1. Plaintiffs Malik Gul Hassan and two others have filed this revision petition under section 115 of the Civil Procedure Code before this Court. They have assailed the order dated 12th April 1978 passed by the District Judge, Quetta ; whereby he had vacated the order of the Senior Civil Judge, Quetta and dismissed their application made under Order XXXIX, rules 1 and 2 of the Civil Procedure Code.
2. Besides they have prayed for maintaining the order of the trial Court.
3. The facts leading to this revision petition as stated in the plaint are as follows;----- "(1) That the plaintiffs and other inhabitants of Killi Hassanzai, Takki and Mandezai of Tehsil Fortsandeman, District Zhob have some interest for the limited use and utilization of water of Saliza channel for cultivation of agricultural land and having the same interest in the suit are suing in representative capacity with permission of Court for which separate application is made for grant of sanction subject to public advertisement of the institution of the suit under Order I, rule 8, Civil Procedure Code.
(2) That the defendants and other inhabitants of Killi Appozai, Tehsil Fortsandeman, District Zhob have some interest for the limited use and utilization of water of Saliza water channel for cultivation of agricultural land and having same interest in the suit are being sued in representative capacity with the permission of Court for which separate application is made for grant of sanction subject to public adver--tisement of the institution of the suit under Order 1, rule 8, Civil Procedure Code.
(3) That in accordance with decision dated 17-5-1897 Captain Archer, the then Political Agent, Zhob in File No. 40-Z Miscellaneous Revenue decided on 9-6-1903 and approved by the then A. G. G. In Baluchistan (duly accepted by the predecessor-in-interest of both the parties and Government) lays down the rules of water distribution as under; Rabi Season.---The whole channel was distributed in 13 Shabana Rooz (day and night) and out of this the residents of Upper villages Takki Mandozai and Hassanzai (plaintiffs and their predecessors-in-interest) were allowed 2 Shabana Rooz and remaining Shabana Rooz were allowed jointly to the residents of Killi Appozai (defendants and their predecessors-in-interest) and Government.
4. Kharif Season.---The whole channel was distributed in 9 Shabana Rooz out of which the residents of Upper village Takki, Mandezai and Hassanzai (plaintiffs and their predecessors-in-interest) were allowed 3 Shabana Rooz and remaining 6 Shabana Rooz were equally divided between Government and residents of Killi Appozai (defendants and their predecessors-in-interest).
(4) That in 1963 the defendants 1 to 5 and their precedessors-in-interest tried to disturb the (distribution of) water as was continuously distributed in accordance with the ratio prescribed in the decision dated 17-5-1897 of Captain Archer, the then Political Agent in Zhob and approved by H.
5. A. G. G. In Baluchistan as elaborately stated in para. 3 supra ; but this effort of the residents of Killi Appozai (defendants) was set at naught at the instance of plaintiffs and their predecessors-in--- interest by Political Agent, Zhob in File No. 25-A Revenue on 29-11-63 and ordered that old decision of File No. 40-Z of 1903 to be followed and was strictly enforced.
(5) That the ratio of distribution of water is incorporated in File No. 40-Z Miscellaneous Revenue decided on 9-6-1903, i.e. Rabi Season 2 : 11 Shabana Rooz, Kharif Season 3 : 6 Shabana Rooz has been rigidly followed by the plaintiffs, the defendants and the Government. The Settlement record of 1968 also shows the distri--bution of water on the basis of decision of File No. 40-Z of 1903 as 3 : 6 and 2 : 11 for Kharif and Rabi consecutively. This distribution of water has been signed by Malik Asmatullah Khan (defendant No. 1) of Appozai Revenue Registers of Wajibul Arz and Fard Taqseem AB in lieu of its correctness.
(6) That the decision of 1903 vide File No. 40-Z is silent about the timings of Rabi and Kharif Seasons. It was thus subject to the Government prescription of periods for Kharif and Rabi from time to time. The time prescribed by the Agricultural Department of the defendant (Province of Baluchistan) are incorporated in Letter No. 1107 on 11-8-1975.
