AHMAD NADEEM ARSHAD, J. Through this Civil Revision, the petitioner has called into question validity and legality of judgments/orders and decrees of the Courts below pursuant whereto the plaint of the petitioner's suit was rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 (C.P.C).
2. Facts in brevity are that the petitioner instituted a suit for declaration by challenging the validity and legality of orders dated 15.06.2022 and 24.10.2023 passed by respondents No.2 & 3/Canal Authorities with regard to Warabandi on the grounds that the same are against the law and facts, ex-parte, without notice, without providing opportunity of hearing, result of conspiracy, malafide and ineffective upon his rights. The respondents resisted the suit through filing their respective separate written statements. The respondents, besides other legal objections, also took an objection that the petitioner's suit is not maintainable and the plaint is liable to be rejected under Order VII Rule 11 of C.P.C. Learned ADA while elaborating his stance before the learned Trial Court maintained that under Section 189 of the Punjab Irrigation, Drainage and Rivers Act, 2023, jurisdiction of the Civil Court is barred. Learned Trial Court, after hearing both the sides, rejected the plaint under order VII Rule 11 C.P.C vide order and decree dated 02.10.2024. Feeling aggrieved, the petitioner preferred an appeal which was dismissed vide judgment and decree dated 30.01.2025.
Hence, this petition.
3. I have heard learned counsel for the parties at considerable length and perused the record with their able assistance.
4. Stance of the petitioner is that the petitioner impugned the order dated 15.06.2022 which was passed on the application of the respondents No.4 to 6, moved under Section 68 of the Canal and Drainage Act, 1873, (hereinafter referred to as the Act, 1873) and as said proceedings were initiated under the Act, 1873 which does not bar the jurisdiction of Civil Court, therefore, the plaint could not be rejected. Whereas, the contention of the respondents is that the petitioner impugned the order dated 15.06.2022 of respondent No.3 through preferring an appeal under the Punjab Irrigation, Drainage and Rivers Act, 2023 (Act XIV of 2023, notified on 17.02.2023) (hereinafter referred to as the Act, 2023) which specifically bars the jurisdiction of Civil Court, therefore, the Courts below have rightly rejected the plaint under Order VII Rule11 C.P.C.
5. Perusal of the record reflects that respondents No.4 to 6 moved an application under Section 68 of the Act, 1873, before respondent No.3 (Sub-Divisional Canal Officer) on 06.05.2022. Respondent No.3 after issuing notice to the respondents of said application and recording statements of concerned persons shifted the irrigation outlet and also changed the Warabandi. Being aggrieved, the petitioner impugned the said order through preferring an appeal under Section 180 of the Act, 2023, before the respondent No.2 (Divisional Canal Officer) who dismissed the same vide order dated 24.10.2023. Being dissatisfied, the petitioner assailed said orders of Canal Authorities through instituting suit for declaration with permanent injunction. The learned Trial Court rejected the plaint in view of Section 189 of the Act, 2023, which bars the jurisdiction of the Civil Court and said rejection was upheld by the learned lower Appellate Court.
6. No doubt, Section 189 of the Act, 2023, bars the jurisdiction of the Civil Court which reads as under: "Exclusion of jurisdiction of civil courts in matters within the jurisdiction of Canal Officers.-(1)
Except as otherwise provided by this Act, no civil court shall have jurisdiction in any matter which the Government, Minister, Secretary, a Canal Officer, Review Board or any other officer or person is empowered by this Act to decide, or to take cognizance of or the manner in which the Government, Minister, Secretary, Canal Officer or any other officer or person exercises any power vested in it or him by or under this Act.
(2) Except as otherwise provided by this Act, no proceedings shall lie before any civil court at the instance of any party to or person interested in a matter which is, or has been, or might or ought to have been a proper subject to be brought before and decided by the Government, Minister, Secretary, a Canal Officer or other person under this Act."
