1. MUHAMMAD SHARIF, C. J.---This is an appeal against the order of a learned Single Judge of this Court dated 6-6-1971.
2. The facts necessary for the disposal of this appeal may briefly be stated as follows:- Retired Brigadier Mohammad Aslam Khan respondent secured a Forest lease across the Cease- fire Line in Aghkot area on 13-11-1963 under a written agreement containing an arbitra--tion clause.
3. The extraction of the timber from across the Cease-fire Line, it is alleged, some time after the operation of the lease, caused apprehension of enemy action. Consequently the work was stopped after Tashkent Declaration at the instance of the Pakistan Army, to avoid further confrontation with India. The respondent submitted an application before this Court for referring the dispute to an arbitrator. That application was contested by the Government but was withdrawn by the respon-- dent (petitioner) after which the parties, out of the Court, entered into a fresh agreement on 4-4- 1966 under which Mirza Nazir Hussain (at present District & Sessions Judge, Mirpur) was appointed as an arbitrator who gave his award assessing the damage of the petitioner-respondent to the tune of Rs. 22,43,579.00 and awarded him 15,70,506 cft. Volume of timber. Thereafter the respondent-petitioner made an application before the learned Single Judge on 29-1-1967 praying that the award be made the rule of the Court. The Government contested the application and also controverted the validity of the award by a separate application. The proceedings for making the award a rule of the Court were still pending, when on 17-4-1971, Chief Conservator of Forests issued an order notifying the Conservator of Forests, Muzaffarabad that the lease period of Brig.
4. Mohammad Aslam Khan having expired under section 5 of the agreement, the timber lying at Ashkot and beyond should not be released. Subsequently on 2-5-1971 the Chief Conservator of Forests passed another order asserting that on account of the expiry of the lease period the timber lying at and beyond Ashkot had become the property of the Government in accordance with clause 5 of the agreement and directed the Conservator Forests to take over all such timber and prepare a list of tire same as quickly as possible.
5. On 28-5-1971 the respondent (petitioner) moved an application under the provision of section 41 of Arbitration Act read with Order XXXIX, rules 1 and 2 and section 151, C. P. C. Before the learned Single Judge asking for an injunction restraining the Government from taking over the possession of the said timber, removing and disposing of the same and for maintaining the status quo that Is to say to allow the petitioner to export the said timber as before. The learned Single Judge after hearing the parties passed the following order: "(a) An Injunction Is granted in favour of Brig. Mohammad Aslam Khan applicant and against the Government restraining the latter from taking into possession the timber extracted by the applicant and lying anywhere on our side of the Cease-fire. Line namely; the Azad Kashmir territory.
(b) The Government is also hereby restrained from Interfer--ing except in accordance with law, with the possession and removal up to Muzaffarabad Municipal limits (included) of the said timber by the applicant.
(c) Brigadier Mohammad Aslam Khan is hereby restrained from removing the said timber beyond the municipal limits of Muzaffarabad towards Pakistan and from exporting the same to Pakistan.
(d) Brigadier Mohammad Aslam Khan is also hereby ordered to stock his entire timber within the municipal limits of Muzaffar bad or in its vicinity in consultation with the Forest Department in accordance with Forest Regulations, Rules and Standing Orders issued thereunder.
(e) Should the Government take steps as are contemplated In the orders issued to the Conservator by the C. C. F. On 2-5-1971, to bring the timber in question lying across the Cease-fire line, to this side of the C. F. L., it should afford the applicant a reasonable opportunity of watching these proceedings to -avoid likely future disputes about its quantity.
6. Mr. Fazal-e-Hussain, learned Advocate for the respondent at the end of his arguments raised an objection to the effect that an appeal, under the Courts and Laws Code Act, against an order passed by the learned Single Judge granting injunction in favour of any party having been made inclusively in the proceedings under the Arbitration Act, is not competent. According to him only those orders that are specified under section 39, Arbitration Act, are open to appeal irrespective of the fact whether they are final orders in the case anal dispose it of finally or are merely interlocutory orders. Ail other orders, according to him, are barred by the provisions of section 39, clause (i) to (vi) of the Arbitration Act. He cited in support of his contention a case of the Indian Supreme Court reported as AIR 1962 S. C. 256. The question involved in that case related to the competency of second appeal under the letters patent. The ratio decidendi of the Supreme Court is that the provision of the letters patent was subject to the legislative powers of the Governor- General in Legislative Assembly and that the Arbitra--tion Act of 1940 was a Special Enactment controlling the general right of appeal given by clause (10) of the Letters Patent.
