A.N. Grover, J.
1. This appeal arises out of a suit for a prohibitory injunction restraining the defendant from making constructions on the site in dispute which is said to be joint of the parties. The defendant pleaded that the chabutra existed in the site in dispute for the last 30 years, that the plaintiff had already made similar encroachment on another part of the joint sehin and that the suit was barred by time. It was also asserted that in the absence of any allegation regarding special damage, the plaintiff could not maintain the suit. The following issues were framed by the trial Court:
1. Whether the suit is within time?
2. Whether the plaintiff is entitled to the injunction prayed for?
2. The trial Court found that the defendant could only keep three blocks of steps in front of the three doors of his house and was not entitled to build the chabutra. It was also found that the chabutra had been constructed after the institution of the suit. A decree for a mandatory injunction was, therefore, passed directing the defendant to demolish the chabutra and to maintain only three blocks of steps in front of three doors of his house not exceeding width of the three doors and the defendant was further restrained from building any chabutra on the joint courtyard of the Chaudhry family.
The matter was taken in appeal to the Court of the learned Senior Subordinate Judge who found that the suit of the plaintiff in so far as it related to encroachment of the site of the three chabutras that formerly existed in front of the three doors of the defendant's house was clearly barred by time but that the rest of the claim was within time. The finding that certain constructions were made during the pendency of the suit was not disturbed but the suib was dismissed on the ground that the plaintiff had not made any application at any stage for seeking an amendment of the plaint with a view to add the relief for the grant of mandatory injunction.
The relief which had been claimed in the plaint was for a prohibitory injunction and the learned Senior Subordinate Judge considered that unless there was an amendment of the plaint a decree for a mandatory injunction could not have been granted. The plaintiff is aggrieved by the decision of the Senior Subordinate Judge and has come up to this Court in second appeal.
3. The first point that has been raised on behalf of the appellant is that the plaintiff could not have been non-suited purely on the ground that he had not sought amendment of the plaint so as to add the relief for the grant of a mandatory injunction. It is submitted that it is the duty of the Court in such cases to grant an appropriate relief and take subsequent events into consideration as admittedly the constructions in dispute had been made during the pendency of the suit.
It is argued that the trial Court had rightly granted a decree for a mandatory injunction in spite of the fact that the prayer in the plaint was only for the grant of a prohibitory injunction. My attention has been invited to Meghaji Mohanji v. Anant Pandu-rang, AIR 1948 Bom 396 (A), which had laid down that there are eases where it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made.
This principle will be applied where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. In Vishram Arjun v. Irukulla Shankariah, (S) AIR 1957 Andh Pra 784 (B), the general principle was reiterated that the primary duty of the Courts is to do justice and rules of procedure are intended only to advance the cause of justice rather than to impede the same. It is the duty of the Court to grant a relief as the circumstances of the case would warrant even though it may not be asked for.
4. It seems difficult to accept the contention that in the present case a decree for a mandatory injunction could be granted without amendment of the plaint. The considerations which apply to the grant of a mandatory injunction are somewhat different from the considerations which govern the grant of a prohibitory injunction although the general principles for the grant of both types of injunctions are essentially the same.
The main question, however, that arises before any mandatory injunction can be granted is whe- ther in case of co-owner the injunction must he granted for demolition of constructions made by one co-owner on joint property particularly when the joint property happens to be a court-yard. The contention of Mr. Dwarka Natli Aggarwal on behalf of the appellant is that no co-owner can make any construction' on a joint property of this nature and once he does so the other co-owners can ask for the demolition of those constructions without showing any special injury or damage that may he caused to them.
On the other hand it is urged by Mr. Chiranjiva Lal Aggarwal on behalf of the respondent that unless any special damage or injury is proved to the other co-owner it is not open to him to obtain a mandatory injunction. Mr. Chiranjiva Lal Aggarwal has invited my attention to the plans which have been produced in the present case which show that there are other chabutras similar to the one in dispute which have been constructed by other co-owners and he submits that if all the co-owners have exercised a similar right and if the construction of the disputed chabutra has caused no damage or injury to the plaintiff then no injunction should be granted at all.
5. There has been a good deal of conflict on the question whether injury or damage should be proved in case of appropriation by one co-owner of certain part of the common property before an injunction can be issued directing that the constructions be pulled down. The view that prevailed at one time was that the Court would grant a perpetual injunction to restrain one of the several co-sharers from appropriating to himself land in which each of his co-sharers had an interest & from building upon it and it was not necessary to prove any special damage or injury. But even some earlier decisions which have been followed in the latest rulings show that there is no such broad proposition as
'that one co-owner is entitled to an injunction restraining another co-owner from exceeding his rights absolutely, and without reference to the amount of damage to be sustained by the one side or the other'.
