JOSHI, J.—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 defendant controverted the claim of the petitioner and inter alia pleaded that the suit was a malafide 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 license 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 license 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 befor

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