1997 PLP 1113 (MLD)

Briefly stated the facts which lead to these Revision Applications are that on 19‑5‑1984 the applicant named above filed F.C. Suit No.20 of 1984 against official opponents for Declaration and Injunction in the Court of Senior Civil Judge, Tando Muhammad Khan, stating therein that he owns 300 acres of agricultural land in Deh Ali Katiar, Taluka Tando Muhammad Khan, which was settled on Watercourses Nos.25‑R, 26‑R and 27‑R Ex‑Dhat Minor, a parennial channel, for agricultural purposes. In the year 1970, vide order dated 25‑4‑1970 passed by Deputy Chief Engineer, Irrigation, G.M.B. Project, the peech of his lands was transferred from parennial channel to non‑parennial channel Mulchand Wah and in pursuance of the said order he got constructed a new Watercourse No.3‑AL having its outlet from Mulchand Wah Ex‑Pinjari, at his own costs, under the supervision of PWD Authorities. He further stated that he enjoyed the said source of water for the irrigation purposes for about 14 years without any let or hindrance either from PWD Authorities or from any private person. However in the month of April, 1984 applicant received Notice. No. 117, dated 4‑4‑1984 of Assistant Engineer, whereby he was called upon to change alignment of his Watercourse No.3‑AL as existing alignment of the watercourse was meant for Watercourse No.30‑R Ex‑Dhat Minor. Being aggrieved by the said notice, applicant filed the suit challenging the same, praying as under:‑‑-- "(a) That the Honourable Court will be pleased to declare that Order No. 10/D‑55/542 of 1984, dated 5‑3‑1984 passed by the defendant No.2 (Superintending Engineer) and Order No.10/D‑55/703 of 1984, dated 25‑3‑1984 passed by defendant No.3 (Executive Engineer) and Notice No.117 of 1984, dated 4‑4‑1984 issued by the defendant No.4 (Asstt. Engineer) are illegal, void, improper, unjustified, mala fide and in?operative. (b) That the defendants be permanently restrained by order of injunction from damaging or changing alignment of existing Watercourse No.3-?AL or from damaging its modules or any of its syphone, in any manner personally or through any of their subordinates or agents or by affect the flow of the watercourse by any means and from implementing the impugned orders of defendants Nos.2 and 3. (c) ................................................. (d) ................................................. During the proceedings in the trial Court, the private opponents filed separate applications under Order 1, Rule 10, C.P.C. on 21‑5‑1984 and 25‑5‑1984, which resulted in dismissal vide Order, dated 29‑11‑1984 and 20‑2‑1985 respectively, against which orders separate Revision Applications Nos. l and 37 of 1985 were preferred in the District Court, Hyderabad. During the pendency of the said Revision Applications the F.C. Suit No.20 of 1984 pending against the Official Opponents was decided by an ex parte judgment dated 28‑7‑1985, on account of failure to file their written statement. Against the said ex parte judgment, the Official Opponents and the Private Opponents filed separate Civil Appeals Nos. 164 and 165 of 1985 respectively in District Court, Hyderabad. On 4‑1‑1986 the R. As. Nos. l and 37 of 1985 were dismissed on the ground that since the original suit has already been decreed, the same became infructuous but it was mentioned in the said order that, "However, after hearing Civil Appeal No. 164 of 1985 and Civil Appeal No. 165 of 1985 I have remanded F.C Suit No.20 of 1984 to the trial Court under my judgment dated 4‑1‑1986. Under the same judgment I have ordered present applicants to be impleaded as parties to the suit. The civil revision application stands disposed of accordingly". Against the judgment dated 4‑1‑1986 passed by the District Judge, Hyderabad in Civil Appeals Nos. 164 and 165 of 1985, the applicant named above filed the present Revision Applications Nos.39/1986 and 40/1986. I have heard Mr. Abdul Sattar Shaikh learned advocate for the applicants in both the Revision Applications, Mr. Kazi Abdul Sattar, Addl: A.‑G. Sindh for Official Opponents and Mr. Jhamatmal, learned advocate for Private Opponents and with their valuable assistance have gone through the entire record. Mr. Abdul Sattar Shaikh argued that due to non‑filing the written statement by the defendants in suit, the trial Court rightly decreed the suit and the learned Appellate Court has erred in setting aside the same and in remanding the suit to lower Court for fresh decision, after impleading the private opponents as defendants in the suit. In support of his contention he cited (1) PLD 1983 Lahore 448 (Sardar Sakhawat‑ud‑din and 5 others v. Muhammad Iqbal and 2 others), (2) 1981 SCMR 590 (The Province of Punjab and others v. Muhammad Yousaf Khan) and (3) 1980 CLC 1779 (Mst. Sarwat Kazmi v. State Life Insurance Corporation). As regards R.A. No. 40/1986 he contended that since the private opponents were not party to the original suit as such they could not file appeal without the permission of the Appellate Court. And since no leave was obtained, the appeal was not competent. In support of his contention he relied upon (1) PLD 1971 Lahore 537 (Mr. Manzur Qadir v. Mst. Amtul Hussain and 2 others) and 1984 SCMR 175 (Syed