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R. Kannaiah Vs. Bangalore Woollen Cotton and Silk Mills Ltd. Co. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 109 of 1968
Judge
Reported inAIR1969Kant341; AIR1969Mys341; ILR1968KAR957
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rules 4 and 2
AppellantR. Kannaiah
RespondentBangalore Woollen Cotton and Silk Mills Ltd. Co.
Excerpt:
.....injunction is to protect the legal rights and to avoid future injury during the pendency of litigations and thus maintaining the matters in status quo until the dispute is finally settled. it is clear from the order that the learned district judge has clearly taken into account the pleadings of the parties. even otherwise, it must be clearly established that such putting up of the superstructure is likely to infringe the right of support from adjacent or subjacent soil, enjoyed by the plaintiff, as a natural right. if and when such subsidence takes place, directly owing to the weight of the superstructure to be put up, the plaintiff's remedy clearly would be one by way of action for damages by way of compensation. hence, the contention of sri reddy on the basis of the future damage..........that being the position, the plaintiff could base his case on the ground of nuisance or a natural right of support from the adjacent or subjacent soil. he further submits that the prayer relating to the perpetual injunction does not really flow from the allegations of excavation and superstructure. therefore, according to him, no prima facie case for a perpetual injunction is made out so as to warrant the grant of a temporary injunction. it is also submitted that the more dangerous part of the operation relating to construction, namely, pile driving operations, in regard to which, arrangement had been arrived at between the parties, has been completed. indeed, the substance of the complaint to the digging of the foundation to a depth of two feet only which is relatively less dangerous,.....
Judgment:

1. This appeal by the plaintiff in Original Suit No. 38 of 1968 on the file of the learned First Munsiff, Bangalore, is directed against an Order made on 20-5-1968 by the learned District Judge (sitting as Vacation Judge), Bangalore, refusing to grant a temporary injunction restraining the defendant herein from proceeding with the execution of laying foundation or other construction in the suit 'C' schedule premises.

2. A few facts may be briefly stated. The plaintiff is the owner of a premises in Siddartha Nagar on Dr. T. C. M. Royan Road, Bangalore. The defendant is a Joint Stock Company carrying on business of manufacture of textile goods. The Company proceeded to put up a multistoreyed building opposite to the plaintiff's premises across the road separating them. The width of the road is about 12ft. according to the plaintiff. which is not admitted by the defendant. In view of the nature of the soil, the company had to erect the structure by driving several concrete piles to serve the purpose of foundation and support for the superstructure. In the course of the pile driving operations, anticipating damage or danger to the plaintiff's building, the company entered into an arrangement with the plaintiff, whereby an alternative accommodation was provided to him in addition to paying a sum of Rs. 100/- for every fortnight by way of displacement compensation. According to the said arrangement, it was also agreed by the company that in the event of any damage to the plaintiff's building, it would repair and restore the building to its original condition at its own cost.

The pile driving operations were commenced on 21-2-1967 and completed on 5-5-1967. It would appear that as a result of such operations some fissures and such other damage were caused to the building of the plaintiff. The Company in accordance with the terms of the agreement sought to repair the damage which at some later stage was prevented by the plaintiff Subsequently, the Company sought to laying the concrete basement which was necessary to proceed with the superstructure. It was at this stage that the plaintiff moved in the mater and claimed a sum of Rs. 56,200 for demolishing and reconstructing his building, which liability was denied by the company. According to the plaintiff, the pile driving operations carried on by the Company resulted in causing extensive damage to the building of the plaintiff. The vibrations, which were the direct result of the pile driving operations, shook the entire area and fissures appeared on all the walls and the roof of the building of the plaintiff, extending from the basement to the roof. The house thus became unsafe and dangerous for human habitation.

It is also averred that further excavation for the purpose of laying the basement foundation would bring down the building thus necessitating the grant of a permanent injunction, which has been claimed in the suit in addition to several other reliefs. The plaintiff secured an order of temporary injunction, which was later vacated on the defendant company applying for its dissolution under Order 39, Rule 4 C.P.C. The temporary injunction was vacated by the learned District Judge functioning as the Vacation Judge on 26-5-1968. The learned District judge come to the conclusion that further digging to a depth of two feet for laying the basement foundation cannot at all be said to affect the plaintiff's building. He has also indicated that the plaintiff would be at liberty to secure the appointment of a Commissioner to supervise the work to be carried on by the Company. Aggrieved by this Order, the plaintiff has presented this Appeal.

3. Sri H.F.M. Reddy, the learned Counsel appearing on behalf of the appellant, submits that the lower Court in refusing to confirm the Order of temporary injunction had committed an error in omitting to consider several relevant circumstances available in the pleadings and the correspondence produced in support thereof, thus rendering the Order liable for interference on the ground that it was unreasonable or capricious. By way of example, he referred to the non-consideration of the pleadings and the correspondence in the original suit. It is also his submission that the most relevant circumstance, namely the width of the road and the nearness of the construction to the plaintiff's building have not been considered by the Court below in making the order in question.

