' This revision petition under section 115 of the Code of Civil Procedure is directed against the judgment and decree, dated 13th March, 1973 passed by the learned Additional District Judge, Lyallpur (Faisalabad).
2. The facts necessary for the purposes of this revision, briefly stated, are that the respondents- plaintiffs instituted a suit in the Court of Mr. Muhammad Ajmal Khan, Civil Judge Second Class, Lyallpur for a declaration to the effect that the order, dated 18th July, 1968 passed by the Divisional Canal Officer, Jhang Division, Jhang and the order, dated 22nd November, 1968 passed by the Superintending Canal Officer, Lower Chenab Canal, West Circle, Lyallpur refusing to cancel the diagonal water-course passing through Killas Nos, 5 to 21 of Square No, 32 owned by the respondents-plaintiffs and not sanctioning a watercourse in lieu thereof on the northern side of Square No, 32 for irrigating the lands of the respondents-plaintiffs are illegal, ultra vires, unjust and void.
' It was asserted that the respondents-plaintiffs are the owners of a part of the land in Square No, 32, whereas the petitioners-defendants are owners in Squares Nos. 22, 23, 31, 32, 55 and 56 and the lands of the parties are fed by the canal water from outlet No, RD-16122-L, and that the passing of the diagonal watercourse through Killas Nos. 5 to 21 of Sequare No, 32 has divided the lands of the respondents-plaintiffs into two portions which is creating difficulty in the proper cultivation of their lands.
' On the basis of this assertion it was prayed that the existing diagonal watercourse be cancelled and a new watercourse be sanctioned from the northern-western side of the respondents- plaintiffs' Square No, 32.
' This request of the respondents-plaintiffs having been turned down by the Divisional Canal Officer, by his order, dated 18th July, 1968 the respondents-plaintiffs preferred an appeal to the Superintending Canal Officer, who by his order, dated 22nd November, 1968 dismissed the same without hearing the respondents-plaintiffs.
' It was urged that the order aforementioned therefore suffers from a patent illegality of having not heard the respondents before deciding the appeal.
3. The suit was resisted by the petitioners-defendants and on the divergent pleadings of the partits the following six issues were framed by the learned trial Court :
(1) Is this suit barred by the doctrine of res judicata ?
(2) Is the suit not maintainable in its present form ?
(3) Are the plaintiffs estopped from bringing this suit ?
(4) Whether the impugned order, dated 18th July, 1968 passed by the Divisional Canal Officer, Jhang Division, Jhang and the order, dated 22nd November, 1968 passed by the West Circle, Lyallpur are illegal, ultra vires and null and void ?
(5) Are the plaintiffs entitled to the modification of the impugned order. If so, to what extent ?
(6) Relief.
4. The learned trial Court decided issues Nos. 1 to 3 in the negative: ' Under issue No,. 4, the learned trial Court recorded the finding that the impugned order of the Superintending Canal Officer is illegal and not binding on the respondents-plaintiffs.
' As regards the order of the Divisional Canal Officer, it was held that since the challenge against this order had not been pressed and it had been confined to the order of the Superintending Canal Officer, only the order of the Superintending Canal Officer had been dealt with.
' Under issue No, 5, it was held that since the impugned order of the Superintending Canal Officer bad been held-to be illegal the question of its modification did not arise.
' As a result of the above findings, the suit of the respondents-plaintiffs was decreed by judgment, dated 23rd October, 1972 and a declaration was granted in favour of the respondents-plaintiffs to the effect that the order, dated 22nd November, 1968 passed by the Superintending Canal Officer is illegal. The parties were left to bear their own costs.
5. Feeling aggrieved by the judgment and decree of the trial Court the petitioners preferred an appeal to the learned Additional District Judge, Lyallpur (Faisalabad).
6. The appeal was partly accepted by judgment, dated 13th March, 1973 and the decree of the trial Court was modified to the extent that the order, dated 22nd November, 1968 passed by the Superintending Canal Office, Lower Chenab Canal, West Circle, Lyallpur is illegal and void and the Superintending Canal Officer was directed to re-hear the appeal filed by the respondents after providing them an opportunity of hearing. The learned lower Appellate Court also left the parties to bear their own costs.
7. The petitioners still feeling dissatisfied with the judgment of the lower Appellate Court have come up in the present revision to this Court.
