Through this revision petition, the petitioner has called in question order dated 31.03.2021 passed by learned Civil Judge/Administrative Judge, Faisalabad and judgment dated 25.06.2022 passed by learned Additional District Judge, Faisalabad, whereby in a suit for declaration with permanent injunctions filed by the present petitioner alongwith respondent No. 7 ("plaintiffs") against the respondents No. 1 to 6 ("defendants") , their application for grant of interim relief has been dismissed by the trial court on the ground that order of temporary injunctions has ceased to have its effect after expiry of one year in terms of Order XXXIX Rule 2B CPC and the appeal filed by the petitioner has also been dismissed by upholding the said order .
2. Learned counsel for the petitioner contends that the learned courts below have not considered the merits of the case while passing the impugned orders dismissing the petitioner's application for grant of interim relief, which are not sustainable being based on jurisdictional defect of misreading and non-reading of the relevant record and misapplication of law, hence, are liable to be set aside and prays that by setting the same aside the application for interim relief filed by the petitioner be allowed.
3. Heard. Record perused.
4. The petitioner and respondent No. 7 (`plaintif fs') filed a suit for declaration and permanent injunctions against the official respondents No. 1 to 4, in which the plaintif fs claimed that their agricultural land is being irrigated through Canal Outlet/Moga No. 142435/L of Rajbah Shahkot, whereas official respondents no. 1 to 4 along with some other persons have collusively got prepared new schedule for supply of water (`Warabandi') against the rights of the plaintif fs, without notice to any landholder of the locality through order dated 02.01.2016 passed by the Deputy Administrator Sub-Division Safdarabad and got approved a new water outlet (`nakka') in Killa number 25/16 of Square no. 22 despite availability of previously existing outlet in Killa Number 5/6 in the same square and new outlet were also approved in Square no. 40 despite existence of previous outlet in the said square for irrigation of land of private respondents resulting in reduction of supply of water to the lands of the plaintif fs. The appeal filed by the petitioner to challenge the same before the canal authorities was dismissed on 16.06.2016 by Chief Executive Area Water Board Faisalabad. Where after the plaintif fs challenged the said orders before the Civil Court through suit for declaration along with which an application for interim relief was also filed to restrain the respondents to implement the new irrigation schedule/W arabandi. The official respondents No. 1 to 4 were proceeded against ex- parte as despite service none appeared on their behalf, however , it is pertinent to note here that even prior to proceeding ex-parte against the afore-said respondents, the request of the plaintif fs for interim relief was declined on 08.08.2016. The operative portion of the order dated 08.08.2016 is reproduced below:- "The petitioners moved application under O.XXXIX R. 1 & 2 CPC alongwith the main suit for declaration for grant of ad-interim injunction against the respondents/defendants on grounds that respondents/defendants be restrained to satisfy the orders dated 02.01.2016 and 16.06.2016 passed by the Deputy Administrator Sub-Division Safdarabad and Chief Executive Area Water Board Faisalabad and the orders above mentioned are against the law & facts and liable to be set-aside. It is evident from copy of orders dated 16.06.2016 passed by Chief Executive Area Water Board, Faisalabad it reflects that the petitioners have filed an appeal against order dated 25.09.2003 and the same appeal of the petitioners was dismissed on grounds that the petitioner challenged the above mentioned order after a period of thirteen years. It is also evident from record that the petitioners have not assailed the impugned orders before the Competent hierarchy according to Canal & Drainage Act. Further petitioner did not annex any document by which it may be drawn reference of the mala fide of the respondents/defenda nts. Further petitioners/plaintiffs have not impleaded the beneficiary as party of the suit. So, keeping in view the available documents as well as record and above facts, I am not inclined to grant ad-interim injunction and same request of the petitioner/plaintiff is hereby turned down."
(emphasis supplied).
It is pertinent to note here that the appellate court vide its order dated 17.02.2017 directed the trial court to decide the application for interim relief afresh, however , the said order has not been placed on the record, therefore, the terms and conditions mentioned in the said order are not before this court to further comment upon the same.
5. The private respondents No. 5 and 6, who were the beneficiaries of the orders of Canal Authorities challenged in the suit had not been initially impleaded as parties, whereas they were impleaded as parties later on when the learned Revisional Court allowed their application under Order I Rule 10 CPC which had earlier been dismissed by the trial court on 05.09.2019. Thereafter , the respondents No. 5 and 6 submitted their written statement and reply to application under Order XXXIX Rules 1 and 2 CPC. The application for interim relief was declined by the learned trial court on 31.03.2021 and appeal filed by the petitioner against the said order was dismissed on 25.06.2022 and resultantly the order dated 31.03.2021 was upheld, necessitating in filing of the instant civil revision. For the purpose of better understanding the real controversy in issue, the relevant portion of order dated 31.03.2021 is reproduced below: "5. Contention of plaintiff is that fresh Warabandi has been illegally passed and operation of the same be suspended, whereas defendants have categorically stated that not only the Warabandi has been passed it has also been implemented. During argument they produced the copies of record of implementation of fresh Warabandi.
