Zile Singh vs Gopi Rain

G.C. Garg, J.

This revision petition is directed against the order of status quo passed on an application under Order 39 Rules I and 2 of the Code of Civil Procedure.

Gopi Ram filed a suit for permanent injunction that he was the owner in possession of the suit land on account of an oral partition between him and his brother Mange Ram. The defendants set No. 1 had no right to dig a watercourse in the suit land. It was thus prayed that they be restrained from diging the watercourse as it would cause irreparable loss to him.

Defendants set No. 1 denied the allegation of oral partition as also of possession of the plaintiff over the suit land. The digging of the watercourse forcibly from the suit land was denied. It was pleaded that the watercourse had been sanctioned by the Divisional Canal Officer on 14.2.1987. Appeals filed by the cosharer of the plaintiff were dismissed by the Superintending Canal Officer, Kaithal and the Chief Canal Officer. Mange Ram cosharer of the plaintiff then filed C.W.P. No. 13694 of 1989. By an interim order dated 12.12.1989 passed in the writ petition, defendants set No. 1 were permitted to continue getting water from the water channel E.F. and if it had been demolished, it would be restored. The watercourse was being dug as per decision of the Canal Authorities and the order of the High CourtApplication filed by the plaintiff under Order 39 Rule 1 and 2 C.P.C. alongwith the suit was disposed of by ordering that status quo be maintained till the decision of the suit. The order was maintained in appeal.

I have heard learned counsel for the parties. The revision petition deserves to succeed. The order of status quo was granted in favour of the plaintiff by the Courts below by pointing out defects in the publication of Scheme framed under the Haryana Canal and Drainage Act, 1974 and the lack of personal service on the plaintiff. The objection regarding bar of jurisdiction of the Civil Court was rejected by observing that procedure prescribed under the Act had not been followed.

For the grant of interim relief in a suit the well established principles to be kept in view by the Court are that the plaintiff must show a prima facie case in his favour, as also the balance of convenience and the refusal to grant the injunction would cause him irreparable loss. In my view the plaintiff has failed to show a prima facie case.

The present suit at the instance of Gopi Rain is a clear abuse of the process of law. Mange Ram and Gopi Ram are cosharers in the land in dispute and even the Courts below have accepted them as such in the following words :

"Thus legally his status as cosharer continued and the same is also reflected in the jamabandi. Thus according to the revenue record both Gopi Ram plaintiff and Mange Ram defendant were owners of the Khasra numbers from where the Khal has been sanctioned."

The Scheme had been published under rule 7 of the Rules framed under the Haryana Canal and Drainage Act, 1974, hereinafter called the Act. Assuming that only Mange Ram and his son appeared before the Divisional Canal Officer, the order passed by the Canal Authorities would be binding on Gopi Ram as well being a cosharer. The interest of Gopi Ram was identical and joint with Mange Ram, his brother and a cosharer in the land. The order passed by the Divisional Canal Officer was challenged in appeal by Mange Ram and his son before the Superintending Canal Officer and then before the Chief Canal Officer. Even a writ petition was filed in this Court and is still pending. The present suit was filed by Copi Ram after the stay of the operation of the order passed by the Divisional Canal Officer had been declined in the writ petition filed by Mange Ram. This aspect of the matter was completely ignored by the Courts below which his resulted in material irregularity and illegality.

On an application made by the petitioners a Scheme was framed and published. At least one of the cosharers appeared and contested the proceedings for the sanction of watercourse. In my view while publishing a Scheme under the Act it is not necessary to first implead all the cosharers and then serve them individually. No such procedure has been prescribed under the Act for impleading cosharers, who were likely to be affected. A cosharer represents the body of co sharers. Hearing given to one of the cosharers will amount to a hearing to all the body of cosharers in the absence of a fraud or collusion or conflict of interest. In the present case, it has been found and could not be disputed that Mange Ram is the brother of Gopi Ram plaintiff and is a co sharer in the land. No partition was proved. If Gopi Ram was in possession of the property and he was the only person affected by the order passed by the Divisional Canal Officer, Mange Ram would not have preferred appeals before the Superintending Canal Officer and the Chief Canal Officer and then filed a writ petition in this Court. This shows that Mange Ram was equally affected by the order passed by the Divisional Canal Officer providing the Khal E.F. through their land. There is a complete identity of interest and in such circumstances one cosharer represents the other and in my view will bind him as well in view of the principle of effective representation by a co sharer where the interests are common and identical with others. In the absence of this principle the order passed by an authority would be rendered ineffective being beyond the Act and will be subject to scrutiny at the instance of each cosharer where a cosharer was either not impleaded or was not served or served in a manner not permitted by law. This aspect of the matter has been completely ignored by the two Courts below and thus acted with material irregularity and illegality and it vitiates the order. The conclusion of the Courts below that the plaintiff had not been served or that the procedure as contemplated by the Haryana Canal and Drainage Act, 1974 was not followed pales into insignificance. All these matters are the subject matter of the writ petition pending in this Court and the proceedings against the order of the Divisional Canal Officer are being vigorously pursued by Mange Ram and his son who are cosharers with Gopi Ram. The Courts below have not appreciated the facts of this case in their true perspective. Once it was found that Mange Ram had been duly served and he was a cosharer it could not be said that Gopi Ram had a prima facie case on the ground that personal service was not effected on him or there was some violation of any other provision of the Act.

If Mange Ram a cosharer, had not pursued the matter or had also not been served or no proceedings by way of appeal or writ petition, had been taken by him, the situation might have been different but once Mange Rain is vigorously pursuing the remedies against the order of Divisional Canal Officer providing the Khal E.F., it cannot be said that a suit by a cosharer was prima facie competent. As already noticed, the suit was filed by Gopi Ram after the stay had been declined by the High Court and it was ordered that the petitioners shall continue getting irrigation for their fields from the channel EF and in case a part of it was demolished, the same would be restored. It is at this stage that Gopi Ram filed the suit. This shows that the suit is malafide and abuse of process of law. In this situation it cannot be said that the plaintiff will suffer irreparable loss in case the injunction was not granted. In fact it is the order of the High Court which is being implemented and the Khal is being restored. The case of the plaintiff is only that defendants were trying to interfere in his possession except in due course of law, which as already noticed above, is not true. The defendants are taking steps to restore the Khal in view of the order of the High Court.

The order if allowed to stand will occasion a failure of justice and palpable wrong to the petitioners. The Courts below, in my view, have acted in the exercise of their jurisdiction illegally and with material irregularity in ordering the maintenance of status quo.

For the reasons recorded above, this revision petition is allowed. The order passed by the Courts below is set aside and the application under Order 39 Rules 1 and 2 C.P.C. is dismissed with costs which are assessed at Rs. 500/.

However, anything said in this order be not taken as an expression of opinion on the merits of the suit.