' RAUF. AHMAD SHEIKH, J.--- The appellant has assailed the vires of the judgment and decree dated 13-1-2003 passed by learned Civil Judge 1st Class, Lahore, whereby a suit for recovery of Rs,15,00,00,000/- as damages filed by it was dismissed.
2. The plaintiff/appellant, an unregistered Society with the name of 'Anjuman-i-Mutasreen Khshatkaran Ravi River Police Station Chung' through its President and Secretary had filed the suit in representative capacity under Order I, Rule 8, C.P.C. b37 appending the list of 175 plaintiffs. They moved an application under Order I, Rule 8, C.P.C. For permission to sue, in representative capacity.
It was stated that the plaintiffs are owners of agricultural lands in villages Katar Bund Khurd; Katar Bund Kalan, Chung, Manowal, Boola Ghari, Shahpur Kanjra, Gopay Rai and Khanpur, Tehsil and District Lahore. These lands were allotted to their forefathers in lieu of their lands acquired in 1854. It was stated that their lands were very fertile and were known throughout the country for their fertility and the greenery all around. It was considered as the best area for growing the vegetables.
Fruit gardens were in abundance in the area. It was alleged that due to nonfeasance on part of defendant No,1, the water of Ravi River and sewage water of Lahore City started causing serious damage to their lands so it was decided that a 'Bund' be constructed upto .Head Balloke. It was alleged that in the regime of Mr. Zulliqar Ali Bhutto, Sh. Rashid Ahmad, ex-Central Minister and Ghulam Mustafa Khar, ex-Governor of the Punjab joined hands together and constructed 10 feet high road from Nawan Pind to Sharqpur Town on Lahore-Jaranwala Road and the banks of Ravi River were dug to divert the River course towards Multan Road in order to save the village Kalal of Sh. Rashid Ahmad. 15 feet high Protective Bund was constructed to save the village of Sh. Rashid Ahmad but the same was broken during the floods of 1976 and the lands of the plaintiffs/appellants, which were in the green belt were destroyed due to change of the river course as the water started flowing on its ancient course. The hue and cry of the appellants was not attended so the buildings, gardens and crops of eight villages were washed away. It is stated that different authorities including the Member, Board of Revenue and Flood Relief Commissioner, Experts of the Irrigation Department, Lahore Development Authority, Highway Department & Governor/MLA inspected the area and promised to meet the demands of the inhabitants. They advised the concerned quarters to take steps to save the lives and properties of the plaintiffs but no action was taken. The main grievance of the appellants is the loss due to land erosion, which had been recurring phenomena because the river action was left unchecked and the same was caused threats to Multan Road. It was contended that in 1980 'Jassar' Protective Bund was constructed and in 1981 sullage water of Lahore City and Marla Ravi Link Canal were poured in the Ravi, which caused speedy flow and flood in the river. It was contended that the natural flow was blocked through interference, which resulted into huge losses worth Rs,15, 00, 00,000/- due to damage to the houses, trees, Tubewells, crops, Orchards and also impaired the value of the lands in addition to mental torture caused to the plaintiffs/appellants. With these averments, a decree for a sum of Rs,15,00,00,000/- was prayed for.
3. The defendants contested the suit. It was contended that the plaintiffs have no cause of action; that the suit was barred by time. That Anjuman-i-Mutasreen Khshatkaran Ravi River was not competent 'to file the suit; that no specific role was attributed the defendants and that the contentions raised by the plaintiffs/appellants were false. Accordingly the learned trial court framed the following issues:---
(1) Whether the suit is time-barred? OPD.
(2) Whether the permission of the Advocate-General, Punjab was necessary to be taken before filing the suit? If so, its effect? OPD.
(3) Whether the suit is not maintainable in its present form? OPD.
(4) Whether the suit cannot proceed in view of the preliminary objections Nos.4, 10, 11 and 13 of the written-statement by the defendant No,1? OPD.