6. Rabi Season : 1st October to 31st March Ratio 2 : 11.
7. Kharif Season : 1st April to 30th September Ratio 3 : 6.
(7) That in June 1975 the defendants Nos. 1 to 5 insisted illegally that they are entitled to water in the ratio of 4 : 8 Shabana Rooz for Kharif Season instead of ratio 3 :
6. They further insisted that the Kharif Season starts from 1st August and ends on 1st November instead of the correct and factual period, i.e. From 1st April to 30th September. As regards Rabi Season the defendants instead that it starts from 1st November and ends on 31st July instead of from 1st October to 31st March. The defendants in the said dispute created Law and order situation. The District Magistrate, Zhob passed his orders dated 12-9-75 referred to series of decisions and revenue public record supported the existing position of distribution of water which is during Kharif 3 : 6 Shabana Rooz and during Rabi 2 : 11 Sbabana Rooz.
(8) That the defendants Nos. 1 to 5 put a revision petition under section 49, F. C. R. In the Court of Commissioner; F. C. R., Quetta who through his revisional order dated 29-10-1975 in Case No. R. C.
8. 367--Jirga/1975 holding that the order of Deputy Commissioner/Political Agent in Zhob dated 12-9- 1975 was ultra vires and not an order under Frontier Crimes Regulation and of no legal effect to determine the rights of contesting parties. Only a decree under section 8, F. C. R. On reference and based on award of Jirga could decide the respective rights of parties. Para. 6 of the order dated 29-10-75 of Commissioner, F. C. R. Is reproduced below :---- "The only objection of the counsel for the respondent was as to the jurisdiction of this Court. He has nothing to oppose the arguments of the learned counsel for the petitioners regarding the illegality of the order in so far as the Deputy Commissioner has disposed of the question relating to the shares of various parties in Saliaza water channel and the fixation of the duration of various crops season. The contention of the learned counsel for the petitioners that these were essentially disputes of Civil nature and could not be disposed of without reference to Council-of-Elders, under section 8, F. C. R., is correct. Accordingly the order of the Deputy Commissioner (F. C. R.) Political Agent in Zhob dated 12-9-75 in so far as the above two ques--tions that is the determination of shares of water amongst various parties and the duration of crops seasons are concerned is hereby set aside. However, if any party has any civil right it is at liberty to seek remedy according to law."
(9) That the defendants 1 to 5 (who were aggrieved by against the existing entries in record-of- rights regarding distribution of water and against existing entries in Wajibul Arz of 1963) did not choose to institute a suit for declaration of their rights for reference to Jirga.
9. The defendant Deputy Commissioner/Political Agent through his order dated 5-11-75 correctly appreciated the significance and meaning of the order of Commissioner, F. C. R. That aggrieved party against entries of revenue record to go to a forum of Civil nature for adjudication but the defendants 1 to 5 made a misleading application dated 3-11-75 in which they stated that they had been receiving 4 : 8 water for Kharif crop which they are entitled after the order dated 29-10-75 or Commissioner, F. C. R. And the defendant No. 7 once committed the same illegality of passing an order on 8-11-75 stating;
(a) That defendants are entitled to receive water in ratio of 4 : 8 for Kharif which means that plaintiffs are entitled to 4 Shabana Rooz in Kharif while defendants 1 to 5 and Government are entitled to receive 8 Shabana Rooz water.
(b) That the period of Kharif stretches for period 1st August to 1st November and period of Rabi stretches for period 1st November to 31st July.
(10) That the order dated 8-11-1975 of defendant No. 7 affects adversely the rights of distribution of water of plaintiffs (of water of Saliaza water channel) and also illegally prescribes the period of Kharif and Rabi Seasons as stated in para. 9 (b) supra to the prejudice of the Civil rights of the plaintiffs.
