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Civil Revision No. 472 of 1978, decided on 8th October 1978.

-- O. XXVI, r. 18-Local Commissioner-Compensation, assessment of-Petitioner not contesting liability to ejectment, requesting Court to be given cost of abadi and praying for appointment of a Commissioner Commissioner, an Advocate, appointed, petitioner present when Com missioner went to petitioner's shop but slipping away while Commis sioner engaged in his work-Commissioner examined is Court and his report assessing compensation remaining un-shattered-Assessment made by Commissioner upheld and petition dismissed.

Latchan v. Rama Krishna A I R 1934 Mad. 548 distinguished.

Abdul Samad Khan for Petitioner.

Sher Alam Khan defendant No. 2 against whom an ejectment decree with respect to the hotel in question has been passed on payment of Rs. 5,140 by Muhammad Nazir and 4 others, landlords as per judgment and decree dated 15-5-1978 of the Senior Civil Judge, Malakand at Batkhela, moved an appeal to the District Judge, but he was unsuccessful. He is still not satisfied and has moved the present revision petition.

2. Two points have been urged on behalf of the petitioner, (i) that he had submitted that he shall not be ejected and for that reason he was not evictible so long as he paid rent; and (ii) that the report of the Commissioner assessing the compensation at Rs. 5,140 was in disregard of the mandate given by Order XXVI, rule 18 and as such it should be ignored. Reliance is being placed on Latchan v. Rama Krishna (A I R 1934 Mad. 548).

3. On a careful examination of the judgment of the trial Court it would) transpire that the petitioner was the only person who remained in the field to contest and that his only concern was compensation as the wording of issue No. 3 would show. So far as compensation is concerned, Mr. Janas A Khan, Advocate, was appointed Commissioner and he has assessed the same at Rs. 5,140. The Commissioner has been examined in Court and his report remained unshattered. The petitioner also led evidence in support of the objections.

4. The contention of the learned counsel for the petitioner that his client could not be evicted for he had raised a specific plea in this behalf is not borne out by the certified copy of the written statement which he produced before me and which is being placed on the record. All that the petitioner said in paragraph 5 is that he will be paying the market rent or whatever is reasonable and that be was not denying his liability to pay the rent. This; assertion is sufficient to kill the argument urged on behalf of the petitioner by the learned counsel but to clinch the matter I should like to refer to the observations of the learned District Judge which will show that after that the petitioner submitted his written statement when he was examined and that in that statement he confessed judgment but requested the Court that he should be given cost of abadi and that in that respect a Local Commissioner be appointed. The District Judge, further, observed that after this statement, which was presumably under Order X of the C. P. C., the petitioner never contested his liability to be ejected.

5. As a matter of fact he could not raise this question for Rent Restric tion Ordinance, 1959 has not been extended to Malakand Division.

6. There is also no force in the contention of the learned counsel for the petitioner that Order XXVI, rules 10 (2) and 18 of the C. P. C. make a mandatory provision had that non-compliance with the latter sub-rule will vitiate the proceedings of the Commissioner. In the Madras case every thing was done behind the back of the defendants. But this is not so in the instant case for, the petitioner was present when the Commission went t p his shop and he slipped away while the Commission was engaged in his work. Furthermore Commission was appointed on his own request in a contested suit.

7. There does not appear to be any substance in this petition and it is hereby dismissed in limine.

S. A. H. Petition dismissed.

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