1984 PLP 1699 (CLC)

‑ O. XXXIX, r. 1‑Canal and Drainage Act (VIII of 1873), Ss. 20 & 69‑A‑Temporary injunction‑Petitioner demolishing Khal of respondent without permission from Canal authorities taking law into his own hands‑Canal authorities ordering restoration of Khal‑Petitioner filing declaratory suit for permanent injunction‑Only consideration in circumstances is as to whether petitioner or respondent would be inconvenienced by temporary injunction‑Held: Courts below exercising discretion properly and justly in refusing temporary injunction to save respondent's land from rendering barren. Muhammad Ismail v. Muhammad Saddiq and 6 others 1971 S C M R 535 distinguished. Abdur Rahman Mobashir v. Amir Ali Shah P L D 1978 Lab. 113 and Muhammad Yaqoob v. Ghulam Muhammad P L D 1982 Lab. 752 rel. This revision petition has arison from order passed by Civil Judge 1st Class dated 14‑12‑1982 refusing to grant temporary injunction to the petitioner which was upheld by District Judge D. G. Khan vide his order dated 1‑2‑1983.

2. Briefly the facts are that a Khal existed in Recktangle No. 36, Killa Nos. 2/1‑3 which was dismantled by the petitioners as a result whereof irriga tion arrangements of the land of Naseer Ahmad respondent No. 4 were affected, so he applied for restoration of the same Khal to the Divisional Canal Officer. Ziladar concerned after inquiry reported that the Khal was dismantled by the petitioners. He also suggested that there was no need to proceed under section 68‑A of the Canal and Drainage Act (hereinafter called the Act) as there existed alternate arrangements. The Sub‑Divisional Canal Officer too endorsed this report but when the matter came up before the Divisional Canal Officer, he did not agree with them and held that since the petitioners had dismantled the existing Khal without obtaining permission to do so under section 20 of the Act rather they had taken law into their own hands, therefore, the illegally dismantled Khal must be restored vide order dated 5‑12‑1982. Being aggrieved of the Divisional Canal Officer's order the petitioners filed a declaratory suit in the Court of Civil Judge, 1st Class and prayed for permanent injunction, Alongwith the civil suit they also made an application for temporary injunction.

3. The learned trial Court refused the temporary injunction on 14‑12‑1982 saying that the petitioners having committed illegality themselves have "now prayed for legal rescue which is not possible," An appeal was taken to the District Judge against this order who appointed an Advocate, as Local Commissioner for inspecting the spot for ascertaining the facts and report whether the petitioners/plaintiffs bad demolished the disputed water course‑ and‑whether respondent Naseer Ahmad had some other arrangements to irrigate his fields. The Local Commissioner reported that it were the petitioner who demolished the watercourse and the respondent had no other means to irrigate his land. The learned District Judge, therefore, held that the petitioners did not seem to have prima facie case for the grant of temporary injunction and dismissed the appeal. The petitioners have now challenged the orders of both the Courts blow refusing to grant temporary injunction by filing this revision petition.

4. Learned counsel for the petitioners has vehemently argued that order of respondent No. 2 (Divisional Canal Officer) dated 5‑12‑1982 having been passed without giving any notice to the petitioners, offended against the principle of audi alteram partern and is thus liable to be set aside, and that the learned District Judge was not correct in holding that the petitioners had no Prima facie case. He has relied on The University of Dacca and another v. Zakir Ahmad (P L D 1965 S C 90) and Muhammad Ismail v. Muhammad Saddiq and 7 others (1971 S C M R 535).

5. As against this learned counsel for the respondent submitted that the case‑law relied upon by the petitioner is not applicable to the facts of this case. He urged that the petitioners had illegally dismantled the Khal in question and thereby abolished the means of irrigation and thereby posed serious threat to the lands of the respondent to go barren and as such there is apprehension of irreparable loss being caused to the respondent, hence the balance of con venience also leans in his favour.

5. I have carefully considered the arguments of the learned counsel for the parties. The watercourse which has been dismantled admittedly ran through the land which originally belonged to respondent No. 4 but as a result of the consolidation operation carried out in that village recently it fell to the share of the petitioners. Abdul Karim petitioner No. 2 a co‑sharer of the said land was given notice by the Canal authorities before the Divisional Canal Officer passed the impugned order. According to the report of the local Commissioner appointed by the learned District Judge, the petitioners bad demolished the existing Khal through which the lands of respondent No. 4 were irrigated and no alternate means of irrigation are existing on the spot. In the circumstances of the case, therefore both the learned Courts below appear to have exercised their discretion properly and justly in refusing temporary injunction obviously to save the land of respondent No. 4 from being rendered barren and uncultivable. I am, therefore, of the view that legal considerations to be kept in view while passing an order under Order XXXIX, rules I and 2, C. P. C. have not been disregarded or flouted.

6. In Muhammad Ismail's case learned Judges of the Supreme Court approved the suspension of order sanctioning‑ extra water for orchard by canal authorities without notice; firstly, because it had affected the supply of water of the other party and secondly, the orchard did not factually exist for which the water had been sanctioned. In this case the situation is quite reverse. Therefore, I think that, the authority cited proceeds on different facts and does not apply to the case in hand. If the argument of the learned counsel is accepted it would amount to clinching the fate of the suit which is yet to be decided on evidence to be adduced by the parties. Such a result is not countenanced by law as has been held by a Division Bench of this Court in Abdur Rahman Mobashir v. Amir Ali Shah (P L D 1978 Lah. 113). At present the only considera tion is as to whether the petitioner or the respondent would suffer inconveni ence. Viewed in this perspective the inconvenience caused to the respondent in the event of grant of temporary injunction to the petitioner the lands of the respondent shall be totally deprived of irrigation facility. Reference in this behalf may be made to Muhammad Yaqoob v. Ghulam Muhammad (P L D 1982 Lah. 752).

7. For the said reasons this revision petition fails and is hereby dismissed being without merit. M. B. A. Petition dismissed.