Taj Nabi Khan etc Vs Muhammad Anwar etc

v JUDGMENT SHEET

PESIIAWARHIGH COURT

ABBOTTABAD BENCH

(ludicial Department)

W.P. No. 1567-N2023

Taj Nabi Khan etc (Petitioners)

V/S

Muhammad Anwar & others ---(Respondents) Present: Amanullah Khan Salik, Advocate, for the petitioners.

Mr. Najeem ul Hassan Khan, Advocate, for the respondents No. 6 to I l.

Dates of hearing: 04.03.2024

JUDGMENT

MIIIIAMMAD IJAZ KHAN. J.- Through the instant writ petition, the petitioners have challenged the order of respondent No.28 i.e. District Judge Battagram dated 14.11.2023 whereby the revision f,rled by the respondents/defendants was allowed and thereby set- aside the order of Senior Civil Judge Battagram dated 25.05.2023 who vide the same had appointed the local commission and has also drawn the terms of reference q/ t/ for him.

Precisely, the facts leading to the filing of the instant writ petition are that the present ::l-Y$l'98 petitioners filed a suit for declaration to the effect that (S.8.) IIon'ble Mr. Juslicc ilfuhammad ljaz Khan ft

they are owner in possession of the suit property on the basis of revenue record. They have also prayed for dispossession of the respondents/defendants if they could not prove their possession as well as for issuance of permanent injunction and for issuance of direction to the respondents/defendants to make necessary correction in the revenue record and they should also be restrained from changing the nature of the suit property. The aforesaid suit was contested by the respondents/defendants and they submitted their written statement and thereafter the leamed trial Court framed as many as eight issues and then both the parties were directed to produce their respective evidence which they have accordingly led, however, when the case was fixed for arguments the present petitioners then plaintiffs submiued an application for appointment of the local commission for determination of the possession of the parties over the subject property which application was contested by the V respondents/defendants by filing their reply and after hearing both the parties, the same was allowed by the leamed trial Court vide order dated 25.05.2023. The respondents /defendants being aggrieved of the aforesaid order and judgment preferred a revision (S.8.) Hon'ble Mr. Justice Muhammad ljaz Khrn

petition to the Court of leamed District Judge, Battagram who vide impugned order and judgment dated 14.11.2023 set aside the aforesaid order of leamed trial Court, which order has now been challenged by the present petitioner before this Court through the instant writ petition.

3.Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

4.At the very outset it was noted that the only ground which prevailed with the leamed revisional Court was that the present petitioners then plaintiffs have filed the application for appointment of local commission at the very belated stage of the proceedings and it has further observed that since the petitioners/plaintiffs have brought on record very weak, insufficient and incredible evidence qua his possession, therefore, filing of instant application for the appointment of the local commission was an afterthought attempt to fiIl lacunas in their case, however, such sweeping hndings of the leamed revisional Court qua the nature of evidence of petitioners/plaintiffs on one hand may prejudice the case of petitioners/plaintiffs before the leamed trial (S.8.) gor'ble Mr, Justice Muhammed IjRz Khan

t''I Court who is yet to finally decide the lis pending before it and on the other hand such findings are also factually incorrect as it was at the very initial stage of the proceedings when the petitioner/plaintiffs namely Abdur Raqeeb Khan appeared in the trial Court for himself as well as attomey for rest of the plaintiffs as PW-l and who has stated that:-

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In view of the above statement-cum-request of the present petitioners/plaintiffs and that too at the very initial stage speaks volume that petitioners/plaintiffs have been requesting for the appointment of the local commission from the very inception of the proceedings. In the case of ooHassan Nawaz vs Atta Muhamm ad ( deceased ) throush his Lesal Heirs" reported as Wwthe Hon'ble Apex Court

has held that it is not always necessary that the Court may record evidence itself. For a variety of reasons, it may be recorded through a Commission. The Court as a principal may exercise powers and delegate authority, under section 75 or Order XXVII, for personal appearance of a witness in front of the Muh.Do.d r,nq (S.B.) Hon'ble Mr. Justice Muhammsd Ijaz Khan

Commission either out of its own accord or on application of either party. However, it does not bar the Court itself of the authority to examine the witness where it is not satisfied.

