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Civil Revision No. 1550 of 1980, decided on 14th October, 1980.

‑‑ O. XXXIX, rr. 1 & 2‑Temporary injunction‑Three requirements of law namely; prima facie case, irreparable loss and balance of convenience, held, must co‑exist for grant of temporary injunction. [Injunction].

Ss. 20 & 68 and Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2‑Injunction against water supply to a nursery granted by Addi tional District Judge without examining point as to which party would suffer irreparable injury by grant of injunction and balance of convenience lay in whose favour‑Non‑supply of water to nursery for irrigation purposes likely to result in its annihilation and material injury to petitioners‑District Judge while deciding interlocutory matter seemingly giving a conclusive finding as to case having fell within ambit of S. 20 of Canal and Drainage Act, 1873, and Sub‑Divisional Canal Officer passed order under S. 68 being without jurisdiction Finding of District Judge tending to prejudice course of action before trial Court order of District Judge set aside.‑‑[Injunction].

Karamat Nazir Bhandari, A. A.‑G. for Petitioners.

Malik Noor Muhammad A wan for Respondents.

Date of hearing: 14th October, 1980.

This revision petition has arisen out of a declaratory suit filed by the respondents questioning the validity of the order dated 12‑3‑1979, passed by the Sub‑Divisional Canal Officer, Khanewal Sub‑Division, Mian Channu, whereby the Sericulture Department's area measuring 72 acres utilized for running a mulberry nursery was added to the outlet in question. The respon dent's land was being irrigated through this outlet. Their case is that they were not served with any notice; the land of the Sericulture Department is included in another Chakbandi and the Sub‑Divisional Canal Officer's order was violative of section 20 of the Canal and Drainage Act. Alongwith the plaint, the respondents moved an application for grant of temporary injunction.

2. The learned Civil Judge examined the relevant file and came to the conclusion that an application was moved by the Sericulture Department before the Canal authorities; the respondents were served with a notice; the balance of convenience was in favour of the Department concerned, as by grant of injunction the nursery would be destroyed and that on the other hand, the respondents would not suffer any loss. Accordingly, he disallowed the application for temporary injunction.

3. In appeal the learned Additional District Judge maintained that the Sub‑Divisional Canal Officer passed an order under section 68 but the dispute related to the change of source of water supply which was covered by section 20. He further held that order under section 20 could have been passed by the Divisional Canal Officer and that the order dated 12‑3‑1979, having been passed by the Sub‑Divisional Canal Officer was without jurisdiction and thus, liable to be suspended till the decision of the suit. He, therefore, accepted the respondents' appeal and by his order dated 7‑5‑1980, allowed the temporary injunction in their favour.

The Punjab Province as well as the Sub‑Divisional Canal Officer and the Sericulture Department have now come to this Court on its revisional side.

4. The learned Assistant Advocate‑General has argued that the learned ‑Additional District Judge laid emphasis only on the existence of prima fiecfe case in respondents' favour but did not at all advert to the other requirements of law for grant of temporary injunction. It was submitted, if the nursery was not irrigated it would be completely destroyed and the petitioners would thus be exposed to irreparable loss. It was further prayed that the balance of convenience was in favour of the petitioneRs.The learned Assistant Advocate‑General also referred to the Sub‑Divisional Canal Officer's order dated 12‑2‑1979, to contend that the respondents were served and then heard. It was argued that the learned trial Court proceeded in accordance with law and that the view taken by the learned Additional District Judge was erroneous.

5. On behalf of the respondents, their learned counsel heavily relied on section 20 of the Act to urge that order dated 12‑3‑1979, suffered from jurisdictional error and thus he supported the impugned order.

6. The submissions made by the learned Assistant Advocate‑General ,are not without merit. It is well settled that for grant of temporary injunction, there requirement of law, namely, prima facie case; irreparable loss; and the balance of convenience, must co‑exist. The burden of the impugned order is that the order passed by the Sub‑Divisional Canal Officer is without jurisdiction, meaning thereby that prima facie case exists in respondents' favour. In accepting the application for temporary injunction, the learned Additional District Judge did not examine the point that by grant of injunction which party would suffer irreparable injury and that the balance o convenience, was in whose favour. It is obvious that non‑supply of water to the nursery, for irrigation purpose, would result in its annihilation and thus the petitioners would inevitably suffer a material injury. Similarly by grant of injunction, comparatively, the petitioners would be exposed to more inconvenience. It is discernible from the order dated 12‑3‑1979 that the respondents appeared before the Sub‑Divisional Canal Officer, and thus, the order was passed by him after hearing both the parties. While deciding an interlocutory matter, the learned Additional District Judge has seemingly given a conclusive finding that the case fails within the ambit of section 20 and that Sub‑Divisional Canal Officer's order was without jurisdiction. This may tend to prejudice the course of action before the learned trial Court.

7. For all these reasons this Revision Petition is accepted, the order passed by the learned Additional District Judge is set aside and that of the learned trial Court restored. The learned trial Court shall dispose of the suit within four months. The parties are left to bear their own costs.

M. Y. H. Revision petition accepted.