Haji MUHAMMAD SHARIF Versus IJAZUDDIN AHMAD
This civil revision under section 115, C.P.C. is directed against that part of the order dated 5‑10‑1981 whereby the report of the Local Commission was confirmed after repelling the objections taken by the petitioner to the said report. The Local Commission was appointed vide order dated 10‑1‑1981 to report after inspection of the land in question as to when, to what extent and of what value the improvements were effected by the defendants‑petitioners. The Local Commission submitted his report dated 25‑1‑1981. A perusal of the report shows that at least 8 witnesses appeared before the Commission as the statements made by them have been referred to in the report itself. It further appears from the report that even earlier a Local Commission was appointed but the report of which was presumably set aside as only thereafter the second Commission could be appointed. The petitioners objected to the confirmation of the said report and, its being treated as evidence by filing an objection petition in which inter alia it was asserted that it was incumbent under law for the Local Commission to have recorded the statements of witnesses appearing before him and to submit the record of the statements alongwith the report. The learned trial Court repelling the aforenoted objections of the petitioners confirmed the report.
2. Learned counsel for the parties stated that by confirmation accorded by~ the learned trial Court the report will be. considered to be forming part of the record and will be evidence in the suit to be considered alongwith other evidence yet to be produced by the parties. Learned counsel for the respondents further submitted that it will be still open to the petitioners to raise this very objection founded on provisions of rule 10(2) of Order XXVI, C.P.C. for the reason that the report cannot be considered to be "a finding" as it is the proceedings of an inquiry held for the information of the Court and that despite the report, the Court is bound to give its own finding on each and every issue. He further argued that it is merely a piece of evidence as stated in Order XXV1, rule 12, C.P.C. and is not a decision. He placed reliance in this respect on the observations made iii para. 41 of the judgment delivered on the case of Muhammad Bakhsh v. Nizam Din P L D 1978 Lah.
31. On the basis of the aforenoted submissions it was contended that the order making a report of the Local Commission, part of the record does not amount to a "decision" o: a "case, decided" so as to attract the revisional jurisdiction. under section 115, C.P.C. Learned counsel for the petitioners argued that section 115, C.P.C. would be attracted if a Court subordinate to a High Court has given a decision in respect of any state of facts after judicially considering the same and that toe decision need not necessarily dispose of the whole matter or suit pending before the subordinate Court. Reliance was placed on Bashir Ahmad Khan v. Oaiser Ali Khan and 2 others P L D 1973 SC 507 and S. Zafar Ahmad v. Abdul Khaliq P L D 1964 (W.P.) Kar.
149. Learned counsel for tae petitioners also referred to the case of Muhammad Ismail v. District Judge Sargodha and 4 others 1981 CLC 361, wherein it was observed that when any substantial question having bearing on the merits of the suit is decided by judicial approach, the order made in this behalf amounts to a case decided as contemplated by section 115, C.P.C. The learned Judge in this case referred to the cases decided by High Courts wherein orders appointing Local Commission for recording statements of witnesses were scrutinized in revisional jurisdiction and on the analogy of these cases learned Judge refused to interfere in Constitutional jurisdiction with the order passed in revrsional jurisdiction respecting appointment of Local Commission.
3. In view of the submissions of the learned counsel for the parties the foremost question that requires determination is whether the order admitting report of Local Commission on record as piece of evidence is revisable. At this stage it may be recapitulated that the learned counsel for the respondents has conceded that despite the confirmation of the report by the trial Court which has the effect of making the report part of the record of the suit it is still open to the petitioners to raise the objections founded on rule 10(2) of Order XXVI C.P.C. and that the said confirmation of the report does not amount to "a decision" affecting any substantial question having hearing on the merits of the suit. According to him it is a mere information submitted to the Court and that the report cannot be considered to be a finding as the Court is bound to give its own finding on the question of improvements and as such an information or report even if made part of the record does not attract revisional jurisdiction. A reference may also be made to the observations recorded in Ramakka v. Nagesam 1925 Madras 145, which read as under:‑‑
"Commissioner for ascertainment of mesne profits is entitled to base his report on his local inspection and also upon the proper experiment conducted by him but any evidence that he takes should be recorded in writing. Order XXVI, rule 10, requires that he should reduce to writing the evidence taken by him. Information given by witnesses which is not reduced to writing is not legal evidence upon which the Court can decide. If either of the parties desires to have the benefit of the statements of these persons from whom the Commissioner obtained information they should cite them as witnesses; otherwise, the Judge should come to a conclusion on the rest of the evidence before him without any reference to such unrecorded statements."
In the instant case the Local Commission has submitted to the Court his report only. The record of the statements made before him if at all reduced to writing was not forwarded alongwith the report though the Local Commission has referred to the statements made before him by the witnesses. This information given by witnesses which is not reduced to writing is not legal evidence upon which the Court can decide as held in Madras case (supra). It is open to the parties to produce the evidence on the question of improvements as well. The evidence to be brought on record is yet to be considered by the Court. To my mind the Court while considering the evidence brought on record by the parties will have to consider the probative value of the report submitted by the Local Commission and as conceded by the learned counsel for the respondents it will be open to the petitioners to show that the report cannot be acted upon as the information given by the witnesses was not reduced to writing. It was imperative for the Local Commission to record the evidence of the parties. Again the probative value of the report is yet to be seen and determined. The order making the report part of the record as such has not determined any substantial question having bearing on the merits of the suit. It may be reiterated that report of the Local Commission is neither binding on the parties nor a Court is obliged to, decide a dispute in terms of the report. The order making the report part of the record as such does not amount to "case decided" and as such section 115, C.P.C. is not attracted. For another reason as well, I am not inclined to interfere in revisional jurisdiction. The reason being that it was second time that the Commission was appointed. The report was submitted without recording evidence of the witnesses who had appeared before the Local Commission. The evident value of such a report is open to valid criticism. The effort made twice for collecting information through Local Commissions appears to have remained fruitless. The parties, admittedly, have the right to lead the evidence in respect of the alleged improvements. In these circumstances third reference to the Commission would only result in prolonging the litigation. The parties should, therefore, prove their respective averments by leading their evidence.
4. For the reasons and the observations given above this petition is dismissed with no order as to costs.
M.Y.M./2622/L Revision dismissed.