' MUHAMMAD ALAM KHAN, J --- Abdul Manan petitioner has filed this civil revision under section 115 read with section 151, C.P.C. Vide which he has impugned the order of the learned Additional District Judge-I, Lakki Marwat dated 21-3-2007, through which the application for the appointment of a Local Commission, to ascertain that since how long the suit house is in existence on the suit-land, was rejected.
2. Briefly narrated, the facts of the present litigation are that the petitioner filed a suit for declaration to the effect that he along with the pro forma defendants-respondents are owners in possession of land measuring 3 Kanals and 12 Marlas out of Khasra No,411 Khata No,736 situated in the revenue estate of Baist Khel, Tehsil and District Lakki Marwat. They also challenged the vires of Mutation No,9901 attested on 5-8-1978 to be without consideration, illegal, based on fraud and collusion and ineffective against their rights. Similarly, the petitioner asserted his own title on the basis of Mutation No,11501 dated 22-8-1990.
3. The defendants-respondents submitted their written statement and the learned trial Court, after affording an opportunity to the parties to lead their evidence and hearing their learned counsel, dismissed the suit of the petitioner vide Suit No,110/1 declared on 16-11-2005.
4. Aggrieved and dissatisfied from the judgment and decree aforesaid the petitioner filed an appeal before the learned District Judge, Lakki Marwat which came for hearing before the learned Additional District Judge-I, Lakki Marwat which is still pending. During the pendency of the appeal, the present petitioner submitted an application for the appointment of a Local Commissioner under the provisions of Order XXVI, C.P.C. Requesting therein that the Local commissioner be appointed and be directed to determine as to since how long the suit house is in existence and its location and similarly the period for which the petitioner is occupying the same. The learned appellate Court, after calling for replication from the respondents and hearing the learned counsel for the parties, declined the request of the petitioner for the appointment of Local Commissioner vide order dated 21-3-2007 impugned now before this Court in revision.
5. The learned counsel for the petitioner submitted that the Court of law is required to decide the lis strictly in accordance with law judicially and to provide substantial justice to the parties.
Elaborating his view point, the learned counsel submitted that the determination of the question involved to be thrashed out in the appeal was a spot related question for which the appointment of the Local Commissioner was necessary for the parties as well as for the Court to do substantial justice in the matter.
6. On the contrary, learned counsel for respondent No,4 submitted that the learned trial Court provided full opportunity to the parties to lead evidence pro and contra with respect to their respective contentions and there was sufficient evidence available on the record from which the appellate Court could determine the legal and factual points involved in the case and there was no need for appointment of Local Commissioner.
7. I have gone through the file and the documents annexed with the same.
8. Firstly, there is sufficient evidence available on record enabling the learned appellate Court to conclusively determine the matter in controversy between the parties. Secondly, during the trial no request, either oral or through an application, has been made by the petitioner for the spot inspection through the appointment of a Local Commissioner. So, in this way when during the pendency of the suit before the trial Court no request was made, thus, by way of his own conduct the petitioner cannot agitate the question for the appointment of a Local Commissioner.
9. When sufficient evidence is available on the record which can lead to the conclusive determination of the rights of the parties, then resort to the appointment of a Local Commissioner is made in exceptional cases. This proposition of law has been coined by the apex Court in the case of Jalal Khan and 10 others v. Khandoo Malik and 24 others 2003 SCM R 1351 which dictum of the apex Court on all fours covers the facts and circumstances of the present case.
10. In view of the facts and circumstances of the case narrated above, there is no force in this revision petition which is dismissed in limine. Parties are directed to appear before the learned Appellate Court on 14-6-2008.