4. Sri. T. Krishna Rao, the learned Counsel appearing on behalf of the respondent-company, submits that there are no allegations of negligence on the part of the defendant-company in carrying out the work. That being the position, the plaintiff could base his case on the ground of nuisance or a natural right of support from the adjacent or subjacent soil. He further submits that the prayer relating to the perpetual injunction does not really flow from the allegations of excavation and superstructure. Therefore, according to him, no prima facie case for a perpetual injunction is made out so as to warrant the grant of a temporary injunction. It is also submitted that the more dangerous part of the operation relating to construction, namely, pile driving operations, in regard to which, arrangement had been arrived at between the parties, has been completed. Indeed, the substance of the complaint to the digging of the foundation to a depth of two feet only which is relatively less dangerous, if it is dangerous at all.

The further contention of Sri Krishna Rao is that the plaintiff cannot at all complain about the putting up of the superstructure, as it is a natural or incidental right of ownership of the land of the defendant-company to exercise such right. He proceeds to argue that in the exercise of such natural or incidental right of ownership of land, if the plaintiff's right to support from adjacent or subjacent soil is affected in any manner say for instance by the subsidence of soil, his remedy would be to claim damages by way of compensation, provided it is established that such subsidence is the direct or the material result of the weight of the superstructure constructed on the adjacent land. He therefore, submits that in the facts and the circumstances of this case, the balance of convenience is in favour of the defendant-company and therefore the temporary injunction sought for should be refused.

5. On a careful consideration of all the facts and circumstances in the case and in the light of the general principles relating to the grant of temporary injunction. I am clearly of the opinion that the contention of Sri. T. Krishna Rao deserves to be accepted.

6. My attention is invited to certain passages in 'the Law Relating to Injunctions' (12th Edn. by Woodroffe) relating to the nature of the power possessed by courts in granting injunctions, and the manner of exercise of that power and the circumstances to be taken into consideration in the exercise thereof.

7. At page 101 of that volume it is observed thus:

'The power which the Court possesses of granting injunctions whether interlocutory or perpetual (however salutary), should be very cautiously exercised, and only upon clear and satisfactory grounds; otherwise it may work the greatest injustice. An application for an injunction is an appeal to the extraordinary power of the Court, and the plaintiff is bound to make out a case showing a clear necessity for its exercise; it being the duty of the Court rather to protect acknowledged rights than to establish new and doubtful ones. Moreover, a temporary injunction is a restrictive or prohibitory process designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the Courts be determined. As such, an injunction is in its operation somewhat like judgment and execution before trial; it is only to be resorted to from a pressing necessity, to avoid injurious consequences which cannot be repaired under any standard of compensation.'

Again at page 102 it is observed as follows:

'In the case of temporary injunctions: (a) the applicant must show a fair prima facie case in support of the right claimed; and (b) an actual or threatened violation of that right; (c) productive or irreparable or at least serious damage; (d) his conduct must be such as not to disentitle him to assistance; it should be fair and honest, and in particular there must be no acquiescence or delay; (e) there must be a greater convenience in granting than refusing the injunction; and (f) equally efficacious relief must not be obtainable by any other usual mode of proceeding, except in case of breach of trust......'

8. Judging in the light of the above principles, I am of the view that the plaintiff has not succeeded in establishing his case for the grant of a temporary injunction. It is well settled that the purpose behind the grant of temporary injunction is to protect the legal rights and to avoid future injury during the pendency of litigations and thus maintaining the matters in status quo until the dispute is finally settled. It is also intended as to step in aid of the final relief to be granted to the plaintiff.

9. The principal contention of Sri Reddy, the learned Counsel appearing on behalf of the appellant, is that the learned District Judge has omitted to take into account the pleadings and the correspondence and other relevant factors in the exercise of his discretion to grant or refuse the temporary injunction prayed for. It is, therefore, his further contention that the matter should be remitted to the lower court for reconsideration.

10. On a reading of the Order in question, the contention of Sri Reddy that the pleadings have been ignored is not borne out. It is clear from the Order that the learned District Judge has clearly taken into account the pleadings of the parties.

11. As regards the contention of Sri Reddy that the correspondence between the parties should have been examined as a relevant piece of evidence, which would furnish the necessary background for purpose of appreciating from the point of view whether a prima facie case had been made out in support of the right asserted. For the defendant company it is submitted that no such correspondence has been produced in support of the application under Order 39, Rule 2 C.P.C. It is not shown by Sri Reddy that there is any such correspondence in this regard and if so, as to what was the material that was omitted to be considered. It is clear from a fair reading of the pleadings, the case of the plaintiff, in so far as it relates to the grant of injunction, is based particularly on the fact that there has been damage caused to the building as a result of the pile driving and there is likely to be further damage because of the digging of the ground for the purpose of laying the foundation to a depth of two feet to put up a superstructure thereon. Putting it simply, he complains that the digging of the foundation to a depth of two feet and putting up a basement and superstructure thereon would cause further damage to the building. The result of any such damage would effect his right to claim perpetual injunction which is the ultimate relief claimed by him.

