2004 C L C 1875
Civil Procedure Code (V of 1908)---
----O. XXVI, Rr. 9 & 18 & O.XXXIX, Rr.1, 2, 7 & 8---Law Reforms Ordinance (XII of 1972), S.3---Appointment and report of Local Commissioner without notice to the opposite party---Application for grant of interim injunction---Court could not appoint Local Commissioner for inspection without notice to opposite party except in cases where the issuance of notice could frustrate the purpose of appointment of Commissioner, but the Commissioner had to execute the Commission with notice to opposite party---Appellant, in the present case, was hot served with notice of inspection application, even the inspection carried on by Commissioner/Nazir of the Court was without notice to the appellant---Validity---Report of Nazir, was to be excluded and could not be considered as it was prepared in violation of mandatory provisions of law---Order passed on such report, was also not legal.
Modal Vasam Latcham Naidu and another v. Rama Krishan Ranga Rao Bahadur Bobbili Samasthanam AIR 1934 Mad. 548 and Barkat Ali and another v. Mst. Fatima Bai and 2 others 1995 CLC 1012 ref.
Muhammad Nawaz Shaikh for Appellant.
Ahmed Pirzada, Addl. A.-G. for Respondents Nos. 1 to 5.
Ms. Sana Minhas for Respondent No.9.
Date of hearing: 16th December, 2003.
2004 C L C 1875
[Karachi]
Before Shabbir Ahmed and Muhammad Mujeebullah Siddiqui, JJ
Syed ALI GOHAR SHAH---Appellant
Versus
PROVINCE OF SINDH and others---Respondents
H.C.A. No.400 of 2003, heard on 16thDecember, 2003.
ORDER
The appellant aggrieved by the impugned order has preferred the present appeal. By the impugned order the C.M.A. 2387 of 2003, filed by the appellant in Suit No.454 of 2003 for injunction was disposed of on the basis of the Nazir's report. The Nazir of this Court inspected plot Survey No.315 of Na-class 161, Sector 43-A, K.D.A. Scheme No.33, Deh Safooran, Karachi, claimed by the respondents, whereas the appellant-plaintiff claims that he is allottee of the land of Na-clasp Survey No.179-A, Sector 42-A, K.D.A. Scheme No.33, Deh Safooran which is distinct piece of land.
The plea of the appellant was that the disposal of the injunction application on the basis of inspection report of the Commissioner/Nazir, without notice could not be the basis of an order in favour or against any party. Therefore, the impugned order is liable to be set aside on this, score only. The plea raised is not without any force.
It would be advantageous to reproduce the provisions of C.P.C. governing the appointment of Commissioner for site inspection, which are contained in Rules (9) and (18) of Order XXVI, C P.C., rule 7 and 8 of Order XXXIX, apart from rule 18 of Order XVIII, C.P.C. more particularly provisions of rules 9 and 18 of Order XXVI and rules 7 and 8 of Order XXXIX, which read as follows:--
26(9) Commissions to make local investigations.--------In any such suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property or the amount of any mense profits or damages or annual net profits, the –Court may issue 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 be10 issued, the Court shall be bound by such rules.
26(18) Parties to appear before Commissioner.--- (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.
39(7) Detention, preservation inspection, etc., of sub suit.--- (1) The Court may, on the application of any party to a suit and on such terms as it thinks fit,--
(a) make an order for the detention, preservation, or inspection of any property which is the subject-matter of such suit, or as to which. any question may arise therein;
(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and
(c) for all or any, of the purposes aforesaid authorize any samples to be taken, or ally observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. .
(2) The provisions as to execution of process shall apply, mutates mutandis, to persons authorized to enter under this rule.
39(
Application for such orders to be after notice.--- (1) An application by the plaintiff for an order under Rule 6 or Rule 7 may be made after notice to the defendant at any time .after institution of the suit.
(2) An application by the defendant for a like order may be made; after notice to the plaintiff at any time after appearance."
The perusal of the above provisions would show that the Court cannot appoint the Commissioner for inspection without notice to the defendants except in cases where the issuance of notice may frustrate the purpose of the appointment of Commissioner but the Commissioner has to execute the commission with notice to the opposite party.
