' This revision petition is directed against concurrent orders of the learned two Courts granting an injunction to the plaintiff-respondent in a dispute regarding Warabandi and arises out of the following circumstances.
2. An application dated 30-4-1990 was moved before the Sub-Divisional Canal Officer by the petitioner praying for a separate Warabandi for the land on the basis of an apprehension of a dispute with the respondent.
3. After hearing all concerned, the Sub-Divisional Canal Officer vide his order dated 5-11-1990 directed that the Nikal (the water which empties in the last Nakka) will be used by the parties turn by turn.
4. In 1993, a number of applications were moved before the S.D.C.O. Including the one moved by one Mst. Afzal Khatoon for amendment of the Warabandi. These applications were disposed of vide order dated 21-9-1993 of the S.D.C.O. And the Warabandi was modified with the result that the Nikal was given to Mst. Afzal Khatoon.
5. The petitioner, as also the respondent felt aggrieved and filed separate appeals before the Divisional Canal Officer. Both the appeals were disposed of vide order dated 29-6-1995. Some modifications were made. The Nikal was, however, given to the petitioner.
6. On 18-1-1996, the respondent filed a suit seeking to enforce order dated 5-11-1990 of the S.D.C.O.
And on the basis thereof assailed the order dated 29-6-1995 passed by the D.C.O. Temporary injunction was also applied for in terms that it may be directed that the parties may use Nakal turn by turn and the petitioner be restrained from using whole of Nakal.
7. The injunction applied for was granted by the learned trial Court on 7-7-1996. The order dated 29-6-1995 of the D.C.O. Was suspended. The basis of this order was two-fold; ' Firstly, that the order dated 29-6-1995 had not been implemented and,Secondly, the parties have been using the Nakal in accordance with the order dated 5-11-1990.
8. A perusal of the order of the learned trial Court shows that the petitioner has also filed a suit seeking to restrain the respondent from causing interference in the order dated 29-6-1995. The suits filed by the parties have been consolidated and issues framed on 7-7-1996.
9. The petitioner appealed against the order dated 7-7-1996. His appeal was dismissed by the learned Additional District Judge, Khushab vide his order dated 19-11-1996.
10. The learned counsel for the petitioner has contended that the learned two Courts have clearly exceeded their jurisdiction by granting the injunction. His precise submission are:-
(a) That the order dated 29-6-1995 had already been implemented, and therefore, its suspension was wholly uncalled for.
(b) That the order dated 29-6-1995 fully operated unless it was finally set aside and, thus, section 68(4) operated as a bar to the grant of injunction.
(c) That in fact, by suspending the order dated 29-6-1995, the learned trial Court decided the whole suit, which could not be done.
' In support of his submissions, the learned counsel relied on Saifur Rehman through legal heirs v.
Rehmat Ali and 12 others (1994 CLC 313) and Mala v. Hashim and 2 others (1993 SCMR 1960).
11. On the other hand, the learned counsel for the respondent has vehemently contended that the order dated 5-11-1990 was a consent order according to which the parties were entitled to use Nakal equally. He also contended that the orders passed being discretionary could not be interfered with. He next contended that the order dated 5-11-1990 not having been assailed by any one had attained finality and could not be upset in any subsequent proceedings.
12. I have heard the learned counsel for the petitioner, and the learned counsel for respondent No, 1.
Respondents Nos.2 to 4 are pro forma respondents. None was present on their behalf. Although the case was still at motion stage yet given the contesting parties have been heard at length, I propose to dispose of the main case.
13. The learned counsel has invited my attention to the amended "Parat Warabandi", the notice dated 9-9-1995, regarding implementation of amended Warabandi on 11-9-1995 and the statements of the shareholders of Moga No,5542 of T.L. Recorded on 11-9-1995 showing that the amended Warabandi had been implemented. On the basis of these facts he maintains that the order dated 29-6-1995 had been implemented which could not be suspended. The contention has merit. A perusal of the application for temporary injunction shows, that it was not even averred that the order dated 29-6-1995 had not been implemented. Rather, the prayer in the application was that petitioner-defendant be restrained from using the whole Nakal.
14. The object of injunctive relief is to preserve the situation as obtaining on the date of suit, so as to prevent an injury to the plaintiff and not to create a new situation. I may refer to Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 in support of the above proposition. In the case in hand the suit was filed on 18-7-1996, and then two months after implementation of the order issued 29-6-1996).
In fact, the impugned orders are based on a mistaken assumption as to a material fact i.e, that order dated 29-6-1995 had not been implemented. This amounts to an error of jurisdiction rather than an error in the exercise of jurisdiction.
15. The question of grant of temporary injunction in a dispute relating to Warabandi was considered in Muhammad Ishaq v. Muhammad and 28 others (PLD 1958 Lahore 717) and the view taken was that a temporary injunction could be granted. The case of Muhammad Ishaq (supra) was overruled in Muhammad Saeed and others v. Fateh Muhammad and others (PLD 1962 Lahore 316) and it was held that no temporary injunction could be granted against an order passed under section 68 of the Canal and Drainage Act.
16. However in Muhammad Nazeer and 3 others v. Divisional Canal Officer (1988 MLD 3049), the view taken was that a temporary injunction could be issued in appropriate case. Therefore, the contention of the learned counsel that no injunction at all could be granted has no force.
17. His next contention that by suspending the order dated 29-6-1995 of the D.C.O., the learned trial Court granted the relief claimed in the suit has merit. The respondent was allowed the relief he had claimed in the suit which could only be done after the trial of the suit. Again, it is an error of jurisdiction.
18. I have noticed that in fact not only the order dated 29-6-1995 was suspended by the learned trial Court but also that if directed implementation of the order dated 5-11-1990. Thus, in fact, a temporary injunction was issued in mandatory form, although not altogether prohibited, yet in the circumstances of the case it was not called for.
19. I have considered the contention of the learned counsel that the order dated 5-11-1990 of the S.D.C.O. Was a consent order had attained finality, and thus, could not be disturbed suffice is to say that it is the basis of the suit. According to the rule laid down in Saif-ur-Rehman v. Rehmat Ali and 28 others, Nikal cannot be claimed as a right and it is the entitlement of the tailender. The question whether the order dated 15-11-1990 was correctly modified will have to be gone into at the time of trial.
20. The claim of the learned counsel for the respondent to immunity from scrutiny by this Court, the orders impugned in this petition, on the ground that these were discretionary orders, has no force in view of my observations is paras. 14 and 17 (supra).
21. In view of the above, this petition is allowed, the impugned orders are set aside and the injunction granted is recalled. The dispute relates to us of irrigation water. Issues were framed on 7- 7-1976 and by now there must have been substantial progress in the suit, it is directed that the suit will be finally disposed of by 31-12-1998. Parties are left to bear their own costs.