ORDER K.M. Dayal, J. - The present petition has been filed by the defendant in an injunction suit. The plaintiff was a co-owner of a mango orchard over plot Nos. 467 and 468 having an area of 6.57 acres. The defendant is running a brick kiln. Suit No. 970 of 1977 was filed for an injunction against the defendant restraining him from running his brick kiln on the ground that the mango trees of the plaintiff's orchard were adversely affected by running of the brick kiln. A permanent injunction was, therefore, sought restraining the defendant from running his brick kiln on the aforesaid place. A commission was issued which prepared a survey report map and a certified copy of the report and map have been produced before me. It is dated 9th January, 1978. According to this map the brick kiln of the defendant is on the north of the plaintiff's grove. The distance is 790. This scale map along with the report also shows that there were 260 Kalmi Mango trees in the plaintiff's grove and defendant was running their business of manufacturing of bricks. 2. An application for temporary injunction was filed by the plaintiff against the defendant claiming that the defendant be restrained from running his brick kiln. The trial court by order annexure-2 to the writ petition ordered the defendant to furnish security for Rs. 10,000/- in order to compensate the plaintiff for the loss caused to his mango grove by the defendant's brick kiln. It was also held that the height of the chimney of the defendant's brick kiln was 40'. It has also given a finding of fact that the distance between the grove and brick kiln was not so small as to affect the grove. It was found that the plaintiff had a right to claim compensation for the damages but the defendant had no such corresponding right. It was accordingly held that the balance of convenience lay in favour of the defendant but in order to safeguard the interest of the plaintiff, security was ordered to be given by the defendant. An appeal was filed against the order and that appeal has been allowed by the lower appellate court. The lower appellate court relied upon an Article by Dr. D.E. Hald in the Manual of Plant Disease. An appeal was filed against the order and that appeal has been allowed by the lower appellate court. The lower appellate court relied upon an Article by Dr. D.E. Hald in the Manual of Plant Disease. In that book it so seems that the author relied upon the emission of sulphurous acid on account of burning of coal in the brick kiln. The reference in para 6 of the judgment of the lower appellate court shows that three types of injuries could be caused to 'plants' by sulphurous acid in the air. There is no specific reference to any injury to the mango plant nor it refers to any distance that must be material from the source of smoke to the plant. Since the smoke or other gases emitted from any source diffuse with other gases and larger (heavier) coal particles settle near by, and lighter ones may be flown to greater distance. 3. Another reference that has been given by the lower appellate court in the said para was about an article by Sri P.K. Sen Officer-in-Charge Joint Fruit Research Scheme of the United Provinces and Bihar on Black Tip Disease of Mango. In that article which was originally published in the Indian Journal of Agriculture Science Vol. XIII June, 1943. It is mentioned that disease of black tip of Mango crop is caused by exposure to coal fumes during the stages of active development in the size of the fruit. The court below relying upon the aforesaid two articles observed that the defendant's counsel could not show 'that the smoke and fumes emitting from the chimney of the brick kiln did not contain sulpher-di-oxide or did not affect the mango crop adversely." This reasoning seems to be against the settled canons of law. It was for the plaintiff to show that the fumes emitted from the defendant's chimney were in such quantity and so close to his grove that they were injurious to his grove or such injury was caused to his grove by such fume. The defendant has no access to the plaintiff's grove, to go there and check the damage to any leaves or fruits therein. The attention of the lower appellate Court was also drawn towards paper Nos. 29C and 31C which were receipts issued by the plaintiff to other brick kiln owners in the locality. The defendant has no access to the plaintiff's grove, to go there and check the damage to any leaves or fruits therein. The attention of the lower appellate Court was also drawn towards paper Nos. 29C and 31C which were receipts issued by the plaintiff to other brick kiln owners in the locality. These receipts were for the compensation paid by the brick kiln owners to the plaintiff. The lower appellate Court has discarded these documents with the remark that the exact distance of these brick kilns from the orchard of the plaintiff has not come on the record. The plaintiff was the author of these receipts and it was for him to prove the distance or any other distinguishing feature, if at all. However, that clearly shows that the damages that may be caused to the crops of the plaintiff could certainly be ascertained in the terms of money and the plaintiff was receiving such damages from other brick kiln owners. So far as the distance was concerned and the damages caused to the plaintiff's grove of mango by the defendant's brick kiln were concerned, it could be decided in the suit itself and if it was found that any damage was caused to the plaintiff's grove by the defendant's action, the suit could have been decreed by giving compensation to the plaintiff for such damage. The lower appellate court has also ignored the most vital factor about the direction of winds. From the