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Civil Petition for Special Leave to Appeal No. 375 of 1973, decided on 9th November 1973.
(On appeal from the judgment and order of the Lahore High Court made on the 9th of October 1973, in Civil Revision No. 513 of 1973).
--‑‑O. XXXIX, r. 1‑Temporary injunction‑All Courts below recording concurrent finding that notice complained of was duly served by Canal authorities on plaintiff and that he had failed to make out a prima facie case in his favour for grant by Court of temporary injunction staying order of Canal authorities‑Special Leave to _ Appeal refused.
Zia Mahmood Mirza, Advocate instructed by Sh. Abdul Karim, Advocate -on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 9th November 1973.
.‑The petitioners are aggrieved by the refusal of the Courts below to grant them a temporary injunction staying implementation of the order of the Canal authorities which they had impugned by instituting a civil suit. By that order the Divisional Canal officer had transferred ten acres of land, belonging to respondent No. 1 from another outlet to the outlet and watercourse which was already irrigating the lands of the petitioners. That order was confirmed by the Superintending Canal Officer on 3‑10‑1972.
The main ground on which the validity of this order was challenged by the petitioners was that the requisite legal notices had not been served on all the shareholders in the watercourse concerned. However, the learned trial Judge, in his order dated the 11th of December 1972, held that "a reference to notices brought on the file shows that the applicants or their representatives were served". He further took note of the fact that the transfer was only of an additional area of 10 acres to an outlet irrigating over 500 acres, and, therefore, it fell within the 10%. margin contemplated by Paragraph 13.28 of Chapter 13 of the Revenue Manual relating to the P. W. D. Punjab Irrigation Branch. For these reasons, he took the view that the plaintiffs had faded to make out a prima facie case in their favour and the balance of convenience also lay against them, as there was no question of any irreparable loss occurring to them. This view has been upheld by the learned Additional District Judge as well as by the High Court.
Leave to appeal is sought on the ground that the view taken by the Courts below as regards the service of notices on the plaintiff‑petitioners was erroneous, being the result of a misreading of the relevant documents, and also of ignoring the assertion made by the petitioners that they had not been served as alleged by the opposite side.
It is clear that in the present proceedings before us such a contention cannot succeed. All the Courts below have recorded a concurrent finding after examining the available record that the requisite notices have been served on the petitioners. At this stage, therefore, we cannot hold to the contrary. It will be for the petitioners, as plaintiffs in the suit, to produce evidence to rebut the documents appearing on the official file.
We also find ourselves in agreement with the Courts below in thinking that as the additional area attached to the outlet in dispute was within the' permissible margin of no case was made out on the question of the balance of convenience or the occurring of irreparable loss to the petitioners.
The petition, accordingly, fails and is hereby dismissed.
Leave refused.
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