P L D 2022 Balochistan 81
Before Abdul Hameed Baloch, J
ZAINULLAH ---Petitioner
Versus
HIZBULLAH and others ---Respondents
Civil Revisions Nos. 142 and 153 of 2019, decided on 29th September, 2021.
(a) Civil Procedure Code (V of 1908) ---
----O. XXVI, R. 9---Local Commission ---Scope ---Suit for declaration and injunction--- Local
commission was appointed with the consent of parties ---Court below concurrently dismissed
the suit ---Petitioners/ plaintiffs contended that judgment of both the Courts below were ba sed
on report of local commission and the Courts out rightly ignored the evidence on record; that
before final decision, Courts did not decide two applications filed by the petitioners under O. VI, R. 17 read with O. XXIII, R. 1 of the Civil Procedure Code ---Validity ---Judgments of
both the Courts below were based upon report of local commission and considered the report as arbitrator report ---Distinction existed between arbitrator and a referee---Local commission
was not mandated powers of arbitrator, rather he was only directed to inspect the site and submit report ---Consent of parties for appointment of local commission did not mean that
parties appointed the local commissioner as sole arbitrator ---Miscellaneous applications
should be decided first then t he main case--- Courts below neither dilated upon the case of the
parties in light of evidence nor considered the same ---Court was to state its finding/ decision
on each issue separately ---Revision petition was accepted accordingly.
Muhammad Ashraf v. Abdu l Rahman 1993 CLC 1875; Nazir Ahmed v. Muhammad
Qasim 2004 SCMR 1292; Muhammad Mansha v. Hashmat Ali 2010 YLR 1498 and Capital Development Authority v. Muhammad Hanif Abbasi 2020 CLC 1804 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. XXVI ---Phrase "e lucidating any matter in dispute" ---Scope ---Appointment of local
commission was to seek elucidation of any matter in dispute ---Words "elucidating any matter
in dispute" indicated that the local commission could be appointed only to get certain
clarificatio n---Purpose of appointment of local commission was only to seek elucidation of
any matter in dispute not as sole arbitrator ---When parties led evidence, the court while
deciding the matter had to look into the evidence.
Muhammad Bakhsh v. Nazim Din PLD 1 978 Lah. 31 rel.
(c) Civil Procedure Code (V of 1908) ---
----O. XX, R. 5 & O. XLI, R. 31 ---Issues to be decided separately ---Courts below were under
legal obligation to decide each issue separately.
Malik Sarwar Awan for Petitioner.
Abdul Khair Achakzai and Ayub Tareen, Assistant Advocate General for
Responde nts Nos. 1 to 4.
Date of hearing: 24th September, 2021.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---To avoid conflict in findings I intend to dispose
of Civil Revision Petition No. 142 of 2019 and No. 153 of 2019 simultaneously, as the
subject matter in both the petitions are same.
Civil Revision No. 142 of 2019.
2. Facts of the case are that the petitioner/plaintiff filed a suit for declaration and
permanent injunction against the respondents/ defendants in the court of Civil Judge -V,
Quetta, with the following prayer:
a. To declare that the plaintiff is lawful owner and in possession of property bearing khasra No. 5061, 1393, measuring 0 rod 20 1/6 poles situated at Mohal Viala Tareen Shehar Mouza Kotwal Tappa Durrani -1, Tehsil Saddar District Quetta vide mutat ion
No. 1361;
b. To declare that the act of private defendants regarding illegal land unlawful interference at the instance of one namely Abdul Rehman Jan in the land of plaintiff is illegal and unlawful and without justification;
c. By way of permanent injunction the private respondents be restrained from illegal and unlawful interference of the property of plaintiff bearing khasra No. 5061, 1393 measuring 0 rod 20 1/6 poles situated in Mohal Viala Tureen Shehar Mouza Kotwal Tappa Durrani -I, Tehsil Sadda r District Quetta;
d. Any other relief which this Honourable Court may deem fit and proper may also be awarded in favour of plaintiff and against the defendants."
3. The respondents/ defendants contested the suit by way of filing written statement,
controverted the claim of the petitioner/ plaintiff and prayed for dismissal of the suit.
4. Out of the pleadings of the parties the trial court framed seven issues.
Civil Revision No. 153 of 2019:
15. The petitioner/ plaintiff filed suit under Section 54 of the Specific Relief Act for grant
of perpetual injunction against the respondents/defendants in the court of Civil Judge -V,
Quetta, with the following prayer:
"It is, therefore accordingly respectfully prayed that in view of the above submis sions
a decree in favour of plaintiff and against the defendants may kindly be passed and
perpetual injunction may kindly be granted by directing the defendants not to interfere into the lawful and peaceful possession of the property of the plaintiff beari ng khasra
Nos. 5061/1393 measuring 5440 sq: ft: situated at Tareen Shehar Nawa Killi, Quetta;
It is further prayed that temporary injunction may kindly be granted till decision of the suit.