8. The learned counsel for the petitioners contended : Firstly : that the finding of the lower Appellate Court holding that the Superintending Canal Officer's order was illegal as it was passed without notice to the respondents as required by rule 87 of the rules framed under the Canal and Drainage Act, 1873 is not tenable in law in that the said rule was not attracted to the case in band and that the finding has been recorded without taking notice of rules 84 and 85 ; ' Secondly : that even otherwise the order of the Superintending Canal Officer could not be objected to inasmuch as the order of the Divisional Canal Officer was not challengeable in appeal before the Superintending Canal Officer as no appeal lies against the order of the Divisional Canal Officer under section 68 of the Canal and Drainage Act, 1873. He submitted that in the case cited as Asghari Begum v. Additional Settlement Commissioner (Industreis), Lahore and 2 others PLD 1977 SC 147 it was held that when review was not competent before the Chief Settlement Commissioner, except to correct some clerical or arithmetical error, the decision in that review without affording the petitioner any hearing was not open to challenge ; and Lastly : the learned counsel submitted half-heartedly that the findings of the Courts below in issue No, 1 are not correct.
9. On the other hand, the learned counsel for the contesting-respondents contended that it has been incorrectly submitted by the learned counsel for the petitioners that no appeal lay to the Superintending Canal Officer. He argued that the Divisional Canal Officer's order was challenged before the Superintending Canal Officer in 1968 and the law as then prevalent regarding appeals would be applicable. He submitted that in 1968, under section 68 (2) of the Canal and Drainage Act, appeal from an order of the Divisional Canal Officer was competent before the Superintending Canal Officer.
' The learned counsel for the contesting respondents further submitted that the rejection of the appeal of the respondents by the Superintending Canal Officer without hearing them was a patent illegality. It was urged that section 68 of the Canal and Drainage Act as it then existed provided for an appeal against the order of the Divisional Canal Officer as a matter of right, and as such, before that appeal could be disposed of, the respondents had a right to be heard, and further that otherwise also the cause of any person could not be decided in his absence inasmuch as it offends the principles of natural justice and the well-known maxim audi alteram part em.
' The learned counsel for the respondents also submitted that rule 85 which has been now pressed into service by the learned counsel for the petitioner in no manner empowers the Appellate Authority to dismiss the appeal without hearing the appellant, and even if it be assumed that it could be so interpreted, then the rule is beyond the scope of the statutory provision and thus liable to be struck down.
' As regards issue No, 1, the learned counsel for the respondents submitted that there is a concurrent finding by the two Courts below on the issue which does not call for interference by this Court in its revisional jurisdiction, especially when the decree of the lower Appellate Court is only to the extent that the order, of the Superintending Canal Officer is illegal having been passed without affording an opportunity of hearing to the appellants before him and the matter has been remitted back to the Superintending Canal Officer for adjudication of the appeal afresh in accordance with law.
10. Taking up the contention "secondly" raised by the learned counsel for the petitioners first, I may observe that the same is misconceived. The order was passed by the Divisional Canal Officer on 18th July, 1968 and the appeal preferred against this order to the Superintending Canal Officer was rejected on 22nd November, 1968. Section 68 of the Canal and Drainage Act, 1873 as it existed on the day, of passing of the order by the Divisional Canal Officer and even on the day the Superintending Canal Officer rejected the appeal of the respondents read as under "68 (1) Whenever a difference arises between two or more persons with regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a watercourse, any such person may apply in writing to the Divisional Canal Officer stating the matter in dispute. Such officer shall thereupon give notice to the other persons interested that, on a day to be named in such notice, he will proceed to inquire into the said matter, and after such notice, he shall pass his order thereon, unless he transfers (as he is hereby empowered to do) the matter to the Collector, who shall thereupon inquire into and pass his order on the said matter."
(2) Any aggrieved person may prefer an appeal to the Superintending Canal Officer against the order passed under subsection (1) within 15 days from the date of such order. The appeal shall be decided as expeditiously as possible. The Superintending Canal Officer may stay the operation of the order appealed against if such stay order does not affect the standing crops.
(3) Any order passed under subsection (1) or (2) above 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 set aside or modified by a decree of a civil Court."
It would therefore be seen from the above provision that by virtue of subsection (2) of section 68 of the Canal and Drainage Act the appeal to the 4 Superintending Canal Officer was provided for against the order of the Divisional Canal Officer.
' The learned counsel for the petitioner while arguing on this point had referred to the provisions of section 68 (ibid) as these stand now after amendment by virtue of the Canal and Drainage (Punjab Amendment) Act (XXXIII of 1975) and submitted that the law as it now stands shall govern the right of appeal.
