RSA No. 4110 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4110 of 2008 Date of Decision: 16.3.2009 Daya Nand Goel ..Appellant Vs. State of Haryana & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.S.N.Gaur, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 17.9.2008 passed by the learned lower appellate court dismissing the suit filed by the plaintiff/appellant for declaration with consequential relief of permanent injunction. The plaintiff invoked the jurisdiction of civil court to challenge the order dated 17.7.2001 and order dated 16.10.2001 passed by the authorities under the Canal and Drainage Act imposing a penalty of RSA No. 4110 of 2008 2 Rs.43,000/- for misusing the canal water. The plaintiff further sought a decree for mandatory injunction of refund of penalty amount paid in pursuance to the order impugned. Learned trial court was pleased to decree the suit by holding that the order of penalty having been passed in violation of principles of natural justice could not be sustained. The basis for coming to this conclusion was that the respondent/defendant No.3 failed to prove that before imposing the penalty any notice was issued to the appellant/plaintiff. Learned trial court was pleased to hold that the civil court has the jurisdiction to entertain and try the suit. However, findings recorded by the learned trial court have been reversed by the learned lower appellate court by holding as under:- “ In so far as the issue No.3 is concerned, the plaintiff had the efficacious remedy to challenge the order of the Divisional Canal Officer before the Superintending Canal Officer. It is observed by the Apex court in Munshi Ram & Others Vs. Municipal Committee, Chhaharata AIR 1979 Supreme court 1250 that where special remedy is provided, general remedy of a suit is barred. The learned trial Judge has referred to 'State of Haryana Vs. Makhan Singh' 2002 (3) Latest Judicial reports 317 and 'Dhruv Green Fields Ltd. Vs. Hakam Singh & Others, 2002 (3) Civil Court Cases 470 and has observed that since the impugned order passed by the Divisional Canal Officer is void, the civil court shall have the jurisdiction to RSA No. 4110 of 2008 3 entertain and try the matter.” Learned lower appellate court, thus, reversed the findings of the learned trial court in coming to the conclusion that the jurisdiction of the civil court was not barred by relying on the law laid own by Hon'ble Supreme Court in the case of Munshi Ram & Others Vs. Municipal Committee, Chhaharata AIR 1979 Supreme court 1250. Learned counsel for the appellant does not dispute the findings of the learned lower appellate court in coming to the conclusion that the jurisdiction of the civil court was barred. The contention of the learned counsel for the appellant, however, is that though the appellant has statutory remedy of appeal but the same would be barred by limitation as the appellant had been prosecuting bona fide before the civil court. In the facts and circumstances of the case, learned counsel for the appellant prays that the plaintiff/appellant may be permitted to withdraw the suit with liberty to file the statutory appeal. Keeping in view the fact that the learned trial court held the order to be void being in violation of principle of natural justice it would be in the interest of justice if the appellant/plaintiff is permitted to withdraw his suit itself and be permitted to avail his statutory remedy. Prayer is accordingly allowed. The plaintiff/appellant is permitted to withdraw his suit. In case an appeal is filed within 30 days of the receipt of the certified copy of this order, the appellate authority under the Act is directed RSA No. 4110 of 2008 4 to decide the same on merit by condoning the delay in filing the appeal, in view of the fact that plaintiff/appellant has been bona fide prosecuting his case in the civil court. Disposed of. 16.03.2009 (Vinod K.Sharma) reena/rp Judge