Through this Constitutional petition in the nature of certiorari, the petitioner has called into question the legality and propriety of order dated 20.11.2019 passe d by a learned Civil Judge, Lahore as also order dated 14.1.2021 passed by learned Additional District Judge, Lahore in Civil Revision No.165/2020.
2. Brief facts of the case are that the petitioner instituted a suit for declaration with permanent injunction praying that allotment letter dated 25.10.2012 and sale deed of plot No.203, Block A-2, Gulberg-3, Lahore be declared illegal. In order to address the matters in issue, the learned Civil Judge, at the initial stage and while passing a temporary injunction appointed a Local Commission with the direction to submit a detailed report after following the postulates of natural justice in respect of the following three matters:- i). Whether the disputed property is a Shamlat Deh or not? ii). Whether the Shamlat Deh is still lying vacant or construction has been made over it and the total area of Shamlat Deh. iii). Site map along with snaps.
3. The Local Commission visited and inspected the spot on 11.9.2019 and submitted its report on 14.9.2019 before the learned trial court.
4. The petitioner filed an objection petition against the said report. The objections pertained to delay , allegedly reckless conduct of the Local Commissio n and the non-availability of halqa patwari at the spot. Vide order dated 20.11.2019 the learned trial court dismissed the objection petition on account of, inter alia, non-cooperative conduct of the petitioner during the proceedings conducted by the Local Commission. The petitioner filed a Civil Revision bearing No.2501/2019 against the said order before the learned Additional District Judge. Even in the Civil Revision the petitioner failed to convince the court either about his bona fides or about the merits of the matter and, therefore, the civil revision met the same fate. The learned Additional District Judge observed that the trial was yet to commence and any aggrieved party could summon the Local Commission for the purpose of cross examination as provided under Order XXVI, Rule 10 C.P.C. Moreover , the official record also negated the case of the petitioner as observed by the learned Additional District Judge.
5. Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 begins with the rider and the condition that resort and recourse to writ jurisdiction can only be made if there is no other adequate remedy available to the petitioner . In the present matter , it is crystal that the report of Local Commission is not binding on the Court, the parties are free to make the Local Commission stand in the witness box and to cross examine the Local Commission during the trial and if there is anything irregular or illegal about the report of the Local Commission then the same can be easily unearthed during the course of cross examination in the trial. Hence, an adequate alternative remedy being available, the present petition is not maintainable.
6. Furthermore, and of the essence, is the fact that the matter in issue is rooted in factual controversy and for the resolution of which Constitutional jurisdiction is not the appropriate remedy . Even otherwise, in the presence of an acknowledged alternative remedy the present petition cannot be countenanced. Needless to add that it is trite that law discourages multiplicity of proceedings.
7. Furthermore, the petition is also not maintainable because it does not agitate the acknowledged grounds of judicial review i.e. illegality , irrationality , procedural impropriety or proportionality . The Hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others" (PLD 1998 SC 103) has categorically held that just because there is no further remedy afforded by law in a matter does not mean that recourse can be made to constitutional jurisdiction if other postulates and grounds envisaged by Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are not met.
8. n another judgment reported as "Haji Sharaf Hussain and 5 others v. Haji Tor Gul and 7 others" (2011 CLC 543) the present issue has been addressed in the following terms. As has been observed in paragraph No.6 therein:- "The relevant provision relating to the subject-matter is provided in Order XXVI of C.P.C. are very clear in its stipulation that the reason for constitution of a local commission is for the court to decide a tactual controversy , which requires physical inspection of the court through the agent of the court. It is also to be taken into account that there is no clear provision for any objec tion being filed in writing by any party to the proceedings regarding the commission report. However , the principles of natural justice and the practice of the court is that the same is considered under Rule 10 of Order XXVI, C.P.C. The fact that the objections of a party were not decided prior to rendering a judgment would not hold the legal ground in cases where the court while passing the final judgment addressed all the objections raised by a party and rendered definite findings on the same.
In the present case, the courts below have not effectively addressed all the objections of the present petitioners; hence their case is surely prejudiced and requires judicial interference of this court."
9. Another informed judgment reported as "Abdul Khaliq and 3 others v. Additional District Judge, Minchinabad and 4 others" (2011 MLD 1632 ) also provides guidance in respect of the present matter and holds that Rule 10 of Order XXVI, C.P.C. provid es that the report of Local Commissioner and evidence taken by him shall form part of the record in a suit and any of the parties to the suit may examine the Local Commissioner personally in open court touching any of the matters referred to him or mentioned in his report with the permission of the court. Hence, Rule 10 of Order XXVI, C.P.C. provides sufficient safeguards for the rights of the parties so as for them to utilize or challenge any such report of the Local Commission taken as evidence.
10. A judgment of this Court reported as "Kh. Abdul Rehman (deceased) through Legal Heirs and others v.
Muhammad Farooq Mirza and 5 others" ( 2019 CLC 596 ) clinches the matter as follows:- "7. In the instant case the local comm ission after conducting proceedings submitted his report dated 18th 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 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 recorded 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 "C.P.C." authorizes the court to examine the commis sioner 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 matter 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 intrica cy 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 the 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 ."
11. Furthermore, it is trite that Constitutional jurisdiction is equitable and discretionary in nature and cannot be invoked to defeat the provisions of a validly enacted statutory provision (in the present matter Order XXVI, Rule 10, C.P.C.). Reliance with advantage is placed on the case reported as "President, All Pakistan Women Association, Peshawar Cantt. v . Muhammad Akbar Awan and others" ( 2020 SCMR 260 ).
12 In view of what has been stated above, this Constitutional petition is dismissed .