It may be observed that the proposition is well-settled and admits of no doubt that the right of an appeal being a creation of statute is a substantive right. The institution of a cause, therefore, carries with it the consequential incident that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the original cause. The right of an appeal is a vested right and such a right to enter the superior Court/forum accrues to the litigant and exists as on and from the date the lis commences although it may be actually exercised when the adverse judgment is pro nounced. The right of appeal therefore, is to be governed by the law prevailing at the date of institution of the suit or proceeding and not by the law that prevails on the date of its decision or on the date of filing of th appeal. This vested right of appeal which accrues at the time of initiation of the original proceedings can be taken away by a subsequent amendment/ enactment only if the amending enactment provides expressly or by necessar intendment that the right is taken away retrospectively. The abov principle is in complete accord with a long chain of authorities on the subject commencing from The Colonial Sugar Refining Company Limited v. Irving (1) and there ought not to be any cajole with the same.
11. Adverting now to the first contention of the learned counsel for the petitioner, it may be pointed out that the right of appeal has been conferred! Upon an aggrieved person by section 68 of the Canal and Drainage Act and therefore the natural incidences of appeal which, inter alia, include the C right of being heard in support of the appeal also stand conferred on him and obviously could not be taken away by framing a rule to the contrary. The learned counsel for the petitioner in order to support the order of the Superintending Canal Officer has pressed into service rule 85 framed under the Canal and Drainage Act in respect of appeals and references and the procedure laid down therein. He submitted that rule 85 empowered the Superintending Canal Officer to dismiss the appeal without hearing the appellant before him. He also urged that rule 87 relied upon by the learned Additional District Judge, Lyallpur (Faisalabad) to hold that the order of the Superintending Canal Officer is defective and illegal, is not applicable to the case in hand inasmuch as that rule provided for the procedure after the admission of the appeal.
12. I am afraid the interpretation placed by the learned counsel for the petitioner on rule 85 to spell out power to dismiss the appeal in limine without hearing the appellant cannot be given effect.
Rule 85 ibid to me appears to lay down that when an appeal is instituted, the Superintending Canal Officer may after hearing the appellant, if he thinks it un-D necessary to call for the record and issue notice to the other party, dismiss the appeal in limine. The hearing of the appellant is a right which has become vested in him by virtue of the right of appeal having been conferred on him by the substantive provision contained in section 68 of the Canal and
(1) 1905 A C 369 ' Drainage Act. The rule can in no manner be interpreted so as to give power to the Superintending Canal Officer to dismiss the appeal in the secrecy of the office without hearing the appellant. Such an interpretation may result in statutory provision of law being reduced to futility and in fact a negation of the right conferred by a statutory provision. It is a well-recognized principle of interpretation that is choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of E legislation, the Court should avoid a construction which would reduce the legislation to futility and it should rather accept the bolder construction based on the view that the Legislature would legislate only for the purpose of bringing about an effective result. It is also a well-settled principle that interpretation which promotes the object of the legislation and gives effect F to other portions of the statute and rules has to be preferred to that which will defeat the purpose and is in conflict with other provisions. It may also be observed that a rule in any case has to be interpreted so as to promote G and give effect to the substantive provision of the statute rather than to negate that provision. It would therefore, be proper to read in rule 85 that a hearing has to be afforded to the appellant before disposing of the appeal as this would not only be in accord with section 68 of the Canal and , Drainage Act, 1873 but also would comply with the basic principle of, natural justice that one shall not be adjudged adversely without affording him an opportunity, of being heard. Needless to add that it is permissible to read something in a provision which is actually not there to give effect o the provision and to make it reconcile with the other provisions of law. The first contention of the learned counsel for the petitioner therefore also fails.
13. The only point left now to be dealt with is the contention of the learned counsel for the petitioner that findings of the Courts below on issue No, 1 are erroneous. I may at the outset observe that nothing in particular was pointed out by the learned counsel for the petitioners in support of his above contention. Even otherwise it is well-settled that a concurrent finding on an issue which essentially is of fact is not open to challenge before the High Court in exercise of its revisional jurisdiction. It would be moreso in the case in hand as the matter still remains open for agitation because by the decree of the First Appellate Court the appeal has been remitted to the Superintending Canal Officer for adjudication afresh in accordance with law after affording an opportunity of hearing to the appellants before him.
14. In view of the foregoing discussion, I find no merit in this revision which is accordingly dismissed with costs.