M.M. Dutt, J.
1. This appeal is at the instance of the defendants and it arises out of a suit for permanent and mandatory injunction.
2. The plaintiff No. 1 is the wife and the plaintiff No. 2 Joykrishna Saha is her husband. The defendants Nos. 1 and 2 are respectively the widow and the son of one Subal Krishna Saha, since deceased, the elder brother of the plaintiff No. 2 Joykrishna Saha. There was an amicable partition of joint properties among Subal Krishna Saha, Joykrishna Saha and one Bibhuti Bhusan by a registered deed of partition dated June 2, 1954. The disputed house, which is a five storied one, situate at P-98, B. K. Pal Avenue, Calcutta was allotted to Subal Krishna Saha and Joykrishna Saha and the same was also partitioned between the said two brothers in accordance with a plan annexed to the said deed of partition and on terms and conditions mentioned therein. The house was divided into two portions.--Lot A and Lot B. Lot A, being the front portion, abutting on the B. K. Pal Avenue, was allotted to Joykrishna and Lot B, the rear portion, was allotted to Subal Krishna. A common passage, 10 ft. in width, was created in the southwestern portion leading from B. K. Pal Avenue up to the allotment of Subal Krishna and lying on the south of the allotment of Joykrishna. Lot A has since been numbered as 16B, B. K. Pal Avenue and Lot B as 16A, B. K. Pal Avenue.
3. There was some trouble between the two brothers in effecting the partition by metes and bounds by raising partition walls. The plaintiffs filed a suit being Suit No. 1778 of 1957 in the Original Side of this Court. That suit was eventually settled between the parties. The plaintiffs also filed another suit being Title Suit No. 19 of 1972 in the City Civil Court, Calcutta which was transferred to the Original Side of this Court at the instance of Subal Krishna. Thereafter, good feelings were restored between the parties. Subal Krishna died on Feb. 15, 1968 leaving behind him the defendant No. 1, his widow, and the defendant No. 2, his only son, as his heirs. Good feelings between the parties also continued even after the death of Subal Krishna. Fresh quarrels and disputes between the parties again started. The principal dispute between them centres round the construction of partition walls across the roadside balconies allotted to the defendants. Further, it was alleged by the plaintiffs that on Sept. 23 and 25, 1972 the defendants commenced building of an unauthorised structure on a portion of the common passage and they also encroached upon the plaintiffs' land by making a roof of an iron sheet and projecting the same against the roof of the plaintiffs' garage. It was the plaintiffs' case that the defendants had been preventing them from constructing the partition walls on the balconies. Accordingly, the plaintiffs prayed for a mandatory injunction directing the defendants to remove and demolish the constructions raised by them in the common passage and to remove the water pipes and other pipes and electric cables laid under the common passage adjoining the plaintiffs' land. Further, it was prayed that the defendants should be directed to remove the corrugated iron shed put up over the plaintiffs' garage on the south eastern corner. The plaintiffs also prayed for a permanent injunction restraining the defendants from preventing the plaintiffs from constructing the partition walls on the balconies.
4. The suit was contested by the defendants. They denied the allegations made by the plaintiffs about the unauthorised constructions constructed in a portion of the common passage and the encroachment upon the plaintiffs' land by making a roof of iron sheet and projecting the same over the plaintiffs' garage. The defendants also made certain allegations against the plaintiffs. As to the claim for partition at the balconies, it was contended by the defendants that the same was illegal and not maintainable in law. The case of the defendants in this regard was that according to the intervention and mediation of one Upendra Kumar Saha, the claim for partition of the balconies was abandoned by the plaintiffs on creation of better feelings between the parties as good feelings between the parties, were restored, the status quo was decided to be maintained so far as the water pipes, drain pipes, electric cables and balconies were concerned.
5. The learned Judge, 4th Bench, City Civil Court, Calcutta decreed the suit and granted a mandatory injunction as prayed for by the plaintiffs except that the plaintiffs' prayer for partition of the common passage was disallowed. As to the erection of walls on the balconies, the learned Judge granted a permanent injunction restraining the defendants from obstructing the plaintiffs from constructing partition walls on the balconies. Hence this appeal by the defendants.
6. At the outset, it may be stated that in this appeal we are only concerned with as to whether the plaintiffs are entitled to a decree for permanent injunction restraining the defendants from obstructing or preventing the plaintiffs from constructing partition walls on the balconies. The finding of the learned Judge and the decree granted in that regard have only been challenged before us. Accordingly, we are not concerned with the rest of the decree and other findings of the learned Judge which stand affirmed.
