P L D 1975 Supreme Court 15 (PLP)

"Except where herein otherwise provided, all claims against the Provincial Government in respect of anything done under this Act may be tried by the civil Courts, but no such Court shall in any case pass an order as to the supply of canal-water to any crop sown or growing at the time of such order." The second part of section 68 provides about the order thus: " and shall thereafter remain in force until set aside by the decree of a civil Court." Here "thereafter" means after the crop mentioned in the first part of the second paragraph of section 68 of the Act has been grown. A suit can be instituted to challenge the validity of the continuance of the order of the Divisional Canal Officer or the Collector as the case may be since the crop has been grown. The Act itself does not provide for any special procedure to be B followed by a civil Court while trying the suit filed under section 68 of the Act. Therefore, unless there is anything to the contrary in the Act, the Code of Civil Procedure will apply to a proceeding before a civil Court. I am supported in my view by the following observations of the Privy Council in the case of Adai Kappa v. Chandrasekhara P L D 1947 P C 279: "The true rule is 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 and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal; . . . . . ." These observations are, of course, subject-to section 4 of the Code of Civil Procedure vide Nawal Kishore Agarwala v. Municipal Board, Gorakhpur and others A I R 1937 All.

365. A number of decisions have been cited before us for and against the proposition whether in a case under section 68 of the Canal and Drainage Act, 1873, a civil Court is competent to pass an incidental or supplemental order as prescribed under the Code of Civil Procedure. It may be mentioned here that of the several cases cited before us only three of them have a bearing on the question at issue. In the case of Muhammad Ishaq v. Muhammad and others P L D 1958 Lah. 717 a learned Single Judge of the High Court in a similar case, relying upon the aforesaid case of Adai Kappa v. Chandrasekhara observed as follows: "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 XXMC, 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 injunc tion, 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 cognizance 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." While repelling the contention that although on a correct interpretation of the language of the second paragraph of section 68 of the Canal and Drainage Act, the order passed by the Divisional Canal Officer cannot be said to be conclusive, it is to remain in force until set aside by a decree of the civil Court and, therefore, the power to issue temporary injunction under the Code cannot be exercised in such a case, the learned Single Judge proceeded to observe as follows: "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 inapplicable. 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 not appear to be correct." In the case of Muhammad Saeed and others v. Fateh Muhammad and others P L D 1962 Lah. 317 a Division Bench of the High Court overruled the case of Muhammad Ishaq v. Muhammad and inter alia, observed that the Courts had extensive powers to issue an injunction in a pending suit, but this power certainly could be curtailed by a specific provision in any other enactment. The Division Bench further proceeded to observe as follows: "The words 'until set aside by the decree of a civil Court' indicate a terminus a quo until which the order of the Divisional Canal Officer shall remain operative. The reasoning adopted by the learned Judge in Muhammad Ishaq v. Muhammad is that 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 supplementary orders. The reason is contained in section 68 of the Canal and Drainage Act and if this section is capable of debarring the civil Courts from either permanently or temporarily suspending the operation of the order of the Divisional Canal Officer so far as the crop sown or growing is concerned, there is no reason to think that the prohibition was not intended to continue until the order was set aside by a final decree of the civil Court. The reason for granting an immunity to the order of the Divisional Canal Officer is that it is the Canal Officers alone who are experts in fixing the turns of canal water. If on the filing of a civil suit, the issuing of a temporary injunction was permissible, it may result into untold damage to the crop growing or sown. Even for the latter crops, the operation of the order of the expert shall continue until the civil Court, after due consideration, came to final conclusion that the same deserved to be set aside. It is because of these reasons that the prohibition has been contained as far as the sown crop or crop growing at the time is concerned as absolute, while the order has been made to remain operative until it is set aside by a final adjudication by the civil Court. We are consequently of the view that a civil Court is not empowered to issue a temporary injunction suspending the operation of a warabandi sanctioned by a Divisional Canal Office under section 68 of the Canal and