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Soudaminey Dossee Vs. Benode Coomaree Dossee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal263
AppellantSoudaminey Dossee
RespondentBenode Coomaree Dossee
Cases ReferredJamnadas Shankarlal v. Atmaram Harjivan I.L.R.
Excerpt:
injunction - mandatory injunction--damages--light and air--ancient lights. - .....of each case may be taken into consideration still as the general rule, and in the absence of special circumstances, if the injured man comes to court on the first opportunity after the buildings have been, commenced, or on the first opportunity after he has seen that they will interfere with his rights, an injunction being necessary, a mandatory injunction is granted. on the other hand, however, there may be circumstances which will lead the court to refuse the injunction, as has certainly been done in two cases-senior v. pawson l.r. 3 eq. 330) and holland v. worley l.r. 26 ch. d. 578.3. the other class of cases comes under a different principle. when a plaintiff has not brought his suit or applied for an injunction at the earliest opportunity, but has waited till the building has.....
Judgment:

Wilson, J.

1. This case, so far as it relates to the granting of a mandatory injunction, is of undoubted importance to suitors in this Court, and it seems to me that the law on the point has been somewhat misapprehended in the Court below. It rather seems to have been assumed that if the cause of action which undoubtedly existed was established, a mandatory injunction to pull down the defendant's building or so much of it as might be necessary, would follow as a matter of course. The principal authorities on the subject have been cited and their effect I think is plain.

2. The cases have all fallen under one or other of two classes. The first kind of case is that of a man who has a right to light and air which is obstructed by his neighbour's building, and who brings his suit and applies for an injunction as soon as he can after the commencement of the building, or after it has become apparent that the intended building will interfere with his light and air; a number of cases under that head have been cited. A leading case is that of Dent v. The Auction Mart Company L.R. 2 Eq. 238. To the same class belong Aynsley v. Glover L.R. 18 Eq. 544; Smith, v. Smith L.R. 20 Eq. 500; Krehl v. Burrell L.R. 7 Ch. D. 551; Greenwoood v. Hormey L.R. 33 Ch. D. 471. Those cases all establish that although the remedy by mandatory injunction is always in the judicial discretion of the Court, and the circumstances of each case may be taken into consideration still as the general rule, and in the absence of special circumstances, if the injured man comes to Court on the first opportunity after the buildings have been, commenced, or on the first opportunity after he has seen that they will interfere with his rights, an injunction being necessary, a mandatory injunction is granted. On the other hand, however, there may be circumstances which will lead the Court to refuse the injunction, as has certainly been done in two cases-Senior v. Pawson L.R. 3 Eq. 330) and Holland v. Worley L.R. 26 Ch. D. 578.

3. The other class of cases comes under a different principle. When a plaintiff has not brought his suit or applied for an injunction at the earliest opportunity, but has waited till the building has been finished, and then asks the Court to have it removed a mandatory injunction will not generally be granted, though there might be cases where it would be.

4. This is shown by the case of Isenberg v. The East Indian House Estate Company 3 De. G.J. & S. 263; Currers Company v. Corbett 2 Dr. & Sm. 355; Durell v. Pritchard L.R. 1 Ch. App. 244. The latter case came before the Loards Justices from a decision of the Master of the Rolls, and L.J. Turner lays down that it is within the jurisdiction of the Court to grant a mandatory injunction, but it ordinarily abstains from granting one unless under very special circumstances. The next case I would refer to-City of London Brewery Company v. Tennant L.R. 9 Ch. App. 212-where the jurisdiction of the Court to grant a mandatory injunction is reaffirmed, but it is added in the Judgment of Lord Selborne: 'We know, of course, that the Court is not in the habit of doing so except under special circumstances, but those circumstances may exist.' The same law is followed in Stanley of Alderley v. Shrewsbury L.R. 9 Eq. 616. There have been cases where mandatory injunctions have been granted. In Baxter v. Bowen 23 W.R. (Eng.), 334 a mandatory injunction was granted by Vice-Chancellor BACON, and his judgment was affirmed on appeal 23 W. R. (Eng.), 805]. But in that case the circumstances were peculiar. The thing removed was a mere shed, and there was something like an agreement between the parties that no objection should be taken on the ground of complainants having delayed in bringing their action. That case has been explained as a very special case in Gashin v. Ball L.R. 13 Ch. D. 329, where it is said: 'The Court will rarely interfere to pull down a building which has been erected without complaint. Baxter v. Bowen 23 W.R. (Eng.), 805] was a very special case, just one of those exceptions which prove the rule.' Certain circumstances have been relied on in this case as making it a special one, particularly the notice which the plaintiff's witnesses say they gave to the defendants not to continue the building so as to obstruct the plaintiff's rights. The learned Judge in the Court below has believed these witnesses, and I accept his finding; but the authorities show that mere notice, not followed by legal proceedings, is not sufficient.

5. That is how matters stand, so the English authorities, and, I think, the Indian authorities are, to the same effect. I had occasion to refer to the authorities in the case of the Shamnugger Jute Factory v. Ram Narain Chatterjee I.L.R. 14 Cal. 189. I only refer to that case because on pages 200-201 a good many of the authorities are collected. A Bombay case was cited, which, it was contended, is inconsistent with this view of the law, Jamnadas Shankarlal v. Atmaram Harjivan I.L.R. 2 Bom. 138. There, under the circumstances of the case, a mandatory injunction was granted; but we cannot, I think, regard that case as laying down any broad rule that mandatory injunctions are to be granted as a matter of course; but it appears to me the law on this point is well settled.


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