This Civil revision has been maintained by plaintiffs to challenge concurrent refusal by the two courts below to issue a temporary injunction in a suit for declaration and perpetual injunction brought by them to challenge the order dated 22-3-1988 whereby additional supply of canal water for garden was sanctioned for Barkat Ali , arrayed herein as respondent No.2. They pleaded in the suit that their lands are irrigated through outlet No.125, Chak 71 Fateh which is also the source of supply for the lands of Barkat Ali but the supply through this outlet hardly suffices for the lands of the parties and the additonal supply of water has been sanctioned only behind their backs through the impugned order which will render their lands barren, in the event of being effectuated. They also prayed for a decree of perpetual injunction being passed to forbid its being implemented.
Therein they also applied for a temporary injunction being issued to the same effect. Whereas the departmental authority expressed its disinterestedness in the litigation, Barkat Ali contested the suit as also the application by denying the averments contained therein.
2. The suit seems to still have to be tried but the application was taken up for consideration by the learned trial Judge and perhaps because there was not available any material on the file to form even a tentative view about the controversy, therefore, seemingly actuated by a desire to do justice, learned Civil Judge summoned and perused the original record of the Canal Department.
Propriety of such a course being put off for the present to be considered later in this judgment; narration may be continued with the statement that even the perusal of the record of the Canal Authorities did not prove any helpful for grant of any ad interim relief to the petitioners inasmuch as it revealed that extra water --supply for garden had been sanctioned by the Superintending Engineer within the 5 per cent reserve water retained at the outlet which did not stand in the need even of its size having to be increased in consequence thereof. He also found that necessary formalities of law had been duly complied with by the Superintending Engineer before allowing special Wara for the garden and his order could not, therefore, be said to have been passed either illegally or without jurisdiction so that the petitioners did not have any prima facie case to urge.
Even with regard to the other two requirements for issuance of temporary injunction, namely, apprehension of irreparable loss or injury and the balance of convenience, the conclusion happened to be against the petitioners who were found not entitled to the grant of temporary injunction prayed for. In result, the application was rejected by the order dated 22-6-1988.
3. An appeal there against filed by the applicant petitioners was also dismissed by the learned District Judge who after attending to the matter came to the view that in cases of extra supply of water for gardens and fish-farms, the other beneficiaries of the water supplied through that outlet are not entitled to be given any notice for hearing. He referred to Mirza Nazir Beg v. Ashiq Hussain and 5 others (1987 CLC 1117) and Ahmad Hussain and others v. Punjab Province and others (1987 SCMR 769) and upholding the order of the trial Court proceeded to dismiss the appeal by his judgment dated 23-11-1988. There against, the petitioners came up to this Court m this revision petition which was considered by my learned brother Muhammad Munir Khan, J, at the limine stage and admitted to regular hearing by the order dated 21-1-1989 on the submission that the question of grant of temporary injunction has not been considered by the Courts below in accordance with the guidelines given by the superior Courts.
4. Learned counsel appearing in support of this-revision petition has simply reiterated the contention which prevailed in the above-mentioned order of admission at the limine stage but I do not find it sustainable in the presence of the well-reasoned order recorded by the learned trial Judge, after considering all the aspects of the matter which has even been upheld by the learned District Judge upon the conclusion, as mentioned already, that the extra supply of water for a garden cannot be challenged on the assumption of diminution of supply of water to the existing beneficiaries or for non-service of notice to them. It clearly follows there from that he has concluded that the petitioners do not have any prima facie case which is the foremost requirement for grant of temporary injunctions and with the adverse conclusion reached thereabout, the other two factors did not remain in need of having to be specifically considered by the learned District Judge because the requirement of law is that all three conditions, p namely, existence of a prima facie case, irreparable loss and balance of convenience have to co-exist for justifying the issuance of a temporary injunction and in cases where even one of them is missing no temporary injunction can at all be capable of being granted. Whereas judgment in the precedent case of Mirza Nazir Beg (ibid) relied upon below was rendered by me and stands fortified by the above-mentioned Supreme Court case cited by the learned District Judge and his order is fully supported thereby, the case of Sub-Divisional Canal Officer etc. v. Fazal Ahmed etc. (1982 CLC 59) is also in point inasmu ch as a temporary injunction issued below at the instance of the existing beneficiaries of the outlet against the additional water-supply for a nursery of plants was recalled by the High Court in revision due to the absence of legal requirements for sustaining such an order of restraint. The contention thus fails for want of substance and is accordingly repelled.
