MAULVI ANWARUL HAQ, J. --- On 23.1.1997 the petitioner filed a suit against the respondents. In the plaint, he stated that he is the owner in possession of suit land measuring 8 marlas as described therein.. He complained that the respondents are trying to demolish the outer wall of his house and to include the same in a public thoroughfare. Alongwith the suit, he filed an application for grant of temporary injunction restraining the respondents from interfering with his possession. The respondents put in appearance and filed a written statement. Vide order dated 17.4.1997 the learned Trial Court proceeded to reject the plaint. An appeal filed by the petitioner was dismissed by a learned A.D.J., Daska, on the ground that he had not challenged the decree. This was done vide order dated 28.5.1998.
2. Learned Counsel for the petitioners contends that the impugned orders are without jurisdiction.
The learned Trial Court has proceeded to exercise a jurisdiction not vesting in it while rejecting the plaint after conducting a trial through the Local Commissioner and thereafter not even caring to read the report of the Local Commissioner. Learned counsel for the respondents has tried to support the impugned judgments and decrees.
3. I have gone through the copies of the record, with the assistance of the learned counsel for the parties. It is rather shocking the way the learned Courts below have dealt with the suit and the appeal respectively.
4. The learned Trial Court has observed in its impugned order dated 14.7.1997 that the order to determine the factual position, he appointed a Local Commissioner who submitted a report on 10.3.1997. According to the report, the matter has already been decided through Punchayat and that the plaintiff himself removed the disputed outer wall and obtained alternate land i.e. 12 feet from the respondents.
5. I have examined the said report. Now the' reference was as to who is the owner in possession of the suit land. To my mind, such a reference could not have been made to a Local Commissioner as the question of title and. Possession was to be decided by the Court itself. Be that as it may, the Local Commissioner in his report found that the plea of the petitioner/plaintiff is correct whereas the plea of the respondents/defendants is wrong and their conduct is against the law. The learned counsel has very rightly contended that the learned Trial Court has not even cared to read the report.
6. The learned A.D.J. Has dismissed the appeal on the ground that in the memo. Of appeal, it has not been written that the appeal is being filed against the decree as well This is literally making a fetish of technicality particularly when an order rejecting a plaint is treated as a decree by a fiction of law as per definition of a decree given I Section 2 of C.P.0
7. I do find that the impugned orders passed by both the learned Courts below are wholly without jurisdiction 'and cannot at all be sustained. The civil revision accordingly is allowed. Both the impugned orders are set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending in the Court of Mr. Shakir Hussain, learned Civil Judge' 1st Class, Daska, before whom the parties shall appear on ,10.1.2007. The learned Civil Judge shall requisition the records and proceeded to decide the suit after framing issues and recording the evidence of the parties, on its merits. It is hoped that the learned Civil Judge shall take all steps to conclude the trial and decide the suit before the year 2007 is out. The costs of this civil revision to be borne by the respondents. The counsel fee is fixed at Rs. 10,000/- .