' MUHAMMAD IQBAL MAHAR, J.--- Through instant petition, the petitioners have challenged the order dated 12.07.2011 passed by learned Vlth: Additional District Judge, Hyderabad in Civil Revision Application No,73 of 2010, whereby he maintained the order dated 19.05.2010 passed by learned IInd: Senior Civil Judge, Hyderabad in respect of the Commissioner's report filed in F.C. Suit No,19 of 1987.
2. Brief facts of the case are that respondents filed a F.C. Suit No,19 of 1987 in the Court of IInd: Senior Civil Judge, Hyderabad for declaration, cancellation of the entries of gift, partition and mesne profits, which was dismissed on 31.4.1994 and thereafter Respondents filed Civil Appeal No,91/1994 before the learned District Judge, Ilyderabad, the same was subsequently transferred to the Court of learned VI-Additional District Judge, Hyderabad and it was allowed by the judgment dated 18.8.1997. Against the said judgment, the Petitioners preferred Second Appeal No,3 of 1997 before this Court which was dismissed with direction to the learned trial Court to appoint a Commissioner to assess, the income of the suit land for the intervening period and to determine the share of mesne profits of the Respondents/ plaintiffs. Pursuant to the directions of this Court, learned trial Court appointed a Commissioner, who submitted his reports before the trial Court which were objected to by the Petitioners. The commissioner again carried out the exercise of calculating the mesne profits and submitted his report. According to his report, the share of the Respondents in the suit land from 1984-85 to 2002-03 comes to Rs,23,81,395-25 and from 2003-04 to 2008-09, it is Rs,25,67,099-90, that becomes a total of Rs,49,48,495-15. This report was also objected to by the Petitioners in writing. Learned trial Court however, after considering the contentions of the parties passed an order on 19.5.2010 accepting the report of the commissioner and ordering for preparation of the final decree regarding mesne profits according to the figure shown by the Commissioner in his report. The Petitioners were not satisfied with the said order and filed a Civil Revision bearing No,73 of 2010, which was also dismissed by the learned VII-Additional District Judge, Hyderabad vide impugned order dated 12.7.2011, hence this petition.
3. Mr.' Pirbhulal U. Goklani, learned counsel for the petitioners submitted that the Courts below have not taken into consideration the material available on record. Per learned counsel, both the Courts below failed to appreciate that petitioners moved the application for appointment of a new Commissioner, but the same was not considered. He further submitted that he filed objections on Commissioner's report, which were also not considered and the impugned order was passed, and despite such facts, the order of the trial Court was upheld by the revisional Court. According to him, both the orders are against the facts and law as no opportunity to cross-examine the Commissioner was provided to the petitioners, thus the impugned orders have resulted into miscarriage of justice. He lastly prayed for setting aside the impugned orders.
4. Against the above, learned counsel for the respondents submitted that there are concurrent findings of both the Courts below and after dismissal of the revision application, the petitioners cannot challenge such order in writ jurisdiction, which has a limited scope in the context in hand as the factual questions raised therein cannot be decided. He further submitted that petitioners are brothers of the respondents and that on the basis of report of the Commissioner the final decree was passed, which has not been challenged yet. He next submitted that execution application has also been allowed and such orders have not been challenged by the petitioners and instead the report of the Commissioner has been called into question. The petitioners are not ready to give due share to the Respondents, their sisters. Lastly, he submitted that the Petitioners in order to linger on the matter have filed the instant petition which is not maintainable under the law.
5. We have heard learned counsel for the parties and have gone through the material available on record with their assistance.
6. The case of the petitioners/defendants is that the Commissioner neither complied with the directions given in revision application No,03 of 2007 nor proper service of the notice by the Commissioner was made on the petitioners nor income in respect of the share of the respondents was assessed according to the provisions of Sindh Civil Court Rules, therefore, Commissioner's report is illegal and in violation of the terms he was appointed on. Although the Commissioner was directed to assess the mesne profits in continuation of his previous report, but he did not do so. He was also not allowed to be cross-examined by the petitioners.
7. We have considered all these contentions minutely in the present context where sister (or their legal heirs) for the last more than 30 years are fighting for their right to mesne profits, but the petitioners on one pretext or the other are denying their legal right. So far the contention of learned counsel for petitioners for not cross-examining the Commissioner before learned trial Court is concerned, we would like to state that examination of the commissioner under Order XXVI, Rule 9, C.P.C. Is not mandatory. The plain reading of Order XXVI, Rule 9, C.P.C. Reveals that it is not requirement of law that in every case the Commissioner must be examined. It is always the discretion of the Court to examine and or not and also to disallow such examination, if there is no real ground for it. The report of Commissioner shows that he had recorded the statements of local zamindars, which are also part of his report, for assessing the share of mesne profits. The Commissioner in the present case was appointed for the sole purpose of evaluating the mesne profits payable to the Respondents. The nature of his job and the terms of his appointment were such that it was not necessary for the trial Court to allow his cross examination by the Petitioners.
His job was to assess the mesne profits after evaluating the income and expenditure of the petitioner including any amount outstanding against Haji Muhammad Umar, the predecessor-in- interest of the parties that he has done accordingly. In our view raising objections over the report of the Commissioner or making application for appointment of new commissioner by the petitioners was nothing but an attempt to delay the matter. The petitioners have not been able to show as to how the report of the Commissioner is prejudicial to their interest: Merely saying that the commissioner has not carefully recorded the figure would not do in the present context, unless the error in it is specifically pointed out by the petitioners.
8. According to the learned counsel for the Respondents, the matter has already been decided up to the level of Honourable Supreme Court of Pakistan in Civil Appeal No,523 of 2000 and thereafter execution application filed before the trial Court has also been allowed. But even then the petitioners are not ready to give due share to the Respondents who are suffering from the year 1984. It is matter of fact that on the basis of report of Commissioner, the final decree has been passed and the same has not been challenged. No illegality or irregularity is pointed out by the learned counsel for the petitioners in the impugned order, which require interference by this Court while exercising constitutional jurisdiction.
9. For what has been discussed above, we find no substance in this petition, which was accordingly dismissed by our short order dated 13.01.2016 and these are the reasons of the same.