7. There is a conflict of judicial opinion on this point. In AIR 1948 Lah. 64 a Division Bench of that Court held that the expression 'second appeal' occurring in subsection (2) of section 39 of the Arbitration Act does not include a letters patent appeal and that this subsection cannot be construed as to take away the right of such an appeal either expressly or by necessary implication.
8. The question that calls for determination in the present case is not one relating to the second appeal but is whether an appeal would lie against an order granting injunction passed by the learned Single Judge in proceedings under the Arbitration Act. No direct ruling of any other High Court has been cited. The right to appeal from an order of a learned Single Judge in Azad Kashmir is not granted by a letters patent but by the provi--sion of section 13, sub-clause (3) of Courts and Laws Code Act which reads as follows:- "An appeal shall lie to the High Court from the judgment or order of the one Judge in original civil suit."
9. Section 13, sub-clause (3) is not couched in similar words as clause 10 of letters patent of Lahore High Court. The ruling cited by the learned Advocate for the respondent (a) interprets letters patent not the Courts and Laws Code Act, (b) it is not as regard to an appeal from an order passed by the learned Single Judge in exercise of original jurisdiction. Therefore it has no bearing on the present case.
10. So far this Court is concerned there is a long-standing practice that orders passed by a Judge in Single Bench are appealable to the High Court, under clause (3) of section 13 of Courts and Laws Code Act provided such orders decide anything material as to any issue though they may be in the nature of interlocutory orders. In PLD 1953 Azad J & K 19 the question was whether a certain order made by a learned Single Judge in Single Bench is or is not appealable within the meaning of section 13, clause (3) of the Azad Jammu & Kashmir Courts and Laws Code Act, 1949. Abdul Majid, Chief Justice observed:- "Only those orders passed by a Judge in Single Bench are appealable to the High Court under clause (3) which decide anything material as to any issue though they may be in the nature of interlocutory order and order which merely endeavour to collect material necessary for the decision of any issue in the suit tried by a Judge in Single Bench are not appealable. The order refusing to allow further opportunity to examine witness In question falls under the last category and consequently is not appealable."
11. In PLD 1963 Azad J & K 1 the facts of the case were that Mohammad Ishaq petitioner made an application under section 20 of the Arbitration Act for filing the arbitration agreement, under section 5 of the Arbitration Act and for referring the dispute to an arbitrator other than the (3. C. F.
12. The learned Single Judge after examining the case came to the conclusion that a dispute existed between the parties and that the C. C. P. Was the proper person to arbitrate between the parties, in view of the terms of clause 43 of the agreement. A similar objection was raised that an appeal was not competent in view of the provision of section 39 of Arbitration Act as that case did not fall under any of those orders made appealable thereby. Their Lordships referring to the two previous Division Bench cases of this High Court namely Sardar Bagga Khan v. Sardar Mohammad Ismail Khan and others an unreported judgment in Civil Appeal No. 7 of 1961 and PLD 1953 Azad J & K 19 observed:- "In view of the plain language of clause (3). Section 13 and the two Division Bench judgments of our High Court-one reported and the other unreported the position boils down to this. The plain language of subsection (3) of section 13 gives right to an aggrieved party to go in appeal to the Division Bench of the High Court against the judgment and order of the Single Judge passed in an original civil suit. The two D. B. Rulings though considered this right being restricted to the judgment and order which decides anything material to the issue. This restriction was placed for the reason that if every order was made appealable, the case would never come to an end because It would give the party, which has in its Interest to prolong the trial handle to prolong it. We believe that reasonable restriction should be placed to serve as a check on those who filed frivolous appeals simply to prolong the proceedings in a civil suit yet against an order of the Single Judge that decides anything material to issue, the aggrieved party should not be deprived of its right to the appeal which accrues to It under clause (3), section 13. The authority of the arbitrator be revoked or not and It was held that a point is very much material to the case particularly from the point of view of the petitioner whose contention was that the C. C. P.; the gentleman named is the agreement between the parties to arbitrate in case of dispute, had already given his finding as an Executive head is unfit to arbitrate."
13. PLD 1965 Azad J & K 9 is another Division Bench case. The question involved In that case was whether the order of the Single Judge revoking the order of the arbitrator nominated in the agreement deed and appointing another in his place is appealable. It was held:- "Therefore, the proceedings which are initiated by presenting an application under subsection (1) of section 20 become a suit when under subsection (2) such application is registered and numbered as a suit. We, therefore, hold that an application made under section 20 of the Arbitration Act Is a suit within the meaning of section 13 (iii) of the Azad Jammu and Kashmir Courts and Laws Code, 1949, therefore, an order made by a learned Single Judge of this Court, subject to the restrictions mentioned in PLD 1963 Azad J & K 1, is appealable, and we hold that the order of the learned Single Judge in so far as it relates to the revocation of the authority of the arbitrator in his place is appealable under section 13 (M), Azad Jammu & Kashmir Courts and Laws Code, 1949. The second preliminary objection is also overruled."
