' This Constitutional petition is filed by the petitioners against the respondents to 'challenge the orders, dated 22-10-1998 and 16-12-19% passed by respondents Nos.1 and 2 respetaively, Whereby, while dealing with the application for minpora6 injunction. The learned trial Court had made an order for appointment of a Local Commissioner to make the spot inspection in order to report about the existing construction at the disputed place.
2. The brief facts are that respondents Nos.3 and 4 filed a suit for permanent injunction that the petitioners/defendants were raising illegal constructions at their place which would obstruct and stop the free access of light, air and sun shine which were being enjoyed by the plaintiffs for the last about 40 years. As such, it was further contended that the right of easements vested in the respondents/plaintiffs would be obstructed of which the petitioners/defendants had no legal cause.
3. An application for temporary injunction was moved before the trial Court on which the arguments were heard and a date for order was fixed. However, before the order could be announced, the learned trial Court thought it fit to appoint a Local Commissioner in order to verify the nature of the construction, to be raised at the spot. Feeling aggrieved of the order, a revision petition was filed before the learned Additional District Judge, Lahore which was dismissed. Being dissatisfied with the dismissal of the revision petition, the petitioners/defendants have filed this writ petition on the ground that the impugned orders passed by the Courts below were bad in the eyes of law and tentamounted to the creation of evidence for the adversary. It was also contended that since an objection was raised that the petitioners had no cause of action nor had any right of easement in the property in question, therefore, without settling those points, the order appointing a Local Commissioner for spot inspection was totally illegal and without jurisdiction. It was also contended that while considering the petition for temporary injunction; the appointment of Local Commissioner for its disposal would amount to a judgment on merits leaving nothing to be decided at the trial. As such, the order was alleged to be illegal and tainted with material irregularity in exercise of the judicial jurisdiction vested in the Courts below. Reliance was placed on PLD 1978 Lahore 113 (Abdur Rehman Mobashif and 3 others v. Syed Amir Ali Shah Bokhari and 4 others).
4. I have considered the foregoing submissions and find that both the Courts below have concurred on the question of appointment of Local Commissioner to get the spot inspected through an Advocate in order to ascertain the nature of the construction to be raised at the disputed place. This exercise was undertaken in order to dispose of the petition for temporary injunction and not for the disposal of the whole matter pending before it. The Court is vested with the power of appointment of a Local Commissioner for making local investigation in view of the provisions contained in Order XXVI, Rule 9 of the C.P.C. The procedure regarding the investigation to be made by the Commissioner is given in the aforesaid Order and in case any party is aggrieved of the report submitted by the Local Commissioner, such party has a right to file objections regarding its grievance which shall be determined by the Court after hearing the parties in accordance with law. In such a situation, it is clear enough that the Court is vested with the jurisdiction to appoint a Commissioner for the local investigation. Now the question would arise whether the jurisdiction vested in the Court has been exercised rightly or wrongly. In the instant case, the question of the invasion of the right of easements has been raised in the suit by the respondents/plaintiffs, whereas, that right has been denied by the petitioners/defendants. Rather it is contended that there is no violation of such easements nor the construction, proposed to be raised, was illegal nor it allegedly hindered or obstructed the air or the other easements, etc. In such a striation, the discretion exercised by the learned trial Court to appoint Local Commissioner and affirmed by the learned Revisional Court appears to have been exercised judicially and without any irregularity so as to call for interference in the Constitutional jurisdiction of this Court.
5. The writ petition being meritless is dismissed in limine. C.M. No,1 of 1999
6. Disposed of with the disposal of the main petition. C.M. No,2 of 1999
7. Dismissed with the dismissal of the main petition.