(5) Whether the suit is bad for misjoinder of cause of action and parties, if so, its effect? OPD
(6) Whether the plaintiff has no locus standi or cause of action to institute this suit? OPD.
(7) Whether the plaintiff is estopped to file this suit by his conduct? OPD No, 1 .
(8) Whether the defendant No,1 had deliberately and maliciously diverted the course of the River Ravi towards the plaintiff's lands by constructing embankments upstream as a result of which colossal damage was caused to the plaintiff? OPP.
(9) Whether the defendant No,2 also want only channelized its sullage water to the said River which added to the River's flow? OPP.
(10) Whether the plaintiffs are entitled to recover damages from the ' defendants. If so, what should be the quantum thereof? OPP.
(11) Whether the River action is the act of God? If so, its effect? OPD.
(12) Whether the disputed River action or diversion River action complained of does not fall within the administrative functions of the LDA? If so its effect? OPD.
(13) Whether this court has no jurisdiction to try this suit? OPD.
(14) Relief.
4. After recording the evidence and hearing the arguments, the trial court proceeded on to dismiss the suit. Issues Nos.2, 8, 9, 10, 11 and 12 were decided in favour of the defendants/respondents, whereas findings on Issue No,1 were divided and the remaining issue's were decided in favour of the appellants. The appellants have assailed the findings recorded against them. The respondents have assailed the findings of the learned trial court on Issues Nos.1, 5 and 6.
5. We have heard the arguments advanced by Raja Muhammad Munir, Advocate, learned counsel for the appellants, Mr. Khadim Hussain Qaisar, learned A.A.-G., for respondent No,1 and Mr. Nayyar Iqbal Ghauri, Advocate, learned counsel for respondent No,2 and perused the record with their able assistance.
6. Learned counsel for the appellants has contended that the learned trial court failed to appreciate the evidence in its true perspective; that the findings of the learned trial court regarding limitation are not maintainable as this Court has already held in its order dated 14-5-1988 passed in Civil Revision No,341 of 1988 that the suit is within time and the plaintiffs could have filed the suit in representative capacity that the findings of the learned trial court to the effect that the erosion of the land was result of the Act of God and as such the appellants are not entitled to damages is not sustainable; that the defendants have not led any evidence to prove that the embankments were raised in good faith and that the defendants/respondents did not appear in the witness-box so the contentions of the appellants stood proved and as such the learned trial court erred in dismissing the suit. In support of the contentions raised, reliance is placed on Greenock Corporation v.
Caledonian Rail Co. Same v. Glasgow and South Western Rail Co. (1916 and 1917 All England Law Reports 426).
7. Learned counsel for the respondents has urged that the findings recorded by the learned trial court except on issues Nos.1, 5 and 6 are well reasoned and do not call for interference. However, it is urged . That the 'Anjuman' is not a registered body and a juristic person so it could have not filed the suit.
8. The main contention of the appellants is that the embankments (Protective Bunds) constructed on the river Ravi had diverted the river course and that these embankments were washed away in the flood of 1976 so they suffered losses due to heavy flood. It is also urged that due to diversion and speedy flow caused by inclusion of sewage water of WASA and other canals, their lands are eroded and covered by the river water so they have lost their fertile and valuable lands. To prove this contention, they have produced five witnesses in addition to documentary evidences. PWs-1 to 5 are Patwaris of different Patwar Circles of the area, who have produced the statements (Naqsha Chant) i,e, Exh.P.1, Exh.P.2, Exh.P.3, Exh.P.4 and Exh.PW-5/1 of the lands falling in their respective Circles, which are underneath water due to erosion. Asif Islam one of the appellants has contended that their. Anjuman' represents 175 residents of villages Katar Bund, etc., who had suffered losses in the tune of Rs,15,00,00,000/- due to fall of 100 Pacca houses, 50 Kacha houses, 22 Wells, 25 Tubewells, 2100/2200 trees, crops, land erosion and mental torture. They had met General Sawar Khan, Officers of the Irrigation Department and local MNA but no action was taken. The erosion of land is recurring for the last 25/30 years. The sewage water and extra water of B.R.B. Canal had brought their lands under the water.