In the instant case, admittedly the appellant was not served with notice of inspection application even the inspection carried on by the Nazir was without notice to the appellant. Therefore, such a report is .to be excluded and cannot be considered. Reference may be made in regard to two decisions first from Indian jurisdiction of Madras High Court and the second of this Court. In Modal Vasam Latcham Naidu and another v. Rama Krishna Ranga Rao Bahadin Bobbili Samasthanam AIR 1934 Mad. 548 the Madras High Court examined the-similar situation and concluded as follows.
"The Court granted the, petition and issued a warrant to the Commissioner returnable on 3rd August, 1932. The Commissioner completed his inspection on 31st July, 1932. No notice was given to defendants of this second petition, nor was any notice given to them of the issue of the commission, nor had they any opportunity afforded to them of being present when the Commissioner made his inspection. The whole thing was done behind their backs. It must be remembered that rule 10(2), Order XXVI C.P.C. makes the report of the Commissioner evidence in the suit. Therefore, it is of importance that the report should not be founded on representations made to the Commissioner or on matters brought to his notice, by one party to the suit alone Indeed, it is so manifestly improper that one party to a suit should be given a commission and the advanced of a report by the Commissioner without the knowledge of the opposite party that I think this alone would be sufficient to justify the interference of a Revision Court. But there is rule 18, Order XXVI which says that when a Commission is issued under this order the Court shall direct that the parties shall appear before the Commissioner in person or by their agents or pleaders. Sub-rule (2), rule 18 says that where all or any of the parties do not so appear the Commissioner may proceed in their absence. Rule 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the Commissioner and that they must attend his investigation. There is no power in the Court to issue an ex parte commission."
In Barkat Ali and another v. Mst. Fatima Bai and 2 others 1995 CLC 1012, the learned Single Bench of this Court also observed that: the Court can in appropriate cases, where issuance of notice may defeat the very purpose of such application, can order inspection without prior notice of the application of the other side. However, a distinction is to be made between grant of application without notice and inspection to be conducted by the Commissioner appointed for the purpose. If it be conceded that the Court has the powers to grant such application without prior notice to the opposite side under .the given circumstances of the case, for example, where the very purpose of inspection may be defeated if the notice is ordered, the Commissioner appointed for the purpose of inspection of the property or local investigation is not absolved from his duty to conduct the inspection only after notifying date and time of the inspection to the parties concerned so that they have reasonable notice.
On the basis of above observations, a Commissioner's report in respect of the inspection conducted without reasonable notice specifying the time and date of inspection and prepared in, violation of the mandatory provision is liable to be excluded from consideration.
On 13-10-2003 inspection was conducted without notice to the appellant. The inspection without notice is not legal and liable to the exclusion. Therefore, the order passed on such report is also not legal. Consequently, we set aside the impugned order.
Case is remanded back for fresh decision on C.M.A. 2387 of 2003 filed by the appellant.
During the hearing, it was pointed out that the appellant s application for inspection under Order XXVI, rule 9 C.P.C. was pending when an application filed by the respondent No.9 under order XVIII, rule 18, C.P.C. was granted without notice and the report of the Nazir in pursuance thereof was also without notice to the parties, Therefore, two applications are disposed of with direction to the Nazir to inspect two plots viz. Na-class Survey No.179-A, Sector 42-A, K.D.A. Scheme No.33, Deh Safooran, Karachi claimed by the plaintiff-appellant and Plot Survey.No.315, Na-class 161, Sector 42-A, K.D.A. Scheme No.33, Deh Safooran, Karachi The Nazir will inspect the said plots with the assistance of Survey Settlement Survey and Land Record Officer with notice to the parties fixing the date and time of the inspection C.M.A. 2387 of 2003 be disposed, of by the learned Judge after hearing the parties and after considering the Nazir's report. The interim order passed earlier is vacated. The Nazir will get Rs.15,000 as fee from the appellant.
With the above observations, the appeal with listed applications stand disposed of.
H.B.T./A-95/L Order accordingly.
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