1. KHAWAJA MUHAMMAD SHARIF, C. J.---This Is an appeal against the order of a learned Single Judge, dated 25-6- 1972 passed in Civil Miscellaneous File No. 12 of 71.
2. The facts giving rise to this appeal are that a dispute having arisen between the parties over the lease of compartment No. 10-B (Part) and 11 (Part) in the Bandi Ashkot Range of the Keran Forest Division the matter was referred to arbitration, and Poirza Nazir Hussain, the District and Sessions Judge the named arbitrator gave an award in favour of the appellant to the effect that he was entitled to extract 11,21,788 Cft. Of timber plus 3,36,537 Cft. Further on the basis of 10% depreciation per year. The appellant applied to the Court for making the award of the arbitrator the rule of the Court. During the course of the proceedings before the learned Single Judge for making; the award the rule of the Court, the appellant applied for am order to take the timber to Muzaffarabad Municipal limits where the timber was to be kept till the disposal of the applica--petition for making the award the rule of the Court. The Govern--ment came up in appeal and we set aside that order mainly on the ground that mere allegation of waste, damage or aliena--petition 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. Then the appellant made a second application on 29-11-1971 before the learned Single Judge for an injunction restraining the Government from selling the converted timber for which they had invited tenders. The learned Single Judge by his order dated 25-6-1972 rejected; the application for issuing an injunction prayed for. The applicant has now come up in appeal before the Division Bench.
3. Counsel for the parties wasted a good lot of time and breath in arguing over the question whether the award should or should not be made the rule of the Court under the garb of 'a prima facie case'. The learned Single Judge who is the trial Judge has not yet decided the question whether the award should or should not be made the rule of the Court, therefore, we refuse to go into this question. If we go into this question we would be sub--stitating ourselves for the trial Judge and deciding the proceedings before him which we are not competent to do. Therefore, we need not repeat here the arguments and the counter-arguments advanced by the counsel for the parties.
4. Learned counsel for the appellant argued that a temporary injunction should not be refused where the result of the refusal would be to deprive a successful party of the fruits of litigation and that in any case the timber in dispute should be preserved so as to maintain the status quo. Ho further argued that if the Government is not stopped from auctioning or selling the timber, the appellant would have to take other proceedings for the redress of his grievances and that the refusal of the temporary injunction would lead to multiplicity of proceedings. The learned Advocate-General argued that in order to obtain a temporary injunction a party must have a good prima facie case and there should be apprehension of irreparable loss and the balance of convenience should be in favour of issuing the injunction.
5. Learned counsel for the appellant cited AIR 1918 Cal. 495 (1), AIR 1941 All. 76, P L p 1960 Dacca 153, PLD 1956 Lah. 893, PLD 1967 Lah. 365, I L R 10 All. 80 while the learned Advocate. General cited PLD 1969 Dacca 832. PLD 1940 Kar. 332, PLD 1970 SC 139, PLD 1966 Kar. 272 and PLD 1969 Lah. 89.
6. It was laid down by Woodroffe and Shamsul Huda, JJ. In AIR 1918 Cal. 495 (1) that a temporary injunction should not be refused, if the object of the suit be defeated. It was laid down by Iqbal Ahmad and Verma, JJ. In AIR 1941 All. 76, that where the property purchased by the landlord and mentioned In written statement filed under section 8 of the U. P. Encumbered Estates Act is pre- empted during the pendency of the pro--ceedings before the Special Judge and the landlord becomes entitled to the pre-emption money, the Special Judge has power to order the landlord to furnish security that the money would be paid when demanded or to deposit the money in bank and receive interest alone until further orders. This authority is not very much relevant to the present case.
7. Amin Ahmad, C. J. And Guha. J. Laid down In PLD 1960 Dacca 153 that:- "In the case of a temporary injunction (a) an applicant must show a fair prima facie case in support of the right claimed; (b) an actual or threatened violation of the right; (c) productive of irreparable or at least serious damages; (d) applicant's conduct must be such as not to disentitle him to assistance but it should be fair and honest and in particular there must be no acquiescence or delay; (e) there must be a greater convenience in granting than refusing the injunction; and (f) equally efficacious relief must not be obtainable by any other usual mode or proceedings."
8. PLD 1967 Lah. 365 (Inamullah Khan, C. J. And Karam Elahl Chauhan, J.) lays down:- "In caves where parties want to have the award enforced, the proper procedure for them is to first get that award made a rule of the Court and then to enforce or execute the decree which might be passed on the award and they cannot resort to the procedure of filing a separate suit by by- passing the procedure laid down in the Arbitration Act which deals with the awards. The said Act is comprehensive enough and no matter which is laid down in the said Act to be dealt with in a particular way can be dealt with in any other way under the ordinary law of the land."
