Manzoor Ahmad vs Faqeer Muhammad etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

CR No. 44 of 2020

Manzoor Ahmad vs Faqir Muhammad etc

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 15.01.2020. Rana Muhammad Nazir Khan Saeed, Advocate.

Through this petition, the petitioner, who was respondent before the appellate court, has called in question order dated 12.12.2019 passed by learned appellate court, whereby Local Commission has been appointed to ascertain possession of either of the party over the suit property.

2.Learned counsel for the petitioner states that appointment of Local Commission at this stage was not justified and the appellate court should have determined the matter on the basis of available record and after perusal of record and recording evidence, if need had still arisen, Local Commission could be appointed at that stage.

3.The relevant portion of the impugned order of the learned Appellate Court is reproduced below: “Though the disputed property is situated in joint khata, yet, both the parties allege their possession at the spot. Therefore, in order to determine the truth and for just conclusion, it would be necessary to elucidate the matter in controversy to appoint local commission. Hence, in the interest of justice, Mr. Ehsan Qadir Babar, Advocate is appointed as Local Commission subject to fee of Rs.5,000/-

CR No. 44 of 2020 Dated 15.01.2020.

payable by the appellant, who shall submit his report regarding possession of either of the party over the suit land. The learned local commission shall take assistance of Tehsildar concerned at the time of visiting of the spot.”

4.The aforesaid order of appointment of local commission is purely discretionary and interlocutory in nature, in which nothing has been decided that comes within the ambit of “a case decided” as envisaged in Section 115 of CPC, which is a mandatory requirement for exercising jurisdiction of revision against a judicial order, rather the appellate court has exercised its discretionary jurisdiction vested by law to appoint Local Commission to find out position pertaining at the spot, in order to determine the truth for just conclusion of the matter, against whose report, the petitioner as well as the respondents, if aggrieved, shall have a right to file objections which, if filed, have to be decided on their own merits in accordance with law, therefore, civil revision against the said order is premature and not maintainable. Reliance in this regard is placed on the judgments reported as Mian Muhammad Luqman and 5 others vs. Farida Khanum and another (1994 SCMR 1991), wherein it has been held as under: “it is not denied by the respondents’ learned counsel that unless it is “a case decided” the High Court has no jurisdiction under section 115, C.P.C. to deal with the matter on civil revisional side. On the specific point; whether the order passed in this case by the trial court which was impugned before the High Court did constitute a “case decided” the learned counsel although having remained for considerable time hesitant to admit that it did not constitute “a case decided” ultimately failed to satisfy the Court that it did constitute “a case decided.”

CR No. 44 of 2020 Dated 15.01.2020.

5.The same principle has been enunciated in the judgments reported as Nestle Milkpak Limited vs. Classic Needs Pakistan (Pvt.) Ltd. and 3 others (2006 SCMR 21) and Abdul Razzaq and others vs. Muhammad Ajmal Khan (PLD 2018 Lahore 491).

6.For what has been discussed above, the impugned order lacks mandatory ingredient of finality for being amenable to challenge in revisional jurisdiction for finding out any jurisdictional defect in the same. This civil revision is accordingly dismissed in limine as premature.

(MUZAMIL AKHTAR SHABIR)

JUDGE

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