Any other relief which this Hon'ble Court deems fit and proper m ay also be awarded
in favour of the plaintiff."
6. The respondents/defendants filed written statement vehemently denying the
contention of the petitioner/ plaintiff and prayed for dismissal of the suit.
7. The trial court framed four issues out of the pleadings of the parties.
8. The parties to the lis produced pro and contra evidence. Meanwhile the
petitioner/plaintiff filed an application under Order XXVI, Rule 9, C.P.C. for appointment of
local commissioner. The respondents/ defendants did not contes t the application. The trial
court vide order dated 20th April, 2018 accepted the application and appointed Mir Wais Advocate as Local Commissioner with direction, which reads as under:
"to visit suit property situated at Mohal Viala Tareen Shehar Mouza K otwal, Tappa
Durrani -I, Tehsil Saddar, District Quetta bearing khasra Nos. 5061 and 1393 and to
measure the area of houses/property in possession of Yasir Aftab, Haji Fateh Khan and Umar Gul vide mutations Nos. 1522, 1594 and 1595 and to determine the tota l
area of said three houses/property in presence of parties or their counsel with assistance of Revenue Authorities and Revenue Record. After inspection of site and preparation of report, submit the same before this court on 09.05.2018. An amount of Rs. 10,000/ - has been fixed as your fee."
9. Vide judgments and decrees of even date i.e. 19th September, 2018 the trial court
dismissed both the suits. Being aggrieved the petitioner/ plaintiff filed two separate appeals bearing No. 34 of 2018 and No. 35 of 2018 before Additional District Judge -IV, Quetta. The
appellate court vide judgment and decree dated 14th February, 2019 dismissed both the appeals, hence these revision petitions.
10. The learned counsel for the petitioner/plaintiff contended that the judgments and
decrees of the courts below are contrary to law and facts. The judgments of both the courts below are based on report of local commissioner and out rightly ignored the evidence on record. Further stated that the petitioner/plaintiff filed an application under Order VI, Rule 17 read with Order XXIII, Rule 1, C.P.C. but both the courts below have not decided the application. The courts were under legal obligation to decide the pending application before final decision.
11. The learned counsel for t he respondents/defendants wholeheartedly opposed the
contention of petitioner/plaintiff and stated that the judgments of the courts below are well
reasoned and according to settled principle of law. On application of petitioner/ plaintiff local commissione r was appointed. The petitioner has not filed objections on the report of local
commissioner meaning thereby accepted the report of local commissioner. The concurrent
findings of the courts below cannot be set aside on flimsy grounds. The petitioner failed to
point out any misreading and non- reading of evidence.
12. Heard and perused the record. Before dilating upon the case it would be necessary to
reproduce Order XXVI, Rule 9, C.P.C. which read as under: ---
"Order XXVI, Rule 9, C.P.C: Commission to make local investigation.---In any suit
in which the Court deems a local investigation to be requisite or proper for the
purpose or elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or dam ages or annual net profits, the
Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the Provincial Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
13. The object for appointment of local commissioner is to seek elucidation of any matter
in dispute. The word 'elucidating any matter in dispute' indicates that the local commiss ioner
can be appointed only to get certain clarification. It appeared from the record that the parties were agreed for appointment of local commissioner. The petitioner/ plaintiff in his application for appointment of local commissioner has never authorize d the local
commissioner as Referee. The parties had not agreed on Referee to decide the matter. The
term 'appointment of local commissioner' and Referee are not synonymous. The purpose for appointment of local commissioner is only to seek elucidation of a ny matter in dispute not as
sole arbitrator. When the parties led evidence the court while deciding the matter has to look into the evidence. Reliance is placed on the case of Muhammad Bakhsh v. Nazim Din PLD 1978 Lahore 31, wherein it was held:
"41. Now this is established law that section 75 as well as Order XXVI, do not allow
delegation of powers by the Court to the Local Commissioner to decide material issues. His report cannot be considered to be a finding. It is only the proceedings of an inquiry for the information of the Court after which the Court is bound to give its
own finding on each and every issue, it is only an evidence under Order XXVI, Rule 12 and not a decision. Tincowrl Deb i v. Suttya Doyal Banerji and another (6 Cal. L J 105), Sawan Ma l v. Raunaq Mal (AIR 1922 Lah. 47), Firm of Seth Vishindas
Nihalchand v. Nazarali Samji (AIR 1924 Sindh 9),
Aesarmal and another v. Hundomal and another (AIR 1925 Sindh 265), Bharat Chandra Chakrabarty v. Kiran Chandra Bai (A1R 1925 Cal. 1069 ), Tulsi Ram v.
