P L D 1952 Azad J (PLP)

ABDUL MAJID, C. J.‑This petition for revision is arising from proceedings under section 147 Criminal Procedure Code undertaken at the instance of Piran Ditta respondent. The case put before the Magistrate by Piran Ditta was that the petitioners had obstructed the flow of water from his house by blocking the galli through which it passed. Piran Ditta also mentioned in his complaint that formerly the water from his house flowed through a channel passing under‑neath the house of the respondent Noor Hussain and others but when these respondents rebuilt that house the channel was removed and the police on an application made by him some 6 months before the complaint allowed him to pass the water of his house through a galli in front of the house of the petitioner in which an obstruction had been raised recently. The Magistrate after taking some evidence concluded that the facts stated in the complaint of Piran Ditta were correct. He accordingly passed the following order :‑ "I therefore order that Mian Khan and Muhammad Khan will remove the obstruction within 15 days so that the water flowing from the house of Piran Ditta might pass easily through a galli as it was passing previously and that Mian Khan and Muhammad Sadiq should not interfere with the rights of the complainant about the passing of the water till they get the decision from a Civil Court in their favour to that effect. In case Mian Khan and Muhammad Sadiq continued obstructing the flow of water from the house of the complainant, the latter would be entitled to have the assistance of the police in removing the obstruction". Mian Khan and Muhammad Khan petitioned the learned Sessions Judge Mirpur to the effect that the order passed by the Sub‑Judge, Magistrate was not in accordance with law and the Sessions judge holding that the order given by the Sub‑Judge, Magistrate which was in the nature of a mandatory injunction could not be legally passed under section 147 Criminal Procedure Code and also that it was not stated therein definitely that there was any apprehension of the breach of peace recommended that the order passed by the Magistrate should be vacated. In the course of the arguments before me, it has been urged by the respondents counsel that mandatory .injunction can be issued under section 147 (2) Criminal Procedure Code in a proper case and that there is evidence in the case to show that breach of peace was apprehended if the dispute between the parties about the flow of the water was not settled. In spite of the vehement arguments advanced by the learned counsel for the respondents, I do not think that the order of the Sub‑Judge Magistrate can be maintained as it stands. The facts proved in the case indicate that the police bad forced the petitioners to allow the passing of the water from the house of Piran Ditta respondent and otherwise the peti tioners were not bound to do so. As the right about the passing of water in the galli in front of the house of the peti tioners was in dispute, the Sub‑Judge Magistrate should not have passed the order as if he was dealing with the case as a Civil judge who has to decide all the issues arising between the parties exhaustively. The only evidence adduced about the apprehension of the breach of peace consisted of the testimony of a few chance witnesses. This sort of evidence cannot be said to be conclusive on the point that there was apprehension of the breach of peace which justified the taking of an action under section 147 Criminal Procedure Code. There is indeed no bar to the passing of a mandatory injunction in a proper case under section 147. (2) Criminal Procedure Code but it should not be directed as a matter of course in these proceedings as was the case here. It can only be made if there are very strong reasons for making an order to that effect. If the Legislature intended the directing of mandatory injunction under section 147 (2) Criminal Procedure Code as a rule then a provision would have been made therein like that existing under section 133 Criminal Procedure Code. As the water had been allowed to pass from the house of Piran Ditta in galli in front of the house of the complainant by the police recently, the Sub‑judge Magistrate should not have passed the order in question unless Piran Ditta had establish his right to pass the water from his house through the galli in front of the house of the petitioner in a Civil Court. I, therefore, accept the revision and vacate the order passed by the Sub‑Judge, Magistrate. A. H Revision accepted.