9. Shabbir Ahmad and Kaikaus, JJ, hold in PLD 1956--Lah. 893 :- "The meaning of balance of convenience being in favour of the plaintiff is: if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience caused to the plaintiff would be greater than would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience, it is really the balance of inconvenience, caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the-- plaintiffs who suffer."
10. It was laid down In PLD 1969 Lah. 89 by Muhammad Gul, J. That a petitioner, for the grant of interlocutory injunction has to satisfy the Court that he has a prima facie case. It was laid down in PLD 1970 SC 139 that:- "The well settled principle for the grant or refusal of temporary injunctions are, firstly, whether the plaintiff had a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly, whether the plaintiff would suffer irreparable loss if the injunction is refused."
11. It was laid down in PLD 1970 Kar. 332 that the principles of non-interference with the normal exercise of the judicial discretion is well recognised but the relevant consideration has always been whether that discretion has been exercised on judicial principles or in an arbitrary manner. This was a case of exercise of revisional jurisdiction of the High Court but ours is a case of appellate jurisdiction.
12. It was laid down in PLD 1969 Dacca 832, by Mahmud Hussain, J. That temporary injunction should not be issued against statutory body, where damage if any can be compensated.
13. Digesting the principles laid down in the various judicial authorities cited above it can safely be said that in order to obtain a temporary injunction an applicant has to show (a) a prima facie case in support of the right claimed; (b) an actual or threatened violation of the right ; (c) productive of irreperable or at least serious damage; (d) applicant's conduct must be such ,4 as not to disentitle him to assistance but it should be fair and hones; (e) there must b.- a greater convenience in granting than refusing the injunction and (f) equally efficacious relief must not be obtainable by any other usual mode or proceeding.
14. Now we come to the second principle that there should be actual or threatened violation of the right. In our previous judgment dated 18-7.1971 we laid down that mere allegation of waster, damage or alienation of the property 15 not enough. There must be proof of actual or reasonably apprehended danger of such waste or alienation. At that time there was no question of danger of alienation of the property in dispute but now not only the Government issued a tender notice but actually received tenders for the sale of the timer in dispute though we restrained the Government from accepting the tenders and selling the timber by an ad interim injunction. Now there is proof on record that the timber in dispute is in danger of being alienated by the respondent.
15. Next we take up the third principle, whether there would be an irreparable loss to the appellant in case the temporary injunc--petition is refused. The learned Single Judge has referred to the last para. On page 13 of our previous Division Bench judgment dated 18-7-1971 and the learned Advocate-General has also relied upon the observations made in this para. We reproduce below that particular portion of the judgment :- '"rhe subject-matter of the dispute is the timber. The market value of the timber at Jhelum is generally published in the newspaper. 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.
16. 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.
17. In the present case the subject-matter of the dispute is timber. The pecuniary compensation of this timber can easily be assessed and cal--culated 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 slid that refusal to grant injunc--petition is liable to cause irreparable injury."
18. We may refer to the next para. Of our previous judgment which is as under:- "The right of the plaintiff to remove the timber below Ashkot after the expiry of lease period is disputed. Balance of convenience does not favour the issue of temporary injunction because if the timber is removed by the respondent and Govern--ment 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 Govern--ment under the terms of the agreement might lose such property."
19. If the removal of the timber below Ashkot could be said to cause great injury and almost irreparable loss to the Government, why can't the sale of the timber be said to cause irreparable loss to the appellant?
20. Now we refer to I L R 10 All.
80. This was a case under section 492 of the old C. P. C. Which corres-- ponds to Order XXXIX, rule 1 of the present C. P. C. And provides that:- "Where in any suit it is proved by affidavit or otherwise-
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant treatens, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to retrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as tee Court thinks fit until the disposal of the suit or until further orders."
21. The facts of I L R 10 All. 80 were that an objection made under section 278 of the Civil Procedure Code to the attachment in execution of a decree of a mortgage bond of which the objector claimed to tie the assignee from the judgment-debtor under an instrument dated prior to the attachment was disallowed; and the objector then brought two suits against the decree-holder and the judgment-debtor in which he claimed (a) a declaration of his right to the bond, and (b) to recover a sum of money from the judgment-debtors on the basis of the assignment. The first Court dismissed both suits, on the ground that the alleged assignment was a collusive transaction entered into after the attachment between the objector and the judgment-debtors for the purpose of defeating the attachment. Pending an appeal to the High Court, the objector applied :o that Court for a temporary injunction unless section 492 of the Code, restraining the decree-- holder from bringing the bond to sale in execution of the decree it was held that although in such cases the provisions of section 492 should be applied with the greatest care, one of the objects of the Legislature in passing that section was to guard as far as possible against multiplicity of suits, and as many complications probably resulting in further litigation were likely to arise if the decree- holder were allowed to proceed with the execution sale, and rob practical injury to any one would be caused by restraining her from so doing until the decision of the appeal, a temporary injunction should be granted, subject to security being given by the applicant.