Drainage Act." It may be pointed out here that the Division Bench was wrong in thinking that the issuing of a temporary injunction might result in untold damage to the crop growing or sown. The Bench fell into an error because so far as the crops sown or growing are concerned section 68 itself made it plain that the order of the Divisional Canal Officer would be final. It is only the continuance of the order since the crop has been grown that the validity of the order can be challenged in a civil Court, and the temporary injunction is referable to such order. The case of Muhammad Ismail v. Muhammad Sadiq and others 1971 S C M R 653, is not a case directly on the point at issue inasmuch as it has not considered the specific question that has arisen for determination in the present case. In the case under report in a suit filed by the respondents against the warabandi a permanent injunction was prayed for and a temporary injunction was also applied for. The trial Court granted the temporary injunction but the District Judge cancelled it. The High Court restored the temporary injunction granted by the trial Court on the ground that the impugned order had been made without giving notice to the respondents in contravention of the principle of audi alteram partem. The main question for consideration in the case under report was whether the rule of audi alteram partem applied to a proceeding under section 20 of the Canal and Drainage Act read with Paragraph 9 of Appendix IX of the Act. This Court held that the rule applied to the said proceeding, and accordingly refused to interfere with the order of the District Judge cancelling the interim in Junction, inter alia, on the ground that a t the respondent should have been given. It was further observed that there was no question of any irreparable loss or injury arising at that stage to the petitioner because the impugned order in no way prevented him from continuing with his work of preparing the land for the orchard if he was so minded. The rest of the cases cited before us, namely, 114 P R 1888, 25 P R 1889; P L D 1949 Lah. 301, P L D 1958 Lah. 333, P L D 1968 Lah. 573, P L D 1971 Lah. 371 and have no application to the present case. I agree with the reasoning s of the learned Single Judge of the Lahore High Court in the aforesaid case of Muhammad Ishaq. There is nothing in section 68 of the Canal and Drainage Act from which it can be spelt out that the civil Court although it has jurisdiction to finally decide the matter it will not have the power to pass an interim order. Section 68 of the Act only prescribes the manner in which the order of the Canal Authorities after the period mentioned in the earlier part of the second paragraph of the section can be set aside, and the Code of Civil Procedure may be affected only to that extent. The manner indicated is that the said order can only be sot aside by means of a suit in a civil Court, and the words "by the decree of a civil Court" have been used to indicate this fact. It has been strenuously contended that inasmuch as the section provided that the impugned order "shall remain in force until set aside by the decree of a civil Court", any order passed by the civil Court which is not a decree within the meaning of the Code of Civil Procedure cannot interfere with the continuance of the impugned order. I am unable to accept this contention. The word 'decree' has not been defined in the Canal and Drainage Act and, therefore, it is to be understood in its general sense as given in the dictionary. According to the dictionary meaning (Chambers & Oxford) 'decree' means "an order by one in authority; a judicial decision; an edict or law". Assuming, however, that "decree" has been used as defined in the Code of Civil Procedure it does not affect the jurisdiction and powers of a civil Court, the jurisdiction and powers of a civil Court are prescribed in the Code of Civil Procedure. In accordance with the accepted principles of interpretation an ouster of such jurisdiction or powers must be expressly provided for or be the result of a clear intendment in the special or local law. Section 68 of the Canal and Drainage Act provides for neither. In my opinion a mere use of the word 'decree' does not bring about any such effect. I, therefore, do not agree with the decision of the Division Beach of the High Court in the aforesaid case of Muhammad Saeed and others v. Fateh Muhammad and others. For the reasons stated above, I am of the opinion that a civil Court has all the powers made available to it under the Code of Civil Procedure, and in a suitable case can pass an incidental or supplemental order following to the procedure prescribed in the Code. Section 68 of the Act has not, in any way, limited or affected these powers of a civil Court, or its inherent powers under section 151 of the Code to act ex debito justitiae and to do that real and substantial justice for the administration, of which alone it exists. As regards the question whether in the facts and circumstances of the case Order XXXIX, rules I and 2 applied, I refrain from making any observa tion although I am of the opinion that this question should also have been considered by the Courts