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Dhunjibhoy Cowasji Umrigar Vs. Lisboa - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom252
AppellantDhunjibhoy Cowasji Umrigar
RespondentLisboa
Excerpt:
easement - light and air--obstruction--injunction or damages--lord cairns' act (21 and 22 vic, c. 27)--specific relief act i of 1877. - - and in that case, after pointing out that the property would not be useless for the purpose for which it was employed, he held that, looking at the nature of the property, and considering its situation in the heart of a great city like london,'he would not be wrong in exercising his discretion by giving the plaintiff damages. 3. the question, however, whether damages are a sufficient compensation does not, we think, present itself to the courts of this country in precisely the same manuer and form as it does to a court of equity in england. on the contrary in case like the present the courts have always recognized as the important point for inquiry,..........light. for the future all the light passing into the room through that window will be reflected light. we think, however, that we must have regard to all the circumstances and the whole character and construction of the room. the room is not a large one. there is this one window (no. 3) in the south wall, but in the east wall there are several windows through which ample light is obtained. these eastern windows are, also ancient windows; and although the light through window no. 3 is seriously diminished, it is impossible to say that there is a material diminution of comfort in in the use of the room.5. it has been contended that the, question for the court to, consider is exclusively whether in consequence of the defendant's new building there will be a material diminution of the.....
Judgment:

Charled Sargent, C.J.

1. In this suit the plaintiff sues for an injunction restraining the defendant from erecting a building which will interfere with the addess of light and air through certain windows and aperture in the south wall of the plaintiff's house, or, in this alternative for damages. It is admitted that the windows in question are ancient windows, and it is also admitted that the building' now in course of erection by the defendant will largely diminish the amount of light and air which until now has passed through these windows into the rooms of the plaintiff's house. The important question which arises is whether the' Court will grant an. injunction or damages to the plaintiff.

2. The power of the Courts of India to grant a perpetual injunction is determined by the Specific Relief Act I of 1877, Section 54, which provides that the Court may grant such an injunction 'when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment or, property;' and where the invasion is such that pecuniary compensation would not afford adequate relief.' It is to be remarked that this limitation of the power of granting an injunction is identical with the conditions upon which the Court of Equity in England has always asserted the jurisdiction of granting preventive relief in cases of this natuere. In Attorney General v. Nichol 16 Ves. Jun. 342 Lord Eldon says 'that the foundation of the jurisdiction appears to he that injury to property which renders it in a material degree unsuitable for the purposes to which it is now applied, or lessens considerably the enjoyment which the owner now has of it. The Court considers that injury of this nature does not admit of being measured and redressed by damages.' In Staight v. Burn 5 Ch. App. 163 Lord Justice Giffard says: 'I take the course of this Court to be, that when there is a material injury to that which is a dear legal right, and it appears that damages, from the nature of the case, would not be a complete compensation, the Court will interfere by injunction.' By Lord Cairns' Act, 21 and 22 Vic, c. 27, the Court of Chancery is empowered, if it thinks fit, to award damages instead of granting an injunction in cases falling within its jurisdiction, and since that Act, has had to exercise the same discretionary power when the question has arisen whether damages or preventive relief should be granted. The particular effect of that Act does not appear to have received much consideration until the entire question of the right to ancient lights and the appropriate relief in cases of obstruction was examined by Sir G. Jessel in Aynsley v. Glover 18 Eq. 564 . The full discussion it then received makes it unnecessary to refer to earlier authorities. The Master of the Rolls in that case, after discussing the earlier decisions, which doubtless reveal a great variety of opinions, expresses his own view to be 'that wherever an action can be maintained at law and really substantial damages, or perhaps I should say considerable damages, can be recovered at law, there the injunction ought to follow in equity; generally, not universally.' He then refers to Lord Cairns' Act, and points out that the Act 'gives a new power to the Court purely discretionary, to substitute damages' in cases in which 'before the passing of the Act this Court would have granted an injunction,' expressing an opinion that it is 'a reasonable discretion and must depend upon the special circumstances of each case whether it ought to be exercised;' and as an illustration of its application he refers with approval to Curriers' Co. v. Corbett Dr. & Sm. 355 as showing that where the defendant's building has been already erected, the Court will take into consideration the fact of the injury to the plaintiff being of a slight nature (although sufficient to sustain an injunction) as contrasted with the serious damage to the defendant. The subsequent decisions by the Master of the Rolls, Smith v. Smith 20 Eq. 500 and Krehl v. Burrell 7 Ch. Div. 651 afford further illustrations of the principle on which the discretion vested in the Court of Equity of awarding damages in lieu of an injunction should be exercised-In Holland v. Worley 26 Ch. Div. 685 Mr. Justice Pearson, after referring to the above decisions by Sir Q. Jessel, laid down the rule, which he said he thought would be in accordance with the view of the Master of the Holla, that in those cases where the injury would not be BO serious, where the property might still remain the plaintiff's and be as substantially useful to him as it was before, the Court may, if it thinks fit, exercise the discretion given it by the Act; and in that case, after pointing out that the property would not be useless for the purpose for which it was employed, he held that, 'looking at the nature of the property, and considering its situation in the heart of a great city like London,' he would not be wrong in exercising his discretion by giving the plaintiff damages. This case has been referred to in terms of implied disapproval by Bacon, V.C. in Greenwood v. Hornsey 33 Ch. Div. 471 and it may be that Mr. Justice Pearson's ruling, which undoubtedly modified the generally received practice of the Court of Equity, may not be followed in England.

