P L D 2003 Supreme Court 344 (PLP)

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Temporary injunction, grant of‑‑‑Prima facie case not the only exclusive factor‑ ‑‑Balance of convenience and irreparable loss being equally important could not be ignored‑‑‑Duty of Court to examine balance of convenience, irreparable loss as well as behaviour, and conduct of the parties. M. Bilal, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record (absent) for Petitioner. Shaukat Hayat. Deputy Collector, Karana Division, Sargodha for Respondent No.2. Respondent No.4 to person. Date of hearing: 28th November, 2002. JAVED IQBAL, J.‑‑‑This petition for leave to appeal is directed against the order dated 27‑8‑2001 passed by learned Single Judge of Lahore High Court, Lahore, in Chambers whereby civil revision preferred on behalf of petitioner has been rejected and order passed by the learned Civil Judge whereby application for grant of ad‑interim injunction was refused by means of order dated 13‑8‑2001 concurred by learned District Judge on 22‑8‑2001 was kept intact.

2. Briefly stated the facts of the case as enumerated in the impugned judgment "as per petitioner's case are that the petitioner and the respondents Nos.4 and 5 are co‑sharers in Mogha No.61800/R, Rajbah Karana in the area of Chak No.81 /SB Tehsil and District Sargodha. The petitioner's land is situated in Squares Nos.52 and 53, while the land situated in Square No.52; Killas Nos.9 to 14, 17/Min. 19 and 20 is under cultivation of the petitioner as sole owner. The aforesaid land is situated totally on the main watercourse and the sanctioned "Nakka" of the respondents Nos.4 and 5 was on Square No.50, Killa No.4. The respondents Nos. 4 and 5 purchased the land from the previous owners and tiled an application before the Deputy Collector Karana Division, Sargodha on 19‑3‑1998 for the amendment in the Warabandi and prayed for an additional "Nakka" on the "Watt" of Squares Nos. 51, 52 mainly on the ground that land in question could not be irrigated from any other "Nakka". On account of the consent of the co‑owners in the Mogha Deputy Collector, passed an order dated 30‑3‑1998 and an additional "Nakka" was sanctioned on the point of Square No.51, Killa No.25. As new Warabandi was sanctioned and the respondents Nos.4 and 5 had been irrigating their land from above "Nakka". Thereafter, the respondents Nos. 4 and 5 tiled an application before the respondent No.2 for the sanction of an additional "Nakka" at Square No.53, Killas Nos. 5 and 6, upon which, the respondent No.2 sanctioned a new watercourse at the middle line of Squares Nos. 52 and 53 from Killas Nos. 11 to 15, 16 to 20 and at the middle line of Squares Nos. 52 and 53, Killa No.5. This was done without adhering to the procedure laid down under sections 21 to 25 of the Canal and Drainage Act. No notice was issued to the other co‑owners of the "Nakka". The petitioner aggrieved by this order dated 17‑3‑2001, filed an appeal, which has been rejected by the respondent No.3. Thereafter, the petitioner challenged the aforesaid order through a civil suit, alongwith which an application for the grant of temporary injunction was also moved". The application for grant of ad interim injunction was, rejected by learned Civil Judge vide order dated 13‑8‑2001. Being aggrieved an appeal was preferred which met the same fate and dismissed by learned District Judge vide order dated 22‑8‑2001 which was assailed by filing a revision petition which has been rejected vide order impugned, hence this petition.

3. Heard Mr.M. Bilal, learned Senior Advocate Supreme Court off behalf of petitioner who mainly argued that the factual and legal aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged with vehemence that the proposed new watercourse was established on the private land of the petitioner for which no compensation whatsoever was awarded and besides that the provisions as contained in section 68 of the Canal and Drainage Act. 1873 (Act XIII of 1873) have been ignored and grossly violated, without any rhyme and reason by the concerned authorities. It is mentioned that the inquiry report dated 31‑7‑2001 of the Superintending Engineer was not examined at all causing serious, prejudice to the petitioner. It is urged with vehemence that petitioner has a good prima facie case on the basis whereof temporary injunction could have been granted as the Civil it Court is competent to check the irregularities and illegalities committed by the Canal Authority in such‑like controversies. It is urged firmly that no notice whatsoever was issued to the petitioner by the Canal Authority and his legal rights were infringed without affording him proper opportunity of hearing and he was condemned unheard.

4. Farooq Ahmed (respondent No.4) entered appearance in person and supported the order impugned and submitted that no illegality whatsoever was committed by the Canal Authority as the petitioner remained associated in ail the proceedings conducted and he was never condemned unheard.

