1986 PLP 863 (MLD)

This Civil Revision calls in question a judgment/decree dated 12‑1‑1984 of Sh. Abdur Razzaq, Additional District Judge, Faisalabad, whereby he accepting the appeal of the respondents/ defendants, dismissed the petitioner/plaintiff's suit.

2. The dispute related to distribution of water from Mogha No. 86460/R, Rajbah Khanoowana, Chak No. 83/GB, District Faisalabad. The petitioner moved the Sub‑Divisional Canal officer of the area to re‑distribute the water for his land comprised in western halves of square Nos. 40 and 42 by appropriately changing the Warabandi. It was allowed by order, dated 27‑4‑1980, but the respondents preferred an appeal before the Divisional Canal Officer who set it aside by his order, dated 8‑10‑1978.

3. Aggrieved by it, the petitioner brought the suit contending inter alia that the impugned order of the Divisional Canal Officer was bad in law inasmuch as .the change in the Warabandi was justified in the wake of partition of the land and that he was not given an opportunity of being heard.

4. The respondents opposed the suit but the trial Court decreed it inter alia on the ground that the impugned order was not supported by reasons. In appeal, however, the learned Additional District Judge without adverting to this aspect, reversed the decree and dismissed the suit. '

5. It could not be conceivably disputed that the Divisional Canal Officer while hearing an appeal from the order of the Sub‑Divisional Canal Officer sits as a Court and the "enquiry" before him is to be deemed to be "a, judicial proceeding". Section 69 of the Canal and Drainage Act, 1873, may be referred to in this behalf. Further, in rule 80 of the Rules framed under the Act, the expression "the Court" denotes the office to whom in the particular case an appeal may be preferred under the provisions of the Act. It was thus claimed that by implication the officer to whom the appeal is preferred, shall be treated as a Court and his decision under rule 96(c) shall contain "the substance" thereof. Applying these requisites to the impugned order of the Divisional Canal Officer, it was said to be stark barren. It was dubbed as under: And speaks for itself, as it did not disclose what after all were the appellant's arguments and why were those accepted. This was what exactly rule 96(c) ibid assiduously required of a decision by such an appellate Court. Viewing from this angle, one finds irrefutably that it suffered from total absence of reasons and was not sustainable in law. Why the learned Additional District Judge did not address himself to this aspect of the case was quite enigmatic. He was instead unduly influenced by the provisions of the Revenue Manual which move appropriately related to fiscal matters than Warabandi. It may also be remarked passingly that he was not much attentive while writing the judgment as he was not correct in observing at the tall‑end of paragraph 7 thereof that the suit had. been dismissed by the trial Court. In fact it had been decreed.

6. On facts, it was found that there had been partition of the land between parties, and correspondingly in law change in Warabandi could be asked. Likewise if it entailed some change in apportioning Nikal, it had to be regulated by rule 15 prescribed for Warabandi (p. 154 of the book by Sardar A.D. Nasir, 1981 Edition). The order of the Divisional Canal Officer is not based on it and cannot be sustained for this reason too.

7. Mr. Ghaus Muhammad for the respondents, on the other hand, submitted that the revision petition was not competent as the view adopted by the learned Additional District Judge was neither perverse nor opposed to law. He placed reliance on Mst. Choori v. Ghulam Hussain 1978 S C M R 404 and Hafiz Muhammad Hussain and another v. Abbas Khan and another 1981 S C M R 1233 to urge that revision may not lie mainly on the. point of appreciation of facts. There is no cavil with this proposition but here an indispensable requirement of law namely giving reasons for a judicial order was not satisfied. His order cannot be upheld and has to be struck down. Accordingly the revision petition is accepted, the judgment/decree of the learned Additional District Judge is set aside and that of the trial Court is restored.

8. There shall be no order as to costs.. M . Y . H .?????????????????????????????????????????????????????????????????????????????????????????? Petition accepted. \