Allah Bukhsh & 6 Others Vs Muhammad Hayat deceased through LRs etc

Stereo. H C J D A 38 Judgment Sheet

IN THE LAHORE HIGH COURT

LAHORE

Judicial Department C.R.No.66210 of 2023

Allah Bukhsh and 6 others. Versus Muhammad Hayat, etc.

JUDGMENT

Date of hearing: 13.11.2025

Petitioners by: Mr. Mazhar Hayat, Advocate.

Respondents No. 1 (i, iii) by: Rai Ikram Ullah Bhatti, Ali Bashir Advocates.

MUZAMIL AKHTAR SHABIR, J: Through this Civil Revision, the petitioners have called in question order dated 27.09.2023 passed by learned Addl. District Judge, Sillanwali, whereby in an appeal filed by the petitioners to challenge the dismissal of their suit for Declaration and Permanent Injunctions by the learned trial court vide order dated 08.06.2022, the petitioners’ application for appointment of Local Commission to inspect the property and to file report regarding physical position of disputed Ahata and construction over the same has been dismissed.

2.Learned counsel for the petitioners states that claim of the respondents is that Khuda Yar (predecessor-in-interest of the petitioners) had exchanged 111 Kanal property owned by him with Muhammad Hayyat (predecessor-in- interest of respondent No. 1) against 13 Marlas property owned by him,

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which exchange, according to him, on the face of it does not appear to be genuine or proper for the reason that there is a great difference between the value and area of both the aforementioned properties. Besides the respondents claim 13 Marlas property to be a constructed property whereas it is an open plot with no construction at all raised on it and if a report to that effect is filed by the Local Commission, the same would be helpful for the court to reach just conclusion in the matter.

3.On the other hand, while contesting the Civil Revision, the learned counsel for the respondents points out that the suit filed by the petitioners for declaration was dismissed by the learned trial court on 08.06.2022, where- after appeal was filed by them and at the fag end of the proceedings when the appeal was about to be decided on merit, the petitioners at the said belated stage moved an application for appointment of the Local Commission as an after-thought just to delay the matter, which according to him was rightly dismissed. The impugned order passed by the learned Addl.

District Judge, declining the appointment of Local Commission for determination of physical position of disputed Ahata is reproduced below:- “3. Record goes to evince that applicants-appellants (plaintiffs) filed a suit for Declaration on 04.10.2017 wherein they have challenged the legality and validity of impugned mutations No. 532 & 445 based on fraud etc. against defendants/respondents. The said suit was dismissed on 08.06.2022 and appeal was filed on 01.08.2022 whereas application in hand was instituted on 31.05.2023. Till decision of suit and after almost nine months of filing of instant appeal, the applicants-appellants remained mum to file any such application and at this belated stage the same has been filed just to prolong the proceedings of the main appeal. Apart from above, the applicants- appellants have to prove the aforementioned impugned mutations being

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result of fraud or forgery and for this they have to stand on their own legs.

4.In the light of above discussed reasons and facts, instant application is DISMISSED being devoid of any legal force.”

4.The petitioners through their application seek site inspection of the property. Usually the courts appoint Local Commission by exercising powers under Section 75 of the C.P.C, procedure of which is regulated by the rules provided under Order XXVI of the C.P.C, the Section 75 and the relevant Rule 9 of Order XXVI of the C.P.C, which relates to site inspection, are reproduced below for ready reference:

“75. Power of Court to issue commissions.– Subject to such conditions and limitations as may be prescribed, the Court may issue a commission–

(a)to examine any person;

(b)to make a local investigation;

(c)to examine or adjust accounts; or

(d)to make a partition.

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 of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of 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.”

5.The use of word “may” in the phrase ‘the Court may issue a commission’ in Section 75 and word “deems” in phrase ‘the Court deems a local investigation to be requisite or proper for the purpose’ in Rule 9 of the Order XXVI of C.P.C. make it clear that power to appoint Local

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Commission is a discretionary power vested in the court and the court could for exercise of the said powers regulate its own procedure and in its discretion the court could always appoint or decline to appoint a Local Commission for the reason that it is for the court to decide whether the court cognizant of the matter required site inspection or not for just decision of the case. Where a court exercises a discretion vested in it by operation of law, this Court ordinarily does not while exercising its jurisdiction interfere in discretionary order passed by the court of competent jurisdiction mainly for the reason that the said court is competent to regulate its own procedure and the court while hearing a revision petition can only look into an illegality or jurisdictional defect in the impugned order to exercise its jurisdiction to interfere in it.

6.While hearing a matter relating to appointment of local commission in case titled Alamzeb versus Jehanzeb and 5 others (2018 MLD 1262), the Peshawar High Court refused to interfere in an order of the trial court declining to appoint local commission by observing that the trial court had deemed it proper not to appoint local commission and held that the power to appoint local commission was the discretion of the court and not a vested right of party so as to invoke constitutional jurisdiction of High Court for enforcement of such right.

7.This court in Iltaf Hussain versus Zafar Iqbal and others (2015 CLC 447), while dealing with the matter of appointment of local commission to make local investigations has held as under:

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“8. Appointment of Local Commission to make local investigation is governed by section 75(b) read with Order XXVI, Rules 9 and 10 of the Code of Civil Procedure. In section 75 for issuance of a commission word "may" is used. Similarly, language of the Rule 9, Order XXVI explicitly tells that the appointment in the given circumstances can only be made if the court deems it requisite or proper for the purpose mentioned in the Rules.

