Azam Ali Vs ADJ Sheikhupura etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

WP No. 29243 of 2024

Azam Ali vs ADJ etc

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 12.10.2026 M/s. Muhammad Usman Haider and Sajid Hussain Chaudhry, Advocates for petitioner.

M/s Qamar Zaman Qureshi and Barrister Hassan Khalid Ranjha, Additional Advocate Generals Punjab with Malik Khalid Tanveer, Rana Athar Raza Khan, Fayyaz Sandhu, Barrister Muhammad Sohail Babar Khan, Barrister Saeed Hussain Nagra, Adnan Safdar Khokhar, Ahmad Kamal Khan, Sh. Faisal Sikandar Iqbal, Muhammad Shahid Malik, Sarmad Ahmad Ghani, Mahar Salman Qutab, Syed Qaiser Gillani, Faisal Anwar Minhas, Ijaz Ahmad, Basit Waheed Watto, Muhammad Naeem Mazhar and Ms. Asifa Ahmad, Advocates. Mr. Qamar Hanif Ramay, Assistant Attorney General for Pakistan, Ch. Imtiaz ullah Warraich, Ch. Muhammad Naseer, Shehryar Farhan Beg, Shujaat Umar Pirzada, Syed Imran Ehsan, Abdullah Haroon, Muhammad Saeed Bin Noman, Dr. Muhammad Azeem Raja, Syed Ali Allow-u-Din, Muhammad Afzal, Mateen ul Haq Ch., M. Haris Jutt and Ms. Mussarat Rehman Advocates.

Through this Constitution petition, the petitioner, Azam Ali, who was one of the defendants, has called in question judgment dated 18.04.2024 (‘Impugned Judgment’) passed by learned Additional District Judge, Sheikhupura, (‘Revisional Court’) who in proceedings arising out of a suit for recovery of damages and compensation of Rs.2,20,000/- for blocking respondents’ passage/right of way filed by respondent Nos. 3 and 4, Abdul Majeed, etc. set aside the order dated 10.10.2023

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passed by Civil Judge, Sheikhupura and appointed a local commission for inspection of the suit property and to file report after site inspection.

2.It is contended by learned counsel for the petitioner that decisions of courts below are at variance and the order of appointment of local commission passed by the Revisional Court was not justified as the learned trial court has declined to appoint local commission on the ground that previously in a connected suit for permanent injunctions titled Azam Ali, etc. versus Abdul Majeed, etc., filed by the petitioner, the court had through its order dated 02.03.2022 appointed a local commission for site inspection and it is claimed by the petitioner that as the matter relating to site inspection was pending adjudication before the court in the aforementioned suit, the impugned judgment passed by the Revisional Court was not justified.

3.Perusal of the record shows that the petitioner filed a suit for permanent injunction, titled Azam Ali versus Abdul Majeed, etc., in which, on his application under Order XXVI Rule 9 CPC, local commission was appointed for site inspection regarding determining his right of easement relating to passage from respondents’ property leading to property of the petitioner, and the operative portion of the said order is as under; ‘5. From the facts narrated above as well as in view the stance of applicants/defendants taken in written statement that they have used the disputed passage since 100-years. In this regard while deciding the application under order 39 rule 1 & 2 CPC dated 06.05.2021 by the learned Administrative Court gives the observations that the applicants/defendants have not produced the site plan which showing existence of any passage and directed both the parties to maintain the status quo. In such situation, the applicants/defendants

WP No. 29243 of 2024 Dated 12.10.2026.

claimed the right of Easement with regard to passage, so in order to ascertain the claim of applicants/defendants that they have no approach to the land owned by them except the land of respondents/plaintiffs i.e. disputed passage and they are land locked, only then the right of Easement can be extended to the applicants/defendants, in view of these circumstances, the application in hand is hereby accepted without any costs. This order is annexed with the main file.’

4.On the other hand the impugned order of appointment of local commission arises out of suit for damages and compensation for blocking their passage filed by the respondents against the petitioner and others. Although, through order dated 10.10.2023 passed by the trial court in the instant case filed by the respondents, the said application for appointment of local commission was declined by observing that report of local commission in the aforementioned suit filed by the petitioner is available on the record yet, when the respondents filed a revision against the said order, the learned Additional District Judge, while setting aside the order of learned trial court, directed appointment of local commission to ascertain the following questions:

1.Whether any alternate passage is available to the petitioners for access to their land through a government water course.

2.If yes, can cultivation and harvesting of crop be carried out using the said government water course as alternate path?

5.The scope of inquiry through report of local commission being required to be filed in both the cases is prima facie separate and is being conducted for determining different questions and for different purposes and would not affect the decision of the other

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case. The respondents through their application under Order XXVI Rule 9 CPC seek site inspection to determine as to whether the petitioner has blocked their passage/right of way. 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.”

6.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 constitutional petition can only look into an illegality or jurisdictional defect in the impugned order to exercise its jurisdiction to interfere in it. Reliance in this regard may be placed on Alamzeb versus Jehanzeb and 5 others (2018 MLD 1262 Peshawar), Iltaf Hussain versus Zafar Iqbal and others (2015 CLC 447 Lahore), Razia Bibi versus Muhammad Younas Bhatti and 4 others (2020 CLC 688 Balochistan), Munawar Ahmad and others versus Rehmat Khan (2015 CLC 250 Peshawar) and Manzoor Ahmad versus Faqeer Muhammad, etc. (PLD 2020 Lahore 737).

It is pertinent to mention here that in Province of Punjab through Collector, Bahawalpur and others versus Sh. Hassan Ali and others (PLD 2009 SC 16), 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

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pertinent to observe here that at the said stage also the appointment of the local commission for the 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.

7.Moreover, no prejudice shall be caused to the petitioner by appointment of local commission as the petitioner has a right to file objection petition against the report submitted by the local commission, which if filed is required to be decided on its own merits in accordance with law. At this stage, the petitioner has approached this Court prematurely.

8.In view of the reasons given above, the instant constitutional petition 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 petitioner, he 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

Naveed *

APPROVED FOR REPORTING