commissioner's report that has been confirmed and the certified copy of the map prepared by the Commissioner it is clear that the brick kiln was on the north side of the grove. I have also looked to the Climatic Map, Reader Digest Atlas from which it appears that the direction of the winds in the region is from east to west. As for as general diffusion of gases is concerned, the direction of air is not very material but so far as the coal particles emitted from the smoke are concerned, it is highly relevant. If the direction of the winds is not North to South, the smoke will not come from north side. The plaintiff could not have any grievance in that case. If the direction of the winds is not North to South, the smoke will not come from north side. The plaintiff could not have any grievance in that case. In any case, that is matter of evidence and evidence of local meteorological office can always be available for the said purpose but that is a matter to be decided in the suit itself and not at this stage. The court below in para 9 of its judgment has observed that "in the article of Mr. P.K. Sen referred above the learned author has said that the damage to the mango crop can be reduced by stopping kilns before the time of fruits season of the mango i.e. by the end of February, in area where they exist near the valuable orchard and by using high chimneys of about 40 to 50 feet height that will dilute the deliterious gases of the smoke and make it harmless. In view of this observation of the Court the injunction that could have been granted in such a case could be in respect of the height of the Chimney used by the defendant. For the purpose of permitting the plaintiff to carry on his business of grove of mango, the defendant's business could not be closed. It is not so that only the plaintiff's business is to be considered while granting injunction and defendant's business is to be ignored. By ordering a closure of the defendant's business for a period of six months in a year, it may be ruinous for him. On the other hand, as is clear from the judgment of the lower appellate Court itself that the plaintiff has been compensated by other brick kiln owners, the suit for compensation could have been decreed. Order 39, Rule 2 C.P.C. as applicable to the State of U.P. places a bar on the jurisdiction of the Court to issue an injunction. Clause (a) of sub-rule (2) of Rule 2 of Order 39 provides that no injunction can be granted "where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963." Section 38 (3)(c) of Specific Relief Act, 1963 provides that a perpetual injunction could be granted where "compensation in money would not afford adequate relief". Obviously the perpetual injunction could not be granted where compensation in the shape of money could have been paid. The lower appellate court acted under an impression that the loss or damage to mango crop cannot be ascertained in terms of money. It was of opinion that loss to persons whose business is being closed for six months can be ascertained. There is no basis for such conclusion. 4. The plaintiff has been receiving damages from other Brick Kiln owners. Obviously that must have some basis and there is no reason why the loss by defendant's kiln also cannot be calculated. On the other hand, in fact when the manufacture of Articles is stopped it is not possible to ascertain how much profit or loss would have been there. The judgment of the lower appellate court is not only against the provision of Section 38 of Specific Relief Act read with Order 39, Rule 2 C.P.C. but is also self-contradictory. It ignored that the height of Chimney was one of the limiting factors in respect of damage to grove. It ignored that the trial court had ordered the defendant to give a security for the amount of Rs. 10,000/- to compensate the plaintiff for any loss that may be caused to his grove. It also ignored the report of the Commissioner, direction of winds and distance recorded by the report. Learned counsel for the respondents placed before me another report of Commissioner dated 2nd July, 1980. Learned counsel for the petitioner produced certified copy of order-sheet to show that objection to this report are to be considered by the trial court on 16th January, 1981. Unless the report is confirmed it is not possible to rely upon it. Learned counsel for the petitioner further argued that in respect of the same grove and same brick kiln the other co-sharer of plaintiff Amir Ali had filed a suit and had made an application for injunction in the trial court. The application for injunction was rejected and the order was confirmed in appeal. Learned counsel for the petitioner wanted me to rely on that judgment. As the decision in appeal was made after the decision in the injunction case and that decision was not before the court below at the time of deciding the matter, I do not think it expedient to consider it in the writ petition at this stage. Learned counsel for the petitioner wanted me to rely on that judgment. As the decision in appeal was made after the decision in the injunction case and that decision was not before the court below at the time of deciding the matter, I do not think it expedient to consider it in the writ petition at this stage. If the case proceeds, the counsel may rely upon the same, if permissible under law. 5. In the result, the writ petition is allowed. As the lower appellate court has granted an injunction which could not have been granted by it under the provisions of Order 39, Rule 2 C.P.C. and also for the reason that it failed to take into account the relevant material on record, the order annexure-8 to the writ petition dated 17th November, 1978 is quashed. Parties are directed to bear their own costs.