1. This is a defendants appeal arising out of a suit by plaintiffs to have certain windows and doors made by the defendants closed. The plaintiffs and defendants owned houses on the opposite sides of a street. It has been found to be at its maximum in the neighbour-hood of the houses 17 feet in width. The locality is the town of Debai in the District of Bulandshahr.
2. The plaintiffs' house faced towards the east, the defendants towards the west. The plaintiffs had a two storied house, on the first floor, i.e., upper storey, of which the women folk of the house are said to, at any rate occasionally, spend their time. The defendants' house was originally a single-storied house but some three or four years ago they proceeded to rebuild it, and a few months before suit they proceeded to add to; it a second storey. It was the plaintiffs' case that prior to the addition of this second-storey there had been screen walls on the roof of the defendants' house and that as a result no one from the defendants' house had been able to see into the windows of the plaintiffs' first floor. The plaintiffs complained that by the addition of this second storey to the defendants' house the plaintiffs were aggrieved.
3. It appears that those whowere responsible for drafting the plaint were a little uncertain as to how to state their grievance. There is a reference more than once to the plaintiffs' right to light and air through the windows to this first floor, which look towards the east. The case was stated that the plaintiffs were obliged to shut these windows because the defendants had so constructed their house that they were able to look into the first floor room and see the ladies, and that the result of their having to shut the windows was a dearth of light and air. There was, thus no direct claim to a right of privacy, but an allegation that an infringement of the right of privacy inevitably resulted in the loss of the right to light and air. This is how the plaintiffs stated their case. But the relief prayed for claimed that their right of privacy should be preserved.
4. The trial Court held that there was no substantial inconvenience to the plaintiffs and dismissed the suit. The lower Appellate Court held that there was such substantial inconvenience and decreed the suit.
5. The case came first before Mr. Justice Mukerji. He referred to the decision of this Court in Gokul Prasad v. Radho 10 A. 358 : A.W.N. (1888) 135. Of this case he said 'it has never been dissented from and thoroughly establishes the proposition that a right of privacy enjoyed by a party is sacred and cannot be interfered, with.' He continued:
Mr. Aziz for the respondent-plaintiff states that he is not aware whether his clients' windows have got shutters. The judgment of the first Court mentions them. If they have not got any, they can easily be provided with shutters.... The remedy of the invasion of privacy is very easy and lies in the hand of the plaintiff himself, namely, to hang up ordinary chicks, if necessary, with thin pieces of cloth attached to a portion of them. This is done everywhere in bungalows occupied by respectable people whether Indians 01 Europeans, whether observing or not observing the custom of parda, la cases where the plaintiff is without remedy, for example, where his court-yard is overlooked, the case might be different. The custom of privacy which undoubtedly exists should not be carried to an oppressive length, and where there is a clear remedy available to a plaintiff, he should not have anything except by way of damages at the utmost. The point is important and I refer the case to a Bench of two Judges.' With these remarks we entirely agree. If the plaintiffs were to be held entitled to relief in the circumstances of this case exactly as they claimed, it would mean that the owner of a small house in a growing part of a big city would be entitled unconditionally to hold up for ever and ever the building of any houses in his vioinity. Mr. Abdul Aziz for the plaintiffs was constrained to admit that no such right of privacy could be supported in a business quarter, but was unable to suggest any test by which it could be determined what should be held to be and what not to be a business quarter or at what stage it became a business quarter. It is manifest that such a test would be impracticable.
6. But for a circumstance which we shall presently state, we might then have felt compelled to reconsider whether the decision in Gokul Prasad v. Radho 10 A. 358 : A.W.N. (1888) 135, should still retain its full force after nearly half a century has passed, when it is manifest that the force of customs, especially the custom of parda, may be very largely varied in the course of so long a period. We have not, however, to reconsider that case now, for there is another fatal defect in the claim of the plaintiffs. Assuming that the decision to. which we have referred should still have full force, it cannot amount to more than this that a customary right of privacy is not unknown in the United Provinces. It could not possibly be suggested that the effect of that decision was that a customary right of privacy exists at every single spot in the United Provinces, or that every single individual in the United Provinces is entitled to rely upon such a custom. The decision in question was passed before the Easements Act, V of 1882, was applied to these Provinces' but there can be little doubt that much of the language used was taken from Section 18 of the Basements Act, and more particularly from the Illustration (6) to that section. That Illustration particularly refers to the existence of a custom in any particular town. The Act has been since applied to these Provinces by Act VIII of 1891, and the present case has undoubtedly to be decided having in view the terms of that Act. The plaintiffs have made no effort of any sort whatever to prove, Lave not even alleged that a customary right of privacy exists in the particular neighbourhood in which the plaintiffs were living, much less have they alleged or attempted to prove that they were individually or as members of their particular class entitled to take advantage of any such custom. Their whole suit, therefore, should have failed at the outset. This is a matter which went to the root of the plaintiffs' case, but it was not so far as we are able to ascertain, ever taken by the defendants. We think, therefore, that the parties should bear their own costs throughout.
7. We agree, further, with Mr. Justice Mukerji that the plaintiffs have not even suggested any reason why they could not adopt the simple expedient of chicks.
8. We allow the appeal and, setting aside the order of the lower Appellate Court, we restore the decree of the trial Court. The parties will bear their own costs throughout.