3. The question, however, whether damages are a sufficient compensation does not, we think, present itself to the Courts of this country in precisely the same manuer and form as it does to a Court of Equity in England. This latter Court in awarding damages under Lord Cairns' Act exercises a discretionary power in departing from the specific relief which it had hitherto exclusively afforded; and could scarcely be expected to take so broad a view of the subject as the Courts of this country whose 'duty' it is under the Specific Relief Act, not to grant an injunction where damages afford adequate compensation. The, result has been that this Court has in several cases, adopted the view, taken by Pearson, J., as being one which if applied with caution is suited to the circumstances of this city, which from its nature can in most parts of it only extend itself Vertically upwards; and we think, therefore, that it ought to be considered as the general practice of this Court, although doubtless one to be administered with much care and with due regard to the special circumstances of each case.

4. Now in the case before us the dispute between the parties is with reference to the amount of injury which the defendant's new building will do to four windows of the plaintiff's house. The first and perhaps the most important of these is the window marked No. 3. The plaintiff has been awarded damages for the injury done to this window, but he wishes to obtain an injunction. It appears that the defendant's wall, which it was originally intended to build at a distance of only three and a half feet from the window, has now been thrown back to a distance of eleven feet at the part opposite the window. We have visited the house, and it is quite plain that, notwithstanding this alteration, there will be a great diminution of the light coming through that window. Before the wall was built there was free direct uninterrupted light. For the future all the light passing into the room through that window will be reflected light. We think, however, that we must have regard to all the circumstances and the whole character and construction of the room. The room is not a large one. There is this one window (No. 3) in the south wall, but in the east wall there are several windows through which ample light is obtained. These eastern windows are, also ancient windows; and although the light through window No. 3 is seriously diminished, it is impossible to say that there is a material diminution of comfort in in the use of the room.

5. It has been contended that the, question for the Court to, consider is exclusively whether in consequence of the defendant's new building there will be a material diminution of the light and air through Window No. 3 without taking into consideration the light and air afforded to the room by the other windows in it. No authority, however, has been cited in support of this contention: on the contrary in case like the present the Courts have always recognized as the important point for inquiry, whether the comfort of the plaintiff in the use of the room has been materially diminished, and in coming to a conclusion as to that it is impossible to disregard the fact that there are other windows in this room through which light and air are obtained. See the discussion of the evidence by Lord Westbury in Jackson v. Duke of Newcastle 3 DeG. & S. 275 No 'doubt the plaintiff will have to use his microscope in some other part of the room, but we think he will be able to do this and to pursue his scientific studies without any material inconvenience. We cannot, therefore hold that with regard to No. 3 the plaintiff has shown a case for an injunction, but we are of opinion that he is entitled to substantial damages.

6. As to window No. 5, the Court below has granted an injunction. It is a window which opens upon a staircase in the plaintiff's house. The light coming through it could never have been very bright, because the slanging roof of the defendant's old house partially blocked up this window and obstructed the light. Moreover this window is almost on a level with a landing place at the top of the staircase upon which, three rooms open. All these rooms are well lighted, and sufficient light for the staircase can be obtained from them. Under these circumstances, and considering the fact which I have mentioned that the window No. 5 has always been partly obstructed, we think that, the additional diminution of light through this window, which no doubt will be caused by the defendant's new building, will be sufficiently compensated by damages, and that he ought not to get an injunction. We do not think that' the plaintiff's comfort in the use of this staircase will be materially affected.

7. Finally, with regard to windows Nos. 7 and 8. These are windows in a loft which is chiefly used as a lumber-room, but sometimes as a bed-room. It is clear from its construction that it was intended as a lumber-room, although no doubt it has been frequently used as a bed-room by members of the plaintiff's family. The defendant's new wall will be about six feet distant from windows Nos. 7 and 8. Having regard to the use which is now or can be fairly expected to be made of this loft we do not think that defendant's wall will so materially interfere with the comfort of the plaintiff in using it that the Court ought to grant an injunction with respect to the windows. We think that for the injury done the plaintiff can be sufficiently compensated by damages.

8. On the whole, then, we are of opinion that no injunction should be granted to the plaintiff in this case, but we think it is certainly a case in which he is entitled to substantial damages, and we award him a sum of Rs. 2,000. With regard to costs, we shall not disturb the order of the lower Court, which directed the defendant to pay the plaintiff his costs, but each party must pay his own costs of appeal. The injunction is discharged.


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