The purpose of appointing a Commissioner for local investigation is to obtain clear view of evidence through spot inspection for arriving at a just decision. Learned District Judge has well explained this purpose in his judgment. Dismissal of earlier application for appointment of Commission, delay in concluding the suit or recording of evidence of parties cannot be a ground to reject the application, when local investigation/ inspection was necessary in the opinion of court.

9.Conclusion of the discussion is that appointment of Local Commission is a discretion lying with the court, to be exercised in backdrop of the facts of a particular case. The discretion cannot, ordinarily, be interfered with in constitutional jurisdiction, unless exercised in perverse or capricious manner.

No defect in exercise of jurisdiction/discretion is found, therefore, interference in the impugned order is declined.”

8.Moreover, the High Court of Balochistan in Razia Bibi versus Muhammad Younas Bhatti and 4 others (2020 CLC 688) has observed that court had discretion to appoint local commission depending on the facts of each case, however court could not delegate power to the local commission to decide material issues where the matter should be decided by direct evidence. The operative portion of the said judgment is reproduced below for clarity:

“15. In view of the above, this is a case of extraordinarily situation. Now it is an established law that section 75 as well as order XXVI do not allow delegation of powers by the Court to the Local Commissioner to decide material issues where the matter should be decided by direct evidence. The power to record such evidence could not be delegated to the Local Commissioner. In the above circumstances, appearance of the petitioner before the learned trial court would be appropriate to resolve the question

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that whether the petitioner (defendant No.7) was wife of late Muhammad Yousuf Bhatti and whether she is alive.”

9.Moreover, it is settled that court had discretion to order spot inspection by appointment of local commission but same was not mandatory and spot inspection through local commission was not permissible where controversy could be resolved by producing evidence by the parties. The said principles were noted by the Peshawar High Court in Munawar Ahmad and others versus Rehmat Khan (2015 CLC 250) in the following terms:

“7. It is well-settled that Court has the discretion to order a legal inspection under Order XXVI, Rule 9, C.P.C. but the language of Order XXVI, Rule 9, C.P.C. clearly establishes the fact that the same is discretionary and not mandatory. It is settled principle of law that in case the controversy can be resolved by producing evidence by the parties, then spot inspection through local commission is not permissible. Reliance can be placed on "Nazir Ahmad and others v. Muhammad Qasim and others" 2004 SCMR 1292, "Dr. Tahir Mehmood Awan v. Tariq Mehmood and others" 2006 MLD 1457 and "Jalal Khan and 10 others v. Kando Malik and 24 others" 2003 SCMR 1351.”

10.A question of law similar to the instant matter came up for hearing before this Court in an earlier case titled as Manzoor Ahmad versus Faqeer Muhammad, etc. (PLD 2020 Lahore 737), wherein while determining the question of legality of appointment of a local commission by a court of competent jurisdiction it has been held as under:- “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

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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.”

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.”

11.Although the facts of the aforementioned case are different from the instant case for the reason that in the said case the court had appointed a local commission and in the instant case the court has refused to appoint a local commission for the purposes of site inspection yet the settled principle of law is that the appointment or refusal to appoint a local commission remains within the discretionary jurisdiction of the court of competent jurisdiction, which is cognizant of the matter pending adjudication before it and the said interlocutory order if challenged before the final decision of the matter by the said court, is not ordinarily interfered with by the courts before whom such interlocutory orders are challenged unless some illegality or jurisdictional defect going to the very root of the matter is pointed out that

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causes prejudice to an aggrieved party and it is shown from the record the unless timely interference is made by a superior forum/court, the same shall result in further loss to the aggrieved party. However, in the present case no such illegality, jurisdictional defect or prejudice to the petitioners has been pointed out and the petition at this stage is premature and not proceedable any further.

12.For what has been discussed above, the impugned order does not suffer from any illegality or jurisdictional defect, misreading and non- reading of the record for this Court to warrant interference in the same at this stage. However, it is clarified that any observation made in this order shall not be an impediment or hindrance in the way of the court, which has cognizance of the matter, if at any subsequent stage before deciding the matter pending before the said court it reaches a conclusion that the local inspection of the property is required for just decision of the matter, which exercise of jurisdiction would be permissible in view of the principles laid down in Province of Punjab through Collector, Bahawalpur and others versus Sh. Hassan Ali and others (PLD 2009 SC 16), wherein it is mentioned that there is no impediment in appointing a Local Commissioner when the evidence brought on record alone was not capable to resolve the controversy and recourse to Order XXVI Rule 9 CPC could be made even without an application by any party. However, it is pertinent to observe here that at the said stage also the appointment of the local commission for the

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said purpose would still be within the discretion of the court and could not be enforced at the whims and wishes of any party to the proceedings.

13.In view of the reasons given above, the instant Civil Revision being premature at this stage as well as devoid of any merit is dismissed with observation that if any final challengeable order is passed against the petitioners, they may raise the grievance relating to appointment of Local Commission as one of the grounds before the higher forum by calling the same in question through appropriate proceedings initiated there-against.

(MUZAMIL AKHTAR SHABIR)

JUDGE

*Zeeshan Khan*

Approved for reporting.

JUDGE