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V.S. Muthukrishna Aiyar Vs. Somalingamuni Nagendrien and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in(1911)21MLJ742
AppellantV.S. Muthukrishna Aiyar
RespondentSomalingamuni Nagendrien and ors.
Cases ReferredLimited v. Ram Narain Chatterjee I.L.R.
Excerpt:
- - the ground on which the refusal of injunction was justified is not, however, elucidated in that case, the learned judges merely observing :the district judge has given good and sufficient reasons for not granting an injunction in the present case. ananthakrishna aiyar, for the respondent, contends that in india injunction is a remedy which can be granted only in exceptional cases and that the award of damages is the relief to which the plaintiff is generally entitled. a person who wishes to preserve his lights has no power to compel his neighbour to preserve the tiles, or a mirror which might be better, or to keep them clean, nor has he covenants for these purposes who take without notice;.....case, refusing injunction to the plaintiff and awarding only damages, although the plaintiff's right to light and air was obstructed by the defendant's building. the ground on which the refusal of injunction was justified is not, however, elucidated in that case, the learned judges merely observing : 'the district judge has given good and sufficient reasons for not granting an injunction in the present case.' the reason given by the district judge was that the injury caused by the obstruction was not so 'large, material and substantial' as to entitle the plaintiff to an injunction. that judgment is not an authority which can sustain the view taken in the lower appellate court in this case. the quantum of injury caused to the plaintiff was taken as the test there. the finding in this.....
Judgment:

1. The plaintiff and defendants are occupants of neighbouring houses. The suit is for a mandatory injunction that the defendants do pull down the tiled building recently erected by them on a vacant portion of their premises which, according to the plaintiff, blocked up the passage of light and air passing through four windows on his wall.

2. The defendants deny the plaintiff's right to the passage of light and air through all the windows and his right to the mandatory injunction claimed.

3. The District Munsif found that the plaintiff's right to the passage of light through the four windows was established, but, curiously enough, he held that the plaintiff was not entitled to the passage of air through them. He said : 'I do not think that this tiled portion has inconvenienced the plaintiff by making his house ill-ventilated, although it has darkened it.' He refused, to grant the mandatory injunction asked for and ordered that] 'the defendants do open in the roof in the tiled building * * * 4 sky lights * * * 2 ft. long and 1 1/2 ft. broad against the windows 1 to 4, so as to allow enough quantity of light to fall into the plaintiff's house through the said windows.'

4. On appeal, the District Judge was of opinion that the plaintiff had not established the right claimed by him with respect to the windows Nos. 1, 2, and 3, but he was of opinion that a satisfactory case for the issue of an injunction had not been made out. His reasons are '(1) The issue of an injunction will prevent the defendant from using his own land for building on, and building sites are valuable in the locality where the parties reside. (2) The plaintiff can arrange to get light and air to his rooms by the construction of suitable sky-lights and ventilators, or by the construction of rooms upstairs. If the former course is adopted, he will be sufficiently compensated if he is given the cost of the construction of ventilators and sky-lights. If the latter course is, adopted, the compensation will be the cost of the construction of the upstair rooms, less the value of the downstair rooms which can still be used as godowns or store-rooms.'

5. After appointing a Commissioner to make a local inquiry and to prepare an estimate as to the cost which would be incurred, the District Judge gave the plaintiff a decree for Rs. 100 damages, the amount of the difference between the cost of the construction of the upstair rooms and the value of the downstair rooms, the plaintiff having objected that the erection of sky-lights and ventilators would prevent his building an upstair room. The plaintiff appeals agxint this judgment. He attacks the finding of the judge negativing his right with respect to the window No. 4, and also contends that a, mandatory injunction should have been granted to him. The defendants have preferred a memorandum of objections in which they deny the plaintiff's right altogether, and their vakil has argued that in case the plaintiff's right be upheld and the course pursued by the District Judge to protect his right be considered inappropriate, the District Muusif's direction that the defendants do put up the sky-lights in their new building should be restored. The learned judge's decision is based on the authority of Kallian Dass v. Tulsi Dass I.L.R. (1899) B. 786 where Parsons and Remade JJ. upheld the judgment of the lower court in that case, refusing injunction to the plaintiff and awarding only damages, although the plaintiff's right to light and air was obstructed by the defendant's building. The ground on which the refusal of injunction was justified is not, however, elucidated in that case, the learned Judges merely observing : 'The District Judge has given good and sufficient reasons for not granting an injunction in the present case.' The reason given by the District Judge was that the injury caused by the obstruction was not so 'large, material and substantial' as to entitle the plaintiff to an injunction. That judgment is not an authority which can sustain the view taken in the lower appellate court in this case. The quantum of injury caused to the plaintiff was taken as the test there. The finding in this case is that the obstruction caused by the defendant's building has darkened the plaintiff's house. The case of Kallian Dass v. Tulsi Dass I.L.R. (1899) B. 786 is top authority for the position that injunction can be refused on the ground that the plaintiff may remedy the mischief caused by the obstruction by making structural alterations with respect to his own building.

