A. Suit for partition was pending between the parties in respect of the property detailed therein in the Court of learned Civil Judge, Pindigheb. The petitioner who is also a plaintiff in the Court below filed an application for the appointment of Local Commissioner in order to determine, whether the property in question was residential or agricultural. This application was moved after the parties had closed their evidence but the evidence in rebuttal was yet to be examined by the petitioner/plaintiff.
2. According to the petitioner, the appointment of the Local Commissioner was necessary because without ascertaining the nature of the property, it was not possible to adjudicate upon the case properly. In this regard, it was alleged that the appointment of a Local Commissioner was necessary in order to determine that the disputed Khasra Nos.2731 and 2732 were adjacent to Khasra Nos.2733 and 2734 respectively. The latter Khasra numbers were allegedly adjacent to the village Abadi. A point was also raised in the application that an inquiry was required through the Local Commissioner, whether some construction existed over Khasra No.2733 aforesaid. A request was made in the application that the site-plan of Khasra Nos.2729 to 2734 was essential for the proper appreciation of the matter in dispute.
3. The application was opposed on the ground that the appointment of the Local Commissioner in order to determine the matter raised in the petition amounted to the filling of lacunas in the evidence of the petitioner and as such, the appointment of the Local Commissioner was not likely to advance the ends of justice: Besides, it was alleged that the determination of construction over Khasra No.2733 was irrelevant because the aforesaid Khasra did not form part of the subject- matter of the suit.
4. Learned Civil Judge dismissed the petition vide his order dated 2-12-1996 whereupon a revision petition was filed which too was dismissed by Mr. Sakhi Muhammad Kahut, learned Additional District Judge, Attock, vide his order dated 22-5-1997. Both the Courts below concurred on the point that there was no justification for the appointment of the Local Commissioner because it will tantamount to create evidence in favour of the petitioner/plaintiff. However, it was observed that it was upon the petitioner to examine the evidence in rebuttal, if so required and permitted by law.
5. Learned counsel for the petitioner has challenged the aforesaid orders of the Courts below in the writ jurisdiction of this Court on the ground that both the orders are contrary to law as those were passed arbitrarily and to the prejudice of the petitioner/plaintiff. It was further contended that for the conclusive determination of the matter in issue, the appointment of the Local Commissioner was necessary which was refused by the Courts below illegally and arbitrarily.
6. The attention of the learned counsel for the petitioner was drawn to the provisions contained in Order 26, Rule 9 of the Civil Procedure Code which inter alia provide that where a Court deems a local investigation to be requisite or proper for the purpose or elucidating any matter in dispute, or for ascertaining the market value of any property, it may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to such Court. It, therefore, follows that a local investigation may be ordered either for clarifying any matter in the case or for obtaining any information in respect of the spot in question. The commission is required to be issued in such a case where the Judge deems it fit to do so to determine any issue which cannot be otherwise ascertained or determined. It is, thus, a discretionary matter with the Court to appoint any commission for the purpose of local investigation in the interest of justice, but this discretion cannot be utilized to allow any premium to one party upon the other. In the instant case, both the Courts below had come to the conclusion that any spot inspection would tantamount to the filling of lacunas in the evidence of the petitioner and as such had declined to exercise discretion in his favour. It has not been pointed out to me that as to how the discretion has been arbitrarily exercised by the Courts below. As such, the discretion exercised by the Courts below in refusing the appointment of a Local Commissioner was within their jurisdiction which cannot be successfully challenged in the extraordinary Constitutional jurisdiction of this Court. The petition being meritless is dismissed in limine.