On 29-11-1967, Muhammad Saeed Mazhari appellant, filed suit for declaration against Muhammad Sharif and others, respondents. The suit was contested and issues were framed. The parties led their evidence. The trial Court dismissed the suit on 31-1-1985. Feeling aggrieved, Muhammad Saeed Mazhari plaintiff filed appeal which was entrusted to Additional District Judge, Lahore. During the pendency of the appeal, the plaintiff/appellant filed application for appointment of the Local Commissioner on 7-12-1986. Copy of this application was supplied to the respondents and the case was adjourned to 21-1-1987 for reply and arguments on this application. On 26-1-1987 the reply was not filed and the case was adjourned to 4-3-1987 for reply, and arguments as well. On 4- 3--1987, reply to application for the appointment of Local Commissioner was filed by respondent No.5. Thereafter the case was adjourned for arguments. On 25-1--1988, the trial Court passed the following order:-- {{URDU TEXT}} After hearing the arguments of the learned counsel for the parties, the learned Additional District Judge, vide judgment and decree dated 17-4-1988 dismissed the appeal. Hence this second appeal.
2. The learned counsel for the appellant, mainly contended that the appellant had made an application before the learned Additional District Judge for appointment of a Local Commissioner to carry out the demarcation which application has not been disposed of and this tantamount to failure on the part of learned lower appellate Court to exercise jurisdiction.
3. The learned counsel for respondent No.5 has supported the judgment and decree of the Courts below. He maintained that Local Commissioner's report is already on the record; that no application for permission to adduce additional evidence under Order 41 rule 27 was made by the appellant before the learned lower appellate Court; that the report of the Local Commissioner could not be read as evidence; that at the time of final arguments before the learned lower appellate Court, the learned counsel appearing for the appellant had not pressed application for the appointment of Local Commissioner; there was sufficient material on record to decide the case without appointing Local Commissioner; and that Muhammad Saeed Mazhari plaintiff/appellant appearing as a witness, has admitted that respondent No.5 had purchased built up house and had not made any encroachment.
4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded- to agree with the learned counsel for the appellant. On 7-12-1986, the appellant had riled application for the appointment of Local Commissioner. The notice of this application was given to the respondents. The respondents were asked to file reply to this application. The case was adjourned on several dates for arguments on this application. Strangely, neither the application was disposed of through separate order nor the same was attended to or discussed in the main judgment. Be that as it may, the fact remains that the appeal has been decided by the Additional District Judge without attending to or disposing of the application for the appointment of Local Commissioner filed by the appellant. That being the position, there is no option but to send back the case to first appellate Court for fresh decision of the A application for the appointment of Local Commissioner and of the appeal as well. The submissions made by the learned counsel for the respondents, are devoid of force and substance. I feel that the first appellate Court was obliged to decide the application of the appellant for the appointment of the Local Commissioner.
5. Pursuant to the above discussion, the appeal is accepted, the judgment and decree of the appellate Court is set aside and the case is sent back for fresh decision of the appeal and application of the appellant, in accordance with law, after giving the parties opportunity of being heard. The parties will bear their own costs.
6. The appellate Court shall decide appeal within three months from today under intimation to the Deputy Registrar (Judicial) of this Court.