' This Civil Revision is directed against the judgment/order dated 8-5-1990 passed by the learned Additional District Judge, Sahiwal whereby the appeal of respondent was accepted and the case was remanded to the learned Ciyil Judge for redecision on issues Nos.10 to 13 as ordained by the earlier order of remand dated 24-7-1986 passed by the then District Judge, Sahiwal.
2. The relevant facts for the disposal of this revision are that the petitioners claiming themselves to be the owners of a plot of land measuring 4 Kanals 7 Marlas and 5 Sarsahis bearing Khasra Nos.15858/4773 and 15857/4773/1 situate in Sahiwal filed a suit for permanent injunction thereby seeking to restrain the respondents from interfering with the wall constructed on the basis of demarcation as also for mandatory injunction to the extent that the respondents be directed to construct the said wall which had been demolished by the said respondents as also their servants.
The plaint in the suit proceeded on the premises that the plot owned by the petitioners is situated adjacent to Government College of Commerce, Sahiwal on its western side and that the petitioners having purchased the same applied to the Revenue Authorities for the demarcation of the said plot so that the petitioners are able to construct thereon. The Revenue Authorities did demarcate the plot vide the demarcation report dated 4-12-1977 and declared therein that a 44 feet wide strip of land has been encroached by the College and the Evacuee Property Trust Board. It may be mentioned that the College building is stated to be in existence from pre-partition days. This building was taken over by the Evacuee Property Trust Board and was subsequently transferred by this Board to the Punjab Government, who in turn gave it to the Government Commercial Institution, Sahiwal which is now known as Government College of Commerce. It is submitted that the petitioners having obtained the demarcation of the plot proceeded to demolish the wall of the College so as to regain the area of the land encroached upon by the College and having demolished the College wall the petitioners did also start to raise their own wall at the place where the demarcation line was given by the Revenue Authorities. It was during the process of the said wall being raised by the petitioners that the students of the College at the instigation and behest of their Principal demolished the same and threatened that the petitioners should not dare raise it again. It was in these circumstances that the petitioner filed the present suit seeking permanent prohibitory injunction thereby seeking to restrain respondents from interfering with the wall being raised at the demarcation line as indicated by the Revenue Authorities as also a decree for mandatory injunction thereby praying that a direction be issued to the respondents to raise and construct the wall till such height that it had been constructed by the petitioner and was demolished by the respondents. The suit was resisted by the respondents who inter alia maintained that the Civil Court had no jurisdiction to entertain and decide the suit and that the demarcation conducted by the Revenue Authorities could not form basis of the suit filed by them. It was further urged that the suit had become infructuous as the disputed wall has already been constructed. As for the pleas of demarcation and the ownership of the petitioners, the same were denied by the respondents on the ground that the demarcation conducted by the Revenue Authorities are of no avail and that the respondents having constructed the wall at the site since long, the petitioners have absolutely no right to interfere with the same or to claim ownership of the strip of land of 44 feet width. The total efforts of the petitioners in demolishing the College wall as also construction of a new wall at the demarcation line given by the Revenue Authorities were termed to be illegal and without any lawful authority. The learned trial Court received evidence in the case on the following issues:--
(1) Whether this Court has no jurisdiction to try this suit ?OPD
(2) Whether the plaint has not been properly verified, if so, its effect? OPD
(3) Whether the suit is not maintainable in its present from?OPD
(4) Whether the wall in dispute has not been properly described in the plaint, if so. Its effect ?OPD
(5) Whether the suit is barred by time ?OPD
(6) Whether this suit is liable to be dismissed for the reasons stated in preliminary objections Nos.2 and 3 of the written statement of the defendant ?OPD
(7) Whether the Education Department is a necessary party to this case, if so what is the effect of its non-impleading as party to this case as defendant ?OPD
(8) Whether this suit is bad for misjoinder of parties ?OPD
(9) Whether the court-fee paid by the plaintiffs is not in accordance with law, if so, its effect ?OPD
(10) Whether the plaintiffs have no cause of action and this suit is without any basis and is mala fide ?OPD
(11) Whether the plaintiffs are owners of the property in dispute ?OPP
(12) Whether the defendants Nos.1 and 2 and their servants have constructed any wall upon the land of the plaintiffs ? If so, to what extent and whether it is liable to be demolished? OPD
(13) Whether the plaintiffs are entitled to the relief claimed by them ?OPP
(14) Relief.