12. The defendant-company has produced a report by a retired Chief Engineer of the State to the effect that the digging up of the foundation to a depth of two feet or little more for the purpose of putting up basement foundation would not at all affect the building of the plaintiff. Against this view nothing has been produced by the plaintiff in support of the stand that such action is likely to cause further damage to the building. As regards the damage caused by the pile driving the plaintiff has acquiesced in regard to it by entering into an arrangement with the defendant-company in terms indicated earlier. He cannot therefore make it the basis for sustaining his plea for temporary injunction. It is also brought to the notice of the Court by Sri. T. Krishna Rao that even as regards the digging of the foundation, the ground is no longer available to the plaintiff in view of the joint memo filed in this court on 20-6-1968. According to the terms of that memo the basement foundation in respect of points 'A' and 'B' shown in the plan produced, has been completed and also a wall to a height of 8 feet has come up on that foundation. In view of this circumstance, the ground sought to be made out by the plaintiff on the basis of the digging for the purpose of foundation, is no longer available to him.

13. It remains therefore to consider his grievance in regard to the putting up of a superstructure over the foundation and the piles. At the outset, it may be observed that the plaintiff has not placed any material before the Court that such putting up of the superstructure is likely to affect his building in any manner. It is to be remembered that there is a road dividing the plaintiff's building and the defendant's land. Even otherwise, it must be clearly established that such putting up of the superstructure is likely to infringe the right of support from adjacent or subjacent soil, enjoyed by the plaintiff, as a natural right.

14. In the circumstances of this case, such violation can be said to take place only be subsidence of the soil as a direct result of the weight of the superstructure. If and when such subsidence takes place, directly owing to the weight of the superstructure to be put up, the plaintiff's remedy clearly would be one by way of action for damages by way of compensation. In these circumstances any grant of temporary injunction will directly affect the right of the owner to excavate and build on his own land subject to natural right of support from the adjacent and subjacent lands of the neighbouring owners. Such natural right is confined to the support that could be derived form the land only. This right to support does not extend to the building, unless, that right has been acquired by grant or prescription. In the instant case no such easementary right can be claimed by the plaintiff for more than one reason. He could no have prescribed for it because the building was not in existence. There does not also appear to be any ground in favour of the plaintiff recognising such right of support. It is also evident that a road separates these two, the land and the building. In this state of affairs such a right of support to the building cannot be claimed by the plaintiff. Hence, the contention of Sri Reddy on the basis of the future damage to the building that is likely to be caused by the superstructure to be put up by the defendant-company also deserves to fail.

15. In regard to this aspect of the matter, attention of the Court is invited by Sri. T. Krishna Rao to two passages in Clerk & Lindsell on Torts (12th Edn.).

At page 661, para 1253 of that volume it is said thus:

'The owner of land has a right to the support of his land in its natural state from the adjacent and subjacent land of the neighbouring owners. This right is not an easement but a natural incident of his ownership. There is no natural right of support for buildings, but such a right may be acquired as an easement by grant, express or implied, or by prescription at common law or under the Prescription Act, 1832. An acquired right is similar in character to a natural right. If the adjacent or subjacent support is withdrawn so as to cause land to subside and the subsidence has not been caused by the additional weight of the buildings or other erections upon the land, the landowner is entitled to recover, in addition to damages for the subsidence of his land, damages for the injury to his buildings or other erections although he has not acquired right of support in respect of them.'

Again at page 663, paragraph, 1256, it is stated as follows:

'There is no natural right of support for buildings, and therefore a land owner may make an excavation in his own land notwithstanding that by so doing he may cause this neighbour's building to fall. Also, if in pulling down his own house he removes the support of his neighbour's house, he is not bound to share up his neighbour's house or take any other active steps for its protection. But if his neighbour has an easement of support for his building from the adjoining buildings, he must not pull down his own building so as to remove the support form his neighbour's building......'

16. It is clear from the above statements of the legal position, relating to the right of support form lands and buildings, the plaintiff has not made out a prima facie case in support of the right claimed as the basis for his claim for the grant of an injunction. In other words, for the present he has not prima facie established is right for support from the land of the defendant company or that his building is likely to be damaged by subsidence of the soil as a result of putting up of a superstructure or in any other manner.

17. In the result, this appeal deserves to fail and is dismissed.

18. In the circumstances of this case, there will be no order as to costs.

19. LGC/D.V.C.

20. Appeal dismissed.


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