M.L. Joshi, J.
1. This is a revision application directed against the order of the learned District Judge, Jaipur City dated April 14, 1976. The learned District Judge by his aforesaid order partly accepted the appeal and set aside the order of the learned Munsif refusing temporary injunction and directed the maintenance of status quo as it existed on the date of the filing of the suit.
2. The material facts which are necessary for the disposal of this revision application stated in brief are as under:--
The plaintiff-respondent brought a suit for permanent injunction against the defendant-petitioner on the ground of actionable nuisance. The case of the plaintiff as set forth in the plaint is that he has been living as a tenant in some of the apartments of the defendant-petitioner since the year 1974. It is the allegation of the plaintiff that the defendant wanted him to vacate the demised premises, but he did not agree to vacate. Thereupon the defendant with a view to harass the plaintiff collected six she-buffaloes on June 18, 1975 and began to tie them in the open compound of the plot where the apartments occupied by the plaintiff were situated. On account of the tying of the she-buffaloes unhygienic conditions were created due to the excreta and urine passed by the she-buffaloes, which emitted foul smell resulting in actionable nuisance. The plaintiff, therefore, brought a suit for permanent injunction, wherein he prayed that the defendant be restrained from tying the she-buffaloes in the open compound of the aforesaid plot and further she be directed to remove the she-buffaloes which she has already collected on the open land in question.
3. Along with the plaint the plaintiff also filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, wherein it was prayed that temporary injunction be granted against the petitioner for not tying the she-buffaloes and that she may further be restrained from bringing any more she-buffaloes for tying them in the open compound.
4. The defendants controverted the claim of the petitioner and inter alia pleaded that the suit was a mala fide one and has been brought merely to harass the defendant. It was pleaded that the defendant had a right to tie the she-buffaloes on her land as she has been issued a licence by the Municipal Council to run dairy on her plot No. 522, street No. 6, Raja Park, Jaipur. Various other pleas were taken but for the present purposes I am not concerned with them and so I need not mention them here.
5. The defendant in reply to the application for temporary injunction controverted the allegations of the plaintiff and submitted her own affidavit, besides the affidavits of her husband Ram Prakash, Dr. Suresh Prasad and Nanu Jat, which are very relevant for our purpose besides many other affidavits which need not be mentioned here. The defendant also produced the licence granted by the Municipal Council to run dairy on the plot in question and also submitted the site plan with a view to show that there could be no question of actionable nuisance. The plaintiff also filed two affidavits in support of the application for temporary injunction.
6. The trial Court after taking notice of the affidavits of the parties and documents placed on the record did not believe the affidavits of Baldeo and the plaintiff and preferred the affidavits filed on the side of the defendant and after discussing the ingredients of Order 39, Rules 1 and 2, C.P.C. came to the conclusion that there was no prima facie case in favour of the plaintiff. The trial Court further held that the question of balance of convenience was also not in favour of the plaintiff, nor it could be said that the plaintiff would be put to irreparable injury on account of not granting the injunction. In this view of the matter the trial Court rejected the application for temporary injunction by its order dated February 24, 1976.
7. Being aggrieved against the order of the trial Court the plaintiff went in appeal before the learned District Judge, Jaipur City. The learned District Judge, Jaipur City during the pendency of the appeal on the application of the plaintiff appointed a Commissioner under Order 26, Rule 10, C.P.C. for local investigation and without considering the materials placed on the record on behalf of the defendant after placing reliance on the Commissioner's report and a decision of Kan Singh J. reported in 1972 WLN 999: (AIR 1973 Raj 212) came to hold that by keeping of 15 she-buffaloes, the excreta and urine passed by she-buffaloes, is likely to emit foul gases and bad smell which would make the living of the plaintiff most uncomfortable resulting in actionable nuisance. He was also of the view that the balance of convenience was also in favour of the plaintiff and if the temporary injunction is not granted irreparable injury will be caused to the plaintiff. He consequently set aside the order of the learned Munsif and passed a temporary injunction against the defendant directing her to maintain the status quo as it existed on the date of the filing of the suit.
