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Bhut Nath Pal Mistry Vs. Chandra Benode Pal Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.443
AppellantBhut Nath Pal Mistry
RespondentChandra Benode Pal Chowdhury and ors.
Cases ReferredDougherty v. Dore
Excerpt:
injunction restraining plaintiff from erecting house - dismissal of suit--plaintiff's application for damages treated as suit from date of application--limitation--limitation act (xv of 1877), schedule ii, article 42--civil procedure code (act xiv of 1882), section 497--interference with another's property right--liability to damages--want of malice or reasonable cause, if to be shown by plaintiff--measure of damages--collection of materials--unlawful injunction--loss of materials. - .....of possession and took out a temporary injunction to stay further progress of the work. this suit by the defendants was instituted on the 3rd november 1902, by a plaint which embodied a prayer for injunction. on the day following, notice was issued upon the plaintiff, then defendant, to show cause why he should not be restrained from proceeding with the erection of the structures. on the 8th november 1902, the rule was made absolute; the defendant was directed to discontinue building operations, but liberty was reserved to him to complete the roof then under construction. the plaintiff availed himself of this permission and completed the roof; but the progress of the building in every other respect was stopped. the suit was heard on the merits, and was decreed in the primary court.....
Judgment:

1. This is an appeal on behalf of the plaintiff in a suit for damages for an injunction alleged to have been wrongfully issued against him at the instance of the defendants. The case for the plaintiff is that he began to construct a house on his land and had nearly finished one room when the defendants commenced an action against him for declaration of title and recovery of possession and took out a temporary injunction to stay further progress of the work. This suit by the defendants was instituted on the 3rd November 1902, by a plaint which embodied a prayer for injunction. On the day following, notice was issued upon the plaintiff, then defendant, to show cause why he should not be restrained from proceeding with the erection of the structures. On the 8th November 1902, the Rule was made absolute; the defendant was directed to discontinue building operations, but liberty was reserved to him to complete the roof then under construction. The plaintiff availed himself of this permission and completed the roof; but the progress of the building in every other respect was stopped. The suit was heard on the merits, and was decreed in the primary Court on the 21st March 1904. The present plaintiff appealed, and, on the 3rd July 1905, the decree of the original Court was reversed. This order of dismissal was affirmed on appeal to this Court on the 22nd December 1905. On the 2nd July 1908, the plaintiff applied under Section 497 of the Civil Procedure Code of 1882 for damages to the extent of Rs. 1,000. The Court refused to entertain the application, but permitted the plaintiff to convert the application into a plaint upon payment of ad valorem Court-fees, The fees were duly paid, and the application was amended and registered as a plaint on the 1st August 1908. The defendants resisted the claim substantially on two grounds, namely, first, that the suit was barred by limitation, and secondly, that, upon the merits, the plaintiff had no cause of action. The Court of first instance overruled the plea of limitation but dismissed the suit on the merits. Upon appeal, that decision has been affirmed by the Subordinate Judge. The plaintiff has now appealed to this Court, and on his behalf, the decree of dismissal has been challenged on three grounds, namely, first, that, upon the admitted facts, the plaintiff is entitled to damages for unlawful interference with his property rights; secondly, that he is entitled to damages for loss of user of his property; and thirdly, that he is entitled to damages for the loss of the building materials collected by him, which have deteriorated and partially disappeared. These grounds have been contested on behalf of the defendants-respondents, and it has further been urged that the suit is barred by limitation. Before the questions on the merits are considered, it is plainly necessary to examine the ground of limitation.

2. Article 42 of the second Schedule of the Limitation Act provides that a suit for compensation for injury caused by an injunction wrongfully obtained must be instituted within three years from the date when the injunction ceases; in other words, as observed in the case of Nanda Kumar v. Gour Sunkar 13 W.R. 305 : 5 B.L.R. App. 4 the cause of action continues as long as the injunction remains in force, and limitation begins to run as soon the injunction is at an end. In the present case, the injunction, granted on the 8th November 1902, terminated when the suit was dismissed on the 3rd July 1905. The plaintiff applied on the 2nd July 1908 for assessment of damages under Section 497. The Court, however, directed him to institute a regular suit. The application was thereupon converted into a plaint upon payment of full Court-fees. The original Court has treated this plaint as if it had been presented on the 2nd July 1908. This view is clearly right, and is supported by the decision in Hari Ram v. Akbar Husain 29 A. 749 : 2 M.L.T. 375 : 4 A.L.J. 636 : A.W.N. (1907) 253 (F.B.). The same principle has subsequently received legislative approval in Section 149 of the Code of 1908. The plea of limitation has, therefore, been rightly negatived by the Courts below.