5 It is also not out of place to mention here that the concept of fair trial include that the trial court has to provide a fair opportunity to the parties to produce their desire evidence in support of their case.

It is also relevant to mention here that the spirit and purposes of all procedural laws is to advance the cause ofjustice and thus procedural technicalities could not be used as a tool to defeat the same as all procedural laws of the land are enacted to empower a Court of law to bring on record any material through any legally recognized mode so that it may be in a position to have a true pictures of the claims of both the parties before it. In view of aforesaid established jurisprudence when the appointment of the local commission and material /evidence collected and produced by him, 1S tully t\/ provided and protected under section 75 read with t/ Order XVIII Rules, 9, 10 & 18 and Order XXVI Rule 9 CPC, then such process too could be used for the collection of evidence and the same could validly be considered by the Courts of law while rendering a (S.B.) Uon'ble [Ir. Jrstice Muhammrd Ijtz Khan

Fr judgment. In the case of Mst. Adalat Bibi vs. MsL Socha Bibi & others reported as 2l/!1Q1!!!!!, this Court has held that it may also be noted that all procedural laws are meant to advance the cause of justice and as such procedural formalities and technicalities could never be used as a tools to defeat the cause of justice. As stated hereinabove that sending the deed to the FSL for comparison of the thumb impression of the petitioner/ plaintiff would not prejudice her case in any manner, rather it will help the leamed Trial Court to ascertain the real facts and to a reach correct conclusion. The stance of the present petitioner that the responders/ defendants were required to establish the same through direct evidence is misconceived as stated hereinabove that it is the direct evidence as well as confirmatory evidence or any other material or evidence which will help the Court of law to reach a correct decision, therefore, such objection of the learned counsel for .s the petitioner is of no help for him. In the case of "Anwdr Khan v. Fazal Manan" te ported as l!f!!

SCMR 973 , it was observed by the Hon'ble aPex Court that it is well-settled principle that the most important duty of the courts of law is to do justice Mlb.Er.d r.ri{ (S.8.) Holl'blc Mr. Justice Muh.mm'd lixz Khan

between the parties and in the absence ofany express power, normally on technical grounds, they should not hesitate to give proper relief. It must also be mentioned that civil courts are courts of both law and equity and in the absence of special reasons they should also be inclined to do substantial justice and matter of controversy should also be disposed of on merits and not on technical consideration. This is always more imporlant in cases where there is apprehension that the party concerned shall be seriously prejudiced if the application or suit is not restored. It is also a settled proposition of law that the principal object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions unless insurmountable should not be allowed to defeat the ends of justice. The procedure prescribed is always for the purpose of doing justice between them and should not come in the way of doing substantial Justlce.

,f 6 There is no cavil with this establish proposition that parties are bound by their pleadings as well as evidence and it is the statutory duty of the parties to establish those facts which they have alleged (S.8,) Hon'ble Mr. Justice Muhammad Iixz Khsn

in their pleadings and in order to prove the pleaded facts a party is legally entitle to produce any evidence from any source through any legally recognized process so as to bring a clear position before the Court of law and thus in tle present case the request of the petitioners/plaintiffs for the appointment of the local commission is a classical example of the same. It may also be clarified that the trial Court while finally deciding the lis shall consider the evidence produced by the parties as well as the commission report for reaching a just, fair and correct conclusion qua the controversies agitated before it.