3. The petitioners being plaintiffs in the case examined Abdul Majeed, Naib-Tehsildar as. P.W.l who proved the demarcation report as Exh.P.1. Ch. Saleem Akhtar, Advocate Sahiwal, was produced as P.W.2 to prove the sale of the plot in favour of the petitioners as also to corroborate the statement of P.W.1 that the plot purchased by the petitioner had been demarcated and that a strip of land of 44 feet width was encroached upon by the Commerce College. P.W.3 appeared as attorney of one of the plaintiffs who mainly supported the contents of the plaint. The documentary evidence produced by the petitioner consisted of Exh.P.1 to Exh.P.17. The respondents on the other hand examined Mr.Ahmad Saeed Khan, Advocate as a witness in the case to prove that the wall demolished by the petitioner was in existence from pre-partition days. It appears that some Local Commissioner was also examined in the case but the proceedings as also deposition of the said Local Commissioner have not been produced on the record of this Court. The suit of the petitioner was dismissed by the learned Civil Judge on 29-7-1994. The petitioners filed an appeal against the said judgment and decree, which was accepted by the learned District Judge, Sahiwal on 24-7- 1986 and the case was remanded to the learned Civil Judge to be decided afresh keeping in view the direction given in the remand order. The learned District Judge while remanding the case, upheld the findings of the learned Civil Judge on issues Nos. I to 9 but reversed the findings of the learned Civil Judge on issues Nos.10 to 13 and directed that another Local Commissioner be appointed to get the land in dispute demarcated in accordance with the instructions contained in the High Court Rules and Orders and thereafter decide issues Nos.10 to 13 afresh as also the suit in the light of findings reached on the said issues.
4. In post remand proceedings, the learned Civil Judge appointed Rao Abdul Waheed, Naib- Tehsildar. Sahiwal as Local Commissioner to carry out the demarcation at the site keeping in view the directions as contained in remand order. The said Rao Abdul Waheed submitted his report on 18-1-1987 but the same was set aside by the learned Civil Judge exercising his suo motu powers without objection from either side) primarily on the ground that minors in the case were not served, therefore, the proceedings taken by the Local Commissioner were vitiated. The said Local Commissioner thereafter submitted a second report dated 4-4-1987. The said report was objected to by the petitioners who produced documents as well as two witnesses to establish that the same is not in-accordance-with facts and is not based on correct material. The case was adjourned for the production of evidence of the respondents and before the same could be produced, it was mutually agreed on 15-9-1987 that this report be also set aside and instead Mr. Zafar Ahmad, Naib- Tehsildar, Ushr Zakat, Sahiwal, be appointed a Local Commissioner. In view of this mutual agreement as also to obtain best results; Mr. Zafar Ahmad, Naib-Tehsildar, Ushr Zakat, Sahiwal, was called upon to appear in Court and consequent upon his appearance in Court, he was told and explained the scope of his inquiry and a date was also fixed by the Court for the proceedings to be taken by the Local Commissioner at the site. Mr. Zafar Ahmad, the appointed Local Commissioner reported vide his report dated 26-9-1987 (proved on the record as Exh.D.W.1/A to Exh.D.W.1/D that the respondent has encroached upon a piece of land owned by the petitioners to the extent of 28 Marlas i,e, 23 Marlas by the Institute/Commerce College and 5 Marlas by the Evacuee Property Trust Board i,e, a strip of land of 44 feet width. This report was objected to by the respondents vide their objections dated 27-10-1987. An issue to the following effect was framed on the same day:-- ' Whether the report of Local Commissioner was liable to be set aside?