14. The general reason for the decision of this case is that when an application under subsection (1) of section 20 is presented it is required to be registered and numbered as a suit under subsection (2) and as such it is a suit within the meaning of section 13, subsection (3) of Courts and Laws Code Act. The cases referred to above were those in which proceedings were initiated under section 20 of the Arbitration Act.
15. When any matter has been referred to arbitration without the intervention of a Court of justice and an award has been made, any person interested in the award may within the prescribed time from the date of the award make application to the Court having jurisdiction in the matter to which the award relates that the award be filed in the Court. The practice of this Court is that the applications moved under section 14 of the Arbitration Act are also required to be in writing and are numbered and registered as suits between the applicant as plaintiff and the other party as a defendant in the same manner in which applications under section 20 of the Arbitration Act are numbered and registered as suits between the plaintiff and the defendant. We, therefore, hold that an application made under section 14 of the Arbitration Act is a suit within the meaning of section 13, sub-clause
(iii) of Azad Jammu & Kashmir Courts and Laws Code Act. Therefore, an order of the learned Single Judge of this Court in proceedings initiated under section 14 of the Arbitration Act, subject to the restrictions mentioned in PLD 1963 A Azad J & K 1, is appealable. The order of the learned Single Judge granting an injunction in favour of the respondent is appealable under section 13, sub- clause (iii) because such an order is also appealable under the provisions of C. P. C. And section 39 of the Arbitration Act in view of the above would not bar an appeal under the Courts and Laws Code Act.
16. The application for grant of interim injunction was moved by the respondent-petitioner under section 41, Arbitration Act readwith Order XXXIX, rules 1 and 2 and section 151, C. P. C. Now it does not lie in his mouth to say that the order has been passed exclusively under the provisions of Arbitration Act. No doubt the Court acting under the Arbitration Act has powers under Sche--dule II read with section 41 of Arbitration Act has to pass interim injunction or appointing a receiver for the preservation of any goods which are the subject-matter of the reference. Even under section 18 of the Arbitration Act if the conditions specified in that section are satisfied the Court has very wide powers to pass an order considered necessary but neither an application was moved under section 18 nor the order seems to have been made under that section. The application for grant of interim injunction strictly speaking does not fall entirely within the provisions of Arbitration Act as the petitioner himself sought the aid of section 151, C. P. C. And Order XXXIX, rules 1 and 2. Therefore, 8 the order passed by the learned Single Judge not having been made exclusively under the provision of Arbitration Act can be construed to b: one under the inherent powers therefore section 39` of the Arbitration Act would not bar an appeal because that section bars an appeal against the order under that Act.
17. Mr. Fazal-e-Hussain, learned Advocate for the respondent argued that under 1st Schedule, rule 7 the award has force of Law and becomes binding on the party and the person claiming under that respectively. A contrary view has been taken in two decisions, the first of which is a judgment by a Division Bench of the Patna High Court in the case of Sia Kishori v. Bhairvi Nandan (AIR 1953 Pat.
18. 42). The learned Chief Justice with whom the other Judge agreed after referring to the Privy Council decision in the case of Muhammad Nawaz Khan (18 Cal. 414 (P C)), went on to observe thus:-- "The decisions to which I have referred illustrate the state of the law previous to the coming into force of the Arbitration Act, 1940. A valid award was an operative by itself and there were two ways in which it could be enforced. It might be made a rule of the Court by an application under the Civil Procedure Code or under the Arbitration Act, 1899, as the case may be, or the party might be, or the party might treat it as an independent source of title and enforce it by suit. In either case it was open to the opposite-party to challenge the validity of the award. The remedy by suit was taken away by section 32 of the Arbitration Act, 1940."
19. His Lordship then after reviewing a large number of decisions in which the effect of section 32 of the Arbitration Act had been considered, went on to hold as follows:- "After the coming into force of the Arbitration Act, 1940, the remedy by suit is taken away by section 32 of the Act, further, the Act insists that within the time limited by Art. 178, Limitation Act, 1908, an application must be made in Court for the filing of the award. And the award becomes operative only when it is made a rule of the Court. Thus, the legal affect of the award as a decree finally determining the rights of the parties does not remain unless the procedure prescribed by the Act is followed and a judgment is pronounced followed by a decree of the Court under section 16."