7. It has been stated already that 16A, B. K. Pal Avenue which is the back portion of the disputed house has been allotted to the defendants. It appears that even after the partition of the house dividing the same into two Lots, namely, Lot A and Lot B, there were disputes between Joykrishna and Subal Krishna which led the plaintiff No. 2 Joykrishna to institute suits on two occasions. It, however, transpires from the written statement of the defendants and it is also not disputed that the matter was once referred to a common relation and well wisher of the parties, one Upendra Kumar Saha. It appears that the house has a corridor of the width of 4f ft. in each Lot. Out of the width of 4f ft., 3f ft. was allotted to Subal Krishna and the remaining strip of 1 foot was allotted to Joykrishna. Upendra Kumar Saha was of the opinion that corridor with its entire width should go to Sutaal Krishna because the narrow part of it allotted to Joykrishna would be useless to him. Accordingly, he decided that in lieu of this I foot wide strip of corridor, Joykrishna should get 3 ft. wide land contiguous to his allotment parallel to the site of the Common passage. It is not disputed that the parties accepted the adjudication of Upendra Kumar Saha and it is the plaintiffs' case that Joykrishna had given up his claim to the corridor in terms of the decision of Upendra Kumar Saha. It is also not disputed that the partition wall was erected in each of the corridors, but no partition wall was erected on the balconies. In this regard, it may be stated here, that the balcony in each floor measures 88 inches in length of which the western 15 inches fell to the share of Joykrishna. Joykrishna now wants to extend the partition wall across the balcony in each floor so as to demarcate the 15-inch space allotted to his share. It is also not disputed that after a wall is erected on the balcony only a 10-inch space would be left to the plaintiffs. The most significant fact that may be noticed in this connection is that the plaintiffs have no access to the balconies and they would never be able to use the small spaces on the balconies for any purpose whatsoever. Even if the partition walls have to be erected on the balconies that would have to be done from the portions allotted to the defendants. It has been stated already that although a partition wall was erected on each floor, it was not extended across the balconies. We have already noticed the case of the defendants that as good feelings were restored between the parties, it was decided that status quo should be maintained. In other words, the case of the defendants is that no wall should be raised on the balconies so as to separate the 15-inch space allotted to the plaintiff Joykrishna in each balcony. It is not disputed before us that for the non-construction of the partition walls on the balconies, the plaintiffs will not suffer any loss or damage whatsoever.
8. The reasons why Joykrishna wants to erect walls on the balcony in each floor have been stated in the plaint. In para. 5 of the plaint, it has been stated inter alia that after the second suit which was filed by Joykrishna was transferred to the Original Side of this Court, good feelings between the parties were restored and there was no further dispute between them and the erection of walls on the balconies was deferred. In paragraph 7, it is stated that since Sept. 23, 1972 the defendants developed adverse attitude and the ladies also quarreled and so the urgency for erecting the walls on the balconies in the different floors was felt. The defendants resisted the erection of walls on the balconies by the plaintiffs. The statements in the plaint support, to some extent, the defendants' case that the parties had decided that no wall should be erected on the balconies. It is clear that as the ladies of the two families had fallen out, the plaintiffs wanted to erect walls on the balconies although the same would not serve them any purpose whatsoever. In this context, we are now to consider whether a permanent injunction restraining the defendants from obstructing the plaintiffs from erecting the walls on the balconies should be granted or not.
9. Section 38 of the Specific Relief Act relates to the grant of perpetual injunctions. The circumstances enumerated under sub-sec. (3) of S. 38 are based on the rules acted upon by courts of equity in England because they were in accordance with justice, equity and good conscience. In the instant case, there can be no doubt that the plaintiff No. 2 Joykrishna has acquired title to the fifteen-inch space in the balconies in the different floors of the house. The defendants do not deny the title of the plaintiff No. 2. Their case, however, is that erection of partition walls on the balconies for separating the said space of fifteen inches in each balcony will not serve any purpose whatsoever to the plaintiffs; on the other hand, the erection of such walls would be harmful to the defendants. The injuries that will be suffered by the defendants as submitted by Mr. Sakti Nath Mukherjee, learned Advocate appearing on their behalf are: (1) the entire load of the walls will rest on the balconies, (2) the ten-inch space that would be left in the plaintiffs' portion on each balcony will be a source of nuisance to the defendants inasmuch as that space which will be inaccessible to both parties will remain unclean for ever, (3) the erection of the walls on the balconies will obstruct the entire view of the defendants of the B. K. Pal Avenue, and (4) the walls will to some extent reduce the light and air from the western side.
10. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the plaintiffs submits that as soon as the plaintiffs establish their right to the property and the violation of that right by the defendants, the plaintiffs will be entitled to the grant of a perpetual injunction. In support of that contention, Mr. Banerjee has placed reliance on Halsbury's Laws of England, Vol. 13, Article 17, page 12 where it is stated that as a general rule, before a perpetual injunction can be granted, the party applying must establish his right; but as soon as he has established his right and shows that it has been violated, then, unless there is something special in the case, he is entitled, as of course, to a perpetual injunction to prevent the recurrence of the violation, and the injunction may be granted even though no damage has been caused. At the end of Article 17 it has been stated that the Court shall have regard to all surrounding circumstances in considering whether or not it should grant an injunction, and does not confine itself to the dry strict rights of the plaintiff and the defendant. In this connection, we may refer to the following observations from Kerr on Injunctions, 6th Ed., pages 31-32:--
'The Court will in general have regard not only to the dry strict rights of the plaintiff and defendant, but also to the surrounding circumstances and the conduct of the parties. The consideration of the balance of convenience and inconvenience in granting or withholding the Injunction is not neglected by the Court. If granting the injunction would have the effect of inflicting serious damage upon the defendant without restoring or tending to restore the plaintiff to the position in which he originally stood, or doing him any real practical good; or if the mischief complained of is trivial, or can be properly, fully and adequately compensated by pecuniary sum, an injunction will not issue.'
11. The above statement of law from Kerr on Injunction supports the contention of the defendants that as the erection of the walls on the balconies will not do any real practical good to the plaintiffs; on the contrary, they will do positive harm to the defendants, the injunction should not be granted. The principles relating to the grant of injunction have been enumerated by A. L. Smith LJ in Shelfer v. City of London Electric Lighting Co. (1895) 1 Ch. 287 at p. 322 as follows :
'(1) If the injury to the plaintiffs legal right is small,
(2) And is one which is capable of being estimated in money,
(3) And is one which can be adequately compensated by a small money payment,
(4) And the case is one in which it would be oppressive to the defendant to grant an injunction :-- then damages in substitution for an injunction may be given.'
Mr. Banerjee, however, points out that the principles of law laid down in Shel-fer's case (supra) have not been followed in Woollerton and Wilson Ltd. v. Richard Costain, Ltd. (1970) 1 All ER 483 where it has been observed by Stamp J. that the case which A. L. Smith L. J. was considering was, however, a case of nuisance, and the above principles cannot be regarded as applicable where the complaint is of a trespass in respect of which only nominal damages can be recovered. In expressing that view Stamp J. has placed reliance on the Rochdale Canal Co. v. King, (1851) 2 Sim. N. S. 78 and Goodson v. Richardson (1874) 9 Ch. App. 221. His Lordship has also referred to the judgment in Kelsen v. Imperial Tobacco Co., (1957) 2 All ER 343 where it has been held that the classic remarks of A. L. Smith LJ in Shelfer's case are applicable as well as to an action for trespass as to one for nuisance. Woollerton's case (Supra) was one of trespass on land and air space. The facts of that case were that the defendants, a company of building contractors, installed a high crane on a site to assist them in the construction of a tall building. Working space on the site was exceptionally limited and the operation of the defendants caused congestion in the street, which had been the cause of complaint by the plaintiffs whose premises were opposite the site. Approximately 50 feet of the jib of the crane sometimes extended over the plaintiffs' premises but they were at no time in any apprehension of danger. Construction on the site began in Oct. 1969 and was due for completion in Nov. 1970. The plaintiffs were offered 250 for the right to continue the trespass, which the defendants admitted, but which they found was entirely unavoidable if construction was to continue. On the above facts, Stamp J. held that the plaintiffs were entitled to an order of injunction; but it is significant to be noticed, that the operation of the injunction was postponed until the end of Nov., 1970 within which the defendants were expected to complete the construction works.
12. There can be no doubt that if the principles in Woollerton's case (supra) have to be followed in the instant case, the plaintiffs should be granted an injunction as prayed for by them. But the preponderance of authorities lean in favour of the view that where the plaintiff will not suffer in case the injunction is not granted, but the grant of injunction will put the defendant to hardship and will be oppressive to him, the Court will refuse to grant injunction. In Spry on Equitable Remedies, (1971) Ed page 363 it has been observed as follows:
'Thus, on the one hand, there are cases where the plaintiff is concerned merely to vindicate his rights and is not expected to suffer substantial hardship or inconvenience even if a breach takes place. Here if the defendant is able to show that to grant an injunction would cause him very considerable hardship a court of equity will generally consider it unjust and unreasonable to do so, and this will be the case even where the plaintiff is merely seeking to enforce a negative covenant or undertaking which has been voluntarily assumed by the defendant.'
Again at page 429, the learned author has, after referring to the rule in Woollerton's case, observed:
'The better view, however, is that the considerations of hardship on the part of the defendant are never disregarded, although the weight which will be attributed to them will often be found to be considerably reduced in view of other circumstances, such as the acts in question are clearly wrongful or that he has been wantonly or recklessly acting in disregard of the rights of the plaintiff.'
