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Civil Revision No. 249 of 1961, decided on 30th January 1962.

- Civil Court has jurisdiction to issue temporary injunction if not curtailed by any other enactment.

‑Plaintiffs filing suit challenging order of Divisional Canal Officer‑No temporary injunction suspending operation of warabandi sanctioned by Divisional Canal Officer under S. 68, can be issued by Civil Court‑Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2‑[Muhammad Ishaq v. Muhammad P L D 1958 Lah. 717 overruled].

Order passed under section 68, Northern India Canal and Drainage Act, 1873 is final as to the use or distribution of water for any crop sown or growing at the time when such an order is made, which means that a Civil Court will have no power to set aside the order so far as it relates to the distribution of water for any crop sown or standing at the time of the order. The prohibition is absolute and the Civil Courts are completely debarred from interfering with the order to that extent. However, the power to set aside the order is not completely taken away from the Civil Courts and it is provided that the order shall remain in force thereafter until set aside by the decree of a Civil Court.

The operation of such order cannot, in any way, be suspended or affected unless there is a final adjudication by a Civil Court setting aside the order of the Divisional Canal Officer.

Muhammad Ishaq v. Muhammad P L D 1958 Lah. 717 overruled.

-- Allegation that order passed by Divisional Canal Officer was not passed in accordance with provisions of S. 68, Canal and Drainage Act (VII of 1873) cannot be considered while deciding application for temporary injunction.

Abdur Rashid for Petitioners.

Muhammad Yaqub Awan for Respondents.

.‑The petitioners are defendants in a suit for a declaration pending in the Court of Civil Judge, Toba Tek Singh. The suit against them was to the effect that the Divisional Canal Officer Jhang Division, by his order dated the 7th of Aril 1961, had wrongly effected a change in the warabandi of outlet No. 72208/1, of Rajbah Khewra, Chak No. 393/J.B., Tehsil Toba Tek Singh. The plaintiff‑respondents presented an application under Order XXXIX, rules I and 2 of the Code of Civil Procedure and prayed that the revised warabandi be suspended and the one that was operative earlier should continue. The learned Civil Judge initially granted an injunction but ultimately vacated the same on the 29th of April 1961. On appeal, the learned District Judge, Lyallpur, passed an order maintaining status quo till the decision of the suit. It is against this order of the learned District Judge that the present revision petition has been presented.

2. The learned counsel for the petitioners contended that in view of section 68 of the Canal and Drainage Act the Civil Courts had no power to suspend the operation of the order of the Divisional Canal Officer pending the suit. This contention of the learned counsel for the petitioners was met by the learned counsel for the respondents by citing Muhammad Ishaq v. Muhammad (P L D 1958 Lah. 717) wherein it was held that there was no bar in the way of a Civil Court in passing an order suspending the order of the Divisional Canal Officer during the pendency of a suit before the Court. After going through the relevant law and hearing the learned counsel for the parties, I was of the opinion that Muhammad Ishaq v. Muhammad, did not lay down the law correctly. Consequently by my order dated the 15th of December 1961, I directed that the case be laid before my Lord the Chief Justice for the constitution of a larger Bench and it is in pursuance of the order of my Lord the Chief Justice that this case has been heard by us.

3. Order XXXIX, rules 1 and 2 of the Code of Civil Procedure provide that in a pending suit the Court may, on good ground shown, issue a temporary injunction restraining the defendant from committing a breach of contract or other injury of any kind. Order XXXIX, rule 1 of the Code of Civil Procedure provides: ‑

"Where in any suit it is proved by affidavit or otherwise‑

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or Intends to remove or dispose of his property with a view to defraud his creditors,

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders."

