1. The plaintiffs declared the plaint on April 27, 1923. By their plaint they claimed an injunction against the defendants to restrain them in perpetuity from building on an adjoining plot of land so as to obstruct certain rights of easements which, they alleged, they possessed against that land in virtue of their ownership of the adjoining land.
2. By their letter of April 27, 1923, the defendants intimated to the plaintiffs that they were the lessees of the land on which they had filled in the foundations of their proposed building and that the land belonged to the Secrebary of State for India who was tbeir lessor.
3. The period for acquiring a right of easement, against the Secretary of State for India is sixty years. The plaintiffs replied to the defendants' letter by their letter of the same date intimating that they had filed the suit against the defendants to restrain them from building and that they would apply for an interim injunction against the defendants, The plaint was actually filed on April 27, 1923, and a rule nisi for injunction and an interim injunction were obtained on the same day against the defendants. The rule nisi was served upon the defendants on May 3, 1923. It was never brought on for argument either at the instance of the plaintiffs or of the defendants.
4. The defendants took out a Chamber Summons calling upon the plaintiffs to show cause why the Secretary of State for India should not be made a party defendant to the suit. The argument on that summons stood adjourned from time to time, to enable the plaintiffs to consider their position in Jaw with regard to their action, with the result that the plaintiffs have now decided to abandon the suit and are applying for leave to withdraw the suit. On withdrawal the plaintiffs have to pay to the defendants the costs of the suit, including costs of Government but excluding the costs of the notice for ex parte decree which costs were agreed upon in the correspondence as being payable by the defendants to the plaintiffs and the costs of the summons, counsel being certified.
5. The only dispute between the parties now is with regard to the damages alleged to have been sustained by the defendants in consequence of the interim injunction issued against them by the order of April 30, 1923. That order inter alia provides that-
The plaintiffs by their advocate hereby undertaking to pay such sum by way of damages as this Court may award as compensation in the event of the party affected sustaining prejudice by the following injunction (sic) is further ordered that in the meantime and until further order of this Court the said defendants...be and they are and each of them is hereby restrained from further proceeding with the work of building any structure whatsoever on the said vacant piece of land or otherwise disturbing the said easements...mentioned in the plaint)
6. The defendants are entitled to damages inasmuch as the suit has now failed and by withdrawing it the plaintiffs may be taken to admit that the order for interim injunction which was issued at their instance was wrongfully obtained by them. Before they applied for the interim injunction they had notice of the fact that the Secretary of State for India was the owner of the land and they would have to prove a sixty years' user of the land to establish their allegation that they had acquired easements over it, In spite of that knowledge they applied for and obtained the interim injunction.
7. The question, I have to consider here, is, whether the defendants' claim to damages should be restricted to a sum of Rs. 1,000 under the summary procedure provided by Section 95 of the Civil Procedure Code. Under Section 129 of the Civil Procedure Code the High Court of Bombay is empowered to make rules not inconsistent with the Letters Patent to regulate its own procedure in the exercise of its ordinary original civil jurisdiction. Under that power the High Court has framed Rule 329 of the High Court Rules which, in my opinion, supplants Section 95 of the Civil Procedure Code. That rule provides as follows :-
A. party to whom an interim injunation has been granted shall, before it is issued, unless the Judge otherwise directs, give an undertaking in writing; or through his advocate, to pay such sum by way of damages as the Court may award as compensation in the event) of a party affected sustaining prejudice by such injunction.
8. No limit is placed to the quantum of damages to be awarded by the Court under this rule.
9. This rule is identical with the English Supreme Court Rules, Order L, Rules 11 and 12, Under the English Rules no limit is placed upon the amount which the Court awards by way of compensation under similar circumstances, It is contended, on behalf of the plaintiffs, that the English Courts have no rule corresponding with Section 95 of the Civil Procedure Code, and hence the analogy does not hold good.
10. It is further contended on behalf of the plaintiffs that in this matter I am governed by the ruling of the Appeal Court in the csae of Varajlal v. Kastur I.L.R. (1896) 22 Bom. 42 . That case was an appeal from the mofussil and not from the ordinary original civil jurisdiction of this Court. Section 95 of the Oivil Procedure Code applies to the mofussil Courts, It does not apply to suits under the ordinary original civil jurisdiction of this Court by virtue of Rule 329. In my opinion, the case relied upon has no bearing upon the point which I have here to determine.
11. The principle on this point is clearly enunciated in the case of Newcomen v. Coulson (1878) 7 Ch.D. 764. The case was on all fours with the case before mo. There the plaintiff, who had given an undertaking as to damages, had discontinued his action. It was held by Malins V.C. that the Oourt would nevertheless direct a reference as to damages, No limit was placed upon the amount which was to be awarded by way of damages,
12. There will, therefore, be a reference to the Commissioner of this Court to ascertain and report what damages, if any, the defendants have sustained by reason of the interim injunction dated April 30, 1923. The plaintiffs will be at liberty to urge all points before the Commissioner including the point of waiver which they have urged before me to day. Further costs and directions reserved.
13. On the summons, which is adjourned to the hearing, there will be no order, Plaintiffs to pay the costs of the defendants and of the Secretary of State for India, two separate sets being allowed, Counsel certified.
14. Leave granted to the plaintiffs to withdraw the suit. The plaintiffs to pay the costs of the suit as mentioned in the judgment. The defendants to pay the plaintiffs' costs as mentioned in the judgment. The costs awarded to the defendants are the costs of the suit and of argument as to the correct order to be made on the question of costs of the suit as well as of the compensation claimed by the defendants, The further costs reserved are the costs of the affidavit and of the notice given by the defendants to the plaintiffs regarding the question of damages and the costs of the reference before the Commissioner.