P (PLP)

The relevant rule provides that if a person cannot be served personally, service should be effected on him either through his authorised agent or failing that by giving the notice to an adult male member of his family generally residing with him. Proclamation should be accepted as effective service only in case of a special direction to that effect given by the issuing authority. The order which was passed by the Divisional Canal Officer without giving a chance of haring to the two plaintiffs, above named, could not be held to be binding on them and should be regarded as ultra wires and of no effect. A. I. R. 1933 Lah. 76 relied on. Ind. Rul. 1932 Lah. 762, referred to. JUDGMENT.‑Sultan Ali Khan, Muhammad Ali and Sher Khan brought a suit against Munshi Khan and others for a declaration to tire effect that the order of the Divisional Canal Officer, Lower Gogera Division, Lyallpur, dated 5th July 1947, by which the old water‑course irrigating square No 58/8 was cancelled and a new water‑course sanctioned on the southern side of squares Nos. 8!/45, 53/36 and 54/23, was illegal and ultra vires and, therefore, liable to be set aside, and for issue of a perpetual injunction' against the defendants restraining them from acting upon the new Warababdi in pursuance of the sanctioning of the new water course. The suit was resisted on several grounds. The trial Court held that the order passed by the Divisional Canal Officer was intra wires and legal. The suit was consequently dismissed with costs. On appeal the learned Senior Sub‑Judge, Lyallpur, held that plaintiffs Muhammad Ali and Sher Khan, had not been served with notices by the Divisional Canal Officer as required by section 68 of the Northern India Canal and Drainage Act and, therefore, the proceedings taken by him were vitiated as these persons were interested in the old khal and would be prejudiced by the new irrigation channel. The appeal was, therefore, allowed and declaration granted to the plaintiffs as asked for and further, an injunction was issued against the defendants, restraining them from using the new water‑course instead of the old one: The parties were left to bear their own costs. Against this order, the defendants have come up in second appeal. It appears that originally the suit had been brought by Sultan Ali Khan plaintiff No. 1 alone. Issues were framed and the case was fixed for evidence when Muhammad Ali and Sher Khan applied to be impleaded as plaintiffs in the suit on the ground that they were interested in the dispute. They specifically alleged that they had never been served with notices by the Division al Canal Officer in the proceedings which resulted in the sanction of the new irrigation channel. The defendants did not object to their being impleaded if some compensatory costs were paid. The Court, therefore, allowed them to be joined as plaintiffs and the costs awarded were paid in accordance with the order .of the Court. In the amended plaint that was presented by the three plaintiffs, it was expressly alleged that Muhammad Ali and Sher Khan plaintiffs had never been served with notices as required by law and consequently the order passed by the Divisional Canal Officer was ultra vires. Learned counsel for the appellants has contended before me that no specific issue was framed on the‑ question of failure to serve notices on these two plaintiffs and his clients were, therefore, prejudiced. There is no substance in this contention. When the original application was put in by these plaintiffs to be joined as parties to the suit, they alleged that no notices had been served on them, and this plea was reiterated, in the amended plaint. The defendants, however, when asked to put in an amended written statement, declined to do so and contented themselves with the pleas raised in, heir previous written statement. In these cir cumstances, by the law of pleadings, I should have thought that the contention of these two plaintiffs with regard to want of proper notice to them should have been deemed to have been admitted by the defendants, Even so, the onus of‑ the issue framed, attacking the legality of the order passed by the Divisional Canal Officer, rested on the plaintiffs who led evidence in support of their various pleas. The two plaintiffs went into the witness‑boa and' deposed that they were never served with notices in the proceedings before the Divisional Canal Officer. The defendants had the right of rebuttal but provided none and consequently it would be idle for them now to say that they were in any way prejudiced by the late joinder of two plaintiffs as parties to the suit. The only question then that calls for determination is whether these two plaintiffs were parties interested in ‑the matter in dispute and whether there had been failure to serve proper notices on them, as required by law. With regard to Muhammad Ali, it was argued that he was not at all interested in the dispute as he admitted in the course of his cross‑examination that he used to get water from the bigger channel and not from the annulled irrigation channel or the new channel, but as he explained from the witness‑box, he would even now have to bring his water from longer distance although he would continue to take the water from the bigger cannel. His rights would, therefore, be to some extent affected, and he would have locus standi to object. It is undoubtedly correct that Muhammad Ali and Sher Khan were not personally served with notices in this case. The notice issued to Sher Khan was served on his brother, Amanat Khan, who was also one of the interested parties. There is no doubt that Amanat.Khan, was a co‑sharer in a joint khata with Sher Khan, but the latter deposed that he himself cultivated his own share of the land and arranged for its irrigation. I agree with the learned Senior Sub‑Judge that this implied that the brothers were not joint in cultivation. There is also no indication in the evidence on the file that Amanat Khan was residing with his brother Sher Khan. The relevant rule provides that if a person cannot be served personally, service should be effected on him either through his authorised agent or failing that by giving the notice to an adult me le member of his family generally residing with him. In the absence of any evidence to show that Amanat Khan fulfilled these conditions, the service on Sher Khan cannot be held to be good. Learned counsel for the appellants drew my attention to the fact that there had been a proclamation in the village through Yusaf Ali patwari (P. W. 2), vide copy of his report, Ex. P/7. The rules, however, lay down that such proclamation should .be accepted as effective service only in case of a special direction to that effect given by the issuing authority. In the present case, no evidence was led to show what order was in fact passed by the Divisional Canal Officer as to the manner of service of notice on Sher Khan. The ordinary presumption would, therefore, be that he was to be served personally and not merely by proclamation. It appears that he is a fakir and is not all the time residing in his village. That would have justified substituted service but without a specific order of the Divisional Canal Officer sanctioning the substituted mode of service there, would be compliance with the rules framed under the Act. The same remarks apply to the case of Muhammad Ali. I am, therefore, disposed to agree with the finding of the learned Senior Sub‑judge that these two plaintiffs were not duly served with notices as required by law. The argument was then advanced by learned counsel for the appellants that R the failure to serve them notices in accordance with the rules would not vitiate the proceedings taken by Divisional Canal Officer. Learned counsel relied on the judgment in Isher Singh v. Jiwan Singh reported as Indian Rulings (1932) Lahore

672. In that case, Tek Chand, J. held that if some persons were not served with notices during proceedings before the Canal Officer but they raised no objections, the proceedings could not be said to have been vitiated as failure to serve them would only be an irregularity. The actual parties to the litigation in that case had all been duly served. The case is, therefore, distinguishable on the facts from the present suit. On the contrary. Jai Lal, J. held in Bura Mal v. Nur Illahi (A. I. R. 1933 Lab. 76) that the failure to serve n6tices on interested parties would vitiate the proceedings taken by the Divisional Canal Officer. Section 68 of the Northern Indian Canal and Drainage Act makes it imperative for the Canal Officer to issue such notices. I hold, therefore, that the order which was passed by the Divisional Canal Officer without giving a chance of hearing to the two plaintiffs, above‑named, could not be held to be binding on them and should be regarded as ultra vires and of no effect. The appeal, therefore, fails and is hereby dismissed. In view of the circumstances of the case I make no order as to costs in this Court. K. M. A. Appeal dismissed.