8. The defendant has, therefore, come up in revision against the order of the learned District Judge.
9. Mr. P.N. Dutt appearing on behalf of the petitioner has assailed the order of the learned District Judge and contended that the order of the learned District Judge suffers from material irregularity or illegally in the exercise of jurisdiction as it interfered with a discretionary order of the trial Court which could not be said to be in any way perverse, arbitrary or not based on sound judicial principles. He has submitted that the trial Court based its decision on the affidavits and the materials brought on the record. According to the learned counsel, the learned District Judge had neither taken note of the affidavits nor the licence nor the site plan and other materials brought on the record, whereas the learned trial Court has after due appreciation of the affidavits and the materials placed on the record, passed the order rejecting the application for temporary injunction. In these circumstances, it has been urged that the appellate court committed material irregularity in exercise of jurisdiction in interfering with the discretionary order of the learned trial Court.
10. I have given my earnest consideration to the contentions raised on behalf of the defendant-petitioner. The order refusing temporary injunction is of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records.
11. In the light of the above observations, I have now to see whether it was open to the learned District Judge to interfere with the order of the learned trial Court. It is well settled that the grant of temporary injunction is a discretionary order and the decision of the first Court could not be easily interfered with by the appellate Court vide Musa v. Badri Prasad, ILR (1953) 3 Raj 257. The mere possibility of the appel-late Court coming to a different conclusion on the same facts and evidence will also not justify interference vide Wazir Sundar Singh v. Mst Farida Khanam, AIR 1920 PC 132. Another well established principle while disposing of the application under Order 39, Rules 1 and 2, C.P.C. is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed on the record and if it does not do so then it commits illegality in the exercise of jurisdiction and in that case the High Court is competent to interfere in revision in such a case vide Musa v. Badri Prasad (supra). The view taken in Musa v. Badri Prasad (supra) has been followed by Kan Singh J. in Girdhari Lal v. Mahadevi Sharma, AIR 1958 Raj 237. It has been held in this case that the appellate Court should be slow in upsetting a decision of a trial Court in a matter relating to grant of temporary injunction unless the decision of the trial Court is arbitrary, perverse or is not based on sound legal principles. It has been further observed in that case that when the appellate Court does not apply its judicial mind on all the materials brought on the record then in that case the approach of an Appellate Court would be wrong and contrary to the well established principles laid down by the High Court, more so when the appellate Court does not deal with the reasoning that has prevailed with the trial Court and further when it does not apply its judicial mind on the materials placed on the record.
12. In Vellakutty v. Karthyavant, AIR 1968 Ker 179 it has been laid down that a prima facie case implies the probability of the plaintiff obtaining a relief on the materials placed before the Court at that stage. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case to justify issuance of a temporary injunction. The Kerala High Court has further observed that the granting of injunction being a very serious matter in that it restrains the opposite parties from the exercise of their rights, the Court does not issue the injunction unless it is thoroughly satisfied that there is a prima facie case in favour of the applicant.
13. Applying the above principles to the present case I may state at the outset that the appellate Court has neither considered the affidavits filed by the plaintiff in support of the application for temporary injunction nor has it considered the affidavits filed on behalf of the defendant. The trial Court had discussed the two affidavits filed on behalf of the plaintiff and it disbelieved them. It has further relied upon the affidavits filed on behalf of the defendant which had bearing on the question of granting orrefusing to grant the temporary injunction. Vimla Devi in her affidavit had refuted the allegations of the plaintiff that any nuisance has been caused. She has stated that in the locality in question there are various dairies being run by various persons. It has been further deposed in the affidavit that the premises where the she buffaloes are being tied are kept clean and no nuisance whatsoever is being caused, to the plaintiff. She has further stated that she herself is occupying the apartments located on the same plot and looking to the locality and surrounding circumstances of the premises it is rather wrong on the part of the plaintiff to say that merely on account of the tying the she-buffaloes an actionable nuisance will be caused to the plaintiff. To the same effect is the affidavit of her husband Ram Prakash. There is further affidavit of Dr. Suresh Prasad Saxena. He has stated that he is a customer of Vimla Dairy situated on plot No. 522, Eaja Park, Jaipur 4 and personally goes to the aforesaid dairy for buying milk for daily use. In his affidavit he has deposed in categorical terms that since November, 1975 till day i. e. January 29, 1976 he found the dairy very neat and clean and according to him there is no cause for any disease to be spread in the locality. That apart, there was a licence granted by the Municipal Council which was also placed on the record. The grant of licence by the local authority also goes to show that the local authority which is in charge of the hygienic conditions had prima facie no objection to the running of a dairy on the said premises. These materials induced the trial Court to refuse to grant temporary injunction in favour of the plaintiff. The trial Court also discussed the two affidavits filed on