' This constitutional writ relates to an order of a Civil Judge by which he had appointed a Commissioner for local investigation. The said order was passed by him in a pre-emption suit filed against the petitioner, Muhammad Ismail. The suit was in regard to certain land purchased by him.
While resisting the suit, it was alleged by the petitioner that he had made improvements on the disputed land by raising constructions thereon and, therefore, in the event of the success of the suit, he was entitled to have the cost of construction. This was controverted by the plaintiff, who is respondent No, 3 in the instant petition. An issue in this behalf was, therefore, framed by the learned Civil Judge. Before evidence could be recorded on that issue, the petitioner made an application for appointment of a Local Commissioner to determine the cost of improvements but the application was rejected by the learned trial Court. Then the parties produced their evidence on the issues, including the issue relating to improvements, framed in the case. Thereafter, the petitioner made another application for appointment of a Local Commissioner for the aforesaid purpose. It was opposed by the plaintiff but was allowed by the learned Civil Judge. On this, the plaintiff went in revision before the District Judge, who is the first respondent in the present petition.
The learned District Judge accepted the petition and set aside the order of the trial Court. The petitioner has, therefore, invoked the Constitutional jurisdiction of this Court to assail the order of the learned District Judge.
2. Learned counsel for the petitioner contended that the order of the learned District Judge was without lawful authority inasmuch as the civil revision in which he had made that order was not competent. According to the learned counsel the order allowing the application for appointment of a Local Commissioner was not a case decided within the meanings of section 115 of the Code of Civil Procedure and, therefore. The said order was not open to revision. He cited Nawabzada Malik Habib Ullah Khan v. The Pak Cement Industries Limited and others (1), Umar Dad Khan and another v. Tila Muhammad Khan and 14 others (2) and Fazal Muhammad v. Muhammad Usman (3) to support his contention. None of these authorities relates to the appointment of a Commissioner and, therefore, they are of little help to the petitioner.
3. To my mind, when any substantial question, having bearing on the merits of a suits, is decided by judicial approach the order made in this behalf amounts to a case decided as contemplated by section 115. Similar opinion was expressed by my learned brother Aftab Hussain, J. In Bahadur Shah and 2 others v. Sharaf and 9 others (4). Since the application for appointment of a Local Commissioner also involved such a substantial question which was judicially determined by the learned Civil Judge the order of the learned Civil Judge was a case decided for the purposes of section 115. In taking this view I am also fortified by M. J. Sheth & Co. v. Ramiza Bi and another (5), Sm. Sarala Sundri Devi and another v. Surendra Narayan Roy and another (6), Jaya Shankar Mills (Barsi) Ltd. v. Hazi Zakaria Hazi Ebrahim (7), Akbar Ali Khan v. Harbert Francis (8), S. R. M M. Chettley Firm and another v. P. L. N. N. Narayana Chettley (9) and Somasundaram Chettiar and another v.
Manicka Vasaka Desika Gnana Sammanda Pandara Sannidi (10). All these cases related to the appointment of a Commissioner for recording the statements of witnesses. Since the assignment of such a Commissioner is similar to that of the one appointed for local investigation it will not be unsafe to follow the dictum laid down in the aforesaid cases, I am, therefore, unable to agree with the learned counsel for the petitioner that the learned District Judge had no jurisdiction to entertain and decide the civil revision, and consequently the order passed by him was without lawful authority.
4. It was also urged by the learned counsel for the petitioner that the learned District Judge had erred in interfering with the order passed by the learned Civil Judge inasmuch as that order did not suffer from any illegality or material irregularity. The reasons given by the learned District Judge for setting aside the order of the trial Court read as follows :- "I am afraid the reason stated for re-opening the issue of appointing a Local Commissioner was not convincing and further it was not mentioned in black and white. The order dated 12-2-1977 by which the Court had earlier refused this relief rather on merits was placed upon the file and the same sufficed to help raise the plea that the principle of res judicata applied precluding the Court to reconsider the question. {{FOOT NOTE}}
(1) 1969 SCMR 965
(3) PLD 1970 Lah. 560(2) PLD 1970 SC 288 (4) PLD 1973 Lah. 513 (6) 163 I C 449
(8) AIR 1925 Pat. 125 (10) I L R 31 Mad: 60
(5) AIR 1938 Mad. 646
(7) AIR 1962 Andh. Pra. 435
(9) AIR 1921 Lower Burma 6 {{FOOT NOTE}} ' Even otherwise there was no need for the appointment of any Local Commissioner, as evidence to prove the factum and cost of the superstructure raised on the land could be produced in the Court.
There is considerable force in the plea and the Court seems to have proceeded illegally."
It would, therefore, appear that according to the learned District Judge the order assailed before him suffered from an illegality and that is why he had set aside the said order. Even if the learned District Judge had erred in reaching that conclusion, it would not warrant interference by this Court in exercise of its extraordinary jurisdiction, Muhammad Hussain Munir and others v. Sikandar and others (I) is an authority in point.
5. There is no merit in this petition. It is, therefore, dismissed in limine,