Muhammad Hussain

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

C.R. No._____________/2002 1.

Muhammad Hussain S/o Sultan Mehmood

2.

Muhammad Ramzan S/o Mirdad Hiraj by caste, R/o Village Ghobind Garh, Tehsil Kabirwala, District Khanewal. ……..Petitioners VERSUS

1. Allah Yar S/o Shamir Khan, caste Sial Hiraj, R/o Village Gobind Garh, Tehsil Kabirwala, District Khanewal. ……Respondent

Civil Revision Under Section 115 C.P.C.

Respectfully Sheweth: 1. That the names and addresses of the parties have correctly been given for the purpose of their summons and citations. 2. That petitioners are owners of agricultural land in village Gobind Garh for which canal water is supplied form outlet No. 8200/R, Gobind Garh, minor of Multan Canals Division. (Copy of record of rights is Annex “A”). 3. That to remove bends in the water course at its starting point adversely affecting the irrigation of the petitioners and other share-holders of the said outlet coupled with interference by the irrigators of adjoining outlet who had constructed their residences

just by the side of the water-course and usually fill it with waste and rubbish which hindered the flow of water in it, the petitioners filed an application to D.C.O. Multan Canal Division stating the aforesaid difficulties and requested to shift their outlet No. 8200/R to R.D. No. 8245/R, just in front of the main running water-course which irrigates the land of all the share-holders of the said outlet.

(Copies of application and outlet map are

Annexes “B & C”). 4. That the D.C.O. after detailed inquiry and observance of due procedure as laid down in Section 20 of the Canal & Drainage Act, issue service of notice and hearing the irrigators of the outlet, keeping in view the field survey reports vide order dated 26.10.2000 shifted the said outlet from its present place i.e. 8200/R to 8245/R in the best interest of the irrigation and this order was subject to confirmation by the Superintending Canal Officer, Haveli Canal Circle, Multan. (Copies of report by Zilladar, S.D.O., Command Statement, Notice and order of D.C.O. dated 26.10.2000 are Annexes “D, E, F, G & H”). 5. That the respondent No. 1 filed an appeal/objection petition against the said order of the D.C.O. before the S.C.O. The S.C.O. after hearing the parties vide his order dated 30.1.2001 rejected the appeal with the following observation. i)

That the head of outlet is against the Chak Bandi (outside the boundary) of the impugned outlet which is against the general practice of irrigation.

ii)

That the bendsd in water-course effects the normal flow of supply casing loss to irrigation.

iii)

That in head reach some houses were constructed just adjacent the head of the outlet as also confirmed by the contestants and the residents apprehend that there is every likelihood of falling their children in the running

water-course causing loss to them. The S.C.O. confirmed the order of the D.C.O. with the modification that the outlet will be shifted to R.D: 8240/R instead of 8245/R. This order was passed in the presence of respondent No. 1 on his above-referred appeal. (Copy of the order of S.C.O. dated 30.1.2001 Annex “I”). 6. That the respondent No. 1 instituted a civil suit challenging the validity of above-said orders of D.C.O. & S.C.O. by which outlet was shifted from 8200/R to 8240/R. Alongwith the suit, an application under order 39, rules 1, 2 and section 151 C.P.C. was also submitted. The learned trial court after hearing the parties vide its order dated 13.2.20002 dismissed the stay application. (Copy of plaint, stay application and order dated 13.2.2002 are Annexes “J, K & L”). 7. That being aggrieved from the above said order of civil court, the respondent No. 1 filed an appeal to District Judge, Khanewal, which was entrusted to the court of Khawaja Muhammad Zafar Iqbal Additional District Judge, Khanewal, who vide his order dated 22.3.2002 accepted the appeal setting aside the order of trial court and application for grant of temporary injunction was allowed, hence, this revision petition. (Copies of Memo of appeal & order dated 22.3.2002 are attached as Annexes “M & N”). GROUNDS i)

That the impugned order is against law, justice, arbitrary, improper and untenable.

ii)

That learned court below while deciding appeal, failed to observe that the orders passed by the Canal authorities fulfill all the requirements of section 20 of the Canal & Drainage Act and the appellant actively participated the proceedings throughout and no illegality has been committed.

iii)

That the learned appeal court below has based its decision solely on a previous order dated 30.9.98 of the civil court passed in civil suit titled “Shamir Vs. Ghulam Rasool etc.” filed entirely on a different cause of action and order dated 18.4.2000 passed in appeal by the learned A.D.J. Khanewal, specifically relying upon the statement by Sub-Engineer of the Irrigation Department before the Civil Court on 22.9.98 in the above-referred suit, which has no concern with the instant case. The facts of that case are quite different from the case in hand. (Copies of plaint, order, memo of appeal, order and statement of Sub-Engineer are attached as Annexes “O, P, Q, R & S”).

iv)

That the learned appeal court while referring the previous decision altogether ignored the contention of Ghulam Rasool plaintiff/respondent (who was not the irrigators of impugned outlet) in those cases. His request to shift the outlet from its present place was owing to the reason that the same was wrongly fixed at its present place instead of Sanctioned site which falls outside the boundary of the said outlet. He wanted its shifting due to personal reasons i.e. the water courts leading from the impugned outlet is just adjacent to his residence and to avoid any mishap of falling his children into water-course and not due to irrigation problem, as he was not the irrigator of impugned outlet.

v)