22. While deciding the previous appeal filed by the Government against at, order of the learned Single Judge allowing the appel--lant to remove the timber to Muzaffarabad municipal limits and stocking it there till the decision of the proceedings before him, the question of the multiplicity of the proceedings was not raised nor was I L R 10 All. 80 cited or discussed before us.
23. If the Government alienates the timber and the learned trial Judge makes the award the rule of the Court, there would be noting for the appellant to take as a result of the decree that may be passed in his favour since the timber would not be there and the successful patty would be deprived of the fruits of the litigation. It would be in the interest of justice to maintain the stains quo. The D. F.O. Filed an affidavit that the Government had taken possession of the timber. We say let it remain in their possession but they should wait till the real proceeding before the Single Judge whether the award should or should not be made the rule of the Court, is decided. If the timber is alienated, the appellant, in case he succeeds, will have to file a fresh suit for receiving compensation which according to clause 10 of the fresh agreement entered into between Brig. Muhammad Aslam Khan and the Government on 4-4-1966 would be timber riot monetary compensation. Clause 10 is reproduced below:- "If no extraction of timber is allowed by the Government from Eastern side of Cease-Fire Line by the end of -two years period beginning 12th January 1965, and Brigadier Muhammad Aslam Khan does not wish to go on waiting further the Gov--ernment will give him at his option the quantity of timber, allowed by the arbitrator (same type) from some similar work--able forest of the Keran Division, the royalty for this timber will be paid at the Forest Department commercial rate in force on 12-1-1965."
24. The existing sub-clause 10 in the fresh agreement entered into between the parties is a further ground for our holding that the appellant would suffer irreparable loss if the temporary injunction is refused. He would be involved in further litigation and avoidance of multiplicity of proceedings is a consideration in deciding whether the temporary injunction should be issued or not. We may also refer to head-note (d) of PLD 1970 Kar. 332 cited by the learned Advocate-General which lays down that the mere fact that plaintiff has prima facie case is not sufficient to claim interim injunction as a matter of right but that the Court must satisfy itself whether effect of injunction would be to preserve or alter status quo during pendency of litigation and whether irreparable injury would otherwise be caused to plaintiff. The status quo can be maintained only if the Govern- -ment is restrained from alienating the timber in dispute which they claim is in their possession.
25. The appellant has spent money and labour in extraction and conversion of the timber from the Forests. There would be greater convenience in granting than in refusing the injunction' If the injunction is granted the timber would be there for the successful party to do with as it pleases but if the injunction is refused, the timber would not be available to the appellant if he succeeds in the proceedings before the learned Single Judge.
26. If the timber is alienated and the appellant succeeds in the litigation pending before the learned Single Judge, equally efficacious relief would not be obtainable by him by any other usual mode or proceedings. The arbitration proceedings are cheap and quick but if the appellant has to have recourse to a separate suit for damages in case he succeeds and the umber has been alienated, it cannot be said that he can obtain an equally efficacious relief by any other usual mode or proceedings. We, therefore, hold that the balance of convenience lies in favour of issuing rather than refusing the injunction.
27. It could be said that the timber is subject to decay and might rot and lose to value. The appellant in para. 14 of the memo--randum of appeal writes that "the appellant had offered before the learned Single Judge and this offer is being kept open before this Hon'ble Court in the D. B. That the appellant undertakes to reimburse the Government against all or any apprehended loss to the disputed timber and for that purpose he can also produce satisfactory surety, if so desired by the Government or directed by the Court." The appellant repeated this offer in open Court and said further that if he succeeds he would not claim any damages for any deterioration that may occur in the timber but that if the Government succeeds he would compensate the Govern--ment for any loss that may be caused due to the deterioration or rotting of the timber.
28. Setting aside the order of the learned Single Judge dated 25-6-1972 and accepting the appellant's application we direct that the temporary injunction be issued restraining the defendant respondent from alienating the timber in dispute till the decision of the proceedings before the learned Single Judge for making the award the Rule of the Court provided the appellant furnishes security to the satisfaction of the learned Single Judge to com--pensate the Government for any loss that may be caused due to the deterioration of the timber. The Government has invited tenders for about 80.000 a. Of timber. Taking the worst case into consideration that the timber rots entirely and is not left worth anything, its price would come to about Rs. 5 lacs at the prevailing lease rates. The temporary injunction shall issue conditional on the appellant's furnishing security for Rs. 5 lacs to the satisfaction of the learned Single Judge. Even in the authority. I L R 10 All. 80 cited by the learned counsel for the appellant temporary injunction was granted subject to the security being given by the applicant.