(11) That against the order of defendant No. 7 dated 8-11-75 plaintiffs/ petitioners filed a revision petition before the Commissioner, Quetta Division which was registered as Case No. RC-274- Jirga/1975. The parties were heard by the Commissioner on 3-2-76, and by virtue of his order dated 3-2-1976 the Commissioner, Quetta Division set aside the order declaring it as illegal and without jurisdiction.
(12) -----------------------------------------------
(13) The plaintiffs claim a decree against defendants;
(a) For declaration that plaintiffs are entitled to 3 Shabana Rooz water and defendants 1 to 7 are entitled to 6 Shabana Rooz water for Kharif Season and that plaintiffs are entitled to 2 Shabana Rooz while defendants 1 to 7 are entitled to 11 Shabana Rooz water for Rabi Season in Saliaza water channel in Tehsil Fortsandeman, District Zhob and for declaration that Rabi season stretches over period 1st October to 31st March and Kharif season stretches over period beginning 1st April to 30th September.
(b) That defendants 1 to 7 be permanently restrained not to interfere in the ratio of distribution of water of Saliaza water channel of Tehsil Fortsandemdn as 3 : 6 for Kharif Season (Shabana Rooz) 2 : 11 for Rabi Season (Shabana Rooz).
(c) Any other relief which plaintiffs be found eligible under the circum--stances of the case.
(d) Cost of the suit."
10. The defendants have resisted the suit and filed their written statement as under;--- "(1) That the contents of paras. 1 and 2 are disputed to be correct. All the plaintiffs, the defendants and the other Pattidars are possessed of separate shares, and may, thus have a separate cause of action and consequently a separate defence to make.
(2) That in reply to the contents of para. 3, it is to submit that the .Correct position is that it was after the arrival of the British in the area that for the first time, for the purpose of availing water supply to Fortsandeman Town, that a three-inch pipeline was drawn from the source of water to Fortsandeman Town, whereafter when it was felt that more water is needed, the Government again purchased four inch diameter pipeline supply from the Pattidars, at which time right to share water between Takai, Mandeyzai, Hassanzais (the plaintiffs, also known as Balaie) the defendants and other Pattidars (Appozais, also known as Zereen) and Government came for consideration and in that behalf the then Political Agent after making an order on 17-5-1897 submitted the same to the Agent to the Governor-General for his approval which was accorded on 9-6-1903.
11. There is no dispute between the parties in respect of the right to share water for Rabi crop but is in respect of Kharif crop that a dispute is presently subsisting between the parties, though the answering defendants, i.e. The residents of village Apozai and the Government have always been receiving the supply of water for Kharif crop in the ratio of 4 :
8. It was for the first time in June 1975 that the Tehsildar, Fortsandeman submitted a report to the Deputy Commissioner, Zhob about a meeting of the plaintiffs and the other Pattidars of the Balayee villages and apprehending breach of peace, the Deputy Commissioner, directed that the residents of the respective villages, i.e. The plaintiffs and the defendants (Balayee and Zereen) may appear before him and submit their respective claims regarding sharing of water.
(3) That the contents of para. 4 as stated are denied to be correct. The defendants have always been receiving the share in the water for Rabi crop in the proportion of 2 : 11 and for Kharif in proportion of 4 : 8.
12. The other averments are disputed to be correct. There are many other orders/reports of years 1928, 1936, 1962 in addition to the award of Jirga of 1948 and the record of measurement of water maintained by the department in the official course of business which disprove the claim of the plaintiffs.
(4) That the contents of para. 5 are incorrectly stated, so are denied. The plaintiffs be put to strict proof. The water has always been shared in the share of 4 : 8 for Kharif and 2 : 11 for Rabi. It is not disputed, as learnt later that some entry in the settlement record was effected, which was applied against and has been corrected. The defendant No. 1 did not sign the Wajibul Arz and Fard Taqseem-e-Aaab in token of its correctness, as alleged. Actually he being illiterate did not even know what document was he signing. He had no authority on behalf of other Pattidars.