Moreover , perusal of record shows that ad-interim order was passed in the suit on 08.08.2016. Order XXXIX rule 2- B provides that: "The order of injunction made under rule 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the court after hearing the parties again and for reasons to be recorded for such extension."
In the present case period of more than 1-year has been passed and nothing in available on record to show that plaintiff had moved an application in terms of rule 2.B of order XXXIX Code of Civil Procedure, 1908 for extension of order of temporary injunction granted in his favour . Hence, the order of temporary injunction has ceased to have effect after expiration of period of one year as envisaged by order XXXIX rule 2.B. In these circumstances, application for temporary injunction has become infructuous and same is dismiss ed being infructuous. This order be annexed with main file."
(emphasis supplied)
6. For the purpose of further clarity the perusal of the admitting order and final Judgment of the appellate Court is also necessary . The appellate Court admitted the appeal filed by the petitioner against order dated 31.03.2021 to regular hearing vide order dated 19.04.2021. The operative part is reproduced below: "2. Learned counsel for the respondent No. 5 and 6 have appeared in response to the notice issued u/o 43 Rule 3 C.P.C. He has opposed this appeal with the contention that warabandi has already been implemented. Whether the Canal department committed an illegality is a matter of evidence. At present appellant has no locus standi and is not going to suffer inconvenience or irreparable loss.
3. The contention raised by the both the learned counsel for the parties need consideration. Appeal is admitted for regular hearing. Whether warabandi in dispute has alread y been implemented or not will come on surface after the appearance of the respondents No. 1 to 4/Canal Authorities. Let a notice subject to process fee and registered A.D. envelope etc. for the summoning of respondent No. 1 to 4 be issued for 29.04.2021 . In the meanwhile, operation of impugned order is suspended till next date."
(emphasis supplied)
The perusal of the afore-referred order shows that the learned Addl. District Judge suspended the order dated 31.03.2021 passed by the learned trial court till the next date, however , did not comment upon the Warabandi in dispute having been implemented or not as the said aspect of the matter according to the said court would surface after appearance of Canal Authorities/ respondents No. 1 to 4, hence, the situation pertaining at the site does not appear to have been interfered with by the appellate court at the date of passing of its order .
7. The operative portion of the final judgment of the appellate court dated 25.06.2022, whereby appeal has been dismissed and order of trial court has been upheld, is reproduced below: "6. Rule 2-(b) of Order XXXIX of the Code of Civil Procedure (V of 1908) is a valid legislation and decision of the Court in accordance with relevant law cannot be considered as decision on technicalities rather the same shall be considered the order in accordance with law. Therefore, firstly I am not inclined to accept the version of the appellant/plaintiff that learned trial Court did not decide the application on merit . Secondly , learned appellate Court directed the trial Court to decide the main application of temporary injunction on merit vide order dated 17.02.2017, thereafter even elapse of four years, appellant failed to argue the application for temporary injunction. Therefore, it was not possible for the learned trial Court to decide the same on merit however , after hearing the arguments, the learned trial Court applied the provision of Rule 2-(b) of Order AAAIA of the Code of Civil Procedure (V of 1908) which is a valid provision. Consequently , this appeal is hereby dismissed being devoid of merit. Memo of cost be prepared. Copy of this judgment be remitted immediately and File of this Court be consigned to record room after due completion."
(emphasis supplied)
It is noticed that the appellate court has perhaps through clerical mistake inadvertently referred to Rule 2-B as 2- (b).
8. The perusal of the said orders shows that the learned trial court dismissed the application for interim relief / injunction as having become infructuous vide impugned order dated 31.03.2021, whereby it refused to extend the order of interim injunction earlier passed by it on 08.08.2016, on the ground that it has ceased to have its effect after expiry of one year as envisaged by Order XXXIX Rule 2B CPC, whereas the perusal of the order dated 08.08.2016 shows that through said order actually the interim injunctions had been declined and had not been granted, therefore, the said observations of the trial court were not based on proper appreciation of record of the case. The learned judge while doing so through the impugned order was persuaded by the fact that the petitioner had not moved an application in terms of Rule 2B of Order XXXIX CPC for extension of order of temporary injunction granted in his favour . Although there was no bar against the petitioner to file application for extension of order of interim injuntion, it has not been mentioned that under what provision law filing of such an application was necessary as the Rule 2-B prima facie does not make the same as a mandatory requirement and court could hear the parties without any application to decide whether the interim relief should be extended or not in the given circumstances of the case. The afore-said legal position coupled with the fact that interim injunction/stay had not been granted on 08.08.2016, the said observation regarding non-filing of application for extension of stay is based on misreading and non-reading of recor d and misapplication of law and hence the learned trial court does not appear to have properly exercised the jurisdiction vested in it.