Irshad Ali Shah v. Mst.Rahim Bibi and others). He further contended that against the order under Order 1, R.10, C.P.C. no appeal lies but a Revision is allowed and since the Revision was dismissed by the District Judge, the private opponents should not have been ordered to be joined as parties. Mr. Kazi Abdul Sattar, learned Addl. A.G., Sindh appearing for the Official Opponents supported the impugned judgment/decree for the reasons mentioned by the learned District Judge, Hyderabad. He further contended that the impugned judgment/decree does not call for interference. Mr. Jhamatmal learned counsel for the Private Opponents argued that Letter No.CA/Katiar/117 of 1984 dated 4‑4‑1984 is a Notice and not a final order, as such the suit was premature and was not maintainable in law. He contended that through the said Notice the applicant was required to change the peech within one week else report shall be made to higher authorities. He also argued that the Revision Application filed by the Private Opponents was dismissed for the reasons that the suit is already decreed and that in Civil Appeals they were ordered to be impleaded as necessary parties in the suit and that the ex pane decree was set aside and the suit was remanded to lower Court for fresh decision on merits. He also argued that the private opponents are/were most necessary parties as their lands are adversely affected by the change of peech of the watercourse of the applicant but the learned trial Court erred in dismissing the applications made under Order 1, Rule 10, C.P.C. And the learned District Judge has rightly and justly allowed them to be joined as necessary party in the suit. He also argued that with the leave of the Court the private opponents preferred their Civil Appeal as such it was maintainable. He contended that a person not party to proceedings has right to appeal, if his interest is adversely affected by the judgment or decree. In support of his contention, he relied upon (1) PLD 1995 Karachi 603 (Mrs. Hajra Begurn and 2 others v. Aga Khan University Hospital, Karachi) and (2) PLD 1994 SC 95 (Uzin Export Import Enterprises for Foreign Trade, Karachi v. Union Bank of Middle East Ltd., Karachi and another). In the end he submitted that both the Revision Applications Nos.39 and 40 of 1986 deserves to be dismissed with special costs. ??????? I have given my anxious thoughts to the points argued before me by the learned advocates for the parties and the law cited by them. In order to appreciate as to whether the private opponents are necessary parties to be joined in the suit, the perusal of the plaint and the affidavit is filed in support of the applications under Order 1, Rule 10, C.P.C. In para. (5) of the plaint it is asserted that the plaintiff/applicant since 1970 is enjoying the peech of his land in Deh Ali Katiar from Watercourse No.3‑AL and the said watercourse is flowing through the route that was permitted and there has been no objection or hinder either from P.W.D. Authorities or from any private person. The alleged private persons were neither named nor joined as defendants in the suit, so it appears that the plaintiff purposely omitted to disclose their names or to join them as defendants. In paras. (3) to (5) of the Affidavits filed in support of the applications under Order 1, R.10, C.P.C. the deponents asserted that their lands are settled on watercourse 3‑AR, Ex‑Dhat Minor and that the plaintiff has illegally encroached upon an area of about 350 yds. of the alignment of watercourse 3‑AR and is illegally flowing his watercourse 3‑AR Ex‑Mulchand from the said area of watercourse 3‑AR and that the plaintiff has illegally and without and lawful authority constructed three aqueducts over their water course 3‑AR Ex‑Dhat Minor, and due to the said illegal acts of the plaintiff them water supply was adversely affected and upon their representations, the plaintiff was required to remove his illegal encroachments and aqueducts. Keeping in view the contentions/allegations of the private opponents who applied to be joined as necessary party, it appears that they are the persons to whom the plaintiff referred in his plaint as private person, so they were necessary to be joined but the trial Court failed to appreciate the said situation and dismissed their applications but the Appellate Court rightly observed that their presence is necessary and as such remanded the case to the trial Court for fresh decision after joining the private opponents as party in the suit. I refrain to give my findings on the point of maintainability of the suit, as it may prejudice the case of either side. I am satisfied with the impugned order and it does not call for interference by this Court. On remand each party shall have equal chance to put up his case before the trial Court. In view of the above circumstances, I find no merit in both the Revision Applications Nos.39/1986 and 40/1986, as such the same are dismissed with no order as to costs. Since it is a 12 years' old matter as such I direct the lower Court to give special preference to it and to dispose it off within 6 months. A.A./A‑66/K ????????????????????????????????????????????????????????????????????????? Order accordingly.