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Revision Petition No.1 of 2014, decided on 23rd September, 2014.

----S. 75 & O. XXVI, Rr.9 & 10---Local commission, appointment of---Scope---Application for appointment of local commission for assessment of improvement and site situation was dismissed by the Appellate Court---Validity---Earlier, local commission was appointed by the Trial Court and matter had been decided---Difference between the report of local commission and oral evidence of the parties was on record---Matter should have been decided by resolving each and every controversial point---Question of improvement could be determined after assessment of the same---Application for appointment of local commission should have been allowed in order to meet the ends of justice---Impugned order passed by the Appellate Court was set aside with the direction to appoint another local commission and decide the controversy in the light of the report of local commission---Revision was accepted in circumstances. PLD 1989 Kar. 75; 2003 SCR 172 and 1981 CLC 368 ref. PLD 1989 Kar. 75 rel. Sardar Atta-ur-Rehman Abbasi for Petitioners. A.A.-G. for the Government. Raja Muhammad Imtiaz Khan for Respondents.

The above titled revision petition has been filed against the order of Additional District Judge Dhirkot dated 20-12-2013 whereby, an application for appointment of local commission for assessment of improvement and site situation etc. has been rejected. 2. Brief facts forming background of the revision petition are that in a case titled "Shabir Khan and others v. Azad Government and others" pending before Additional District Judge Dhirkot an application was filed by Maqsood and others for appointment of local commission in order to assess and evaluate the improvements made over the disputed land as well as road etc. It was averred that the report of the commission, already submitted is not comprehensive enough and there are certain facts to be Assessed and revisited. It was further averred that appellants have made huge improvements in shape of houses, plinth, trees etc. 3. The application was objected to by the other side stating therein that the application is misconceived and baseless just to procrastinate the litigation whereas, the learned trial Court in light of the recommendation and report of the commission has decided the controversy and now, the applicants are not entitled to get constitute a fresh local commission. The learned Court below, after hearing the parties vide order dated 20-12-2013 rejected the application, hence, the supra titled revision petition before this Court. 4. Sardar Atta-ur-Rehman Abbasi, Advocate, the learned counsel for the petitioners argued that the learned Court below was under legal obligation to allow the application for appointment of local commission because there were several facts to be reinvestigated but the said Court fell in a grave error while passing the impugned order. The learned counsel contended that there was no bar in appointment of local commission once again, hence, refusal of the same is illegal. The learned counsel further contended that the applicants/petitioners have made huge improvements which have not been assessed properly by the commission and decision of the controversy in light of such report not justified because there is great difference between the report and the oral evidence brought on record. Finally, the learned counsel craved for acceptance of the petition and reversal of the impugned order and referred following case-law:--- (1) PLD 1989 (Karachi) 75, (2) 2003 SCR 172, (3) 1981 CLC 368 (AJ&K). 5. On the other hand, Raja Imtiaz Ahmed Khan, Advocate, the learned counsel for the private-respondents controverted the arguments of the petitioners and stated that the controversy stood resolved in light of the report of local commission by the trial Court and now the controversy does not necessitate appointment of fresh commission. The learned counsel maintained that the application was misconceived and baseless, which has rightly been rejected by the learned Court below and the impugned order, being based on sound reasons does not merit any interference by this Court and requested for dismissal of the petition with costs. 6. The learned A.A.-G. adopted the arguments raised by the learned counsel for the respondents and also requested for dismissal of the petition. 7. I have heard the learned counsel for the parties, gone through the record and considered the controversy with due care. 8. It is an admitted fact that earlier a local commission was appointed by the learned trial Court and thereafter in light of its report the matter has been decided. 9. A careful perusal of the file reveals that there is considerable difference between the report of the commission and oral evidence brought on record by the parties therefore, I am of the view that the matter should have been decided by resolving each and every controversial point. 10. It may also be stated that there was no hurdle or bar in the way of the 1st appellate Court to appoint another commission for just and proper decision of the case. The case law referred by the learned counsel for the petitioners fully attracts with the facts and the circumstances of the case in hand hence, I would like to discuss the same separately. 11. In the first case titled Rashid Khan v. Karachi Development Authority, PLD 1989 Karachi 75, resolving the controversy it was held as under:--- "In view of this situation it has become necessary to consider whether another commission can be ordered to achieve something which the previous one failed in achieving. The object of issuance of a Commission for local investigation under Order XXVI, Rule 5, C.P.C. is to seek elucidation of any matter in dispute in a suit and commissions are issued in all cases in which local investigation is deemed requisite or proper for such purpose. Law does not restrict this power in any way and commissions may be issued more than once if that be requisite or proper. I am, therefore, inclined to appoint another commission for such purpose in the context of which Nazir of this Court is once again appointed Commissioner to make site inspection for determination of either or both the above locations and in relation thereto he may seek assistance, once again, from the relevant officers of the C.D.C. office as also the survey department." 12. The same point came under consideration of this Court in a case titled "Havaldar Muhammad Hussain Khan v. Said Muhammad Khan and others 1981 CLC 368 (AJ&K)", wherein it was observed that "the Court has power to issue commission for local investigation---Aim of local investigation by commission: to elucidate point not made clear on evidence taken before Court." 13. So far as the question improvements is concerned that can also be determined after assessment of the same. The same controversy has been considered and set at naught by the apex Court of AJ&K in a case titled "Ghulam Murtaza v. Qalam Din 2003 SCR 172), wherein it was observed by his lordship as under:--- "Costs of improvements can only be awarded on the basis of estimation which is possible through experts only --- Petitioner was to prove with definite, cogent and convincing evidence but he failed to discharge the burden --- In written statement he claims 60/70 thousand rupees as costs and in statement before Court he contradicted his stand --- This seems to be no way to assess the costs of improvements---The right course was to assess the costs of improvements by having estimation through a commission after consultation with the relevant experts." 14. After having considered the arguments of the parties and the above reproduced case law, this Court is of the view that the application for appointment of local commission should have been allowed in order to meet the ends of justice. 15. The gist of the above discussion is that by accepting the instant revision petition, the impugned order dated 20-12-2013 is hereby set aside. The learned Additional District Dheerkote is directed to appoint another local commission and decide the controversy in light of the report, thereof, as well as under the law on the subject, within a reasonable time period. 16. Order announced in the open Court. The file shall be consigned to record after due completion. AG/2/HC(AJ&K) Revision allowed.

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