7. There is no dispute to the fact that respondents No.4 to 6 filed their application under Section 68 of the Act, 1873, on 06.05.2022 as said Act was prevalent at that time. Section 68 of the Act, 1873, provides as under: "68. Settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet.-
(1) Whenever a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course supplied with water from the outlet, or deposit of soil from water-course clearance, or mutual rights and liabilities in that regard, any such person may apply in writing to the Sub-Divisional Canal Officer stating the matter in dispute. The Sub-Divisional Canal Officer shall thereupon proceed in the matter as laid down hereafter.
(2) Such Officer shall give notice to all persons interested and liable to be affected that on a day to be named in such notice he will proceed to enquire into the said matter and after such inquiry, he shall pass his order thereon unless he transferred (as he is hereby empowered to do the matter to the Collector who shall thereupon enquire into and pass his order on the said matter.
(3) Any person aggrieved by an order made by such Officer under sub-section (2) may, within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer.
(4) Where an appeal has been preferred under sub-section (4), the Divisional Canal Officer-
(a) shall decide the appeal as expeditiously as possible; and
(b) may, pending the disposal of the appeal stay the operation of the order appealed against; provided the stay order does not adversely affect any standing crops.
(5) The applicant shall not be entitled to use the water-course that may be sanctioned under sub-section (2) or (3) above for conveyance of water to his land or the land required for the deposit of slid from water-course clearance, until-
(a) he has paid to the land-owner the compensation for the land occupied for any of the purposes, in whatever shape it is determined through mutual agreement; or
(b) possession of the land has been acquired under the provisions of this Act.
(6) Any order passed under sub-section (2), if there be no appeal preferred against it and an order passed in appeal under sub section (3) 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 it is set aside by a decree of a Civil Court."
8. In the said Section, it is provided that the order passed by Canal Authorities remained in force until it is set aside by a decree of a Civil Court. Said Section 68 was subsequently substituted by the Canal and Drainage (Punjab Amendment) Act, 1975 (XXXII of 1975) and later on it was again substituted by the Canal and Drainage (Punjab Amendment) Act, 2006 (Act XVII of 2006) which reads as under: "68. Settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet.-
(1) Whenever a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course supplied with water from the outlet, or deposit of soil from water-course clearance, or mutual rights and liabilities in that regard, any such person may apply in writing to the Sub-Divisional Canal Officer
(2) The Sub-Divisional Canal Officer may also proceed to settle any dispute without any such application on the basis of the order passed under section 20-B or an order cancelling the extra water supplies.
(3) The Sub-Divisional Canal Officer shall give notice to all persons concerned regarding the enquiry in the said matter and after such enquiry shall pass an order as he deems appropriate.
(4) Any person aggrieved by an order passed under sub-section (2) may, within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer.
(5) Where an appeal has been preferred under sub-section (4), the Divisional Canal Officer-
(a) shall decide the appeal expeditiously; and
(b) may, pending the disposal of the appeal, suspend the operation of the order; provided that the stay order does not adversely affect any standing crops.
(6) The applicant shall not be entitled to use the water-course that may be sanctioned under this section for conveyance of water to his land or the land required for the deposit of soil from water- course clearance, until-
(a) he has paid to the land-owner the compensation for the land occupied for any of the purposes, in whatever shape it is determined through mutual agreement; or
(b) possession of the land has been acquired under the provisions of this Act.
(7) An order passed under sub-section (3), if there be no appeal preferred against it and an order passed in appeal under sub-section (5) shall be final."
9. Perusal of the said amended provision of law reflects that the words 'until it is set aside by a decree of civil court' were omitted. It means that at the time of filing of application by the respondents No.6 & 7 under Section 68 of the Act, 1873, as Amended through Punjab Amendment Act, 2006, there was no restriction to the effect that orders of the Canal Authorities remained intact until the same are set-aside by a decree of Civil Court.
10. However, Section 67 of the Act, 1873, provides jurisdiction to the Civil Court which reads as under: "67. Jurisdiction.- Except where herein otherwise provided, all claims against the Provincial Government in respect of any thing done under this Act may be tried by the Civil Courts; but no such Court shall in any case pass an order as to the supply of canal-water to any crop sown or growing at the time of such order."
