1. The plaintiff and the 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 of the tiled building... four sky-lights... two feet long and one and a half feet broad against 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 window No. 4 but had proved his right to the passage of both light and air through 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 defendants 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 upstairs rooms less the value of the downstairs rooms, which can still be used as godowns or store rooms.' After appointing a commissioner to make a local enquiry 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 upstairs room and the value of the downstairs room, the plaintiff having objected that the erection of sky-lights and ventilators would prevent his building an upstairs room.
5. The plaintiff appeals against this judgment; he attacks the finding of the judge negativing his right with respect to 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 Munsif's direction that the defendants do put up sky-lights in their new building should be restored. The learned judge's decision is based on the authority of Kalliandas v. Tulsidas I.L.R., (1899) Bom., 786 where Parson and Ranade, 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 defendants' 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 on 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 the injury caused to the plaintiff was taken as the test there. The finding in this case is that the obstruction caused by the defendants' building has darkened the plaintiff's house. The case of Kalliandas v. Tulsidas I.L.R., (1899) Bom., 786 is no 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 Ayyar for the respondents contends that in India an 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 in England and in India, as observed in Boyson v. Deane I.L.R., (1899) Mad., 251 Dhunjibhoy Gowasji Umrigar v. Lisboa I.L.R., (1899) Bom., 252 and Sultan Nawaz Jung v. Rustomji Nanabhoy I.L.R., (1896) Bom., 704 with respect to the granting of an injunction in cases of obstruction of the easement to light and air. Sea Ramanjulu Naidu v. Aparanji Ammal : (1911)21MLJ313 and Esa Abbas Sait v. Jacob Haroon Sait I.L.R., (1910) Mad., 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 unless it can be held that though the injury itself is so serious as to make his building practically useless 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 part 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 Ananth Nath Deb v. Galstaun I.L.R., (1908) Calc., 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 observation of Lord DAVEY. in Colls v. Home and Colonial Stores, Limited (1904) L.R., A.C., 179 : '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,' fourth edition, page 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.'
7. Mr. Ananthakrishna Ayyar'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 his ancient lights because the defendant is willing to provide fresh lights for him in another way. In Dent v. Auction Mart Company (1866) L.R., 2 Equity, 238, Sir W. Page Wood, Vice-Chancellor, dealing with a similar argument observed at page 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 light 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 that will run with the land, or affect persons 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 decree of consideration which his neighbour may from time to time show 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 Ayyar 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 conveniences of the parties may be balanced are succinctly stated thus in 'High on Injunctions,' Section 865, page 824: 'When the alleged nuisance consists in a diminution of light and air to the 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 Shamnugger Jute Factory Co. Ltd. v. Ram Narain Chatterjee I.L.R., (1887) Calc., 189, relied on for the respondent 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,' page 142.
10. We set aside the decrees of the courts below and direct that the defendants do remove the building marked G.H.T.K. 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.
11. The plaintiff' will have three-fourths of the costs of this litigation in all the courts.
12. The memorandum of objections is dismissed.