The learned appellate court while upholding the order passed by the learned trial court observed that it was not possible for the learned trial court to decide the application on merits as the petiti oner had not appeared to argue the matter for four years and in the said scenario the trial court in the opinion of the appellate court had rightly applied provision of Rule 2B of Order XXXIX CPC, which according to the appellate Court was a valid provision.
Both the learned courts below have not taken into consideration the fact that Rule 2B, as amended through Notification No. 65/Legislation/XI-Y -26 dated 25.03.2007 by the Lahore High Court under Section 122 CPC, by substituting validity period of interim injunc tion as one year instead of six months, had been omitted by Lahore High Court vide Notification No. 237/Legis/XI-Y -260 dated 15.08.2018, w.e.f. 01.11.2020 vide another Notification No. 259/Legal/XI-Y -26 dated 23.10.2020 i.e., much prior to passing of the order dated 31.03.2021 and judgment dated 25.06.2022. Hence, the reference to a provision of law which no longer existed on the statute book was misplaced and the said reference instead of advancing the cause of justice prima facie appea rs to have hampered the same.
Besides the observation of the learned trial court that separate application was required to be filed for extension of injunctive order , in the given circumstanc es of this case was not in accordance with law as the same was alien, although not absolutely , to the provision of erstwhile Rule 2B of Order XXXIX CPC reproduced below wherein the court was only required to rehear the matter before allowing or refusing to extend the interim injunction any further with or without application filed by the plaintif fs, hence, the impugned order suffers from erroneous exercise of jurisdiction and is not sustainable.
"(2-B) The order of injunction made under rule 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of one year unless extended by the court after hearing the parties again and for reasons to be recorded for such extension: Provided that report of such extension shall be submitted to the High Court."
9. Both the Notifications dated 15.08.2018 and 23.10.2010, whereby the said Rule had been omitted with effect from 01.1 1.2010, are reproduced below: "No. 250/Legis/XI-Y -26 Dated 23.10.2020 NOTIFICA TION In exercise of the powers conferred under paragraph 2 of the Notification No. 237/Legis/XI-Y -26 dated 15th August, 2018 published in the Punjab Gazette No. 08 dated 22nd August, 2018 and addendum thereto No. 18 dated 31st October , 2018, the Hon'ble Chief Justice and Judges are pleased to direct that the provisions of Civil Procedure Code (Amendment of First Schedule) 2018, made under section 122 of the Code of Civil Procedure (Act No. V of 1908) shall come into force on the first day of November , 2020 within the local limits of jurisdiction of the Lahore High Court, Lahore."
(Emphasis supplied)
"NOTIFICA TION No. 237/Legis/XI-Y -26 Dated 15.08.2018 The following amendments in Rules and Orders of the First Schedule to the Code of Civil Procedure, (Act of 1908), made under section 122 of the Code, by Lahore High Court, Lahore, after previo us approval of the Govt. of the Punjab are hereby published in the official Gazette under section 127 of the Code.
2. These shall come into force, within the local limits of jurisdiction of Lahore High Court, Lahore on such dates and in such District or Districts of the Punjab as Lahore High Court, Lahore may determine by Notification.
AMENDMENTS
1. This Notification may be cited as the Civil Procedure Code (Amendment of First Schedule) 2018.
2. It shall come into force in such district or districts of the Punjab as Lahore High Court Lahore may, by notification, determine and different dates may be so determined for different districts.
"In the Code of Civil Procedure, 1908, in the First Schedule:
1. In Order I, for rule 1 1, the following shall be substituted:-
20. In order XXXIX, rule 2B shall be omitted."
(Emphasis supplied)
10. Apparently , both the courts below were not cognizant of the fact that Rule 2B supra had been omitted through the afore-referred amendment Notifications made by the Lahore High Court and the impugned orders having been passed in ignorance of the said legal position cannot be said to be based on proper appreciation of law and where observations are recorded through lack of care or due regard to the law or facts of the case, the same have to be declared as per incuriam in view of the principles laid down in judgments of the Honourable Supreme Court of Pakistan discussed below: i. In the case titled Member Board of Revenue/Chief Settlement Commissioner , Punjab, Lahore versus Abdul Majeed and another (PLD 2015 SC 166) it has been held that where a direction has been given by the court on a mistaken view of law as party had failed to assist the court on factual and legal points in the case and had also not filed para wise comments, such direction was per incuriam and once the court has come to the conclusion that judgment was delivered per incuriam then Court is not bound to follow such decision on the well known principle that judgment itself is without jurisdiction and per incuriam, therefore, it deserves to be over-ruled at the earliest opportunity .