(5) That the contents of para. 6 are disputed to be correct. For eight months, the period of Rabi has always been from 1st of November to 31st of July and while for Kharif for 3 months, it-has been from 1st of August to 31st of October and this arrangement has always been followed.
(6) That the contents of para. 7 as alleged are incorrect, so are denied. The plaintiffs for the first time in June 1975 represented that they were not agreeable to the subsisting arrangement both in respect of ratio of share in the water and the period of the crops, in spite that the same has been followed between them for numerous years without any break. This is not denied that order dated 12th September 1975, was made by the District Magistrate, which was set aside.
(7) That in respect of contents of para. 8, it is not to deny that the revision petition was filed by all the Pattidars of village Appozai and order was made by the Commissioner on 29-10-75, which is relevant as a whole.
(8) That in respect of averments made in para. 9 it is to submit that when the Pattidars of village Appozai came to know of the entries in Wajibul-arz of 1968, they filed an appeal in respect of the same before the Collector Zhob, which has since been accepted and the plaintiffs have filed an appeal against the same, which is pending.
(9) That it is not denied that another order was passed on 8-11-75. This order was also applied against by the plaintiffs and has been set aside, as so stated by the plaintiffs in para. 11 of the petition.
(10) That in reply to the contents of para. 12 it is to submit that no cause of action has accrued to the plaintiffs or the Pattidars of Balayee villages. The water has always been shared between the parties, as also, the period has always been followed in respect of the crops as above stated. The plaintiffs have filed this suit on incorrect allegations."
13. With the plaint, the plaintiffs too filed an application under Order XXXIX, rules 1 and 2 of the Civil Procedure Code. The application reads as under :--- "That in accordance to decision dated 17-5-1897 of Captain Archer, the then Political Agent, Zhob in File No. 40-Z Miscellaneous Revenue decided on 9-6-1903 and approved by H. A. G. G. In Baluchistan duly accepted by the predecessors-in-interest of both the parties and the Government laid down the following ratio of water distribution in Saliza channel. Tehsil Fortsandeman.
(a) Rabi Season.---The whole channel was distributed in 13 Shabana Rooz, i.e. Day and night and out of this the residents of Upper villages Takki Mandozai and Hassanzai (plaintiffs/applicants) and their predecessors-in-interest, were allowed 2 Shabana Rooz and remaining 11 Shabani Rooz were allowed jointly to the residents of Killi Appozai defendants/respondents and their predecessors-in interest and Government.
(6) Kharif Season.---The whole channel was distributed in 9 Shabana Rooz out of which the residents of Upper villages Takki, Mandozai and Hassanzai (plaintiffs/applicants and their predecessors-in-interest) were allowed 3 Shabana Rooz and remaining 6 Shabana Rooz were equally divided between Government and residents of Killi Appozai defendants/respondents and their predecessors-in-interest."
14. That in 1963 the defendants I to 5 and their predecessors-in-interest tried to disturb the distribution as was continuously distributed in accordance with the ratio prescribed in decision cited above.
15. The Political Agent, Zhob in File No. 25-A, Revenue ordered that the old decision of File No. 40-Z of 1903 to be followed and was strictly enforced.
16. That the distribution of water between the plaintiffs/applicants and defendants/respondents is adequately described in the Revenue Record for Taqseem-e-Aab. The plaintiffs/applicants case is based on judgments, decisions, orders and Revenue Record and the order of the Political Agent, Zhob/Deputy Commissioner dated 8-11-1975 disturbed the vested rights of the plaintiffs/applicants and is an order passed without lawful authority being ultra vires and of no legal effect.
17. That the order of the Deputy Commissioner/Political Agent, Zhob dated 8-I1-1975 is causing irreparable loss to the plaintiffs/applicants and has disturbed the vested rights of the plaintiffs/petitioners continuously adhered to by the parties to this application since 1903.
18. That previously the Deputy Commissioner passed order dated 12-9-1975 which was set aside by the Commissioner, F. C. R. As being without lawful authority on the ground that such an order tantamount to decide civil dispute between the parties without reference to the Council-of--- Elders under section 8 of the F. C. R.