5. The parties were directed to file their documents and list of witnesses within 7 days of the framing of abovesaid issue and it would be relevant to mention here that the defendants/respondents did mention the name of Mr. Zafar Ahmad as their witness in the application filed in this behalf. The said Mr. Zafar Ahmad appeared in the case as witness of the respondents and was examined. The learned Civil Judge thereafter proceeded to determine the dispute between the parties and vide his judgment and decree dated 9-12-1982 thereby upholding the report of the Local Commissioner decreed the suit in favour of the petitioner. The respondents, Province of Punjab etc. Filed an appeal against the abovesaid judgment and decree which has been accepted by the learned District Judge, Sahiwal, vide his judgment/order dated 8-5-1990 whereby the case has been remanded for the second time on the grounds that the Local Commissioner ought not have been examined as witness of the respondents and that in the circumstances of the case the respondent should have been given an opportunity to cross- examine the Local Commissioner and that the said opportunity having not been given the trial of the case as also the judgment reached therein are vitiated. Secondly on the ground that the issue as to the report of Local Commissioner having been framed in the case, the same should have been decided separately so that the party against whom it had been decided had the opportunity to file appeal or revision against the said order and lastly for the reason that the Local Commissioner having failed to measure the area of the College premises the report of the Local Commissioner could not be sustained or upheld.
6. The above order of remand has been assailed in this revision petition by the petitioner/plaintiff in the suit while the learned counsel for the respondents has supported the said order of remand on the reasonings given therein.
7. Learned counsel for the petitioners argued that the grounds forming basis of remand order are not at all sustainable either in law or in the face of facts available on the record. It was submitted that the procedure as to appointment of Local Commissioner; conducting of inquiry at the site, the filing of the report as also the examination of Local Commissioner is a special procedure which has been prescribed under Order XXVI of the C.P.C. Commission for local investigation has been dealt with in Rules 9 and 10 of Order 26, C.P.C. Rule 10 of the said Order reads as under:-- "10(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.
Sub-clause (2): ' The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may 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. (Underlining is mine).
8. A bare reading of sub-clause (2) of Rule 10 of Order XXVI. Would show that a Local Commissioner is not required to be examined as a Court-witness nor he is ever summoned as such. Any party can summon the Local Commissioner to appear as witness in the case and then a departure has been made from the age old principle of conducting examination-in-chief by the party calling the witness and cross-examination by the opposing party. It has been provided in the rule itself that even the party calling the evidence may examine the Commissioner 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 meaning thereby that the party calling the Commissioner as a witness can also cross-examine him. The defendants/ respondents manifestly mentioned the name of Local Commissioner as their witness and thereafter summoned him to appear in the case but failed to cross-examine him although, they had the right under the law to do so. This being the position of law as also the facts available in the record, no valied grouse could be made by the respondents that they were not allowed an opportunity to cross-examine the Local Commissioner. The provisions as to Court-witness are provided in Rule-14 of Order XVI of the C.P.C. Whereby it has been provided that where the Court at any stage thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may of its own motion call upon such person to be summoned as a witness to give evidence or to produce any document in his possession. On a day to be appointed and may examine him as a witness or require him to produce such document. A bare reading of the abovesaid rule would show that a Court-witness can be summoned only when the Court thinks it necessary and particularly when he has not been called as a witness by a party to the suit. In the instant case the Local Commissioner was called as a witness by the respondents, therefore, there was no occasion for the Court to examine him as a Court-witness. The learned counsel for the petitioners has very rightly argued that no ground as such was taken in the memorandum of appeal that the Local Commissioner ought to have been summoned as a Court-witness. It is no doubt true that even the grounds not taken in the memorandum of appeal could be allowed to be urged at the time of hearing provided the Court would not rest its decision on any such ground unless the parties effected thereby had sufficient opportunity of contesting the case on that ground. It was submitted that no such opportunity was given to the petitioners and the judgment on that count is definitely against the rule of notice. I am in full agreement with the learned counsel for the petitioner. The ground having not been taken in the memorandum of appeal, the same could not be allowed to be urged at the time of hearing of the appeal without the