3. Upon the merits, the plaintiff is clearly entitled to succeed. The dismissal of the previous suit shows that the injunction was improperly obtained; in other words, the defendants have unlawfully interfered with the exercise of property rights by the plaintiff. The defendants have thus committed an act in the nature of trespass to property Clissold v. Cratchley (1910) 2 K.B. 244 : 79 L.J.K.B. 635 : 102 L.T. 520 : 54 S.J. 442 : 26 T.L.R. 409 and are, consequently, liable in an action for trespass; it is not necessary for the plaintiff to prove any malice or want of reasonable or probable cause. Mudun Mohun Doss v. Gokul Doss 10 M.I.A. 563 : 1 Ind. Jur. (N.S.) 269 : 5 W.R. (P.C.) 91.; Bishan Singh v. Wyatt 14 C.L.J. 515 : 16 C.W.N. 540 : 11 Ind. Cas. 729 and Edward Wilson v. Kanhya 11 W.R. 143. Notwithstanding the dictum of Jessel, M.R. in Smith v. Day (1182) 21 Ch. D. 421 at p. 429 : 31 W.R. 187 it is indisputable, as fully explained in Bishan Singh v. Wyatt 14 C.L.J. 515 : 16 C.W.N. 540 : 11 Ind. Cas. 729 that mistake, however honest or inevitable, is no defence for him who intentionally interferes with the person or property of another Novello v. James (1854) 5 De G.M. and G. 876 : 24 L.J. Ch. 111 : 1 Jur. (N.S.) 217 : 3 W.R. 127 : 104 R.R. 324; Griffith v. Blake (1884) 27 Ch. D. 474 : 53 L.J. Ch. 965 : 51 L.T. 274 : 32 W.R. 833; Hunt v. Hunt (1885) 54 L.J. Ch. 289; he acts at his peril, as was said in Winslow v. Mulchey (1895) 35 S.W. 762 and it is of no avail to him to urge that he proceeded in good faith and believed that he had reasonable ground for the issue of the injunction. The plaintiff is, therefore, clearly entitled to damages on the first ground urged, namely, that the defendants unlawfully interfered with the exercise of his property rights.

4. As regards the second ground, it is plain; as was said in Alexander v. Colcord (1877) 85 III. 323 that a party deprived, by an injunction unlawfully taken out, of exercising acts of ownership is entitled to such damages as are the necessary and proximate result thereof. In the present case, if the plaintiff had been free to complete his building, as he might have done but for the interference of the defendants, he could either have used the house or let it out on hire. The defendants are, therefore, bound to indemnify the plaintiff to this extent: Roberts v. White (1878) 73 N.Y. 375.

5. As regards the third ground, also, the plaintiff is entitled to some damages. The evidence shows that the materials collected, which the plaintiff found it impossible to use by reason of the interference of the defendants, have deteriorated in value and have in part disappeared. The defendants cannot reasonably be heard to maintain that the plaintiff might have protected himself effectively if he had appointed extra guards or erected sheds for the protection of the materials; in fact, the plaintiff could not, in view of the injunction, have erected any structures on the land; as he explains, he had no other vacant plot of land where the materials could have been removed and safely stored. In any view, the plaintiff, even if he had taken such protective steps, would have been put to expense in this behalf by reason of the unlawful act of the defendants. A similar question arose in Dougherty v. Dore (1883) 63 Cali. 170 and it was held that where a person, who has procured materials for the purpose of doing certain work, is enjoined from doing it, and by reason of the injunction the materials are lost or destroyed, he is entitled to recover damages, and in a proper case, the value of the materials lost may be taken as the measure of damages.

6. The question next arises, whether the damages should be assessed by this Court or the case remanded for further investigation. The latter course is obviously inexpedient in view of the length of time during which the litigation has lasted and also in view of the fact that the materials on the record are sufficient to enable this Court to do substantial justice. In so far as damages for trespass is concerned, we assess them at Rs. 100. In so far as damages for loss of use of property is concerned, we assess them at Rs. 160, namely, at Rs. 5 a month for the 32 months during which the injunction was in force. In this connection, it is necessary to observe that although the plaintiff has claimed rent at the rate of Rs. 30 a month, that is not a fair measure of damages, because from the income must be deducted reasonable interest on the capital invested. In so far as damages for deterioration in value and partial loss of materials is concerned, we allow Rs. 100, that is, half of the sum claimed by the plaintiff. The total damages allowed, therefore, amount to Rs. 360.

7. The result is that this appeal is allowed, the decrees of the Courts below set aside and the suit decreed for Rs. 360. The plaintiff will have his costs in all the Courts on the footing of the sum decreed in this Court.


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