GURCHARAN SINGH Vs. BALDEV SINGH

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 17.4.1998 passed by the Additional District Judge, Sirsa, restraining the defendants-respondents from implementing the orders dated 5.12.1995 and 6.1.1997 passed by defendants-respondents No. 3 and 4 respectively.

(2.) GURCHARAN Singh, petitioner, had filed a suit for declaration to the effect that the orders dated 5.12.1995 and 6.1.1997 for shifting the Naka from Rect. No. 289 Killa No. 6 to Rect. No. 290 Killa No. 9/2 x 13 from outlet 8620-Left Chormar minor of village Kalanwali, was null and void, void ab initio and non-existent in the eyes of law and do not affect the right of the plaintiff and are liable to be set aside. The defendant was a co-sharer in outlet No. 8620-Left Chormar minor for the last 15 years as his land was being irrigated from the Naka of Rect. No. 289 Killa No. 6. In the year 1987 plaintiff had applied for shifting to the Naka and the Deputy Collector came to the conclusion that the same could not be accepted as it will harm the interest of the family of the respondent. This decision which was given on 17.9.1987 was not challenged in appeal and became final between the parties. In the year 1995 Gurcharan Singh again applied for the change of the Naka and the same was decided in his favour and the change was allowed. The appeal filed by Baldev Singh was allowed by the X-en but in second appeal the Superintending Engineering had accepted the case of the petitioner for shifting the Naka through the impugned order dated 6.1.1997. This order was sought to be challenged in the suit on ground that it was not a speaking order and had been passed against the mandatory provisions of the Haryana Canal and Drainage Act, 1974 (for short Act). Alongwith the suit an application under Order 39 Rules 1 and 2 CPC was filed for grant of interim relief in the same terms during the pendency of the suit. This application was contested by the defendants. After hearing the counsel for the parties, the Additional Civil Judge (Sr. Division), Dabwali dismissed the application. In appeal, the Additional District Judge was of the view that the impugned order was not a speaking one, therefore, prima facie case has been made out for accepting the appeal and restraining the respondents from implementing the impugned order during the pendency of the suit. Gurcharan Singh has come up in revision.

(3.) IN defence of the order, it was submitted on behalf of the respondents that previous application for change of the Naka had been rejected. Therefore, it had attained finality qua the private parties in the litigation. It was also submitted that while there is no doubt that it might have been better if the impugned orders had been challenged in writ jurisdiction yet the same being without jurisdiction, Section 55(7) of the Act could operate as a bar. The appeal filed before the Superintending Engineer had been accepted without notice to the respondents.