20. The second case is a Full Bench decision of the Patna High Court Seonarain v. Probhuchand (AIR 1958 Pat. 252). In this case the Full Bench after considering at length the whole scheme of the Arbitration Act of 1940 and its various provisions recorded its conclusion thus:- "It is apparent from a review of the sections of the Arbitra--tion Act of 1940 that, once a reference has been made to arbitration even without the intervention of the Court, the Court under the Act, has got exclusive jurisdiction in regard to the validity, effect or existence of the reference and the award, and the jurisdiction of all other Courts is ousted. Further, section 17 of the Arbitration Act shows in unmistakable terms that an award, though given without the intervention of the Court, has to be made a rule of the Court, and the Court will pronounce judgment on the basis or the award, and a decree shall follow that is to say, the award by itself is of no effect. It follows that an award as such does not purport or operate to create any right, title or interest in the property dealt with by it within the meaning of section 17(1)(b) of the. Registration Act, and therefore an award even though it be in respect of immovable property worth one hundred rupees and upwards, does not require registration."
21. There is a considerable force in the two decisions of they Patna High Court noted above in view of the passing of Arbitration Act of 1940. In the present case the award has not been made a rule of the Court as yet. An application under section 30 for setting aside the award on the ground mentioned in that section is pending before the learned Single Judge which is yet to be decided, therefore, we hold that the award unless it is made a rule of the Court would not operate to create any right, title or interest in the property that is the subject-matter of the award. As such it cannot be said that the award before it is made a rule of the Court has any legal force or indicates a prima facie case.
22. It was contended by Maulvi Siraj-ul-Haq the learned counsel for the appellant that a civil Court cannot issue an injunction in respect of movable property. He referred to the provisions of sections 54 and 56 of the Specific Relief Act that governs the grant of temporary injunction. Under Arbitra-- tion Act the proceedings though registered as a suit are proceedings under the Arbitration Act. If the conditions specified under section 18 are satisfied the Court has very wide powers to pass any such order considered necessary. The award of the Arbitrator when it is filed in the Court confers jurisdiction on the Court to pass interim order under section 18 in respect of the property that is the subject-matter of the suit. The Court hag, however, to use judicial discretion and pass suitable order to safeguard the interest of the party. The object of passing interim order is to protect the possible right of the party seeking the protection of the Court and no: the enforcement of a decree as in execution proceedings. It will be within the power of the Court to restrain the other side from making a certain transfer or wasting, damaging or alienating the property. As such it cannot be said that the civil Courts are not competent to pass interim orders in respect of movable property which is subject-matter of dispute in proceedings under Arbitration Act. However, it would depend on facts of particular case to make or not to make an interim order for protection and preservation of the property involved in an arbitration proceeding, after the award has been filed in a Court having jurisdiction.
23. The interim injunction in the present case is sought for restraining the defendant from taking action under clause 5 of the agreement at a stage when the away d has not yet been made the rule of the Court and the question (a) whether it is to be made rule of the Court or not, in view of the objection raised by the defendant is yet to be decided by the Court and (b) in case the award is made rule of the Court then the question whether under the terms of the agreement the lease had expired or not and if it had expired how that would affect the timber converted by the plaintiff and still lying beyond Ashkot is to be decided by the trial Court, according to the affidavit filed by the D.
24. T. O. On behalf of the defendant the timber beyond Ashkot has already been taken into possession by the Government under the terms of the agreement before the interim injunction was granted in favour of the plaintiff. In other words the plaintiff was not legally in possession of timber on the date of the application. In these circumstances the injunction would not amount to maintaining the status quo rather it would reverse the position existing at the time of the grant of injunction. The learned Single Judge while deciding in favour of the grant of injunction remarked:- "The question before me now is as to whether the property involved whether it ultimately goes to one party or the other, should be preserved for being made conveniently available to the successful party or allowed to be wasted, damaged or alienated by either party and as to how best it can be done."
25. The mere allegation of waste, damage or alienation of the property is not enough. There must be proof of actual or reasonably apprehended danger of such waste or damage, before injunction can be granted. The question as to what constitutes sufficient danger of waste will depend upon the facts and circumstances of each case. In order to show that the property is in danger of being alienated, some overt act towards the alienation of the property for example as negotiation or offers for sale should be alleged or proved. We carefully examined the application as well as the affidavit filed by the petitioner. Respondent for grant of temporary injunction. Nowhere either in the application or the affidavit, it has been alleged that the timber is in danger of being wasted, damaged or alienated. There is no other evidence on record to show that the property is in danger of being wasted or alienated. In case of sale of Forest proceeds usually the Azad Government does not sell by private negotiations, such produce. Normally the sale is sanctioned in favour of highest bidder after inviting tenders. No such act has been alleged. However, it was contended by Brig.
