2012 PLP 820 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The petitioners have filed a suit for declaration challenging the order dated 18-4-2007 passed by Divisional Canal Officer Kasur Division Kasur. The petitioners sought a declaration to the effect that order impugned is against law and facts and has been passed in their absence. Along with suit the petitioners also filed an application for interim relief. The respondents filed the written statement and controverted the allegation of respondents and the learned Civil Court vide order dated 4-4-2009 dismissed the application for interim relief. The petitioner assailed the same through an appeal which too was dismissed on 15-4-2009.

2. Learned counsel for the petitioner submits that learned trial Court has dismissed the application for interim relief declaring that watercourse subject-matter of the suit has already been restored on the spot and as such no restraining order can be passed against the executed order, whereas the learned appellate court without examining the order of learned trial Court dismissed the appeal on the sole ground that the petitioner will not suffer irreparable loss as the watercourse if allowed to be constructed in his land he can claim the compensation of the said land.

3. Learned counsel for the petitioner submits that dispute between the parties is about implementation of order dated 18-4-2007, he states that claim of petitioner is that outlet should not be allowed to be erected, meaning thereby on the day of institution of suit there was no outlet in working condition and that was the reason the impugned order was passed and as such the learned trial Court was bound to pass a restraining order as the disputed outlet was planned to be constructed in the personal property of the petitioner. The petitioner has the right to deny the respondent for construction of a new watercourse in his personal property. I with the assistance of both the learned counsel perused the record but unable to locate any document showing that outlet has been constructed in compliance of the order impugned. The application for interim relief was only meant for restraining the construction of an outlet and in case the outlet was constructed the application is bound to fail. For establishing the said fact prima facie the respondent was bound to prove the construction of alleged outlet in the personal property of petitioner which the respondent has failed to prove even before this Court and as such the learned Civil Court has dismissed the petitioner's application for interim relief on assumption without consulting the record. In view of above the petitioner's application for interim relief merits acceptance and as such the impugned orders dated 15-4-2009 and 4-4-2009 are hereby set aside and the application of the petitioner for interim relief is allowed. However, it is the case of establishment of watercourse and delay of its disposal may not be useful for the beneficiaries of the outlet of irrigation water and as such the learned trial Court is directed to decide this case within four months on receipt of certified copy of this order. K.M.Z./B-20/L Revision accepted.