2002 PLP 333 (CLC)

3. From the divergent pleadings of the parties the trial Court framed the following issues:‑‑ (1) Whether the Collector and the Province of Punjab are necessary parties in the present suit? OPD (2) Whether the Civil Court has no jurisdiction to try the present suit? OPD (3) Whether the suit of the plaintiffs is bad for non‑joinder of necessary parties? OPD (4) Whether the plaintiffs have no locus standi and cause of action to bring the present suit against the defendants? OPD (5) Whether the plaintiffs are estopped by their act and conduct from bringing the present suit? OPD (6) Whether the suit of the plaintiffs is barred by law of limitation? OPD (7) Whether the order passed by the Superintendent of Canal Officer, Bahawalpur Circle, dated 12‑9‑1974 is illegal, against the facts, void, without jurisdiction and ineffective against the rights of the plaintiffs? OPP (8) Whether the defendants are entitled to get special costs under section 35‑A, C.P.C.? OPD (9) Relief.

4. In support of their stand plaintiffs/petitioners examined P.W.1 Muhammad Hayat, Assistant Vernacular Clerk of the Department and one of the plaintiffs Khan Muhammad appeared as P.W.2. Learned counsel for the plaintiffs/petitioners brought on record documents Exhs.P.1. to P.6 and thereafter closed evidence. In rebuttal the defendant/respondent No.1 examined himself as D.W.1 and thereafter his learned counsel closed his evidence

5. After going through the evidence produced by the parties, the trial Court decreed the suit of the plaintiffs/petitioners vide judgment and decree, dated 37‑1981. The defendant/respondent No. 1 felt aggrieved of the same and filed an appeal which was accepted by the learned Additional District Judge who vide judgment and decree, dated 11‑4‑1983 accepted the same and reversed the findings of the trial Court. The plaintiffs/petitioners have felt aggrieved and filed the instant civil revision, arraying one of the plaintiffs Ghulam Abbas as respondent No.2.

6. Arguments have been heard and record perused.

7. Contention of the learned counsel for the plaintiffs /petitioners is that as the order passed by the D. C. O. and S. C. O. had not been passed in compliance with the provisions of section 20 of Canal and Drainage Act, so the said orders were not sustainable in the eyes of law and had rightly been annulled by the trial Court, that the Appellate Court has held that Article 14 of Limitation Act is attracted in the instant case which is factually incorrect as the said Article is applicable in those cases in which orders have been passed by Government functionaries in accordance with law, that orders impugned in this suit had not been passed either by the D.C.O. or by the S.C.O. in accordance with law, so the period of limitation shall be governed by Article 120 and not Article 14 of said Act. In support of his contention he has placed reliance upon Ghulam Muhammad and others v. Hafiz Ahmed and others PLD 1960 (W.P.) Lah. 1179. He further contended that D.C.O. and S.C.O. were required to pass order after issuing notices to the effected persons and as the said procedure has not been adopted, so the said orders cannot be considered to have been passed in accordance with law and will be treated a nullity in the eyes of law. In support of this contention he has placed reliance upon Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC

61. He further contended that as the impugned order has not been passed by complying the provisions of section 20 of the Canal and Drainage Act, so even of this score the impugned orders have not been passed in accordance with law and further placed reliance upon Ghazanfar Khan and others v. Taj Muhammad and others 1970 SCMR

139. He thus, submitted that the trial Court was justified in passing the order which has been set aside by the Appellate Court which judgment is not sustainable in the eyes of law.

8. Conversely the impugned judgment and decree has been supported by the learned counsel for the defendant/respondent No.

1. To supplement his intentions he further submitted that orders passed by D.C.O. and confirmed by the S.C.O. are final orders and cannot be questioned and placed reliance upon Zulfiqar Ali and another v. Superintending Engineer, Multan and others PLD 1957 (W.P.) Lah. 703 and Mst. Maqbool Bibi v. Ibrahim and others 1982 SCMR

78. He further contended that suit was not properly constituted as neither the D.C.O nor the S.C.O. had been impleaded as party and on this short score the suit should have been dismissed and placed reliance upon Fateh Muhammad and others v. Muhammad Bashir and others 1968 SCMR 1220 and Muhammad Ishaq and 13 others v Muhammad Iqbal and 3 others‑PLD 1975 Lah. 1314. He further contended that in the instant case Article 14 of Limitation Act shall come into play as orders impugned have been passed by Government functionaries and not Article 120 which is of residuary nature. He further contended that as a specific Article of Limitation Act is available for challenging such order, so the question of application of Article 120 of Limitation Act does not arise. He further argued that instant case is also barred by time as the suit was filed after a period of more than 3 years. He further submitted that even the provisions of section 20 of Canal and Drainage Act have been complied with which fact stands proved from the evidence of P.W.1 Muhammad Hayat who has admitted in his cross‑examination that Ghulam Abbas and Nazir Ahmed had been duly served and were present and their statements were also recorded in the office of Ziledar, that so far as the presence of Khan Muhammad one of the plaintiffs/petitioners is concerned that also stands proved, as his brother Muhammad Aslam had been served and was present at the relevant time, that the service of a person shall be deemed to have been effected in accordance with law if any male member of the family is served on his behalf. He thus, submitted that both the orders of D.C.O. and S.C.O. had been passed in accordance with law and trial Court was not justified in decreeing the suit, that there is no force in this civil revision and the same be dismissed.

9. The only point which has been agitated by the learned counsel for the plaintiffs/petitioners is that the order passed by the D.C.O., dated 15‑5‑1974 and confirmed by the S.C.O. vide order, dated 12‑9‑1974 had not been passed in accordance with the provisions of section 20 of Canal and Drainage Act, 1873. Although no specific issue on that score .had been framed by the trial Court yet the plaintiffs/petitioners have examined Muhammad Hayat, Assistant Vernacular Clerk of the Department who has appeared as P.W.1. After recording the statement he has been cross‑examined wherein he has admitted that Muhammad Aslam had been served who is one of the co‑sharers and real brother of Khan Muhammad plaintiff/petitioner. He has also admitted that Ghulam Abbas and Nazir Ahmed had also attended the office at the relevant time and their statements had also been recorded. Now in view of his admission, it is clear that out of three plaintiffs/petitioners two were present at 'the relevant time and so far as the third plaintiff/petitioner Khan Muhammad is concerned, his brother Muhammad Aslam was also present at the time of passing the impugned orders. In view of this clear‑cut admission of P.W.1 the question of violation of the provisions of section 20 of Canal and Drainage Act at the time of passing impugned orders hardly carries any weight. The question of application of Article 14 of Limitation Act or of Article 120 of the Limitation Act loses its force when it is proved that the orders passed by the D.C.O. and S.C.O. had been duly passed in compliance of the provisions of section 20 of Canal and Drainage Act.

10. It may also be noted that the plaintiffs/petitioners have filed this suit for declaration challenging the orders passed by the D. C. O. and S.C.O:, dated 15‑5‑1974 and 12‑9‑1974 respectively but neither the D.C.O. nor the S.C.O. were impleaded as defendants in the instant suit. Since the relief was being claimed against the department so both the D.C.O. who passed initial order and S.C.O. who confirmed the said order were proper and necessary parties. Even on this score the plaint had not been properly constituted.

11. In the light of facts stated above it is clear that the order passed by the Appellate Court does not suffer from any misreading or non-?reading of evidence. Consequently, revision petition failed and is hereby, dismissed. Q.M.H./M.A.K./K‑90/L ???????????????????????????????????????????????????????????????????? Revision dismissed.