This petition in terms of Section 115 of The Code of Civil Procedure (V of 1908) (hereinafter referred as "CPC") is directed against the order dated 20 March, 2017, whereby the learned Additional District Judge, Rawalpindi, while rejecting the objections tendered by respondent NO.1 on the report of local commission, summoned the Tehsiklar/local commission as court witness for recording his statement.
2. Succinctly the facts germane to the filing of instant petition are that respondent No.1 instituted a suit for possession under Section 8 of The Specific Relief Act, 1877 claiming title as well as possession qua the suit property. The suit was resisted by the petitioners, while submitting their written statement wherein they controverted the assertions contained in the plaint. The suit was ultimately decreed vide judgment dated 07 January, 2010. The petitioners preferred Regular First Appeal No.14 of 2010 against the said judgment and decree whereas respondents No.3 to 6 also filed Regular First Appeal No.12 of 2010 assailing the same judgment and decree before this Court. During the proceedings Tehsildar, Rawalpindi was appointed as local commission by way of order dated 22" July, 2015. After conducting the proceedings the local commission submitted his report dated 18 September, 2015, which was objected by respondent No.1.
In the meanwhile, by way of notification No.PAP/Legis 2(131)/2016/1469 dated 02 September, 2016, the pecuniary jurisdiction of the learned District Judge was enhanced. Accordingly both the appeals were remitted to the learned District Judge, Rawalpindi for decision, who entrusted the same to one of the learned Additional District Judges posted at the station. Vide order dated 20 March, 2017 objections filed by respondent No.1 were turned down, however, local commission was summoned as court witness for recording his statement, hence this petition.
3. This petition is still at pre-admission stage. On the last date, due to absence of learned counsel for the petitioners case was adjourned for today with the clear direction to the petitioners to arrange theirth th th nd th representation positively and in case of failure, matter shall be decided on the basis of available record after hearing the parties in attendance. Today learned counsel for the petitioners has again failed to tender his appearance, consequently I am constrained to proceed with the matter in his absence.
4. I have heard learned counsel for the respondentS, who are in attendance and also perused the record.
5. Since the instant petition calls in question the order dated 20 March, 2017, whereby the learned Additional District Judge, Rawalpindi summoned Tehsildar/local commission as court witness for recording his statement, so there is no need of dilating upon any other aspect. It is an admitted position that by way of order dated 22" July, 2015 local commission was appointed with the following reference "6. We are inclined to order demarcation of the claimed properties of both the sides and for this purpose, Tehsildar, Rawalpindi, is appointed as Local Commission with the direction to visit the site and with the help of revenue record, being maintained by the concerned revenue staff, demarcate the property clamed originally by defendant No.50, having been transferred in his favour with reference to municipal numbers and having been purchased statedly by the plaintiff with reference to the Khasra Number. It will also be reported by Local Commission as to whether the suit property was identifiable at the relevant time with regard to Khasra Number or municipal number.
7. If the Local Commission arrives at a conclusion that there is some encroachment or overlapping effect upon the purchased property of the plaintiff, then the degree of such encroachment be also reported."
6. Section 75 of "CPC" bestows power upon the court to issue a commission for examining any person, to make a local investigation, to examine or adjust accounts or to make a partition. Order XXVI of the Code ibid also deals with the subject. By virtue of Rule 9 of Order XXVI of "CPC" if a court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Law is well settled that local commission does not perform a judicial function nor does a court can delegate its power of decision to the commissioner, who only performs a ministerial function, the extent and scope of which is limited, narrow and clearly defined by way of reference framed by the court.
7. In the instant case the local commission after conducting proceedings submitted his report dated 18 September, 2015 which was objected by respondent No.1 through an objection petition. The learned Additional District Judge, while proceeding with the objections dismissed the same by way of impugned order. He, however, summoned the local commission as court witness for recording his statement. It is well settled principle of law that report of local commission is not perse admissible. Such a report could not be termed as findings but only proceedings of an inquiry for information and assistance of the court, who appointed such commissioner. Even the report of local commission is not binding on the court. The report prepared by the local commission in terms of reference was a piece of evidence but it cannot be termed as admissible unless tendered as such in the proceedings. The report of local commission, statement recorde,d by him and other material collected by the local commission though would form part of record but same could not be called as evidence of the suit, unless same was tendered in evidence as per prescribed law.
8. Order XXVI Rule 10(2) of "CPC" authorizes the court to examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Even a party to the suit may examine the commissioner as such with the permission of the court. The purpose of such exercise is always to unearth the hidden aspects of the matter in controversy and to elucidate the intricacy relating to the facts of the case. On receipt of a report of a local commission each of the party is equipped with a right to object the same which relates to the pre- admission stage of the report of local commission. Despite receipt of objections on the report from any of the parties and discarding the same court cannot be precluded to examine the commissioner personally with regard to the matters mentioned in sub-rule 2 of rule 10 ibid. As already observed that report of theth - th commissioner would only become a valid piece of evidence if it is tendered in evidence through prescribed mode. For the said purpose, the examination of the commissioner is necessary.
9. The learned Additional District Judge in exercise of his powers vested under Order XXVI Rule 10(2) of "CPC" summoned Tehsildar/local commission for recording his statement as court witness. Power to examine any witness at any stage is even otherwise vested in the court under Order XVIII Rule 2 Explanation I High Court Amendments--Lahore of "CPC". In order to foster the justice the commissioner has been called as a court witness providing equal opportunity to both the parties to confront him with any question relating to matter referred to him or mentioned in his report or as to his report or to the manner in which he has made investigation.
10. Order XVIII Rule 11 of "CPC" authorizes the court to regulate the manner and questions to be put to a witness. A party is always at liberty to object to such a question and it would be upto the court to allow or disallow a question put to the witness. Such a right cannot be curtailed on the ground that objection petition of respondent No.1 has already been discarded. Objections to the report and cross-examining the local commission are two distinct phenomena. Right of a party to cross-examine a witness cannot be abridged only due to the reason that his objections to the report have already been turned down.
11. Though at the time of first hearing, learned counsel had referred the judgment in the case of "ALLAH JEWAYA and another versus MUHAMMAD BAKHSH and another" (PLD 1998 Lahore 338) but after having a glimpse of the same, I am of the considered view that same runs entirely on different facts. In the said case local commission was appointed for the demarcation of the disputed property, who submitted his report which was mainly objected on the ground that the petitioner in the said case was not afforded any opportunity to cross-examine the maker of the report and to adduce evidence in support of the objections. The Court held that under Order XXVI Rule 10(2) of "CPC" right to examine the commissioner personally in court was available to parties with the permission of the court. The local commissioner was appointed by the court in view of contention raised on behalf of the petitioner at the time of admission of revision petition that there should have been local investigation. As the appointment was for a limited purpose and particularly for further satisfaction of the judicial mind as to the proper identification of the disputed property, so the court under the circumstances does not require examination of commissioner in court. Whereas in the instant case, the learned Additional District Judge after evaluating the report exercised his discretion under Order XXVI Rule 10(2) of "CPC" and summoned the commissioner by his own as a court witness.
12. After having a thread bare discussion hereinabove, I see no reason to differ with the conclusion arrived by the learned Additional District Judge, while passing the impugned order, resultantly this petition fails and is dismissed in limine.