MUHAMMAD AMEER BHA TTI, J.--- The petitioner has called-in question the legality and validity of order dated 25.01.201 1 passed by the learned Addl. District Judge whereby appeal of respondents was accepted and case was remanded by holding that the suit against the order of the Sub Divisional Canal Of ficer was maintainable.
2. Brief facts of the case are that on the application of petitioner , the Sub Divisiona l Canal Officer passed the order regarding Warabandi which indeed could be challenged before the Divisional Canal Officer, as envisaged under Section 68 (4) of the Canal and Drainage Act, 1873. Respondents preferred a suit alongwith an application for grant of temporary injunction. The learned trial Court while hearing the application for grant of temporary injunction not only dismissed it but also rejected the plaint on account of remedy provided under the law. Appeal Vs hereof' tiled by respondents was accepted while interpreting the provisions of Section 68 of the Canal and Drainage Act, 1873 to mean that the order of the Sub Divisional Canal. Officer was final, as such the suit was maintainable.
Hence this revision petition.
3. Vide order dated 08.06.2016, learned counsel for respondents was informed qua fixation of this case for today through intimation card. Despite all efforts none has entered appearance on behalf of respondents, therefore, this Court has no option except to decide this petition by examining record and hearing learned counsel for petitioner .
4. Contention of learned counsel for petitioner is that the learned first Appellate Court fell in error while holding that the order of the Sub Divisional Canal Officer was final, therefore, the suit was maintainable, whereas under Section. 68(4) of the Canal and Drainage Act. 1873 appeal against the order of the Sub Divisional Canal Officer is available before the Divisional Canal Officer. Further contends that the appeal was time barred and this aspect of the case has also not been attended to by the learned first Appellate court which was its prime duty and obligation to determine the rights of the parties.
5. I have examined record and relevant provisions of law on the subject. It is manifestly clear from bare reading of Section 68 of the Canal and Drainage Act, 1873 that appeal is provided against the order of Sub Divisional Canal.
Officer before the Divisional .Canal Officer and order thereof is final, therefore, the observation of learned first Appellate Court being contrary to the obvious provisions of law is not sustainable in the eye of law, hence it is held that the learned first Appellate Court was in error while holding that no right of appeal was provided against the order of Sub Divisional Canal Officer as envisaged by Section 68(4) of Canal and Drainage Act, 1873 and well- reasoned judgment of the learned trial Court was set aside. It is further held that the learned trial Court had rightly reached on the conclusion that in presence of right of appeal before the higher forum provided under the Special Law remedy of Civil Court was premature hence rightly' rejected the plaint being barred by law .
6. The other contention of learned counsel for the petitioner qua limitation has also considerable weight, as apparently time barred -,,appeal was entertained without substantiating the question of limitation, which has the significant effect on the rights of parties as held by the Hon'ble Supreme Court in a case reported as Dr. Muhammad Javaid Shafi v . Syed Rashid Arshad and others (PLD 2015 SC 2 12).
7. In view of above, it is held that learned first Appellate Court while rendering the impugned judgment has committed material illegality , and irregularity , therefore, the instant petition is allowed, judgment. impugned passed by the learned first Appellate Court is hereby set aside and that of learned trail Court is revived. No order as to costs.