P L D 1958 (W (PLP)

Reference by the President under Art. 162 of the Constitution of Pakistan P L D 1957 S C (Pak.) 219 not applicable. Ghias Muhammad fdr Petitioner. Karam Elahi, Chouhan for Respondent No.

1. Date of hearing : 21st October 1957. The petitioner and respondent No. 1 are owners of land on Chah Musawala, situated in the area of village Bhaini, Tehsil and District Multan. Their lands are irrigated by a water‑course which takes its supply from outlet No. 28662/R. The lands of the remaining respondents are also irrigated by the same water course. On the 30th May 1955, on the application of the petitioner, given under section 68 of the Canal and Drainage Act, 1873, the Divisional Canal Officer passed an order fixing the turns of water of all the persons whose lands were irrigated by this water‑course. Respondent No. 2 gave another application in the year 1957, under the same provision of law, for having‑the previous order modified and, on the 7th March 1957, the Divisional Canal Officer passed a fresh order fixing the turns of water (wardbandi) of the various landowners in modification of the previous order passed in the year 1955. Feeling aggrieved by the Divisional Canal Officer's order, Muhammad Ishaq petitioner filed a suit and also gave an application under Order XXXIX, Rule 1, of the Code of Civil Procedure, praying that an injunction may be issued to the defendants directing them to let the plaintiff continue getting his turn of water in accordance with the Divisional Canal Officer's order dated the 30th May 1955, and not in accordance with the order dated the 7th March 1957, during the pendency of the suit. The application was dismissed by the trial Court on the ground that, in accordance with section 68 of the Canal and Drainage Act, the order passed by the Divisional Canal Officer has to remain in force until set aside by a decree of the Civil Court. An appeal was filed by the plaintiff, in the Court of the District Judge, Multan, against the order of rejection of his application and, without going into the merits of the case, the District Judge, by his order dated the 14th May 1957, rejected the appeal, on the same ground on which the trial Court had rejected the applica tion, namely, that until the order of the Divisional Canal Officer was set aside by a Civil Court, the same has to remain in force. The plaintiff has now come up in revision to this Court, against the order passed by the learned District Judge, Multan, and prays that that order may be vacated and the temporary injunction asked for may be granted.

2. All the defendants in the original suit have been made respondents in this petition. Respondents Nos. 5 and 11 have not appeared in spite of service of the notice and ex parte proceedings are, therefore, being taken against them. Respondents Nos. 2, 3, 9, 10, 13, 14 and 29 have filed affidavits in this Court supporting the petitioner's case. Respondents Nos. 1, 4, 6, 7, 8, 12 and 15 to 28 have appeared through Mr. Karam Elahi Chauhan and are opposing the petition.

3. Section 68 of the Canal and Drainage Act, 1873, empowers the Divisional Canal Officer, whenever a difference arises between two or more persons in regard to their mutual) rights or liabilities in respect of the use, construction or maintenance of a water‑course to pass orders in the matter, or refer it for decision to the Collector. Under the second paragraph of section 68 the order passed by the Divisional Canal Officer, or the Collector, as the case may be, is final, as to the use and distribution of water for any crop sown' or growing at the time when such order is made and shall also remain in force there after until it is set aside by the decree of a Civil Court. There are thus two stages in the operation of such an order. In the first stage; the order is final so far as the use and distribution of water for any crop sown or growing at the time of passing of the order is concerned and it cannot be modified' or set aside by a Civil Court by means of a decree or otherwise. The second stage of the operation of this order envisaged by this paragraph, is with regard to the use and distribution of water, after the crops, which had been sown or were growing at the time when the order was passed, have been gathered or harvested and the water is to be used or distributed for the growing or sowing of other crops. For this purpose the order is not final and it would remain in force only if it is not set aside by the decree of a Civil Court.

4. It was conceded by the learned counsel for the contesting respondents that no finality attaches to the Divisional Canal Officer's order so far as its future operation is concerned, and that in the suit filed by the petitioner ' the Court would be competent to modify or set it aside. It was, however, contended by him that the Divisional Canal Officer's order is to be set aside only by a decree of a Civil Court, and, so long as that decree is not passed, the order would remain in force. In other words, the contention was that during the pendency of the suit the Court is not competent to modify or suspend, this order and, therefore, the injunction asked for, by the petitioner could not be issued. No direct authority to 'support" this` contention was cited, but stress was laid on the words "shall thereafter remain in force until set aside by the decree of a Civil Court" which occur in this paragraph. For the 'interpretation, of the word "until" reference was made to a recent case of the Supreme Court `reported as Reference by the President under Art. 162 of the Constitution of Pakistan (P L D 1957 S C (Pak)219), but this authority which relates to an entirely different matter, has, in my opinion, no application to the present case.