26. Mohammad Aslam Khan that the timber converted by him lying at a place where there is likelihood of cloud burst and mischief by enemy action but no evidence in proof of this allegation has been led before the trial Court; not even an affidavit to that effect was submitted either before the learned Single Judge or before this Bench. In the absence of evidence on record it is not possible for us to subscribe to the view that the timber is in danger of being wasted, damaged or alienated.
27. The petitioner had been operating the lease for the last three years but no cloud burst occurred during that period. There is no evidence that there is any forecast by weather expert about such an immediate chance. The area is admittedly under de facto control of Azad Government. No Instance of enemy action in this area has been alleged since Tashkent Declaration. It is all conjectural. The hazards of enemy action were present when lease started. It would always remain there so long the entire occupied Kashmir is not liberated. In other words the risk is inherent in the venture. If there is any apprehended danger as alleged by the petitioner he will be at liberty to prove before the trial Court by evidence but in the absence of proof on record, with utmost respect for the learned Single Judge, we are unable to agree with the view that it is in danger of being wasted and its removal by the petition-.r is necessary for its preservation.
28. The subject-matter of the dispute is the timber. The market value of the timber at Jhelum is generally published in the newspapers. Therefore, it is not difficult to ascertain its market value. In case the petitioner succeeds and it is found that the Government was not justified in taking action under clause 5 of the agreement it will not be difficult to calculate the market value of the timber.
29. In other words pecuniary compensation can be granted to the successful party. In case where pecuniary compensation can be granted, the general rule is that no Injunction should be granted.
30. In the present case the subject matter of the dispute is timber. The pecuniary compensation of this timber can easily be assessed and calculated by reference to the market value at Jhelum by deducting the carriage charges, from the place it is lying to the market at Jhelum. Thus it cannot be said that refusal to grant Injunction is liable to cause irreparable injury.
31. The right of the plaintiff to remove the timber below Ashkot after the expiry of lease period is disputed. Balance of con--venience does not favour the Issue of temporary injunction because if the timber is removed by the respondent and Government subsequently succeeds in showing that under the terms of the agreement the lease having expired the timber lying beyond Ashkot had legally vested in the Government under the agreement, its removal below Ashkot may cause great injury and almost irreparable loss because the Government under the terms of the agreement might lose such property. --- It has been specifically stated in the appeal that no opportunity for filing objection to the application for grant of Injunction was provided to the appellant. We have carefully gone through the orders. There is no specific order by the learned Single Judge requiring the defendants to file objection. The application was presented on 25-5-1971. Mr. M. A. Hafeez, the learned Advocate for the Government on than date sought an adjournment on the ground that the Government had no notice of the application. The case was adjourned to 3-6-1971 for arguments. The Government had sufficient notice and if it desired it could put up objections to the application on the next date.
32. It appears that the substantial quantity of the timber involved In the dispute and its possible financial implication in view of the stand taken by the Government and notices served by the petitioner claiming damages weighed heavily with the learned Single Judge in grant of temporary injunction. Respect--fully we may point out that it is none of the functions of a Court to act as legal adviser for a party and point out financial implication of certain stand taken by a party. It is for the legal adviser of a party to apprise of such financial implications if any that may result due to the stand taken by a party in the Court. The Courts after trial are at liberty to pass any order deemed just but a hint before that might shake the confidence of a party which Courts of justice must always be vigilant to guard jealously.
33. In short there is no proof on record that the property in dispute is in danger of being wasted, damaged or alienated. All that was claimed by the plaintiff-respondent was that the Government should be restrained from acting under clause 5 of the agreement. In no sense it could be said that the plaintiff was alleging any damage to any property forming part of the subject matter. There is no proof that the timber that is the subject matter of the dispute is alienated by the Government as no tender has so far been invited for leasing out the same.
34. The plaintiff-respondent has not b-.En able to show that irreparable injury will accrue to him if the injunction is note granted. Irreparable injury means only that the injury must be] a material one i.e. That cannot be adequately compensated for in damages or rectified. We have held above that it can adequately be compensated for in damages. We have also held above that the balance of convenience, in case, the trial Court comes to the conclusion that the period of lease has expired would be in favour of the defendant as compared with the plaintiff-respon--dent. With due deference for the learned Single Judge we are unable to maintain the order.
35. Hence accepting the appeal we set aside the order of the learned Single Judge dated 6-6-1971 granting the interim injunction.
36. The costs shall follow the event.