It is thus clear that the Courts) have extensive powers to issue an injunction In a pending suit, but this power certainly can be curtailed by a specific provision in any other enactment. In order to see whether section 68 of the Canal and Drainage Act curtailed these powers of the Civil Courts or not, it is necessary to reproduce section 68 of the Act. It runs as follows: ‑

"Whenever a difference arises between two or more person regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a water‑course, any such person may apply in writing to the Divisional Canal Officer stating the matter in dispute. Such officer shall thereupon give notice to the other persons interested that, on a day to be named in such notice, he will proceed to inquire into the said matter. And, after such inquiry, he shall pass his order thereon, unless he transfers (as he is hereby empowered to do) the matter to the Collector, who shall thereupon inquire into and pass his order on the said matter.

Such order shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made and shall thereafter remain in force until set aside by the decree of a Civil Court."

4. It is plain from a perusal of sec0on 68 of the Act that the order passed tinder that section shall be final as to the use or distribution of water for any crop sown or growing at the time when such an order is made, which evidently means that a Civil Court will have no power to set aside the order so far as it relates to the distribution of water for any crop sown or standing at the time of the order. The prohibition is absolute and the Civil Courts are completely debarred from interfering with the order to that extent. However, the power to set aside the order Has not been completely taken away from the Civil Courts and it has been provided that the order shall remain in force thereafter until set aside by the decree of a Civil Court. The word "until" is rather significant. It leaves no place for any doubt that the order passed by the Divisional Canal Officer shall remain in force until it is set aside by the decree of a Civil Court which evidently would mean that the operation of this order cannot, in any way, be suspended or affected unless there is a final adjudication by a Civil Court setting aside the order of the Divisional Canal Officer.

5. The learned counsel for the respondents contended that as there was a general power In the Civil Courts to issue tempo rary Injunctions under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure, there was no reason why this power could not be exercised in a case challenging the order of the Divisional Canal Officer. As explained above, the impediment has been laid down by section 68 of the Canal and Drainage Act over riding the general power of the Courts to issue an injunction as it has been clearly laid down that the "order shall remain in force until set aside by the decree of a Civil Court". Its operation) cannot, therefore, be suspended during the pendency of the suit.) if that is done, it would violate the express provision of section 68 of the Act. The further argument of the learned counsel for the respondents is that the impugned order having not been passed in accordance with the provisions of section 68 of the Act, the immunity attached to such an order under section 68 of the Act was not available. But this is the cause of action in the suit, and it will be for the Civil Court to ultimately decide whether the order has been properly passed under section 68 of the Canal and Drainage Act or not. At this stage, it cannot be declared that the order had not been properly passed under section 68 of the Canal and Drainage Act.

6. The words "until set aside by the decree of a Civil Court" indicate a terminus a quo until which the order of the Divisional Canal Officer shall remain operative. The reasoning adopted by the learned Judge in Muhammad Ishaq v. Muhammad is that if the Civil Court is competent to entertain and decide the dispute between the parties, there is no reason why the procedure applic able to that Court should not be applied for passing incidental or supplementary orders. The reason is contained in section 68 of the Canal and Drainage Act, and if this section is capable of debarring the Civil Courts from either permanently or temporarily suspending the operation of the order of the Divisional Canal Officer so far as the crop sown or growing is concerned, there is no reason to think that the prohibition was not intended to con tinue until the order was set aside by a final decree of the Civil Court. The reason for granting an immunity to the order of the Divisional Canal Officer is that it is the Canal Officers alone who are experts in fixing the turns of canal water. If on the filing of a civil suit, the issuing of a temporary injunction was permissible, it may result into untold damage to the crop growing or sown. Even for the latter crops, the operation of the order of the expert shall continue until the Civil Court, after due consideration, came to a final conclusion that the same deserved to be set aside. It is because of these reasons that the prohibition has been con tained as far as the gown crop or crop growing at the time is concerned as absolute, while the order has been made to remain operative until it is set aside by a final adjudication by the Civil Court. We are consequently of the view that a Civil Court is not empowered to issue a temporary injunction suspending the opera tion of a warabandi sanctioned by a Divisional Canal Office under section 68 of the Canal and Drainage Act. We would, therefore, accept this petition, but in view of the contentions nature of the point involved, would leave the parties to bear their own costs.

K.M.A.

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