REHMAN DAD Versus SAJAWAL KHAN

ORDER

1. MUHAMMAD HALEEM, J. ‑This is a petition for special leave from the order dated 18‑4‑1975 of the learned Single Judge of the Lahore High Court in C. R. No. 11;36 of 1971 by which it was accepted.

2. The facts which have given rise to this petition are that the first respondent in the exercise of his right of pre‑emption sued for possession of certain property. The petitioners and the second respondent, who were defendants in the suit, pleaded that they were entitled to the cost of some improvement made to the property and therefore, the learned Civil Judge First Class, Gujranwala, framed an issue in regard to the cost of improve ment among others, the onus of which issue was on the petitioners and the second respondent which the first respondent had a right to lead evidence in rebuttal. The first respondent's evidence concluded on 9th of March, 1971 and that of the petitioners and the second respondent on 9th of October 1971. It was thereafter that the heat respondent submitted an application for the appointment of a Local Commissioner for assessing the cost of the improvement which application was dismissed by order dated 27th of November 1971. The reasons which led the learned Civil Judge to dismiss ate application were chat the 'first respondent had earlier successfully opposed the application for the appointment of the Local Commissioner; and that if such an application was allowed it would reopen the case, for after the report of the Local Commissioner objections would be filed and the parties would be entitled to lead evidence, which would cause delay in the disposal of the case.

3. The first respondent thereupon filed the aforementioned Revision in the High Court of Lahore to assail the order. The learned Single Judge held that the grounds given by the learned Civil Judge for refusing the appointment of a Local Commissioner wire arbitrary end extraneous to the decision of the application and the exercise of descried was not on sound legal principles. As for the contention that the order did not amount to a case decided so as to make the order revisable, the learned Single Judge hold that since it finally decided the question as to whether a party is entitled to produce evidence, it amounts to a cast decided in his ultimate analysts the learned Single Judge hold that in dismissing the application the Lamed Civil Judge has exercised his jurisdiction illegally and with material irregularity.

4. The learned counsel for the petitioners was unable to convince us that the application was dismissed on judicious grounds. We do not see how by mere resisting the earlier application the first respondent was debarred from, filing an application for the appointment of a Local Com missioner or for that matter it would have caused delay in the disposal of the case. In a case of this nature the report of the Local Commission subject to the objections, if any, would have facilitated the Court to formulate its opinion on the question and as such it would have been judicious exercise of discretion if the application was allowed. The delay was therefore not a factor which could have come in the way of the exercise of discretion for such a course would have advanced the cause of justice. It is not the practice of this Court to interfere with discretionary Orders unless they are palpably unjust of capricious or perverse but in the instant case as was rightly held by the learned Single Judge, the exercise of discretion was arbitrary and therefore, it rightly called for interference, which in our view is eminently a just order. As for the non‑maintainability of the Revision Application the view taken by the learned Single Judge is also not open to any, legitimate exception.

5. For these reasons we do not see any justification in granting leave to appeal and the petition is accordingly dismissed.

6. Petition dismissed.