5. The learned counsel for the petitioner relied on the provisions of section 53 of the Specific Relief Act, and section 94 and Order XXXIX; Rule 2, of the First Schedule of the Code of Civil Procedure. According to section 53 of the Specific Relief Act, the grant of temporary injunctions is regulated by the Code of Civil Procedure, while according to sections 54 and 56 the grant of perpetual injunctions is regulated by the Specific Relief Act itself. In section 94 of the Code of Civil Procedure, which is found in Part VI headed as "Supplemental Proceedings", it is laid down that in order to prevent the ends of justice being defeated, the Court may, if it is so; prescribed, grant a temporary injunction. The procedure for the grant of injunctions and the circumstances under which 'this can be done are prescribed by Rules 1 and 2 of Order XXXIX of the Code. On the allegations made in the plaint the present case would fall within the purview of Rule

2. If the plaintiff , is able to, substantiate his allegations and the balance of convenience is found to be on his side, the Court would be justified in issuing the injunction asked for.

6. The question, however, which requires decision is whether, in the circumstances of this particular case and bearing in mind the language of paragraph 2 of section 68 of the Canal and Drainage Act, the trial Court was or was not competent to issue the injunction asked for, in exercise of the powers conferred by section 94 and Order XXXIX, Rule 2, of the Code of Civil Procedure. The matter is, no doubt of a procedural nature and as the suit is pending in a Civil Court, unless it is shown that by any other law the power to issue an injunction, in such a case, has been taken away, there was nothing to prevent the trial Court from issuing the injunction asked for. Section 68 of the Canal and Drainage Act itself lays down that the final decision of the matter would rest with the Civil Court and as the Civil Court's jurisdiction to pass the decree has not been taken away, there is no reason why, when the Civil Court has taken cogni zance of the case, it should be prevented from issuing a supplemental or incidental order of the kind envisaged by section 94 and Order XXXIX, Rule 2, of the Code of Civil Procedure. Their Lordships of the Privy Council held in Adaikappa v. Chandrasekhara (A I R 1948 P C 12=P L D 1947 P C 279 ), that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto. The facts of the case in which these observations were made were different, but the rule laid down was that if any dispute is pending before an ordinary Court, which has jurisdiction to try it, in matters of procedure the rules applicable to that Court‑ would apply. This is exactly what the petitioner wants to be done in the present case and if the Civil/Court is competent to entertain and decide the dispute between the parties there is no reason why the procedure applicable to that Court should not be applied for passing incidental or supplemental orders.

7. Reference was also made by the learned counsel for the petitioner to the provisions of Order XXI, Rule 63, of the First Schedule to the Code of Civil Procedure, which provides for the conclusiveness of any order passed by a Court in execution pro ceedings, on a claim or objection, subject to the result of the suit, if any. It was contended that the language used in Order XXI, Rule 63, of the Code is much wider than the language used in the second paragraph of section 68 of the Canal and Drainage Act and if in a suit under the first‑mentioned provision of law the Court is competent to issue a temporary injunction (though such an order if not set aside by a suit would be conclusive) there is no reason to deprive the Civil Courts of the exercise of such a power in the case of an order passed under section 68 of the Canal and Drainage Act, which is not conclusive and is only to remain in force until it is set aside by a decree of the Civil Court. It was conceded by the learned counsel for the res pondents that in a suit filed under Order XXI, Rule 63; of the Code, a temporary injunction under Order XXXIX, Rule I 2 of the Code can be issued, but it was contended by him that on a correct interpretation of the language of the second paragraph of section 68 of the Canal and Drainage Act, though the order passed by the Divisional Canal Officer cannot be said to be conclusive, it has to remain in force until set aside by the decree of a Civil Court and, therefore, the power to issue temporary injunctions under the Code cannot be exercised in such a case. In my opinion, the contention raised by the learned counsel in this respect has no force, as there is nothing in the` Canal and Drainage Act to indicate that when the jurisdiction of Civil Courts to give a final adjudication has been saved, the provisions of the Code in procedural matters would be inappli cable. The object of obtaining the temporary injunction is not to have the order passed by the Divisional Canal Officer rescinded during the pendency of the suit, but is to have its operation suspended during that period. Such an order, in my opinion; does not come into conflict with the provisions of section 68 of the Canal and Drainage Act and, therefore; the view taken by the trial Court as well as by the lower appellate Court does nor appear to be correct.

8. For reasons given above, I accept this revision petition, set aside the orders of the Courts below and direct that the petitioner's application for the grant of temporary injunction shall, after hearing the parties, be disposed of on merits. As the question before me was not free from difficulty, I make no order as to costs. A. H. Petition accepted.