The said principle has reiterated earlier view rendered by the Supreme Court in case titled as Regarding Pensionary benefits of the Judges of the Superior Courts from the date of their respective retirements, irrespective of their length of service as such judges (PLD 2013 SC 829) wherein it has been held that where a judgment was set aside as being per incuriam, the rule of locus poenitentiae, along with its exception, shall not be applicable, because the said doctrine primarily belon ged to the domain of the State and was to be restricted to administrative orders/actions alone. ii. In the case titled Sindh High Court Bar Association its Secretary and another versus Federation of Pakistan through Secretary , Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879) it has been held that "(37) "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium and ignored if it is rendered in ignoratium of a statute or other binding authority .
(38) What is meant by giving a decision per incuriam is giving a decision when a case of a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case of that statute or forgetfulnes s of some inconsistent statutory provision or of some authority binding on the court, so that in such cases some part of the decision or some step in the reaso ning on which it was based was on that account demonstrably wrong, so that in such like cases, some part of the decision, or some step in the reasoning on which it is based, if found, on that account to be demonstrably wrong."
The same principle has been reiterated in cases titled as Fasih-ud-Din Khan and others versus Government of the Punjab and others (2010 SCMR 1778 ) and Gulshan Ara versus The State (2010 SCMR 1162). The same principles were also laid down in a previous case titled as The State through National Accountability Bureau, Islamabad versus Haji Nasim-ur-Rehman ( PLD 2005 SC 270 ). iii. In the case titled Syed Shabbar Raza Rizvi and others versus Federation of Pakistan, Ministry of Law and Justice Division through Secretary , Islamabad and others (2018 SCMR 514) it has been held that any judgment could be considered to be per incuriam but it was for the judges to revisit any such judgment, and when pointed out by any person during course of hearing of any other case and such finding would be premised on the Court finding the same judgment to be against any provision of the Constitution or the law, or the principles already settled by a larger Bench of the Court.
11. In the present case, as the impugne d orders have been passed in ignorance of fact that Rule 2B of Order XXXIX CPC had been omitted, therefore, the order and judgment passed by both the courts below are per incuriam and as court with reference to afore-referred non-existence provision of law reached conclusion that application for interim injunction has become infructuous due to lapse of time provided by the said provision, therefore, prima farcie prejudice has been caused to the rights of the petitioners/plaintif fs to have their application decided on its own merits in accordance with law, hence, the impugned orders are not sustainable and liable to be set-aside. The learned trial court was required to decide the pending application for interim relief/ injunction on the basis of its own merits, which was also the mandate of order of the appellate court dated 17.02.2017 and dismissal on technical ground of the said application was not justified. It is settled principle of law that where a statute/law described or required a thing to be done in a particular manner , it should be done in that manner or not at all, otherwise it would be non-compliance with the legislative intent. Reliance in this regard is placed on 2021 SCMR 1979 (Attaullah Khan versus Ali Azam Afridi and others), PLD 2018 SC 189 (Muhammad Hanif Abbasi versus Imran Khan Niazi), 2017 SCMR 1427 (The Collector of Sales Tax, Gujranwala versus Super Asia Mohammad Din and Sons), PLD 2016 SC 995 (Shahida Bibi and others versus Habib Bank Limited and others), 2014 SCMR 1015 (Zia Ur Rehman versus Syed Ahmed Hussain and others) and PLD 2013 SC 255 (Muhammad Anwar and others versus Mst. Ilyas Begum and others).
12. Before parting with this order , it is observed that this order has been passed in the interest of justice only on legal and jurisdictional aspect of the matter in the absence of the respondents as summoning them would have incurred some expenses and inconvenience to them and would have delayed that decision of matter at this interlocutory stage, hence, their presence has been dispensed with and as the order has been passed in the absence of the respondents, they, if aggrieved, may file an application for rehearing of the matter for its decision afresh.
13. In view of the foregoing, this revision petition is allowed , with the result that both the impugned order dated 31.03.2021 and judgment dated 25.06.2022 are set-aside and the matter relating to application for interim injunction filed by the petitioner/plaintif fs is remanded back to the learned trial court, where the said application shall be deemed to be pending, which shall be decided afresh on its own merits in accordance with law after hearing all the concerned, expeditiously , preferably within next 60-days. The parties shall ensure that they assist the court in carrying out the directions issued by this Court, however , if any party does not appear , the court shall be at liberty to proceed further with the matter on its own merits as per law .