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Khaji Syyad HussaIn Saheb Vs. Ediga Narasimhappa and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.962
AppellantKhaji Syyad HussaIn Saheb
RespondentEdiga Narasimhappa and ors.
Cases ReferredAbzul Miah v. Nasir Mahommed
Excerpt:
right of way - obstruction to highway--injunction--maintainability of action--damages--proof of special damages--pecuniary loss. - .....a t public cart-track and for annas 8 as damages. the defendants denied that there was a public right of way for carts at the place in question and also denied that the plaintiff sustained any special damage. the district munsif passed a decree in plaintiff's favour stating that the plaintiff had a right of easement to pass along the way and that the defendants obstructed the plaintiff in the exercise of that right. the subordinate judge, on appeal, has found that there was a public cart-track at the place where the bund was put up by the defendants bat he dismissed the suit on the ground that the plaintiff did not allege or prove any special damage.2. in second appeal, it is contended, by the learned counsel for the appellant, that the plaintiff was put to special.....
Judgment:

Sundara Aiyar, J.

1. The suit which gave rise to this second appear was instituted for an injunction against the defendants directing them to remove a bund which, according to the plaintiff, obstructed a t public cart-track and for annas 8 as damages. The defendants denied that there was a public right of way for carts at the place in question and also denied that the plaintiff sustained any special damage. The District Munsif passed a decree in plaintiff's favour stating that the plaintiff had a right of easement to pass along the way and that the defendants obstructed the plaintiff in the exercise of that right. The Subordinate Judge, on appeal, has found that there was a public cart-track at the place where the bund was put up by the defendants bat he dismissed the suit on the ground that the plaintiff did not allege or prove any special damage.

2. In second appeal, it is contended, by the learned Counsel for the appellant, that the plaintiff was put to special inconvenience by the obstruction because it was necessary for him to pass along the way in order to reach, a certain field of his to which the way led. Beyond this, nothing has been alleged by the plaintiff. Paragraph 8 of his plaint is the only one that contains any allegation of damage. It states that the plaintiff wanted to take his cart along the way that the cart was obstructed by the bund and that, therefore, he sustained loss. At the hearing, he attempted to prove that the cart contained 3 stones which were required for his field and that, owing to the obstruction of the way, the stones were thrown down and the cart returned. It is not contended that the plaintiff would be entitled to claim the price of the stones which were thrown away nor, as pointed out by the Subordinate Judge, has the plaintiff made any such claim. It is not, disputed by Mr. Narayana Row, the learned Lt Vakil for the respondents, that if the plaintiff is alleged and proved that he sustained any special damage the suit would not be maintainable. The question is, is the fact e that the plaintiff sustained inconvenience in going to his field sufficient to entitle him to maintain the suit, i.e., could it be regarded as special damage sufficient to entitle him to any relief for the obstruction of a public right of way? We are of opinion that, on the authorities, we are bound to hold that this is not sufficient. The English rule that an action for the obstruction of a public highway is not maintainable unless special damage is alleged and proved, has been so long accepted in this country that it is impossible to question it now. Moreover, the Legislature has now accepted the same view as shown by Section 91 of the Civil Procedure Code. The following observations occur in Clerk and Lindsell on Torts, 4th Edition, pages 395 and 396: 'But mere personal inconvenience caused by the plaintiff being delayed by an obstruction in the high-road, without pecuniary damage, will not suffice; nor is it enough that the plaintiff has been put to expenses in exercising his right of abating the obstruction and it is immaterial that the degree of personal inconvenience suffered may be in excess of that suffered by the rest of the public, for the Court cannot enter into the consideration of the quantum.... In Hubert v. Groves (1794) 1 Esp. 148 where, by reason of an obstruction, the plaintiff was compelled to carry his goods by a circuitous route but no proof of any pecuniary loss resulting there from was given, the plaintiff was non-suited. And in Chaplin v. Westminster Corporation (1901) 2 Ch. 329 : 70 L.J. Ch. 679 : 65 J.P. 661 : 49 W.R. 586 : 85 L.T. 88 : 17 T.L.R. 576 it was held that the erection of an electric standard in a public thoroughfare, opposite to the plaintiff's premises whereby the transit of merchandise from vans to warehouse across the public pathway was impeded, afforded no ground for action.' See also Mayo v. Seaton Urban District Council (1904) 68 J.P. 7 : 2 L.G.R. 127.

3. It seems to me to be clear that the mere fact that a person has to use a way more often than another and is, therefore, put to more inconvenience will not entitle him to maintain an action for obstruction of the way. The learned Counsel for the appellant is probably right in his contention that actual pecuniary damage is not necessary in all cases to justify an action. He refers to Abzul Miah v. Nasir Mahommed 22 C.P 551 in support of his argument. There, in consequence of the obstruction of a public way, the plaintiff was deprived of the only access to a grazing ground. The damage caused by such deprivation is certainly tantamount to pecuniary damage. The observation of Muthusawmy Iyer, J., in Siddeswara v. Krishna 14 M.K 177 : 1 M.L.J. 321 carries the case no farther. In Greasley v. Codling 2 Bing. 263 : 9 Moore 489 : 30 L.J. C.P. 262 which was also relied on by Dr. Swaminathan, the plaintiff was a seller of coal and suffered damage by the obstruction because it prevented him from making as many trips as he otherwise could and, therefore, reduced his income. We doubt whether Mahant Ram Chandra v. Joti Parshad 8 A.L.J. 19 : 8 Ind. Cas. 808 is inconsistent with the law as laid down in the English and Indian cases. We must hold that the plaintiff has not alleged or proved anything which can be regarded as special damage. In the absence of sufficient allegations in the plaint; it would be useless to allow the plaintiff to adduce any fresh evidence.

4. We dismiss the second appeal with costs.

Sadasiva Aiyar, J.

5. I wish to add that the special damage which the plaintiff alleges in such cases should be of a substantial character. Mere pecuniary damage to the extent of 4 annas or 8 annas or a similar unsubstantial sum or an inconvenience which is temporary and not substantial should not be allowed to retract from the operation of the general rule.

6. If it is so allowed, it would be very easy for every plaintiff with the help of an acute legal adviser to always allege and prove such unsubstantial special injury. The case in Abzul Miah v. Nasir Mahommed 22 C.P 551 seems to have gone as far as the exception can be legitimately pushed in such cases.


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