That the learned appeal court below has not correctly interpreted the orders passed in civil suit titled “Shamir Vs. Ghulam Rasool” and in appeal of Ghulam Rasool. As a matter of fact, the case was remanded to Canal authorities for fresh hearing after issuing notice to all the share-holders of impugned outlet. The Canal authorities turned down the request of said Ghulam Rasool on the ground that he not being a share-

holder/irrigator of impugned outlet was not competent to file application for its shifting. The issue involved in that order dated 30.9.98 of the civil court and subsequent order of 18.4.2000 in appeal was that whether the outlet was fixed at its sanction place i.e. 8200/R or at 8240/R as is also evident form the application of the said Ghulam Rasool before the Canal authorities. (Copy of application is Annex “J”). vi)

That in view of the difficulties faced by the present petitioners to irrigate their land due to abrupt turns in the very beginning of water course, the petitioner approached the Canal authorities for its solution who after

detailed

inquiry,

inspection

of

site

and

examination of relevant record, ordered to shift the impugned outlet from its present place i.e. RD 8200/R to 8240/R in the best interest of irrigation. vii)

That the learned appeal court has failed to appreciate that the impugned shifting of outlet will result in better irrigation, the bend in water course will be removed and it will be fixed just in front of the straight water-course irrigating all the land within the boundary of the outlet, rather it has taken upon itself the technical duty of Canal officer and declared the orders of the Canal authorities not convincing whereas highest courts of the country have declared that civil courts are not Canal officers. The Canal officers are the best judges of their own field.

viii) That the learned trial court below has passed the impugned order in a slipshod manner without examining the record of the case. ix)

That in view of the above submissions, the petitioners have a good prima facie and arguable case and all the

three ingredients essential for grant of temporary injunction are missing in the instant case, which the learned appeal court below failed to appreciate and also ignored the points raised by the petitioners, hence, the impugned order is liable to be set aside.

It is, therefore, respectfully prayed that this revision

petition

may

very

graciously

be

accepted, impugned order of the learned appeal court below dated 22.3.2002 be set aside and order of the trial court dated 13.2.2002 be restored. Any other relief which this Hon’ble court deems fit, may please be awarded. HUMBLE PETITIONERS, Dated: ___________

Through: Ziad Ahmad Mufti, Advocate High Court, 6-Allama Iqbal Block, District Courts, Multan. C.C. No. 21219 CERTIFICATE: Certified as per instructions of the client, that this is the first civil revision petition on the subject matter. No such revision petition has earlier been filed before this Hon’ble Court. Advocate IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

C.R. No. ______________/2002 Muhammad Hussain etc.

Vs.

Allah Yar etc.

AFFIDAVIT of: Muhammad Hussain S/o Sultan Mehmood, Hiraj by caste, R/o Village Ghobind Garh, Tehsil Kabirwala, District Khanewal.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned civil revision are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of April 2002 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2002 In C.R. No. _____________/2002 Muhammad Hussain etc.

Vs.

Allah Yar etc.

APPLICATION FOR DISPENSING WITH THE FILING OF CERTIFIED COPIES OF ANNEXURES. =========================================

Respectfully Sheweth: That certified copies of Annexures “

”

are not available. However, uncertified/photo state copies of the same have been annexed with the petition, which are true copies of original documents. It is, therefore, respectfully prayed that this Hon’ble court may please dispense with the filing of aforesaid copies of documents. APPLICANTS Dated: __________ Through: Ziad Ahmad Mufti, Advocate High Court, 6-Allama Iqbal Block, District Courts, Multan. C.C. No. 21219 IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2002 In C.R. No. _____________/2002 Muhammad Hussain etc.

Vs.

Allah Yar etc.

STAY APPLICATION. AFFIDAVIT of: Muhammad Hussain S/o Sultan Mehmood, Hiraj by caste, R/o Village Ghobind Garh, Tehsil Kabirwala, District Khanewal.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of April 2002 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

C.R. No. ______________/2002 Muhammad Hussain etc.

Vs.

Allah Yar etc.

INDEX S. No. NAME OF DOCUMENTS 1

Urgent Form

2

Court fee.

3

Civil Revision.

4

Affidavit.

5

Copy of record of rights.

6

Copies of application and outlet map.

ANNEXES PAGES

A B&C

Copies of report by Zilladar, S.D.O., D, E, F, G & Command statement, notice & order. H Copy of order of S.C.O. dated 30.1.01 I 7

10

Copies of plaint, stay application and J, K & L order dated 13.2.2002. Copies of memo of appeal & order M & N dated 22.3.2002. Copies of plaint, order, memo of O, P, Q, R & appeal, order and statement of SubS Engineer. Dispensation Application.

11

Affidavit.

12

Stay Application.

8 9

Affidavit. Vakalatnama PETITIONERS Dated: _________ Through: Ziad Ahmad Mufti, Advocate High Court, 6-Allama Iqbal Block, District Courts, Multan. IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2002 In C.R. No. ______________/2002 Muhammad Hussain etc.

Vs.

Allah Yar etc.

APPLICATION FOR SUSPENSION OF ORDER.

The applicants respectfully submit as under: 1. That the above captioned civil revision has been filed before this August Court, the contents of which should be considered as part of this application. 2. That the petitioners have a good prima facie case. 3. That the balance of convenience lies with the applicants. It is, therefore, respectfully prayed that during the pendency of the writ petition, operation of the impugned order dated 22.3.2002 may very graciously be suspended. Humble Applicant Dated: __________ Through: Ziad Ahmad Mufti, Advocate High Court, 6-Allama Iqbal Block, District Courts, Multan. C.C. No. 21219