1983 PLP 48 (CLC)

O. XXXIX, r. 1-=Balance of convenience-Weighing of-Trial Court issuing temporary injunction restraining respondent. (defen dant) from cutting trees and removing earth from suit, land Temporary injunction cancelled on production of agreement for digging of accused-Agreement embodied as lease compul sory registrable but not registered Occasion for apprehended loss to respondent (defendant) no more in existence-No counter affidavit to allegations of petitioner (plaintiff) of wasting and damaging suit land-Loss occurred due to non-use of land can be measured in shape of money-Held, in circumstances. balance of con venience not in favour of respondent (defendant) rather in favour of petitioner (plaintiff)-Temporary injunction granted in circumstances of case.-Injunction). Raja Lehrasib Khan for Petitioner. A. K. Ansari for Respondent. Date of institution : 5th June, 1979. This is a revision petition against the orders dated 1-11-1970 and 31-5-1979 respectively passed by the Courts below by which the temporary injunction issued against the respondent was cancelled. Briefly the facts of the case run as under :- The plaintiff-petitioner brought a suit for possession of the suit land which stands owned by him, in the Court of Sub-Judge Dodyal against the respondent that latter illegally entered upon the land of the plaintiff without any right, whatsoever, and that earth was at first stealthily removed from it by digging it out and then he has been openly digging out the earth therefrom so as to be used in a kiln for making bricks. In this way the plaintiff's land has considerably been damaged and so the Court was moved for stoppage of the earth being dug and removed from the land in suit. The application was supported by an affidavit. It was thus in view of the affidavit supporting the application that a temporary injunction restraining the respondent from) cutting the trees and removing the earth therefrom was accordingly issued subject to objections. Objections to the temporary injunctions were filed by the respondent. Both the Courts below came to the conclusion that the respondent claims to have a right for digging the earth to be used in his kiln for making bricks on the basis of an agreement which was brought on record and it was alleged that the same was executed by the plaintiff in favour of the respondent. This agreement is not admitted by the plaintiff. There is a denial of the alleged right of the respondent by the plainliff which stands supported by an affidavit. The application for issue of a temporary injunction is supported by an affidavit in which it was alleged that the land was excessively damaged and so the respondent was stopped from further digging out the land in dispute. During the course of argument when it was urged on behalf of the respondent that land could be dug 3' to 4' deep, the plaintiff emphatically reiterated that it has been dug out deep even more than 4 feet. The brick baking season which was taken into view by the courts below so as to judge an apprehended loss to the defendant is now over as the "Moon-Soon" rains have started to pour in. The agreement was reduced into writing on 4-1-1977 which in the first instance was allegedly made for 3 years which term is going to expire soon. This is a hard fact that land in dispute is owned by the plaintiff petitioner and it has been alleged that the land is being wasted and damaged by digging out earth in excess and this stand of the petitioner is supported by an affidavit to which there is no counter-affidavit to refute the allegations of the petitioner. This agreement as embodied appears to be a lease in a way and which was reduced into writing and as such it was compulsorily required to be registered but it was not done so. That being so this document may become in admissible in evidence under section 49 of the Registration Act. This is so conceded by the learned counsel for the respondent in case the agreement is treated as a lease. In these circumstances it cannot be opined that balance of convenience goes in favour of the respondent. It rather goes in favour of the plaintiff petitioner. If there occurs any loss to the respondent for non-user of the land in dispute that can be measured in terms of money. Therefore, in view of the matter I am of the opinion that the courts below were not justified in cancelling the temporary injunction initially issued by the trial Court. Therefore, I accept this revision petition with costs and set aside the impugned orders of this courts below, Temporary injunction as prayed by the petitioner shall issue against the respondent accordingly. K. M. A. Petition dismissed.