Said Section was also substituted through Canal & Drainage (Punjab Amendment), Act, 2016 (Act XII of 2016) which reads as under: "67. Jurisdiction.- (1) Subject to subsection (2), all claims against the Provincial Government in respect of anything done under this Act may be tried by the civil court of competent jurisdiction.
(2) A court shall not assume jurisdiction in any matter in respect of anything done, being done or purported to be done under sections 20, 20-A, 20-B,20-C,31,32, 32-A, 33, 34, 35, 36 and 45 of the Act and shall not pass any order interrupting any proceedings under the Act."
Section 67 which was introduced through Punjab Amendment Act, 2016, although provides that the Court shall not assume jurisdiction in any matter in respect of anything done, being done or purported to be done under the sections referred in Section 67(2) supra, but Section 68 is not provided in the said Sub-Section, therefore, it is clear that orders passed under Section 68 can be assailed before the Civil Court.
11. Section 205 of the Act, 2023, deals with repeals and savings which reads as under:- Repeals and savings. (1) The Canal and Drainage Act, 1873 (VIII of 1873) and the Punjab Soil Reclamation Act, 1952 (XXI of 1952) are hereby repealed.
(2) Save as otherwise provided in this Act, repeal of the Canal and Drainage Act, 1873 (VIII of 1873) and the Punjab Soil Reclamation Act, 1952 (XXI of 1952) shall not affect:
(a) any right, privilege, obligation or liability acquired, accrued or incurred under it;
(b) any penalty, forfeiture or punishment incurred in respect of any offence committed against it; and
(c) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture and punishment may be imposed as if it has not been so repealed. Notwithstanding its repeal, anything done or any action taken under the Punjab Canal and Drainage Act, 1873 (VIII of 1873) and the Punjab Soil Reclamation Act, 1952 (XXI of 1952), including:
(a) every rule, manual, code, notification, order, direction or instruction made, issued, passed or saved under it;
(b) every legal proceeding or notice initiated, made or saved under it;
(c) every license, concession, permission or right conferred or saved under it;
(d) every appointment made or saved under it;
(e) every tax, fee, rate, toll or other charge or sums of money assessed, imposed, collected or due to the Government under it;
(f) every irrigation scheme or other work drawn up, contracted, executed or maintained under it;
(g) every instrument or contract executed under it; and
(h) allocation of water to various canals, share of irrigators and irrigation areas settled under it. which so far as is in force at the commencement of this Act and not inconsistent with the provisions of this Act, shall be deemed to have been done or taken under this Act unless previously altered, modified, cancelled, suspended, surrendered, withdrawn or superseded, as the case may be, under this Act."
Said repealing clause also saves the rights, privilege, obligation or liability acquired, accrued, incurred under the Act, 1873.
12. The general rule as to effect of repeal of a statute follows from the legal maxim "Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis" which means that a new law ought to regulate what is to follow, not the past. This maxim means that when creating or enacting a new law, policy, or constitution, it should apply only to future actions, circumstances, and events, rather than altering or affecting past situations. In other words, it emphasizes the idea that laws or constitutions should not have retrospective effects. In legal terms, this principle upholds the concept of non-retroactivity in law, meaning that laws are generally not meant to change the legal consequences of actions or events that occurred before the law was enacted. This ensures fairness and predictability in legal systems. In broader terms, this maxim is tied to the idea that legal reforms and changes should shape the future rather than trying to address past issues, which can often be complex and disruptive if altered by new legal frameworks. This maxim was statutorily recognized in section 38(2) of the Interpretation Act, 1889, which is on the same lines as Section 4 of the Punjab General Clauses Act, 1956 and it provides for the effect of repeal, which reads as under: "4. Effect of repeal. (1) Where this Act or any other Punjab Act repeals any enactment then, unless different intention appears, the repeal shall not---
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed.
(2) The provisions of subsection (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor under section as if it had been repealed by a Punjab Act."
