1989 PLP 3823 (MLD)

Syed Fayyaz Hussain Kadri for Respondents. Date of hearing: 25th April, 1989. This Civil Revision calls in question the judgment and decree of the Addl. District Judge, Faisalabad dated 16th of March, 1985 whereby he set aside the decree of the trial Court dated 5th of February, 1981.

2. The dispute arises out of a suit for declaration filed by the respondent wherein he challenged the validity of the order dated 20th of December, 1981 of the Sub‑Divisional Canal Officer and the order of the Divisional Canal Officer dated 3rd of August, 1972. In the plaint it was alleged that before passing the impugned order, as the share‑holders of the outlet in question were not served with any notice, therefore, the proceedings were invalid. This suit was resisted by the respondents on various pleas which led to the framing of five issues. The suit was dismissed by the trial Court on 5‑2‑1981 on the finding that the respondent‑plaintiffs had been served with notice by the Sub‑Divisional Canal officer but they did not attend the proceedings. This decision was challenged by the respondents by filing an appeal which was accepted by the Additional District Judge on 16th of March, 1985. The learned lower appellate Court came to the conclusion that all the share‑holders had not been served and the requirement of service of notices under section 20 of the Canal and Drainage Act, 1873 had not been complied with by the Sub‑Divisional Canal Officer and as such subsequent hearing in appeal by the Divisional Canal Officer was of no avail.

3. In support of this revision petition Mr. Aslam Riaz, the learned counsel for the petitioners has submitted that the respondents were duly served with notices by the Sub‑Divisional Canal Officer but they absented themselves and did not appear on the date fixed. It was further contended that as the respondents -plaintiffs were heard in appeal, by the Divisional Canal Officer, the irregularity, if any, stood cured. Syed Fayyaz Hussain, the learned counsel for the respondents has, on the other hand, argued that the respondents were not served with any notice and therefore the mandatory requirements of section 20 having not been complied with the subsequent hearing, at the time of appeal, was of no consequence.

4. As regards the legal position, there is no manner of doubt that if the requirement for notice of hearing is statutory, non‑compliance thereof would render the entire proceedings null and void and subsequent hearing in appeal or revision will not validate the proceedings. If however, non‑service of a notice constitutes violation of principle of natural justice only, hearing in appeal or revision will operate to cure the defect. See Ata Muhammad Qureshi v. Settlement Commissioner (PLD 1971 SC 61) and Mst. Sheedi v. Muhammad Siddique and two others (PLD 1980 Lah. 477). In the present case, notice to the share‑holders of the outlet is the requirement of section 20 of the Canal and Drainage Act and not of natural justice only.

5. The real question which therefore arises for determination is whether the respondents/plaintiffs were served with any notice by the Sub‑Divisional Canal Officer before passing the impugned order. The first thing to be noticed in this behalf is that there was no positive assertion in the plaint that they were not served with any notice. On the other hand the case of the respondents appears to be that as notices were not served on all the share‑holders, the impugned order was without jurisdiction. There is no specific averment regarding the non‑service on the plaintiffs‑respondents themselves. There is also no evidence led by them to show that they were not served with notices. While appearing as PW.3 Raley Khan plaintiff made no grievance that the plaintiffs had not been served with notices but admitted that parties had requested the Patwari to report that they were not in a position to appear on 20th of December, 1971 on account of war when the ex parte order was passed due to their absence. This admission, is by itself sufficient to show that the plaintiffs had been served for the date of hearing. PW.l Hassan Din Patwari was examined by the plaintiffs/respondents and deposed about non‑service of notice on certain other share‑holders and not the plaintiffs. The Additional District Judge while reversing the findings of the trial Court, did not record a positive finding that the plaintiffs/respondents had not been served, with notices. He however, proceeded on the premises that although some of the shareholders had been served but as service was not effected on all of the share‑holders, the order of the Sub‑Divisional Canal Officer was not valid. The Additional District Judge however failed to appreciate that the plaintiffs could succeed only by establishing that they had not been served with notices and not by showing that notices had been served on certain of the shareholders who had not come forward to make any grievance. As regards the respondents/plaintiffs, the service of notice on them stands established and qua them the requirement of section 20 of the Act was fully met with. If any principle of natural justice was violated, the irregularity stood cured by subsequent hearing in the appeal before the Divisional Canal Officer. In view of what has been stated above the civil revision is accepted, the judgment and decree of the Additional District Judge is set‑aside and that of the trial Court is restored with no order as to costs. H.B.T./M‑1503/L Revision accepted.