5. Mr. Shaukat Hayat, learned Deputy Collector is present in person and Submitted that the relevant provisions as contemplated ill the Cabal and Drainage Act, 1873 were strictly adhered to and the procedure enumerated therein was followed by associating the petitioner ill all the proceedings and no action adversely affecting his interest was taken. lie has informed in a categoric manner that no new watercourse was sanctioned in labour of respondent. He also mentioned various instances indicating the highhandedness of the petitioner who is now clamouring for equitable and discretionary relief by ignoring the fact that he who seeks equity must do equity. It is also pointed out by the learned Deputy Collector that tile "Nakka" sanctioned by the Canal Authority was forcibly dismantled by the petitioner.

6. We have examined the entire record with eminent assistance of Mr. M. Bilal, learned Senior Advocate Supreme Court on behalf of petitioner. The order passed by learned Civil Judge on 13‑8‑2001, order passed by learned District Judge on 22‑8‑2001 and order impugned were perused carefully. The learned Deputy Collector entered appearance in person and has explained the prevailing position in a comprehensive manner and stated in a categoric way that, neither any new watercourse was sanctioned nor established on the private land of the petitioner as contended time and again by the learned Advocate Supreme Court on behalf of petitioner. It is mentioned that only permission for an additional "Nakka" was granted on the existing watercourse having no substantial effect on the share of water pertained to‑the petitioner. The said categoric submission negates the version of Mr. M. Bilal, learned Senior Advocate Supreme Court on behalf of petitioner as pressed time and gain that a new watercourse was sanctioned. It may be pointed out that "Nakka" and "new watercourse" are not synonymous or interchangeable terms having their own connotation and significance. The learned Advocate Supreme Court on behalf of petitioner tailed to point out that "additional nakka" could not have been sanctioned by the Canal Authority or which of the provisions of the Canal and Drainage Act, 1873 was violated. We are not persuaded to agree with Mr. M. Bilal, teamed Advocate Supreme Court that the petitioner was condemned unheard because as per record notice was served upon him on 3‑3‑2001 and in pursuance whereof the petitioner remained present during the proceedings. The highhandedness and critical conduct of the petitioner is also indicative from note incorporated at the tale by Divisional Canal Officer while deciding the appeal preferred on behalf of petitioner which is reproduced hereinbelow for ready reference:‑‑

7. On the basis of above mentioned observation the petitioner is not entitled for injunction which is admittedly an equitable relief based upon well‑known principle of equity. There is no cavil with the proposition that ".he who would have equity must do equity and give effect to all equitable right in the other party respecting the subject‑matter of the suit" means that whatever be the nature of the controversy between two definite parties, and whatever be the nature of the remedy demanded, the Court will not confer its equitable relief upon the party seeking its inter‑position and aid, unless be had acknowledged and conceded or will admit or provide for, all the equitable rights, claims and demands justly belonging to the adverse party, and growing out of, or necessarily involved in the subject‑matter of the controversy. It says, in effect, that the Court gives the plaintiff the relief to which he is entitled only upon condition that he has given or consents to give, the defendant such corresponding rights as he also may be entitled to in respect of the subject‑matter of the suit. (Story's Equity Jurisprudence, p.72; Pomeroy's Equity Jurisprudence, p.3)".

8. We are not persuaded to agree with Mr. M. Bilal, learned Senior Advocate Supreme Court on behalf of petitioner that on the basis of prima facie case an ad interim injunction could have been. granted as it is not the only exclusive factor on the basis whereof temporary injunction may be granted and the factum of balance of convenience and irreparable loss being p equally important cannot be ignored. ‑We are of the considered view that in such‑like matters besides prima facie case it is bounden duty of the Court to examine the balance of convenience irreparable loss as well as behaviour and conduct of the parties which has rightly been done by the learned trial and appellate Courts. It may be not out of place to mention here that Afzal Hussain real brother of petitioner had filed a suit assailing the order of Canal Authority regarding sanctioning of additional "Nakka" but subsequently the Suit was withdrawn on 31‑7‑2001 and on the basis whereof the only irresistible conclusion would be that no additional watercourse was sanctioned but on the contrary additional "Nakka" was permitted by the Canal Authority on the existing watercourse. Had a new watercourse been sanctioned the question of withdrawal of suit filed by Afzal Hussain would have not arisen.

9. In the light of what has been stated hereinabove the order impugned being' well‑based, strictly in accordance with law and settled norms of justice hardly calls for any interference. The petition being meritless is dismissed. The petitioner would be, however, at liberty to raise all the contentions as mentioned hereinabove before the learned trial Court where suit is pending adjudication. The observations made hereinabove are tentative in nature and shall not affect the merits of the case of petitioner. S.A.K./1‑67/S Petition dismissed.