Dina Nath and others (AIR 1926 Lah. 145), Bhoianath Roy v. Bata Krishna Roy and others (AIR 1927 Pat. 135), Nalini Kumar Chakrabarty V. Gadadhar Chaudhry and others (AIR 1929 Cal. 418), Ugra Naraln Choudhary and others v. Haribans Choudhary and others (AIR 1930 Pat. 557), Dargahan Bibi v. Jyott Prasad Singh Der.
(AIR 1934 Pat. 35), Ram Krishna Dalmta and others v. Chand (AIR 1960 Punj. 430).
In Ram Krishna Muraji v. Rattan Chand (AIR 1931 P C 613). The following points were referred for report by the Hi gh Court to a Local Commissioner ;
"(1) Whether the old firm of Harden Das Kalyan Mal carried on business relating to sugar, silver, gold or cotton on its own behalf or whether it was confined to commission agencies?
(2) Whether the new firm carried on any commission agency business or not ?
(3) Whether the latter business was of a gambling nature ?
This procedure was disapproved by the Privy Council since the matter could be referred for report to the trial Court. The Dacca High Court in Province of Ea st
Pakistan v. Upendra Narayana Lala (1970 DLC 817) held that where the matter could be decided by direct evidence, the power to record such evidence could not be delegated to the Local Commissioner."
14. The judgments of both the courts below are based upon the report of local
commissioner and considered the report as arbitrator report. Under Section 22 of the Arbitration Act 1940 (Act 1940) the arbitrator can be appointed. Under the above provision
the arbitrator shall be appointed in such manner as may be agreed upon between the parties.
An arbitrator is required to decide the case after making inquiry, taking into consideration the evidence whether oral or documentary brought on record. There is distinction between arbitrator and a referee. Reliance is p laced on case Muhammad Ashraf v. Abdul Rahman
1993 CLC 1875. It was held therein:
"Main line of distinction between a referee and arbitrator is that referee is not
empowered to make inquiry but has to make a statement on the basis of his knowledge and belief while the arbitrator is to undertake the inquiry, record the evidence of parties and determine the controversy in judicial manner'
15. The record reflects that the local commissioner was not mandated such powers. He
was directed to ins pect the site and submit report. The report of local commissioner is not
legally considered either report of arbitrator or referee. Reliance is placed on case Nazir Ahmed v Muhammad Qasim 2004 SCMR 1292, wherein it was held by their lordship:
"9. This Court had categorically determined in Ghulam Farid Khan v. Muhammad Hanif Khan 1990 SCMR 763 that a reference for decision and a referee's "Faisala" could hardly be treated as a "statement furnishing information" within the meaning of Article 33 of Qanun- e-Shahadat, 1984. The case of Himachal Singh v. Jatwar Singh
AIR 1924 All. 71 cannot help the respondents because in that case the refree Pandit Gopal Das Sharma Vakil, had made a statement on oath qua the status of the parties who had jointly given a statemen t making a reference to him. It was his statement
which was so relied upon as an admission within the contemplation of section 31 of the old Evidence Act. Rain Narain v. Santosh Kumar AIR 1952 Punjab 344 is not attracted because in there the parties had no t only agreed for a reference to arbitration
but had even entered into a compromise before such Arbitrator and thus, it was only held to be a valid adjustment between the parties.
10. In Umarai Ali Khan v. Intizami Begum AIR 1939 All. 176, the parties had agreed to
abide by statement made by referee. They had agreed that the case be decided
according to whatever statement he made and that, that statement would be binding on the parties. This application for making a statement should sound like one made unde r Article 33 of Qanun- e-Shahadat but the one in hand cannot be so determined
being for complete decision in the case. In S.E. Makudam Mahmommad v. T. V. Mahommad Sheikh Abdul Kadir AIR 1936 Mad. 856 the agreement between the parties regarding the opening of a door lock with a key was totally of a nature altogether different from what happened in the instant case. Consequently, we hold that in the instant case, by mere use of word referee, the matter does not fall under Article 33 of Qanun- e-Shahadat. Muhamm ad Ashraf Cheema, Advocate was never
referred to by the parties to make some "statement but to render a complete decision regarding the entire matter in dispute so much so that a fee was also fixed for the purpose and that such appointment squarely amounte d to arbitration in status. It is
further held that no decree could be passed on such decision, which for all intents and purposes was an award, unless the parties were given an opportunity to furnish their objections within the period and in the manner pr ovided by Arbitration Act of 1940."