13. In view of Section 4, the repeal of a statute, which is not retrospective in operation, does not prima-facie affect the pending proceedings which may be continued as if the repealed enactment was still in force. In other words, such repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact, when a lis commences, all rights and obligations of the parties get crystalized on that date. The mandate of Section 4 of the General Clauses Act is simply to leave the pending proceedings unaffected which commences under the un-repealed provisions unless the contrary intention is expressed. Clause
(c) of Section 4, refers to the words "any right, privilege, obligation acquired or accrued" under the repealed statute. However, it is clarified that the mere existence of a right not being "acquired" or "accrued", on the date of the repeal would not get the protection of Section 4 of the General Clauses Act.
14. A Full Bench of this Court in a case titled "Muhammad Saif Ullah V. Lahore Development Authorities and others" (PLD 2021 Lahore 168), while dealing with almost similar situation observed as under:- "13. It must be underscored that section 4 of the Punjab General Clauses Act, 1956 occurs in a group of sections 3 to 12 and heading of that group of Sections is "General Rules for Construction".
The Courts have applied its principles on the question whether a remedy given under the repealed provisions of law is such a right which survives the repeal. In this regard we may cite the case of Pulborough Parish School Board Election, Bourke (School Board Election for the Parish of Pulborough, Bourke and others V. Nutt" (1894 1 QB 725) wherein it was observed that "every statute which takes away or impairs vested rights acquired under existing law, or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect". This principle was followed in the Colonial Sugar Refining Company Limited's case ("Colonial Sugar Refining Company Limited V. Irving"). In that case, although the right of appeal from the Supreme Court of Queensland of His Majesty in Council given by the repeal law had been taken away by the repealing enactment, which provided only an appeal from the Supreme Court of Queensland to the High Court of Australia, yet the Act not being retrospective, the Privy Council ruled that a right of appeal to the King in Council in a suit pending when the (repealing) Act was passed and decided by the Supreme Court afterwards was not taken away. Exact observation made in this case reads as under: - "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the Appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the Appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
15. It is important to recognize that at the time of initiation of the proceedings (initiated by respondents No.4 to 6 through moving application under Section 68 of the Act, 1873), the Canal and Drainage Act, 1873, was the governing law, and it did not contain any provision that barred the jurisdiction of the Civil Court, rather Section 67 of the said Act, provides that the jurisdiction of the Civil Court shall not be barred with respect to matters arising under the Act, thus granting the Civil Court full jurisdiction over disputes pertaining to the administration of the Act.
16. Although, the Act, 2023, has repealed the Canal and Drainage Act, 1873, but it is crucial to note that the petitioner's cause of action arose under the old law and the legal position regarding the jurisdiction of the Civil Court was governed by that law. As referred supra, the principle of non- retrospectivity of statutes is a well-established legal doctrine. A new statute, unless expressly stated, does not affect actions or proceedings that were already initiated under the old law. The right to access the Civil Court should not be taken away by a subsequent law unless expressly provided for, hence, the petitioner's suit was maintainable before the Civil Court.
17. Section 9 of the Code of Civil Procedure, 1908 (C.P.C.) states that Civil Courts have jurisdiction to entertain a suit unless expressly or impliedly barred by another law. This principle is based on the idea that the Civil Court has ultimate jurisdiction over civil matters unless a statute specifically excludes it or the jurisdiction is either expressly or impliedly barred. An ouster clause in a statute, which limits the Civil Court's jurisdiction, applies only when the authorities act within the bounds of their authority. If the authorities act beyond their jurisdiction, the Civil Court can intervene to assess the legality of their actions.