behalf of the plaintiff and after scrutinizing those affidavits was of the view that these affidavits did not carry conviction to raise an inference of prima facie case of actionable nuisance as alleged by the plaintiff. Thus the trial Court after examining the materials on the record had come to the conclusion that there was no prima facie case in favour of the plaintiff. The appellate court, however, did not apply its judicial mind on the materials on record and was simply led away by the observations of Kan Singh J. made in 1972 WLN 999: (AIR 1973 Raj 212). In that case what has been laid down is that it is not necessary for amounting to a nuisance that injury to health should be actually shown and it is enough that there is a material interference with the physical comfort of human existence reckoned not merely according to elegant or dainty modes and habits of living but according to plain and sober and simple notions obtaining in the residents of the locality. It is a settled proposition that a person has right to use his own land. This right, however, is subject to the condition that the use should be such as would not cause actionable nuisance and interfere with material comfort of other persons. Kan Singh J. has himself quoted the homely phrases 'give and take' 'live and let live'' and has thereafter observed that 'a balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with'. Viewed in this light it is too early to come to a conclusion on the materials on the record at this stage that there is a prima facie case of actionable nuisance in favour of the plaintiff. As a matter of fact the materials which existed with the trial court are the materials which should ordinarily be taken note of by the appellate court while granting temporary injunction. The learned District Judge has not applied his judicial mind to the various materials brought on the record before the trial Court but instead he called for the report of the Commissioner. There is no doubt that the appellate Court in appropriate cases can take additional evidence, but additional evidence cannot be allowed as a matter of course. It can only be taken when the Court requires it for proper disposal of the matter. The Commissioner's report which was called by the appellate Court does throw some light as to the unhygienic conditions at the time when the Commissioner went to the spot. The Commissioner's report, however, could not be made the sole basis of granting temporary injunction without further applying judicial mind on the other materials present on the record. It is not open to the appellate Court to interfere with the discretionary order of the trial Court, unless it comes to a conclusion that the order is arbitrary or perverse. The appellate Court has based Its decision merely on the Commissioner's report and the decision of Kan Singh J. without judicially applying its mind to the affidavits and other materials brought on the record by the plaintiff. In these circumstances, the approach of the appellate Court is not in consonance with the well settled principles laid down by various High Courts including our own High Court wherein it has been categorically laid down that if the appellate Court does not apply its judicial mind on the materials present on the record and fails to consider them, then it will be taken to have committed material irregularity and illegality in the exercise of its jurisdiction so as to warrant interference in the revisional jurisdiction.
14. Mr. Kasliwal, learned counsel for the respondent, has however, argued that the High Court has no jurisdiction to interfere with the order of the first appellate Court in a matter of discretionary order. In this connection he has placed reliance upon the Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar v. Ajit Prasad Tarway, AIR 1973 SC 76. I have gone through that case and after perusing the case I may say that that case is of no avail to the learned counsel for the respondent. In that case it has been observed by their Lordships of the Supreme Court that the High Court will have no jurisdiction to interfere with the order of the first appellate Court until it is established that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. This case therefore, does not lay down that in no case the High Court will be competent to interfere with the order of the first appellate Court. As stated earlier if the appellate Court does not apply its judicial mind to the materials placed before it or omits to consider the same or fails to meet out the reasons given by the trial Court, then it is certainly open to the High Court to interfere with such order, as in that case it may be safely said that the appellate Court exercised its jurisdiction either illegally or with material irregularity. The order of the appellate Court, therefore, in my opinion, is against the rule laid down by this Court as well as the Kerala High Court and it cannot be allowed to stand. The report of the Commissioner cannot be made the sole basis for drawing an inference of the existence of a prima facie case in favour of the plaintiff. It may be that the appellate Court may come to a different conclusion on merits, but that by itself would not be sufficient to interfere with the discretionary order unless the order of the trial Court is in any way perverse, arbitrary or not based on sound legal principles. I do not find such flaw in the order of the trial Court. The trial Court was to deal with the application in the light of the materials placed before it at that stage. There was no justifiable reason for the appellate Court to have allowed additional evidence to the plaintiff at the appellate jurisdiction at his mere asking. I am, therefore, constrained to hold that the learned District Judge committed material irregularity or illegality in exercise of his jurisdiction when he interfered with the discretionary order passed by the trial Court.
15. In the result, I accept the revision application with costs and set aside the order of the learned District Judge and restore that of the trial Court I, however, direct the trial Court to expedite the trial and decide the case within a period of six months.