19. That despite the prohibition of the Commissioner, F. C. R. The Political Agent/Deputy Commissioner, Zhob has once again committed the same error in passing the impugned order dated 8-11-1975. An affidavit is being sworn which is being appended with this petition.
20. It is therefore prayed that pending decision of the suit operation of the order of Deputy Commissioner/Political Agent, Zhob dated 8-11-1975 be suspended."
21. The learned Senior Civil Judge after hearing the counsel on 12th November 1977 allowed the application in the following words :------ "In the instant application, the plaintiffs have prayed that the operation of the order dated 8-11-1975 issued by the D. C./P. A., Zhob be suspended, from the pleadings of the parties it is established that the said order has been set aside by the Commissioner, Quetta Division and I have gone through these orders, the order dated 8-11-1975 gives no reasons except that as his previous decision dated 12-9-1975 has been set aside by the Commissioner, Quetta, so on the application of the respondents, he has passed the subsequent order, it is not based on sound reasoning and the pleadings of the parties transpire that, there is a prima facie case in favour of the plaintiffs, the order dated 8-11-1975 has already been set aside, and it is not in operation, as such the plaintiff's application stands disposed of, that is the order dated 8-11-1975 of the D. C./P. A., Zhob shall not be acted upon and the converse position that is water ratio 3 : 6 in Kharif in Sally channel shall prevail till the disposal of this suit and also the timing of crops, i.e. Rabi shall start from 1st week of October to the end of March and Kharif crop shall start from 1st week of April to the end of September."
22. This order was challenged in an appeal before the Court of District. Quetta, who by his order dated 12th April 1978 set aside the order. Hence this petition.
23. Mr. I. H. B. Hanafi, appeared on behalf of the petitioners, whereas Mr. Basharatullah appeared for the respondents Nos. I to 5 and Mr. Muhammad Yousuf Ch., A. A.-G. Represented the respondents Nos.
24. 6 and 7.
25. At the outset, Mr. Hanafi tenuously urged that the trial Court in fact had made the order under section 151 of the Civil Procedure Code, but not under Order XXXIX, rules 1 and 2 of the Civil Procedure Code. The order being passed under section 151 of the Civil Procedure Code was not appealable under Order XLIII, rule l of the Code. On this account, theof the Appellate Court per se was erroneous and liable to be set aside-- decision The learned counsel maintained that a remedy under provisions section 115 of the Code was only available to the defendants but not by Way of appeal as was done by the defendants. Mr. Basharatullah vehemently repudiated this contention of Mr. Hanafi and submitted that nowhere m the application, the plaintiffs had sought for such relief under the provisions of section 151 of the Civil Procedure Code. Besides he submitted that the order of the learned Judge clearly indicates that he had passed the order under Order XXXIX, rules 1 to 2 of the Code. There is substance in his arguments and I therefore agree with contention of Mr. Basharatultah Mr. Hanafi explained that the word disposed of used in the order of the trial Judge means that the application under Order XXXIX, rules 1 and 2 stood disposed of because the impugned order of 8th November 1975 was set aside by Commissioner on an appeal.