5. The present is one of such several declaratory suits which are frequently filed by the existing beneficiaries of the water-supply of particular outlets of water under the wrong notions that they could have the right to control the flow of water through the concerned outlet for their advantage alone and they even apply for issuance of temporary injunctions for preventing implementation of orders relating to extra Waras for gardens and fish-farms; after the refusal whereof 'they even undertake the exercises of filing appeals and revisions under the same misgivings but the fact remains that the supply of water is a matter between the subject and the State and an existing beneficiary of an outlet can be interested only to the extent that the quantity of water sanctioned for him may not be reduced or that his right thereto may not be impaired and whether he happens to be placed upstream the flow or downstream it, he cannot have any conceivable interest in the remaining water flowing from that outlet. Hence, in cases where extra supply of water is contemplated to be given out of the reserve, there does not have to arise any occasion of the sanctioned supplies of others being affected thereby because a reserve to the extent of 10 per cent is retained at every outlet and, in such cases, contestants are under a heavy duty to set up some specific case of sufferance and to also clearly demonstrate as to how may it come about. 1n the present case no effort has been made in that direction and learned counsel has not been able to furnish any plausible answer as to how may the petitioners have either been entitled to be served with notice or even be granted a hearing before passing of the order impugned in the suit wherefore they can neither have a prima facie case to urge at the trial nor can they make out any appreciable case with regard to apprehension of sufferance of irreparable loss and the balance of convenience.
6. There is yet another aspect of the matter which does not deserve to be left unnoticed in the peculiar circumstances of such litigations frequently coming to the Courts. I am not unmindful of the effects to be produced, yet, I cannot help observing that the suits as these are really not maintainable in law because Section 42 of the Specific Relief Act which deals with the subject of declaratory suits is couched as under:- "42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, 'and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the. Plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
Since a sitting beneficiary of water-supply cannot have any conceivable right or interest in that particular water which is sanctioned for another person, may be for the irrigation of his garden or supply to his fish-farm, therefore, he will not be a person 'entitled' within the contemplation of the above definition and much less may therein be involved any concept of denial or interestedness in denying by any one of that right or title of a plaintiff to what actually can be his alone. Hence, there will be no liability of the new-comer to be sued. There really cannot be involved any clash of interests in the supply of water being made to the rivals by the canal authorities through one and the same outlet inasmuch as each of them is entitled to the particular quantity sanctioned for him and can have no concern with that which is sanctioned for the other. Whether an existing Wara- holder may happen to be situated upstream his adversary who .Is under contemplation of being given an extra supply of water or he may be located after him he cannot claim a right to the whole lot of water flowing through the outlet.
7. Now remains to be examined the legality and propriety of learned Civil Judge having requisitioned and perused the record of the Canal Department. In this context, there are two fundamental points to be remembered. First, that it is always for the claimant of a relief to make out appropriate case .For its grant and courts do not have to hunt out suitable material or evidence for him. Second, that Courts exercising jurisdiction under the Code of Civil Procedure, whether they are the Courts of first-tier or be they exercising appellate or revisional jurisdictions there under they are bound by the rules of procedure and have to confine themselves to the record prepared in accordance therewith. Anything not borne on such a record or not lawfully becoming a part of such record cannot be looked into by those Courts and even in exercise of appellate or revisional jurisdictions the Courts can go only by the records prepared below in accordance with the law and even if such Court happens to be a High Court, in exercise of those powers, the respective provisions of Order XLI and Section 115 of the C.P.C. Oblige it to act on the basis of records prepared below and not on the records of departmental authorities which can be summoned and perused in exercise of a Writ jurisdiction under the Constitution or the statutorily designated authorities having appellate or superintending powers in the heirarchy may send for such records to be dealt with under the law but ordinary Civil Courts are not vested with any power to call for those records to be perused merely for their satisfaction. This, of course, is open to the litigants to have them summoned to be proved in accordance with the law for being made the part of the records of those Courts by means of lawfully authenticated copies but the original records of departmental authorities do not become part of the records of the original Civil Court by the mere process of being summoned by them and albeit, the appellate and revisional Courts too cannot benefit therefrom. It has come to notice that trial Judges are frequently tempted to summon departmental files in such disputes and peruse them for dispelling of obscurities and doing justice between the contestants. Such considerations have even worked with the appellate and revisional Judges at times but all this is altogether wrong and, exceptions made in peculiar circumstances on the basis of clearly stated reasons apart, must be stopped.
Illegality committed by the trial Judge in summoning and perusing the departmental record in this case has not produced any adverse result because the position with or without such record has remained just the same and it has not been used to the advantage or prejudice of either of the parties and the situation has remained unaltered, as regards the result which would have been produced even in its absence.
8: In the above analysis of the case, there is not to be found a locus standi for the petitioners. To claim any prohibitory order against the respondent and much less may the refusal by the two Courts below to issue the desired temporary injunction be open to any valid exception. No case emerges at all for exercise of revisional jurisdiction. The revision petition is without force and the same is accordingly dismissed with costs.