PARMA NAND Vs. RAM KALA

JUDGEMENT

(1.) After hearing the learned counsel for the parties I am of the view that this revision deserves to succeed. The trial Court had recorded a finding on the basis of record before it that all the persons, who were impleaded before the Canal Authorities for restoration of the Khal, were served with notices but only two of them namely Dhandu and Jeewan appeared. Ramkala, Lakhmi and Raghbir did not appear. In the presence of the two persons, the matter was enquired into about the restoration of Khal and the same was restored in favour of Parmanand.

(2.) All the five persons, against whom order was passed by the Canal Authorities under the Haryana Canal and Drainage Act, 1974 (for short 'the Act'), filed a civil suit to restrain Parma Nand and his son Sat Parkash from digging any part of the plaintiffs' land to make a drain (Khal). In that suit the proceedings taken before the Canal Authorities were not mentioned and all these facts were kept back from the Court. The plaintiffs sought for temporary injunction to restrain Parma Nand and Sat Parkash from digging the Khal in which they were successful to start with. When defendants appeared and placed before the Court the order of the Canal Authorities, which was passed after the issue of notice to all the plaintiffs and in which two of them took part, the injunction order was vacated. On plaintiffs' appeal the lower appellate Court has granted an order for maintenance of status quo so that the water course is not dug up on the basis of the order of the Canal Authorities on the ground that there was another water course in existence and that no notice was served upon the plaintiffs. The lower appellate Court has not mentioned in the order as to how the order of the trial Court was incorrect when it stated that on all the five persons notices have been served by the Canal Authorities but only two put in appearance. The order of the Canal Authorities has been read in Court which shows that two of the plaintiffs were present when the impugned order was passed. The learned counsel for Parma Nand has argued that the notices were served on all the five persons. Once notices were served on all the five plaintiffs by the Canal Authorities, any order passed by them under the Act, could be assailed by filing appeal and revision as provided by the statute and Civil suit was not competent in view of section 25 of the Act. All the same, suit would have been competent if the proceedings were without notice to any of the plaintiffs. This was not the plaintiffs' case in the plaint because they kept the proceedings before the Canal Authorities secret from the Court. Once order cannot be challenged in the Civil Court, the question of balance of convenience, justice or equity would not arise and if Parma Nand and his son are entitled to two water courses, they will have to be provided with the both and one of them cannot be taken away except in due course of law.

(3.) The concealment of proceedings taken before the Canal Authorities from the Civil Court amounts to concealment of material facts and this aspect of the case has not been adverted to by the lower appellate Court. The suit could have been competent if the plaintiffs had pleaded that the proceedings taken before the Canal Authorities were without notice to them. Nevertheless, on account of suppression of material facts no interim relief could have been granted to the plaintiffs. It is a clear case in which the plaintiffs had tried to over-reach the Court for obtaining an interim order and the lower appellate Court lost sight of this important aspect.