26. According to Mr. Hanafi, the last portion of the order certainly has been made by the learned Judge under the provisions of section 151 of the Civil Procedure Code. By this order, the Court has maintained that water ratio in Kharif to be 3 :
6. Rabi crop to start from first week of October to the end of March and Kharif crop to start from first week of April to the end of September. According to Mr. Hanafi a Court has a jurisdiction to give relief even beyond a prayer drew my attention to section 94 wherein sub-clause (e), it is shown that a Court may make such order as may appear to it to b; just and convenient. After keeping in view the provisions of sections 94 and 151, the trial court had passed the order. These arguments certainly did not impress me --Indeed, the application made under Order XXXIX, rules I and 2 does not show that the plaintiffs had even asked for such mandatory injunction. In prayer clause the plaintiffs have requested for suspension of the order dated 12th April 1978. The first order clearly shows that the learned true Judge had not only decreed the suit of the plaintiffs but even disposed of the execution application and ordered its compliance, much before passing of the decree. Such order could be compared with an example in a money suit where a man sues another man for recovery of money in a Court. The Court before passing the final decree, orders the defendant to pay the money to the plaintiff. Such order amounts to a final decision of the suit. In view of the circumstances discussed above, the authorities relied upon by the learned counsel, Mohiuddin Molla v. The Province of East Pakistan and 2 others (PLD 1962 SC 119), Muhammad v. Atta Muhammad etc. (PLD 1975 Lah. 406) and WAPDA through Chairman, WAPDA, Lahore and another v. Muhammad Yaqoob (PLD 1973 Note 12 at p. 20), however did not support contentions of Mr. Hanafi. If contentions of Mr. Hanafi were accepted to be correct, it would really amount to yoking cart before the horse. Besides, both the learned counsel in support of their contentions have placed reliance on documents already produced by them. The plaintiffs have relied upon documents men--tioned in the plaint. Whereas the defendants referred to the documents relied upon in their written statement. Indeed, I would refrain from commenting on the value of the documents relied upon by the both learned counsel. I fear such comments would prejudice case of either party before the trial Court. I had cautioned the learned counsel the effect of the evaluation of the docu--ments at this stage. I told them that the evaluation of the documents of both the parties would mean to adjudication of the rights of the parties in the revision petition. Such adjudication would really mean to a summary disposal of the dispute in the revision petition So much so in an inter--locutory order. I am conscious of the fact that dealing with an inter---application, certain documents are to be referred for purpose of satisfaction as to whether a prima facie case, is made out or not ; or in whose favour balance of convenience lies or who will suffer irreparable injury. The above three factors could be considered only by looking into the documents produced by the parties. As Mr. Hanafi has candidly stressed before me that the order was made under section 151 but not made under Order XXXIX, rules 1 and 2 of the Civil Procedure Code. Under such circumstances, I would really refrain from appraising the documents relied upon by the parties. On the face of it appears that the learned Senior Civil Judge has seriously erred in issuing the mandatory injunction in favour of the plaintiffs. The learned trial Judge should not have allowed the relief beyond the prayer made by the plaintiffs particularly under the present circumstances of the suit. Object of an interlocutory order is to maintain status quo of the subject-matter till disposal of the suit. The proposition is fortified by case Muhammad 1dris v. The Collector of Customs, Karachi and another (PLD 1971 Kar. 736), wherein it is held that such order is always made rarely and only to restore status quo but not to create a new irretrievable condition.
27. This authority is based on case Nandan Pictures Ltd, v. Art Pictures Ltd. And others (A I RS 1956 Cal.
28. 428 ), where it was held; "Injunctions are a form of equitable relief and they have to be adjusted in aid of equity and justice to the facts of each particular case.------------------------------------------------- It would appear that if a madatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state when existed at the date when the suit was instituted. The one case in which a mandatory injunction is issued on an interlocutory application is where, with notice of the insti-- tution of the plaintiffs suit and the prayer made in it for an injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claimed his relief. An injunction issued in such a case to order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit bad arisen. When such is found to be the position, the Court grants a mandatory injunction even on an interlocutory application, directing the defendant to undo what he has done with notice of the plaintiff's suit and the claim therein and thereby compels him to restore the position which existed at the date of the suit.
29. The order was not made on the basis of anything done by the appellants since the institution of the suit and with notice of the plaintiff's claim and, therefore, the basis on which ad interim injunctions of a mandatory character are generally granted under the approved practice was lacking."
30. Besides, I have minutely perused the terse order of the learned District Judge. The order is elaborately well discussed. Indeed the learned District Judge, Quetta had rightly reversed the order of the Senior Civil Judge. The impugned order does not suffer from any illegality or irregularity. The order, therefore must stand.
31. For the reasons discussed above, the petition is dismissed with costs.
32. This judgment constitutes the reasoning of my short order dated 10th June 1978.