2011 CLC 543 (PLP)

YAHYA AFRIDI, J.

Through this Revision Petition, the petitioners have challenged the judgment and decree dated 18-12-2008 passed by the learned Additional District Judge-IV, Nowshera, whereby the appeal of the petitioner was dismissed and the judgment and decree dated 10-2-2007 passed by the Senior Civil Judge, Nowshera was maintained.

2. The brief and essential facts, leading to the present revision petition are that Messrs Cherat Cement Factory ("company"), which is situated in Tehsil and District Nowshera, excavated land for extraction of rocks to be used for the manufacture of cement. Accordingly, the company under the provisions of the N.-W.F.P. Mining Concessions Rules, 1976, ("Rules") obtained leasehold rights from the provincial government. Under the terms of the said lease, the company had to give surface rent to the locals of the area from where mining activity was being carried out by the company. Since the setting up of the factory, the company used to pay the surface rent for the excavation activities to the residents of Mauza Sheikhi. However, in the year 1997, the resident of Mauza Jabba Khushk starting claiming rights over the surface rent for the excavation and mining activities carried out by the company. Accordingly, an application was moved to the Assistant Commissioner, Nowshera, who vide his order dated 4-8-1998 ordered that the surface rent be paid by the company to the residents of Mauza Jabba Khushk. The present petitioners moved a review application, which too was rejected vide order dated 26-8-2008. Aggrieved from the said decisions, the present petitioners instituted a representative suit before the Senior Civil Judge, Nowshera, seeking a declaration challenging the orders of the Assistant Commissioner date 4-8-1998 and 26-8-1998 being illegal and claiming the surface rent for the mining activities being carried out by the company. During the proceedings, the trial court constituted four local commissions to report as to the exact location of the mining activities being carried out by the company. On the objections of the present petitioners the first three commission reports were set aside. The present petitioners even objected to the proceedings carried out by the fourth commission. The objections of the present petitioners were essentially regarding the non-compliance of the order of the trial Court constituting the commission and directing the same with specific instructions to obtain the information regarding, the exact location of the mining activities carried out by the company. The trial Court without passing any order on the objections proceeded with the trial and finally vide impugned judgment and decree dated 10-2-2007 accepted the claim of the respondents and passed a decree in their favour. Being aggrieved thereof, the present petitioners impugned the same in appeal, which too was dismissed vide judgment and decree dated 18-12-2008. Hence, the present petition.

3. The learned counsel for the petitioner vehemently argued and challenged the impugned decision of the courts below on only one point alone that the trial Court did not decide the objections raised by the present petitioners against the fourth commission report vide their application dated 30-5-2005; that by not deciding objections of the petitioners on the commission proceedings, the courts below have exposed the decisions to be violative of the principles of natural justice and more so against the clear provisions of Order XXVI, Rule 10 of Code of Civil Procedure, 1908 ("CPC"). The learned counsel relied upon the judgments of Muhammad Yousaf v. Khudadad (2004 MLD 1107), Ali Hassan v. Sher Muhammad (2007 CLC 969), Muhammad Sharif v. Additional District Judge (1994 MLD 507), Faqir Muhammad v. Karam Ceramics (Pvt.) Ltd. (1988 PLC 213).

4. The learned counsel for the respondents vehemently opposed the assertions made by the learned counsel for the petitioners and contended that there were concurrent finding of fact passed by the courts below and the courts below had duly discussed the objections of the present petitioners on the fourth commission and dilated upon them in their judgments and hence the same should not be disturbed; that in essence, the commission was constituted to ascertain the fact as to the location of the area of excavation, which was clearly stated in all four commission reports which in Mauza Sheikhi and not, in Mauza Jabba Khushk as, claimed by the petitioners; that the present petitioners have. always disturbed the clear directions of the court and not allowed the commission to proceed in accordance with law and hence the present claim of the petitioner was only to delay the proceedings and delay the lawful rights of the present respondents; that Patwari "Mauza" Jabba Khushk (D. W.3) did not support the case of the respondents by even mentioning that the said excavation was being conducted in his Mauza.

5. The valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.

6. The relevant provision relating to the subject-matter is provided in Order XXVI of C.P.C. are very clear in its stipulation that the reason for constitution of a local commission is for the court to decide a tactual controversy, which requires physical inspection of the court through the agent of the court. It is also to be taken into account that there is no clear provision for any objection being filed in writing by any party to the proceedings regarding the commission report. However, the principles of natural justice and the practice of the court is that the same is considered under Rule 10 of Order XXVI, C.P.C. The fact that the objections of a party were not decided prior to rendering a judgment would not hold the legal ground in cases where the court while passing the final judgment addressed all the objections raised by a party and rendered definite findings on the same. In the present case, the courts below have not effectively addressed all the objections of the present petitioners; hence their case is surely prejudiced and requires judicial interference-of this court.

7. Lest this court passes any definite finding on said objections, which may prejudice the party, it would be appropriate for this court to refrain from rendering any view on the objections raised by the present petitioners. Accordingly, for the reasons stated hereinabove, this court accepts the present revision petition and sets aside the impugned judgments of the courts below and remands the case back to the trial Court to decide the case after affording opportunity to the parties of a hearing and while deciding the case address all the objections raised by the petitioners in their application of 30-5-2005. No order as to costs. S.A.K./43/P Case remanded.