Khan, J.@mdashThe plaintiff brought a suit against the Mandi-Committee Gulabganj, Bhilsa, alleging that his field (the Survey numbers of which are 133 and 135/3, and the area of which is 21 Bighas 16 Biswas) the Mandi Committee had made an encroachment and that it wanted to establish a bullock-cart-park there. With this end in view, the Mandi Committee had the grass standing in the field cut. In the written statement the Mandi Committee stated that proceedings for the acquisition of the land were pending and while denying that they dispossessed the plaintiff of the land, it was admitted that they had got 2 or 3 Bighas of the ground cleared of the grass. The suit is thus in respect of a trespass that the defendant has committed and the plaintiff sought a perpetual injunction against the Mandi Committee. The trial Court decreed the suit, holding that the land in dispute belonged to the plaintiff and that the defendant''s encroachment was not lawful. The trial Court also issued a perpetual injunction against the Mandi Committee. On an appeal being filed by the Mandi Committee, the District Judge, Guna, allowed the appeal with costs and set aside the perpetual injunction. Aggrieved by this decision, the plaintiff has filed this second appeal.
2. It seems that the learned District Judge has set aside the injunction on the assurance which the Mandi Committee gave that in the future they shall not interfere with the possession of the plaintiff. And, for that reason also the Court awarded costs against the plaintiff. I am afraid the approach of the learned District Judge is not at all correct. The Mandi Committee having encroached upon the land of the plaintiff gave him cause of filing this suit. If once it is established that the defendant has trespassed, as it is proved in this case, then mere assurance by the Mandi Committee, the members of which will keep on changing, is not enough to set aside the perpetual injunction. As a matter of fact the Mandi Committee having once trespassed upon the land of the plaintiff, there is no guarantee that in the future they shall not do the same.
3. Mr. Patankar, the learned counsel for the Mandi Committee, says that the Mandi Committee never acquired possession of the lands of the plaintiff. I fail to understand the sense in which he talks of possession. There is no doubt that the Mandi Committee by cleaning part of the field made an encroachment and trespassed upon the land of the plaintiff for which an action does lie.
4. Mr. Patankar also contends that since the Mandi Committee has given an assurance that it will not in the future commit any trespass, no injunction can be issued against it and he has referred me to Section 54 of the Specific Relief Act. But I find nothing in the Section which says that in the circumstances similar to the present case a perpetual injunction would not go. In fact one of the object for which a perpetual injunction is issued is to prevent future mischief and multiplicity of judicial proceedings. If the Mandi Committee in its arrogance did get hold of the field of the plaintiff and had it unlawfully cleared of the grass that was growing there, then there being no security for the future, a perpetual injunction is, desirable.
5. Mr. Patankar also read out a passage from the treatise on the law of Injunctions by C.M. Row at page 357 to the effect that "where a trespass has been committed by the defendant, but has been discontinued before the suit is brought, the Court will not interfere by injunction to restrain the defendant from continuing such trespass." This passage is based on a decision of the Bombay High Court reported in 8 B.H.C.O.C, page 85. But the facts of the case are not given in the book and it is difficult to appreciate the circumstances in which these observations were made. The passage quoted in the text book however cannot be treated as an authority for the proposition that an injunction cannot be granted for preventing future mischief and multiplicity of judicial proceedings in a case of trespass. In fact the prayer for damages and injunction are the proper remedies in an action for trespass and the Mandi Committee should consider itself fortunate that the plaintiff had not asked for damages, which could have been awarded against the Mandi Committee, besides an injunction. In Colls vs. Home and Colonial Stores (1904 A.C. 179) Lord Macnagthen has observed that if the defendant has acted wilfully and in highhanded disregard of the plaintiff''s right, an injunction will be granted even in cases which would otherwise have been deemed to trival for this remedy. It would, however, be interesting to know the position of English law in cases of trespass. In a suit for trespass if the defendant pleads a disclaimer of any title and states that the trespass was involuntary or by negligence and that before the suit was brought, he had tendered an apology or made an offer of sufficient amends, it would appear that the plaintiff cannot succeed. See Salmond on Torts 1953 Edition, page 228. In India there is no such reported case but all the same I presume that if it is proved that the defendant committed trespass involuntarily or negligently and has offered an apology or otherwise made amends for it, that would go a long way in determining the quantum of damages and also the question whether an injunction should be granted or not. An apology is not only on act of grace that conforms to an approved pattern of conduct, but it also contains an assurance that the mistake will not be repeated. But in this case Mandi Committee has not tendered any apology to the plaintiff and there is no reason why a perpetual injunction should not be issued against it.
6. The learned District Judge without any rhyme and reason has allowed the appeal of the defendant with costs of both the Courts. This is true that the costs are within the discretion of the Court but that discretion is not to be capriciously exercised. The Court has assigned no reason for awarding the costs to the defendant. If the defendant committed trespass which gave rise to a cause of action, then the plaintiff was justified in bringing a suit and there is no reason why he should be deprived of costs.
7. For reasons stated above, the decision of the learned District Judge is set aside and the decision of the trial Court is restored with costs throughout.