7 During the course of arguments leamed counsel for the respondents/defendants was also confronted that whether the questions formalities in the form of term of reference as drawn by the leamed trial Court could be answered on the available record, his reply was that since the petitioners were plaintiffs before the trial Cout, therefore, they were required to establish their case but as stated hereinabove that it is for the Court of law to collect any material/evidence through any legally recognized process for reaching a just and fair conclusion. For removal of un-certainty and in (S.8.) IIon'ble Mr. Jrstice Muhammad Ijaz Khan

cases when there is inclusiveness in the evidence the law has provided a mechanism like appointment of local commission or spot inspection etc. In the case of Wazir Hussain Shah ond seven others vs.

Ali Shah qnd three others repofied as PLD 2011 s reme Court J& 25 it was observed that similar is the legal position as far report of the commlsslon appointed under section. '7< Civil Procedure Code, read with Order XVIII, Rules 9, l0 and 18 and Order XXVI, Rule 9, Civil Procedure Code, is concemed. Civil Court under these provisions can appoint Commission or ask for a report after spot inspection and base its findings according to the report or take into consideration report of the Commission along with other evidence brought on record. Lord Romer observed in a full bench case reported as AIR 1940 Priw Coancil 3, that the principles to be adopted in dealing with the commission and the reports are that interference with the result of a long and 17 careful local investigation, except upon clearly defined and sufficient grounds is to be deprecated.

It, is not safe for a court to act as an expert and to ovemrle the elaborate report of a commissioner MuhrDm.dr,riq (S'8.) Hon'ble Mr. Justice Muhamm8d ljaz Khan

whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report and who had not blindly adopted assertion of either party. Similarly, in the case of Fero Din Khan vs. Muhammad Lati Khan and five others orted as PLD 2012 s reme Courl 13 in para No.9 of the

judgment it has held that we havc considered the other argument of the learned counsel for the appellant that the defendant/appellant moved an application for spot inspection which was not disposed of by the trial Court, therefore, the judgment is a nullity in the eye of law. Under section 75 and Order XXVI, Rule 9 of C.P.C. if the trial Court feels difficulty in deciding a case and reaches the conclusion that the judgment cannot be delivered without spot inspection then the Court has jurisdiction to make spot inspection. Similarly, in the case of Inavatullah ( ,y Khan and five oth ers Versus Abdul Karim and fo ur others reported as 2O1O MLD 1504 this Court has held that it is correct that the parties are bound to produce evidence in respect of their cases and other options are ralely exercised which Muhrmo,.rririq (S.8.) Uon'ble Mr. Justite Muhemmad ljaz Khar

includes the appointment of Commission. Normally the Commission is appointed to bring on surface some facts which the parties have failed to disclose in the Court. Moreover, the report of Commission is not exclusive and is always subject to objection of the parties and the Court is not bound to straightaway accept or rej ect the same. Parties have ample opportunities to bring their view points on record before the Court regarding their objections, if any. The Court would not straightaway accept the said report but would evaluate the objection of the parties. Even if the report is accepted, it would not amount to be a conclusive evidence, but would only help the Court in reaching to a correct conclusion.

8.In view of the above discussion and exposition of law on the subject the leamed revisional court has not properly exercised its jurisdiction as it has succumbed to the formal technicalities and has compromised on the v substantial justice between the parties by setting aside the order of learned trial Court for appointment of the local commission, therefore, by issuing the desire writ the impugned order of the revisional Court dated 14.11.2023 is set aside nroh.rE.d r.riq (S.D.) Hon'ble Mr. Justicc Muhammrd ljtz Khrn

whereas the order of the leamed trial Court dated 25.05.2023 is restored and maintained. Before parting with this judgment it would be relevant to observe that since a considerable time has been lost in litigations on the instant controversy, therefore, the leamed trial court is expected to conclude the commission proceedings, as well as process of objection, if any, and the final decision/judgment within a period of three months positively from the receipt ofthe order ofthis Court.

Announced

Dt: 04.0i.2024 JUDGE

(S.B.) Hon'blc Mr. Justice IUuhammld lisz Khan