13. In the instant case, it has been stated already that the defendants do not deny the plaintiffs' title to the small spaces in the balconies. It is not disputed that the plaintiffs will not suffer in the least, far less any substantial injury, if the injunction be not granted. It is the plaintiffs' case that they would not have insisted on erecting walls on the balconies, had it not been for a fresh quarrel among the ladies. On the other hand, the defendants would suffer hardship and inconvenience in case the walls are allowed to be constructed. In the circumstances, in our view, the Court will not be inclined to apply the rule in Wollerton's case (supra) upon consideration of only the dry strict rights of the plaintiffs.
14. Mr. Banerjee has placed reliance on an observation from Woodroffe on 'The Law Relating to Injunctions', 5th Ed., page 358. It has been observed by the learned author that it is doubtful whether the English Courts have jurisdiction to award damages in lieu of an injunction where the injury is not yet committed, but threatened only, but apparently the inclination of the Court is in the direction of holding that it has not. The observation contemplates that if the injunction be not granted an injury will be committed to the plaintiff. In the case before us, there is no question of any injury to be suffered by the plaintiffs as pointed out above and so we do not think that the observation is of any help to the plaintiffs. The statement in Kerr on Injunctions, 6th Ed., page 477, that the mere fact that there has been a breach of covenant is, as a general rule, sufficient ground for the interference of the Court by injunction and the covenantee is entitled, as a general rule, to have his right enforced by injunction without the necessity of showing damage, relied on by the plaintiffs, relates to breach of covenants in a contract and is, therefore inapplicable to the present case.
15. Mr. Banerjee has also placed reliance on the doctrine 'Preventive justice excelleth punishing justice' on which a 'quia timet' action is based. But that doctrine will not apply to the instant case, for in a 'quia timet' action there shall be a sufficient degree of probability that the injury will be substantial and will be continued, repeated, or committed at no remote period (See Salmond on Torts 11th Ed. page 187); the plaintiff must prove that there is an imminent danger of very substantial damage, e.g., by showing that the threatened act is attended with extreme probability of irreparable injury to the property of the plaintiff, including also danger to their existence (See Snell's Principles of Equity 26th Ed., page 700). The doctrine has been stated in another form in Pomeroy's Equity Jurisprudence, 5th Ed., Article 1357, p. 967: 'The ideal remedy in any perfect system of administering justice would be that which absolutely precludes the commission of a wrong, not that which awards punishment or satisfaction for a wrong after it is committed.' At the same time it has been observed in Article 1338 at pages 935-936 that equity will not interfere to restrain the breach of a contract, or the commission of a tort, or the violation of any right, when the legal remedy of compensatory damages would be complete and adequate.
16. It follows from the above principles laid down by different authorities that the grant of injunction is discretionary with Court, the discretion has, however, to be exercised after due consideration of all surrounding circumstances. It will not be correct to say that whenever there is an invasion of a right, the Court should grant an injunction. 'And the principle is well settled that in granting or withholding an injunction the Courts exercise a judicial discretion, and weigh the amount of substantial mischief done or threatened to the plaintiff, and compare with that which the injunction, if granted, would inflict upon the defendant' (Shamnugger Jute Factory Co. v. Ram Naram Chatterjee, ((1887) ILR 14 Cal 189).
17. At the risk of repetition, it may, be stated that if the injunction be not granted, the plaintiffs will not suffer any loss or injury whatsoever, but the grant of an injunction would do definite harm to the defendants. After carefully considering the facts and circumstances of the case and the above principles of law, we are of the view that it is not a fit case where an injunction should be granted to the prejudice of the defendants. The learned Judge, in our opinion, was not justified in granting the injunction solely on the consideration of the plaintiffs' right to the fifteen inch spaces in the balconies. In our view, the learned Judge did not exercise his discretion in accordance with the principles of law discussed above.
18. Before we part with this appeal, one fact may be noticed. In this appeal, the plaintiffs were able to obtain an interim injunction in their favour and by virtue of such an injunction erected brick walls on the balconies except on the balcony in the second floor where the separation was made by an iron grill at the request of the defendants and as directed by the Court. The order of interim injunction and the erection of walls and the grill were, however, made subject to the result of the appeal.
19. In the circumstances, we set aside the judgment and decree of the learned Judge in so far as they grant a permanent injunction against the defendants regarding the construction of partition walls on the balconies in all the floors of the disputed house. The rest of the judgment and decree of the learned Judge is affirmed. The plaintiffs will remove the walls and the iron grill within six weeks from date. The defendants will give access to the plaintiffs to their portion for the removal of the said walls and grill. If the plaintiffs do not remove the walls and the grill within the time mentioned above, the defendants will be entitled to remove the same at their own cost.
20. The appeal is allowed in part, but in view of the peculiar facts and circumstances of the case, there will be no order for costs.
21. I agree.