In the Lahore High Court the former view prevailed and it has been held in Manji v. Ghulam Muhmmad, ILR 2 Lah 73: (AIR 1921 Lah 157) (C) and Kunj Lal v. Ramji Lal, AIR 1927 Lah 416(D), that the mere fact that the plot encroached upon by one proprietor is small in size or that no special damage has been caused to the other proprietors is no ground for upholding the wrongful act of the former. In such a case it is not legally necessary to prove special damage, nor is there any force in the contention that the plaintiffs' remedy is by way of a suit for partition. Even in the Lahore High Court, however, there was a divergent opinion expressed in Ahmad Gul v. Rahim Khan, AIR 1926 Lah 52 (E).
Moti Sagar J. held that the mere circumstance of A building erected on common land without the consent of the co-sharers was not sufficient in itself to entitle the aggrieved co-sharers to claim the demolition of the building so erected unless it could be shown that the erection of that building had actually caused such material and substantial injury as could not be remedied on a partition of joint land. In Bhagwan Singh v. Hari Singh, AIR 1929 Lah 73, (F) Addison J. laid down that in suits for mandatory injunction it was necessary to prove special injury or substantial damage before such a suit could be maintained.
In that case also a suit had been brought for removal of three obstructions in the shape of small tharas which had been made on joint shamilat land inside the village abadi. It was found that the tharas caused no serious obstruction or interference with the passage of the plaintiffs and the suit was dismissed with regard to the same. The entire case law has been fully discussed in Chhedi Lal v. Chhotey Lal, AIR 1951 All 199 (FB)(G). The following ob-servations made in that case at page 204 deserve particular notice:
'As a result of the foregoing discussion, it appears to us that the question of the right of co-sharerd in respect of joint land should be kept separate and-distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating & cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently arisen from the confusion of the two distinct matters. While therefore a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case, The right to the relief for demolition and injunction will be granted or withheld by the Court according as the circumstances established in the case justify'.
The above observations are followed by other considerations that the Court must take into account before deciding whether an injunction should be granted or not. Mr. Dwarka Nath Aggarwal invited my attention to a ruling of the Division Bench of the Allahabad High Court in Darshan Lal v. Harkesh Singh, AIR 1951 All 338 (H). In that case the learned Judges seemed to assume that an injunction would automatically be granted against a co-sharer who built on a part of the joint land. That case, however, cannot be regarded as laying down the law correctly as the decision of the Full Bench referred to before is different and the Division Rench has not referred to the Full Bench ruling. In Khimji Muljiv. Popatlal Bhanji, AIR 1951 Sau 85 (I), the decision of the Full Rench of the Allahabad High Court was followed and a Division Hench of that Court summarised the position as follows:
'The position thus is that a co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property absolutely and simply on the ground of his co-ownership and without reference to the amount of damage to be sustained by the one side or the other from the granting or the withholding of the injunction'.
6. After giving the matter full consideration, I am inclined to follow, with respect, the view expressed above by the Bench of the Saurashtra High Court which is in accord with some of the decisions of the Lahore High Court also referred to before. Moreover I consider that the principles which should be followed in granting, mandatory injunctions should be the same as have been stated in the Full Bench decision of the Allahabad High Court.
7. In the present case the trial Court i'ailcd to apply correct principles, nor could a mandatory injunction have been granted without amendment of the plaint. The view of the lower appellate Court also with regard to the correct principles and the circumstances in which a mandatory injunction should be granted was erroneous. At the same time it should not have non-suited the plaintiff on the mere techincal defect in the plaint with regard to the absence of a prayer for a mandatory injunction.
7a. It has been urged before me that amendment of the plaint can be allowed even at the stage of second appeal and that such an amendment should be allowed by this Court. As according to the findings of the Courts below, which have not shown to be wrong, the chabutra in dispute was constructed during the pendency of the suit, I consider that an amendment of the plaint to the limited extent of changing the relief to one of grant of a mandatory injunction in place of a prohibitory injunction would be perfectly justified.
8. I, therefore, set aside the judgments and decrees of both the Courts below and remand the case to the trial Court for a fresh decision in accordance with law. The plaintiff will be allowed to amend his plaint to the extent indicated above. The costs will abide the event. The parties have been directed to appear in trial Court on 20-5-58.