The petitioners instituted a suit for declaration to the effect that there is no sanctioned water- course passing through their land and the proceedings by defendants 1 to 4 for restoration of any such water-course are mala fide and against law. The main suit was aecom arced by an application for grant of temporary injunction, which was dismissed by the trial Court vide order dated 11---1-1989. The petitioners filed an appeal against this order in the Court of District Judge, Dera Ghazi Khan. The appeal was entrusted to one of 11LS Addl. District Judges, who not only dismissed the appeal but also rejected the plaint holding that since final order has not been passed under Section 68-A of the Canal and Drainage Act, therefore, the suit is not competent. The petitioners, thereafter, filed the present petition, the same was admitted to hearing and notices were issued to the respondents.
2. Heard the learned counsel for parties. The learned counsel for the petitioners has argued that the order was under Section 68 and not under Section 68-A of the Canal and Drainage Act, therefore the lower appellate Court wrongly and illegally dismissed their appeal as well as suit. It is argued that since' petitioners have a prima facie case and balance of convenience was also on their side.
It is added that petitioners are liable to suffer irreparable loss because provisions of water-course will adversely affect their residential houses which are situated near the site of water-course.
3. On the other hand learned counsel for the respondents 3 to 8 had argued that the petitioners, taking law into their hand proceeded to dismantle sanctioned water-course and this way the defendants were constrained to move the D.C.O. For restoration of the water-course. The D.C.O.
After spot inquiry came to the conclusion that the plaintiffs have demolished the water-course without justification. Therefore, -vide order dated 8-10-1987 directed its restoration. It is added that the plaintiff have not come with clean hands, therefore, were not entitled to any assistance from Courts of law and even suit is not competent because neither the order dated 8-10-1987 has been challenged nor D.C.O. Impleaded as a party to the suit.
4. I have given my anxious considerations to the arguments and gone through the record. The D.C.O, in his order dated 8-10-1987, which is placed as Annexure `A' on the paper book has clearly held that plaintiffs/petitioners have dismantled sanctioned water-course without justification. This fact alone is sufficient to refuse relief of injunction to tide petitioners. Even otherwise if the water- course is not restored then, it is the defendants/land owners, who were, likely to suffer irreparable loss and great inconvenience than the petitioners. According to the order of D.C.O. The watercourse was sanctioned in 1971. Therefore, the arguments of the learned counsel for the petitioner that the petitioners shall suffer great inconvenience and irreparable loss are without merit.
5. Now coming to the question whether the order of D.C.O. Is under Section 68 or under Section 68- A of the Canal and Drainage Act. I do not feel inclined to under-take the adjudication of this point.
In fact the lower appellate Court has erred in law while taking up this issue because the plaint was not before it. The matter should have been left to the trial Court. 1, therefore, set 1 aside the order of the lower appellate Court as to the rejection of the plaint. It is so because even it is not clear from the plaint as to which order has been challenged in the suit. I, however, confirm the findings of the Courts below as to the grant of temporary injunction. The petitioners are not entitled to any discretionary relief in view of their illegal conduct.
6. The upshot of the above discussion is that this revision is partially allowed. The result is that the order as to dismissal of the suit passed by the lower appellate Court is set aside while the order confirming the findings of the trial Court on the stay petition are upheld. The suit to be decided by the trial Court ire accordance with lass.
H.B.T./G-279/L