MANZOOR AHMAD Versus GHULAM HASSAN
ORDER
ATIR MAHMOOD, J.- -- Through this civil revision, the petitioners have assailed order dated 8-11-2013 passed by learned Additional District Judge, Layyah whereby petitioners' application under Order XXVI, Rule 9 read with section 151, C.P.C. for appointment of a Local Commission was dismissed.
2. Brief facts leading to filing of instant revision petition are that on 10-4-2003, the petitioners filed a suit for declaration regarding the property fully mentioned in the plaint. The suit was contested by the respondents. The issues were framed. After recording evidence and hearing the parties, learned trial Court dismissed the suit of the petitioners with cost vide judgment and decree dated 5-1-2010. Feeling aggrieved, the petitioners filed an appeal before the learned Additional District Judge, Layyah on 4-2-2010. During the pendency of the appeal, the petitioners on 12-10-2013 filed an application for appointment of a Local Commission for ascertainment as to who is in possession of the suit property. The application was opposed by the other side. After hearing learned counsel for the parties, learned Additional District Judge, District Layyah dismissed the application vide his order dated 8-11-2013 which is impugned in this revision petition.
3. Learned counsel for the petitioners though frankly admits that the application for appointment of local commission was moved at a very belated stage, yet he prays that one opportunity be given to the petitioners for proving that they are in possession of the suit property.
4. Arguments heard. Record perused.
5. Scanning of record shows that the suit for declaration was filed by the petitioners on 10-4-2003 on the basis of a Sale-deed No.1862 dated 19-10-1965 allegedly made by Mst. Mehr Mai, predecessor-in-interest of the respondents-defendants in favour of father of the petitioners-plaintiffs namely Ghulam Hussain with the averment that the possession of the suit property was also delivered to their father, therefore, Mutation No.11, dated 25-9-1995 executed by the said lady in favour of respondents-defendants as well as subsequent mutations, sale-deeds etc. are nullity in the eye of law. However, the suit of the petitioners is being contested by the other side denying execution of any sale-deed in favour of the petitioners. The respondents also aver that the Sale-deed No.1862 dated 19-10-1965 is false and fictitious. After recording oral and documentary evidence adduced by the parties, the suit was dismissed by learned trial Court vide judgment and decree 5-1-2010 whereagainst the appeal was filed by the petitioners on 4-2-2010 which is still pending adjudication. During the pendency of the appeal on 12-10-2013, the application for appointment of Local Commission for determination as to who is in possession of the suit property was moved by the petitioners which was dismissed by the learned lower appellate court vide order dated 8-11-2013.
6. There is no denial that the application for appointment of local commission was moved after 10-1/2 years of institution of the suit by the petitioners. The suit remained pending before trial Court for six years and nine months but no such application was ever filed before the trial court. Afterwards, the appeal was filed before the learned Additional District Judge, Layyah on 4-2-2010. After more than 3-years and 9-months of filing of the appeal, the application for appointment of Local Commission for determination of possession over the suit property was filed which could not be allowed at such a belated stage as it would undoubtedly prolong the litigation between the parties as well as their agonies. Even otherwise, it was incumbent upon the petitioners to prove their possession by production of evidence which has been recorded and appellate court is now seized with the matter. The appointment of local commission is prerogative of the court and no party can seek appointment of a Local Commission to create evidence in his favour and that too at such a belated stage. Guidance can be sought from the dictums laid down by the Hon'ble Supreme Court of Pakistan in case reported as 2003 SCMR 1351 (Jalal Khan and 10 others v. Khandoo Malik and 24 others)." Relevant excerpt is reproduced hereunder:---
"The perusal of record would show that the request of petitioners for appointment of Local Commission was not allowed by the Appellate Court and also by the High Court as sufficient evidence was available on record to decide the case. It appears that petitioners sought appointment of Local Commission for their own convenience as they have not been able to substantiate their plea through any cogent evidence. We having heard the learned counsel for the petitioners, have not been able to find out any misreading or non-reading of evidence by the Appellate Court therefore, the High court has rightly declined to interfere in the concurrent findings of fact which would not be open to challenge on the grounds that before the High Court and before this Court in support of present petition."
7. Learned counsel for the petitioners has also failed to point out any illegality in the order impugned. No interference is called for.
8. For the aforementioned reasons, this civil revision has no merit. The same is dismissed in limine.
AG/M-62/L Revision dismissed.