concerned. Raja Muhammad Anwar, learned Deputy Attorney-General for Pakistan sought to contend that the suit itself did not lie as the plaintiff in each case had not first availed of the remedy of appeal as was provided by the amending West Pakistan Act No. 1 of 1968 and West Pakistan Ordinance I of 1970. This question was never raised before the High Court and it cannot therefore, be permitted to be raised for the first time in this Court. I would, accordingly, allow the appeal without costs as a point of law of some complexity was involved in it. For the same reasons I would dismiss the petition for special leave to appeal. HAMOODUR RAHMAN, C. J. I agree. WAHEEDUDDIN AHMAD, J. I agree ANWARUL HAQ, J. I agree. MUHAMMAD GUL, J. I have read with care and respect, the judgment proposed by my 1earned brother Salahuddin Ahmed, .r. in Civil Appeal No. 67 of 1971 and C. P. 124 of 1973, but I regret to he unable to concur in his conclusion. It is unnecessary to repeat the facts which are fully set out in the judgment of my learned brother. The common question of law arising in both the cases in my humble view is a limited one, namely, whether a civil Court seized of a suit in respect of a matter referred to in section 68 of the Canal and Drainage Act, 1873 (Act VII of 1873) (hereinafter referred to as the Act), is competent to suspend the operation of the order of a Canal Officer, impugned in the suit, during the pendency of that suit. In my opinion, it is unnecessary for the purpose of these two cases, to extend the question so as to cover the generality of incidental or supplemental orders allowed by the procedure applicable to the Court in such suit. It is not controverted that in any such suit, the Court will have full power to make any order relating to a procedural matter viz., frame of issues, discovery of facts or documents, appointment of Commission or issue of interrogatories etc. The decision in the suit will also be subject to the incident of appeal, or as the case may be, review or revision. See Privy Council judgment in Adai Kappa v. Chandrasekhara P L D 1947 P C 279 referred to in the judgment of my learned brother. So far as it is material for the purpose of these two cases, it needs to be said that in the precedent case, the Privy Council was concerned with an order having the force of a decree under section 2 (2) of the Code of Civil Procedure, 1908 (hereinafter called the Code), read with section 47 ibid, being germane to the execution, discharge and satisfaction of a final decree on the basis of a mortgage. The relevant order itself was made in proceed ings initiated under a special Act, called the Madras Agriculturists Relief Act, 1938 which by sections 8 and 19, upon the application made in that behalf by a judgment-debtor, who was an agriculturist, provided for amending the decree declaring that it was wholly discharged or as the case may be for scaling down the decretal amount notwithstanding anything to the contrary in the Code. One of the questions debated before their Lordships in that case was, whether an order made in the proceedings initiated under the special Act, for the aforesaid purpose, was subject to the incident of appeal under section Y6 of the Code read with section 47 ibid. The question was answered in the affirmative, notwithstanding that the special Act did not provide for any such appeal. The ratio decidendi was that an order having the force of decree under section 2 (2) of the Code is subject to the normal incident of appeal under section 96 ibid, even though the special Act, did not expressly provide for such appeal. In the instant case, we are concerned with the power of the civil Court to issue interlocutory injunction during the pendency of a suit under sec tion 68 of the Act in respect of a matter referred to in that section. It is not controverted that the right to sue is created by the section itself and independent of the section, no such suit would have lain under section 9 of the Code. This is because the suit is not for the enforcement of any common law or an inherent right and but for section 68 of the Act, no one has any legal right for the supply of a particular quantity of canal water for irrigation purposes, nor can he otherwise claim exclusion of certain lands or persons from the enjoyment of similar irrigation facilities. The limited question adumbrated above can properly be answered with reference to subsection (I) of section 4 of the Code and sections 67 and 68 of the Act. These provisions read: "Subsection (1) of section 4, C. P. C.: In the absence of any specific provisions to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special on local law now in force or any special jurisdiction or power conferred or any special form o f procedure prescribed, by or under any other law for the time being in force. Sections 67 and 68 of the Act - "67 Jurisdiction under this Act of civil Courts Except where herein otherwise provided, all claims against the Provincial Government in respect of any thing done under this Act may be tried by the civil Courts; but no such Court shall in any case pass an order as to the supply of canal-water to any crop sown or growing at the time of such order.

