by him on the suit land. In a nutshell, it was maintained that the application for the appointment of a local commission stems for motives other than bona fides. The sole object was to prolong and drag on the proceedings so as to cause torment to the defendant.

5. As stated above, learned trial Court dismissed the application for the appointment of a local commission vide order dated 18-12-2013 by observing that the petitioner/plaintiff is to stand on his legs and since he has already produced his oral evidence, there was no justification for the appointment of local commission. This order was challenged by filing a revision petition, but the same was also dismissed by an Addl. District Judge, Muzaffargarh vide order dated 24-4-2014. It was observed in the impugned order that the case had been pending adjudication since 2009 and that the petitioner/plaintiff was out "to linger on the matter". The learned Revisional Court also agreed with the contention made by the defendants' side that when no plea as to the possession of the land and the raising of the construction thereon was taken in the plaint, how could the plaintiff be allowed to make out a new case by allowing his application for the appointment of a local commission.

6. In support of this petition, learned counsel for the petitioner submits that both the learned Courts below fell in serious error in comprehending the contents of the application moved by the petitioner for the appointment of a local commission. He insists that the petitioner/ plaintiff had made an innocent/innocuous prayer, and if the respondents/ defendants were true to their stand, they need not be afraid of the appointment of a local commission. According to him, the report submitted by the local commission would not only help resolve the controversy in issue but it would also negate the assertion made by the defendants' side that no agreement was made by their predecessors-in-interest, namely, Gaman Khan.

7. I have perused the plaint filed by the petitioner. Nowhere has he averred therein that he had made any constructions on the suit land. Again, when he appeared as P.W.1, he did not make any such assertion in his deposition. It is well-established law that no party to a suit can be allowed either to make a departure from its pleadings or improve upon the case set up by it therein. Likewise, a plaintiff is bound to prove his own case in conformity with the assertions made by him in the plaint. In other words, he has to stand on his own legs and he cannot be allowed to build his case upon the weakness of the case of the other party. Although motives have been ascribed to the petitioner/plaintiff, which prompted him to make an application for the appointment of a local commission at the belated stage, yet I would resist the temptation to dwell upon the same lest it should prejudice the merits of the case, which is yet to be decided by the learned trial Court. Even otherwise, it was held by this Court in the case reported as "Muhammad Bakhsh v. Nizam Din" (PLD 1978 Lahore 31) that a party cannot be allowed to collect evidence through a local commission. Furthermore, if the application of the petitioner is to be allowed, then the local commission would also have to be examined as one of the witnesses. To put it differently, it would provide another opportunity to the plaintiff to fill in the lacunas left in his case. He having concluded his oral evidence, he could not be allowed to turn around and make another attempt to produce evidence to bolster up his case.

8. I have perused the impugned judgments, but I have not found any illegality or infirmity committed by the learned Courts, who passed them. Both the learned Courts exercised their jurisdiction in accordance with the law and in the light of the case law regulating their jurisdiction in relation to the appointment of a local commission. As such the learned two Courts below did not commit any material irregularity in the exercise of their jurisdiction, warranting the interference of this Court under section 115 C.P.C.

9. The upshot of the discussion made above is that there is no merit in the writ petition which is dismissed in limine. AG/N-46/L Petition dismissed.