16. It is settled principle that if any miscellaneous application is filed by either of the
parties in suit or appeal such application should be decided first then the main case should be decided. Reliance is placed on case Muhammad Mansha v. Hashmat Ali 2010 YLR 1498, wherein it was held:
"11. It is consistent view of the Courts, that if any miscellaneous application is on the file of the case, civil suit or appeal, such miscellaneous application should be decided first then the main case should be decided. I am fortified from the judgment titled
Haji Ibrahim v. Ismail and 9 others PLD 1976 Kar.1075, wherein it is observed that failure of the lower Court in the disposal of a miscellaneous pending application while decidi ng the main suit was one of the grounds for setting aside the order of
lower Court. The appeal is also a continuation of suit. In the cases of Messrs Bashir Leather Industries (Pvt.) Limited and 2 others v. Muslim Commercial Bank Ltd. through Manager 2006 CLD 132 Lahore. M Shahid Sehghal v. Al -Towfeek.
Investment Bank Ltd. 2005 CLD 920 Lahore, it is observed that miscellaneous application not decided, main case decided, failure to decide miscellaneous application prior to decision of the main case vitiate the judgment in the main case. Similar view is taken in many others cases also Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334, Muhammad Yaqub v. Baqir and 2 others 1993 CLC 1319, Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731, Gul Muhammad through Legal Heirs v. Karachi Development Authority and another 1998 MLD 150."
17. It appears from the record that the parties to the lis produced evidence in support of
their respective contentions, but the courts below neither dilated upon the case of the parties
in the light of evidence produced by the parties nor considered the same and decided the suit and appeal on the basis of report of local commissioner. The parties had only agreed for appointing local commissioner. The consent of the parties for appointment of local commissioner does not mean that the parties appointed the local commissioner as sole
arbitrator. Both the courts below had erred to consider the report of local commissioner as
referee. Under Order XX, Rule 5, C.P.C. the trial court is under legal obligation to decide
each issue separately as well. The appellate court is legally bound to decide the appeal under Order XLI, Rule 31, C.P.C. It would be appropriate to reproduce Order XX, Rule 5, C.P.C., which reads as und er:
"Order XX, Rule 5, C.P.C.: Court to state its decision on each issue.---In suits in which issues have been framed, the Court shall state its fining or decision, with the reasons therefore, upon each separate issue, unless the finding upon any one or more
of the issues is sufficient for the decision of the suit."
18. The above Rule laid down mandatory requirement for judgment. It is incumbent upon
the court to state its finding/ decision on each issue separately. Reliance is placed on case Capital Deve lopment Authority v. Muhammad Hanif Abbasi 2020 CLC 1804, wherein it was
held:
"9. In the instant case, the learned trial Court has failed to deliver a judgment as was required under the law. The effect of not complying with Order XX; Rule 5, C.P.C, has b een discussed in a renowned judgment of the Hon'ble apex Court in "Pakistan
Refinery Ltd. v. Barrett Hodgson Pakistan (Pvt.) Ltd." (2019 SCMR 1726), wherein it has been held as under: -
"A judgment delivered by the trial Court would not be a judgment in th e real sense of
the word if it does not conform to the requirements of Rule 5 of Order XX of the C.P.C. Similarly, a judgment delivered by the first court of appeal and final court of fact would not be a judgment if it does not conform to the requirements of Rule 31,
Order XLI of the C.P.C. The rationale or raison d'etre behind these provisions is that
not only the party loosing the case but the next higher forum may also understand what weighed with the court in deciding the lis against it. Such exercise c annot be
dispensed with even in the cases of affirmative judgments otherwise who would know that arguments addressed were accepted or rejected with due application of mind."
In above circumstances, both the petitions bearing No. 142 of 2019 and No. 153 of
2019 are accepted. The judgments and decrees dated 19th September, 2018 and 14th February, 2019 passed by Civil Judge -V, Quetta and Additional District Judge -IV, Quetta,
respectively are set aside. The case is remanded to the trial court with direction to decide the
suits afresh on the basis of evidence available on record including report of local commissioner possibly within a period of four months from the receipt of order this court. The parties are left to bear their own costs.
ZH/179/Bal. Case reman deThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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