68. Settlement of difference as to mutual rights and liabilities of persons interested in watercourse (I) 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 watercourse, any such person may apply in writing to the Sub-Divisional Canal Officer stating the matter in dispute. Such officer shall thereupon give notice to the other persons interested that on a day to be named in such notice, he will proceed to inquire into the said matter. And, after such inquiry, he shall pass his order thereon, unless he transfers (as he is hereby empowered to do) the matter to the Collector, who shall thereupon inquire into and pass his order on the said matter. (2) Any person aggrieved by an order made by the Sub-Divisional Canal Officer under subsection (I) may, within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer. (3) Where an appeal has been preferred under subsection (2), the Divisional Canal Officer (a) shall decide the appeal as expeditiously as possible; (b) may, pending the disposal of the appeal, stay the operation of the order appealed against, provided such stay order does not adversely affect any standing crops. (4) An order passed under subsection (f), if there be no appeal preferred against it and an order passed in appeal under sub section (2), shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made, and remain in force until it is set aside by a decree of a civil Court." The Act indisputably is a "special or local law" within the meaning of section 4 (1) of the Code. Therefore, upon its plain wording, in the even of any conflict between any provision of the Act and Code, the former will prevail so as to override the inconsistent provisions of the Code. In the case of Adai Kappa, the Madras Agriculturist's Relief Act, as pointed out already, did not expressly provide for appeal. But it did not preclude appeal by an aggrieved party either or otherwise gave finality to any order made in the proceedings under that Act. It was in the absence of any such prohibition or a provision giving finality to the relevant order that the Privy Council ruled that appeal was competent under section 96 of the Code. It is important to bear this distinction in mind. Sections 67 and 68 on the other hand, occur in Part IX of the Act which define with great particularity, the ambit of the jurisdiction of the civil Courts in relation to a dispute arising under the Act. While, section 67 allows a suit against the Provincial Government in respect of anything done under the Act, it expressly forbids the civil Courts to order directing the supply of canal water to any crop sown or grown at the time of the order. In other words, while the suit may be pending against the Provincial Government, no order in the nature of mandatory injunction can issue for the supply of canal-water to any crop sown or grown. Section 68 of the Act establishes the forum for the settlement of inter party disputes arising in respect of the use, construction or maintenance of a watercourse. The dispute in the first instance is referable to a Sub- S Divisional Canal Officer, who after notice to the persons concerned and after necessary enquiry, is empowered to make an order as the justice of the case may require unless he transfers the dispute to the Collector, who in that event, after inquiring into the matter, make an order. Subsection (2) provides an appeal from the order of the Sub-Divisional Canal Officer to the Divisional Canal Officer. Under subsection (3), the Divisional Canal Officer is empowered to "stay the operation of the order appealed against, provided such stay order does not adversely affect the standing crops." Under subsection (4), an order made under subsection (1), whether by the Sub-Divisional Canal Officer or by the Collector, "shall be final ..and remain in force until it is set aside by a decree of a civil Court." These are crucial words, which provide an answer to the main question involved in the instant cases. One thing is perfectly clear from a plain reading of subsection (4) that any order made by the Sub-Divisional Officer subject to the result of any appeal under subsection (2) or as the case may be that of a Collector and reference made to him is expressly declared to be "final". Not only that: it shall "remain in force until it is set aside by a decree of a civil Court". Thus the unforceability of the order is expressly preserved by the Act, until the happening of a particular event, namely that, it is set aside by the decree G of a civil Court. The expression "set aside" has been used in sense o annulled, cancelled or revoked, in contradistinction with mere suspension. Then until the order is set aside by the "decree" it shall be preserved in force or else its finality will be in paired which will be violative of the provision of section

68. This to my mind clearly precludes the suspension of the order under Order XXXIX of the Code. The second important thing to observe is that the expressions "order" and "decree" have been used in juxta-position with each other, in section 6 of the Act. If I may say so with the greatest respect, it would not be right to say that the two expressions in the absence of their definition in the Act signify the same thing. If they were synonyms, then the Legislature should have been content to use single expression instead of using both. According to Black's Law Dictionary, 4th Edition, a decree (as distinguished from a order) is final and is made at the hearing of a cause, whereas an order is H interlocutory and is made on motion or petition. This conforms to the definition of "decree" in section 2 (2) of the Code as being a final expression of an adjudication, which so far as the Court expressing it, conclusively determines the rights of the parties with regard to any matter in controversy in the suit. Thus the essence of a decree is that there must be an adjudication, by a Court which so far as that Court is concerned, conclusive determines the rights of the