9. On the other hand D.Ws.1 to 3 produced by respondent No,1 have stated that these embankments were constructed in good faith and no loss was caused to the appellants due to the same. The defendants produced the copies of the judicial record (Exhs.D.1 to D.27) to show that the suits filed by some land owners were dismissed. D.Ws.4 C to 6 produced by respondent No,2 have stated that most of the sewage water of the LDA Schemes falls in the drains and old River Ravi and the small quantity of the same falls in the Jiver, which does not cause the flood.
10. 1976 flood was one of the biggest floods of the Indo-Pak Subcontinent. The flood water could not be controlled. Many cities, towns, Factories, gardens, orchards, etc. Were washed away. Many cities came under 10 to 12 feet high water wave. The Provincial Government or LDA cannot be held responsible for the same by any stretch of imagination. The natural calamities are to be faced bravely and as far as possible the precautionary steps be taken for the future. After certain level of flow of water in the rivers, the floods become uncontrollable all over the world. It is beyond human power to control tides and heavy D floods. 1976 flood spread towards both sides of the river by running over the embankments so the appellants cannot claim that they were Made escape goats for anyone else. No tangible proof is available in this regard to show that the flood water was diverted to their lands in order to save anyone except the solitary statement of Asif Islam (P.W.-6).
No evidence in this respect has been produced. There is no denying the fact that floods and erosions have caused loss to the inhabitant of the area on both banks of the river and it was not confined to the appellants. P.Ws.1 to 5 have brought the statements (Naqsha Chant) showing the land, which was eroded by the river but these do not prove that the E respondents were responsible for the same in any manner. Even Asif Islam (P.W.-6) in the cross-examination has admitted that these embankments (Protective Bunds) were constructed in good faith for welfare of the people.
His other admission that the loss was suffered due to floods in 1976 also shows that the respondents are not responsible for the same. No one can claim damages caused due to force majeure. The F case-law cited at the bar is not applicable on facts of this appeal. The learned trial court rightly appreciated the evidence available on record and the findings recorded by it do not call for any interference,
11. Learned counsel for the respondents have supported the findings of the learned trial court on Issues Nos.2, 8, 9 10, 11 and 12 but has contended that the findings on Issues Nos.1, 5 and 6 are not sustainable. Although the respondents have not filed cross-objections or separate appeal but since the R.F.A. Was admitted to regular hearing so the respondents can agitate their reservations/grievances regarding the adverse findings recorded against them. This Court while deciding Civil Revision No,341 of 1988 has categorically held that the suit in representative capacity under Order I, Rule 8, C.P.C. Was competent even if the 'Anjman' was not registered. In fact an application under Order I, Rule 8, C.P.C. Was moved, which was accepted through order dated 9- 10-1986 and this order has never been assailed. No suit is bad for misjoinder or non-joinder of the parties as provided under Order I, Rule 9, C.P.C. And the court should decide the controversy and the dispute between the contesting parties as far as possible so the findings of the learned trial court on Issues Nos.1, 5 and 6 are also confirmed and upheld. '
12. Section. 91, C.P.C. Provides that a suit for declaration or injunction in respect of public nuisance can be filed by two or more persons with the permission of the Advocate-General. However, there is an exception to this principle as embodied in subsection (2), which inter alias provides, that the provisions of subsection (1) of section 91, C.P.C. Would not limit or otherwise affect any right of suit, which may exist independently. The plaintiffs had contended that they suffered losses due to construction of embankments to save the lands of the then Federal Minister so they had independent right to sue on the basis of these averments and no permission of the Advocate- General was required for filing this suit. The findings of the learned trial court on Issue No,2 are, therefore, not sustainable and are reversed.
13. For the reasons supra, the appeal is without merits and the same is hereby dismissed with costs.