permission of the Court and then the Court could not rest its decision thereon unless the petitioners had been given a notice of the same. There is much force in the argument of the learned counsel for the petitioners that had an opportunity been given to the petitioner, it could have been sufficiently explained to the Court that in the case of Local Commissioner Special Procedure having been provided in sub-clause (2) of the Rule 10 of the Order XXVI, the procedure of Rule 14 of Order XVI as to examination of said witness was not required to be adhered to and that the remand of the case could have been avoided. It was also urged that sufficient evidence being available on the record and that the report of the Local Commissioner having been treated as a piece of evidence only and not a conclusive evidence itself, there was no need to decide the issue separately because the report could either be accepted or relied in the case or rejected and excluded from consideration while deciding the main case. No prejudice has been caused in deciding the issue alongwith the main case particularly when the Court was required to decide issues Nos.10 to 13 only in the light of further evidence recorded in the case. It may also be noted that the respondents had the right to challenge the findings on the said issue in the final appeal as is provided under section 105 of the C.P.C. Needless to add that the respondents did challenge the findings of the learned trial Court reached on the basis of report of the Local Commissioner in the appeal filed by them. In the last analysis it could at best be termed as an irregularity not affecting the merits of the case. The third ground on which a remand has been ordered is to the effect that the Local Commissioner has not measured the area of the Commerce College .And that being so the report of the Local Commissioner was not sustainable. The said ground is also not sustainable inasmuch as the Local Commissioner has carried out the demarcation from a fixed point as directed by the remand order and that being so, no valid objection can be taken thereto. It would be seen that it was the duty of the respondents/defendants to examine/cross-examine the Local Commissioner as to the manner in which he had made that report and they having failed to do so the omission cannot be supplied by the Court. The report of the Local Commissioner having not been rebutted by either side, the learned Civil Judge had no option but to accept the same as also to record his findings on the basis thereof. Akbar Ali etc. v. Province of Punjab, etc. 1990 CLC 718 may be referred in this behalf.
The argument that provisions of Articles 140 and 150 of Qanun-e-Shahadat Order has been violated is absolutely untenable. As pointed out earlier the procedure for the examination of Local Commissioner has been provided under Order XXVI and that being so no other provision of law is attracted in the peculiar circumstances of the case. The other argument that the Court was within its competence to recall the witness/Local Commissioner under rule 18, Order XVII, suffice it to say that the provisions of said rule are also not attracted because of there being special procedure as provided under the sub-rule (2) of Rule 10 of Order XXVI. It is common knowledge that where a special procedure is provided, it always overrides the general provisions as the same cannot be invoked in preference to the special procedure. As for the plea of respondent No,2 that they were not allowed to cross-examine the Local Commissioner, it would be seen that the two sets of defendants filed joint objection to the report of a Local Commissioner vide their objections available on the record. Again the Local Commissioner was requested to be summoned as a witness on behalf of the same defendants i,e, Province of Punjab and the Evacuee Property Trust Board. The two sets of defendants have been contesting the case jointly and the plea that the respondents could support the decree on the grounds decided against them is not available to the said defendants. There is plethora of case-law available on the point that when the material on the record is sufficient to dispose of the case on merits it is neither advisable nor proper to remand the same so as to prolong the agony of the parties as also at the expanses of public time. Reference may be made to Pramatha Nath Chowdhury and 17 others v. Kamir Mondal etc. (PLD 1965 SC 434), Arshad Amin v. Messrs Swiss Bakery and others (1993 SCM R 216), Muhammad Bakhsh v. Mst. Iqbal Begum etc. (1989 M LD 313), Syed Faqir Hussain Shah Bokhari v. Mst. Asmat Bibi and others (1993 CLC 1388), Qurban Ali v. Hoor Bux and 2 others (1991 CLC 248) and Mian Muhammad Latif etc. v. The Lahore Improvement Trust, etc. (1985 CLC 2960). In the instant case the material available on the record was sufficient enough to decide the dispute between the parties. Even otherwise the case had earlier been remanded for the purposes of obtaining report from a Local Commissioner only, therefore, it was not at all legal or justified to remand the same once again for the same purpose particularly when the grounds on which the case was remanded are neither sustainable in law nor in the face of facts available on the record, therefore, the judgment/order dated 8-5-1990 passed by the learned District Judge, Sahiwal, is hereby set aside. The appeal is accepted and the case is remitted to the learned District Judge, Sahiwal, who shall decide the same on merits. There shall, however, be no order as to costs.