18. The final decision with regard to a civil right, duty or obligation shall be that of Civil Courts.
Where allegation of mala fide action has been made in the plaint, the Civil Court has the jurisdiction to examine the acts and the plaintiff would prove the mala-fide raised in the plaint through evidence. Where action or order passed by the Public Officer, Tribunal or Authority is within the four corners of jurisdiction, the Civil Court cannot entertain the lis. But where the order passed or the act done was void or without lawful jurisdiction or mala-fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the Civil Court would have the jurisdiction to interfere with the same. The provisions excluding jurisdiction of the Civil Court is mixed question of law and fact which can only be adjudicated upon by the Court after recording evidence. Hon'ble Supreme Court of Pakistan, in a case titled "Abbasia Corporative Bank (Now Punjab Provincial Cooperative Bank Ltd), through Manager and another V. Hakeem Hafiz Muhammad Ghous and 5 others" (PLD 1997 Supreme Court 03), while dealing with the question of jurisdiction, held as under: "The Civil Court 'under section 9 of the Code of Civil Procedure are competent to try all- suits of civil nature except those or which their jurisdiction is barred either expressly or by necessary implication. It is a well-settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well-settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court."
19. In the present case, the petitioner challenges the orders passed by the Canal Authorities, alleging they are illegal, ex-parte, without notice, without providing opportunity of hearing, result of conspiracy, based on mala fide intentions, and contrary to the facts and law. This raises the issue of whether the jurisdiction of the Civil Court is ousted, particularly when the authorities' actions are contested as being beyond their statutory authority. The petitioner seeks a judicial review of the actions of the Canal Authorities. It is, therefore, essential to examine whether the jurisdiction of the Civil Court is ousted in the present case. An ouster clause in a statute is presumed to exclude the jurisdiction of the Civil Court only when the statute grants a forum with exclusive jurisdiction to adjudicate specific matters. Reliance is placed upon the cases titled "Mr. Muhammad Jamil Asghar V. The Improvement Trust, Rawalpindi" (PLD 1965 Supreme Court 698), "Mian Muhammad Latif V. Province of West Pakistan through the Deputy Commissioner, Khairpur and another" (PLD 1970 Supreme Court 180), "Hamid Husain V. Government of West Pakistan and others" (1974 SCMR 356), "Province of the Punjab through Collector District Khushab, Jauharabad and others V. Haji Yaqoob Khan and others (2007 SCMR 554), "University of the Punjab V. Miss Wajiha Aroof" (2008 SCMR 1577) and "Gul Shah and others V. Hafiz Ghulam Muhammad and others" (2009 SCMR 1058).
20. Order VII Rule 11 of the Code of Civil Procedure empowers the Court to reject a plaint at the initial stage if the suit does not disclose a cause of action, is barred by law, or is filed in violation of any statutory provision. However, such a rejection can only occur after the Court is satisfied that the suit is, in fact, barred by law, and such satisfaction should be based on a clear and unequivocal legal provision. In the present case, the learned Trial Court has dismissed the suit at the threshold under Order VII Rule 11 of the C.P.C. without framing specific issues on the question of jurisdiction or allowing the parties to adduce evidence in support of their contentions. Such a dismissal is premature. The mere assertion of a statutory bar does not automatically lead to the rejection of the plaint without examining the merits of the case. The Court must first ascertain whether the suit is barred by any law and whether the jurisdiction of the Civil Court is excluded and whether the action impugned therein is within the four corners of jurisdiction and not done mala-fidely, against facts & law and fraudulently. This requires a full examination of the facts, the relevant statutory provisions, and the pleadings of the parties. The Trial Court should have framed specific issues regarding said aspects and allowed the parties to lead evidence on the same. Only after the evidence has been recorded and the issues properly considered the Court can decide whether the Civil Court has jurisdiction to entertain the suit or whether the suit is indeed barred by law.
21. In view of the above, learned Courts below have erred in law while rejecting the plaint of the petitioner's suit under Order VII Rule 11 C.P.C. Impugned judgments/decrees are result of wrong exercise of jurisdiction by the Courts below which are not sustainable under the Law. Hence, this Civil Revision is allowed. Consequently, impugned orders/judgments and decrees are set-aside and suit of the petitioner is restored and the same would be deemed to be pending. Learned Trial Court is directed to frame specific issues regarding the jurisdiction of the Civil Court and the legality of the orders passed by the Canal Authorities and decide the matter after recording evidence of the parties. No order as to costs.