6. Mr. Ananthakrishna Aiyar, for the respondent, contends that in India injunction is a remedy which can be granted only in exceptional cases and that the award of damages is the relief to which the plaintiff is generally entitled. We are, by no means, prepared to accede to this contention or to agree that there is any difference between the law of England and that in India with respect to the granting of an injunction in cases of obstruction of easement to light and air - see Boyson v. Deane I.L.R. (1899) M. 251; Dhumjibhai Cowasji Ummgar v. Lisboa I.L.R. (1886) B. 252; Sultan Nawab Jung v. Rustomji Nanabhai I.L.R. (1896) B. 704; Ramanjulv Naidu v. Aparanji Ammal : (1911)21MLJ313 , and Esa Abbas Sait v. Yacoob Haroon Sait I.L.R. (1909) M. 327 But we do not consider it necessary in this case to decide this general question, as it is not contended that the nature of the injury is so immaterial that compensation by award of damages will be an adequate remedy. In our opinion the plaintiff is entitled to an injunction, unless it can be held that, though the injury itself is so serious as to make his building practically unless to the plaintiff in its present condition, still the plaintiff can be required, to make alterations which would remove the injury. The character of the obstruction is such that its consequence is to darken the plaintiff's house so as to make it uncomfortable and in fact useless, and therefore damages would not be an adequate compensation. Our attention has not been drawn to any authority for the position that the possibility of making alterations in the plaintiff's building so as to provide fresh sources of light and air would entitle the defendant to resist the granting of an injunction. To permit him to raise such a defence would be to allow him to take advantage of his own wrong and to compel other persons to change their own buildings to suit his convenience. A similar argument was rejected by Fletcher J. in Ananthanath Deb v. Galstaan I.L.R. (1908) C. 661. There it was contended that the plaintiff could, by making internal alterations, improve the light coming thereto, and that an injunction should not, therefore, be granted, the learned Judge characterising, the argument as irrelevant and citing the following observations of Lord Davey in Colls v. Home Colonial Stores' Limited (1904) L.R.A.C. 179 A.L. 204:

The mode in which he (the plaintiff) finds it convenient to arrange the internal structure of his tenement does not affect the question. In KERR on Injunctions 4th edition, p. 143, it is stated : 'Nor is it any answer to say if a man's ancient lights be interrupted, that there are remedies which he can provide for himself by making changes in his own house.' The alterations required in this case are not so trivial as to justify the supposition that the defendants were entitled to expect that the plaintiff would make them as an act of common neigbourly courtesy or to make the demand of the injunction oppressive on the defendant.

7. Mr. Ananthakrishna Aiyar's suggestion that the District Munsif's direction that the defendants might be permitted to put up sky-lights in their own building for the benefit of the plaintiff's house might be adopted is equally objectionable. The plaintiff cannot be asked to give up ancient lights because the defendant is willing to provide fresh lights for him in another way. In Dent v. Austin Mart Co. I.L.R. 2 Eq., p. 238 Sir W. Pagewood, Vice-Chancellor, dealing with a similar argument, observed at p. 251 : 'Then, lastly, there was the suggestion of glazed tiles - often made and never listened to by the court. A person who wishes to preserve his lights has no power to compel his neighbour to preserve the tiles, or a mirror which might be better, or to keep them clean, nor has he covenants for these purposes who take without notice; and, therefore, it is quite preposterous to say : 'Let us damage you, provided we apply such and such a remedy.' Therefore, the defendant properly stands upon his own right and declines to rely upon the degree of consideration which his neighbour may from time to time shew towards him. The question comes simply back to this : Is there substantially an interference with comfort? Is there a substantial diminution of light for carrying on work?' We might observe, besides, that the Munsif's decree does not provide for the plaintiff's right to air but only to light.

8. Mr. Ananthakrishna Aiyar further contends that the injunction asked for should not be granted as it would inflict a greater injury on the defendants than the benefit it would confer on the plaintiff. There is nothing to show that this would be so as a fact. But assuming it to be, it is, in our opinion, no answer to the plaintiff's claim. A party causing an injury to another cannot object to appropriate relief being granted to his opponent, on-the ground that he would suffer serious injury by being compelled to undo his own mischief. The cases where the relative inconveniences of the parties may be balanced are succinctly stated thus in HUGH on Injunctions, Section 865, p. 824 : 'When the alleged nuisance consists in a diminution of light and air to plaintiff's building but no serious or irreparable injury is shown, the court may balance the relative inconvenience to the parties which would result from its interference and may refuse the injunction, especially when the plaintiff's only right is as a tenant from year to year and when he has already received notice to quit'. The case of the Shamnaggur State Jute Factory, Limited v. Ram Narain Chatterjee I.L.R. (1886) C. 189, relied on for the respondents, was one between co-owners of the same land, and the rules applicable to an injunction in such a case are not the same as in the present case.

9. We may observe that we are unable to agree with the Judge that there is any difference in the applicability of the law to intending builders in cities. See KERR on Injunctions, p. 142.

10. We set aside the decrees of the courts below and direct that the defendants do remove the building marked H G in the plan attached to the Munsif's decree or so much thereof as obstructs the free passage of light and air to plaintiff's windows Nos. 1, 2 and 3. The plaintiff will have three-fourths of the costs of this litigation in all the courts.

11. The memorandum of objection is dismissed.


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