( 1 ) THIS is a Revision Application against the judgment dated 6/12/1982 rendered by the learned Joint District Judge, Rajkot, in Civil Misc. Appeal No. 161 of 1982, whereby he stayed the operation of the Octroi Rules.

( 2 ) IT appears that the respondents had filed Regular Civil Suit No. 730 of 1982 in the Court of the Joint Civil Judge (S. D.), Rajkot, for a declaration that the proposed Octroi Rules and the Standing Orders which were intended to be made applicable with effect from 1-8-1982 as well as the imposition of transit pass system were void and that injunction should be ordered restraining its implementation. Alongwith the suit, application Exh. 5, under Order 39, Rules 1 and 2, for interim injunction was filed. The trial Court rejected the said application for interim injunction. Against the said order of the trial Court, Civil Misc. Appeal No. 161 of 1982 was filed in the Court of the Joint District Judge, Rajkot. By his judgment and order dated 6/12/1982, Mr. B. K. Bhatt, Joint District Judge, Rajkot, allowed the said appeal and granted the injunction as prayed for. While allowing the appeal it was observed that the balance of convenience was not in favour of refusing the injunction. He further held that in the event of injunction being not granted the individual who suffers will have irreparable injury and he will have to suffer a lot. It is the aforesaid decision which has been challenged in the present petition.

( 3 ) WHILE dealing with an application under Order 39, Rules 1 and 2 C. P. C. various circumstances have to be kept in mind. Not only the question of balance of convenience but other questions like restitution have also to be seen. The effect of the order granting an injunction against the operation of the proposed Octroi Rules would be that in the event of the suit being dismissed, no recovery would be effected from the tax-payers. Injunction has been granted in the present case without imposing any condition on the plaintiffs. Octroi is paid by various persons who bring goods in the city and if the injunction had been refused but the suit had succeeded, it would have been possible for the persons paying octroi to get a refund from the Municipal authorities. On the other hand, if an injunction is granted, in the manner in which it has been done in the present case and the suit is dismissed, it would be practically impossible to recover the octroi under the Rules. While examining an application under Order 39, Rules 1 and 2, the balance of convenience of both the sides has to be kept in mind and in such a case injunction is very rarely, if ever, granted. In my opinion, the lower appellate Court erred in allowing the Application Exh. 5 under Order 39, Rules 1 and 2. This Revision Application, therefore, deserves to be allowed.

( 4 ) IN the result, this Civil Revision Application is allowed. The judgment and order dated 6/12/1982 rendered by the lower appellate Court in Civil Misc. Appeal No. 161 of 1982 is quashed and set aside. The order passed by the learned Joint Civil Judge (S. D.), Rajkot, below Application Exh. 5 in Regular Civil Suit No. 730 of 1982 is restored. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.

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