parties with regard to all or any of the matters in controversy. In the Code of Civil Procedure, 1882 (predecessor of the present Code), the term "decree" was defined in section 2 as follows: Decree means the formal expression of an adjudication upon any right claimed or defence set up, in a civil Court, where such adjudication so far as the Court expressing it, decided the suit or appeal " For the relevant purpose the only difference between the present and the old definition is that under the latter, the decree must have decided the whole suit or appeal, while under the present definition, it is enough if it conclusively determines the rights of the parties though not deciding the suit or appeal as a whole. This change in the definition is designed to bring out the distinction between preliminary and final decrees, a special feature of the present Code. In the Code of Civil Procedure, 1877 (Act X of 1877), which preceded the 1882 Code, section 2 originally defined "decree" as: " ..the formal order of the Court in which the result of the decision of the suit or other judicial proceedings is embodied .....An order on appeal remanding a suit for retrial is not within this definition." This definition was replaced by section 2 of Act XII of 1879 by the a following: " 'decree' means the formal expression of an adjudication upon any right claimed or defence set up in a civil Court when such adjudication, 60 far as regard the Court expressing it, decides a suit or appeal. An order rejecting the plaint, or directing accounts to be taken, or deter mining any question mentioned or referred to section 244 but not specified in section 588 is within this definition. An order specified in section 588 is not within this definition." Thus the essence of a decree has throughout been determination of a right by adjudication. This is antithesis of an interlocutory order with merely an interim arrangement, without deciding any matter in dispute. Apart from these definitions, for well over a century, the expression "decree" has been used and understood by Courts and lawyers in con tradistinction with an interlocutory or procedural order. Chitley's Com mentary on Code of Civil Procedure in the foot-notes at pp. 59-60 of Volume I, 7th Edn., sets out a string of ancient cases beginning with the Privy Council case in Mehraja Mahasher Singh v. The Bengal Government (1859) 7 Moo Ind. 283, as also modern cases, in all of which, the term "decree" has been distinguished from an interlocutory order. It is not possible therefore, to contend that the draftsman of the Act was not aware in 1873 of the meaning given by the superior Courts to the expression "decree" as the conclusive determination by an adjudication of matters in controversy in a suit as distinguished from a procedural or incidental matter in such suit. If I may say so, with respect, it would not be permissible to disregard this historical data irresistibly pointing to the well-recognized distinction in the meaning attaching to "decree" and "interlocutory or procedural order" and to rely upon their grammatical meaning in the Oxford or Chamber's Dictionaries. It will also be nugatory to the well established principle of contemporanea expositio. The opening paragraph in Chapter 12 of Maxwell's Interpretation of Statutes, 1969 Edition at p. 264 i6 an admirable exposition of the principle: 'It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority. Optima est legum interpres consutudo. Contemporanea expositio est fortissima in lege. Where this has been given by enactment or judicial decision, it is of course to be accepted as conclusive. But, further, the meaning publicly given by contemporary or long professional usage is presumed to be the true one, even where the language has etymologically or popularly a different meaning. It is obvious that the language of a statute must be understood in the sense in which it vas understood when it was passed, and those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation. as well as with the sense then attached to legislative expressions. Moreover, the long acquiescence of the Legislature in the interpretation put upon its enactment by notorious practice may, perhaps, be regarded as some sanction and approval of it." The whole of this paragraph was cited with approval by the Court of Criminal Appeal in Rex v. Casement (1917) 1 K B

98. On the above analysis. I am perfectly certain that the expression "decree" in section 68 of the Act has been used in contrast with interlocutory or procedural order. This Court's judgment in the case of Muhammad Ismail v. Muhammad Sadiq 1971 S C M R 653 cited at the Bar proceeded on its own facts. It was a case in which the Sub-Divisional Canal Officer in violation of the express provision of sub-section (l) of section 68 of the Act made the impugned order in that case without issuing a notice to the parties concerned. Besides being violative of the express requirement of the statute, the order also offended against the principle of audi alteram partem, which as held by this Court in a number of cases is a jurisdictional error, going to the very root, unless saved by the statute itself. For the foregoing reasons, in my opinion the Division Bench's case Muhammad Saeed and others v. Fateh Muhammad and others P L D 1962 Lah. 370 was rightly decided. It also rightly overruled the earlier Single Bench judgment of the same High Court in Muhammad Ishaq v. Muhammad P L D 1958 Lah.

717. Accordingly, I would dismiss Civil Appeal No. 67 of 1971 and also direct that C. P. 124 of 1973 be converted into Civil Appeal and the same be accepted. In view of the uncertainty of the law point involved because of the conflict in the High Court, I would leave the parties to bear their own costs in both the cases. In accordance with the view of the majority members of the Courts Civil Appeal No. 67 of 1971 is allowed without costs and Civil Petition No. 124 of 1973 is dismissed. K. B. A. Appeal accepted.