Ghulam Rasul Shah and Another vs Habib Ullah Shah

S.M. Fazl Ali, J.—This is a second appeal directed against a judgment of the Appellant Court below decreeing the Plaintiff's suit for

permanent injunction and ordering the Defendants to close the windows in the southern wall of their house and restraining them from opening any

window or ventilator on that side in future.

The case has had a chequered career and the facts may be briefly stated thus: The Plaintiff bad brought a suit for permanent injunction in the

Court of Second Additional Munsiff, Srinagar, on the allegation that he had suffered a substantial injury due to the fact that the Defendants had

opened windows in the southern wall of their house. The Suit was based purely on substantial injury caused to the Plaintiff by the act of the

Defendants. It may be mentioned that the Plaintiff had not alleged any right of privacy either customary or otherwise, in his plaint, nor did he seek

relief on the basis of such a customary right.

The defence was that the Defendants had a right to open the windows in order to derive light and air and that the ventilators had existed since a

long time and that the Plaintiff, had not suffered any injury and was not entitled;to injunction.

The suit was in the first instance decreed by the second Additional Munsiff by his judgment dated 20-7-2005. Thereafter the Defendants

preferred an appeal before the Senior Subordinate Judge, Srinagar, who after hearing the appeal remanded. the case after framing 3 fresh issues. It

was conceded before the lower appellate Court, that the suit in its present form was not maintainable and the Plaintiff argued before the appellate

Court below that in view of the evidence of the Plaintiff that his right of privacy was infringed by the act of the Defendants he was entitled to a

decree. The Court framed an issue as to whether the Plaintiff had a customary right of privacy in respect of his house. It may be noted that no such

plea was taken in the plaint, nor was any such issue framed by the trial Court. It was, therefore, rightly argued by counsel for the Defendants that

the issues framed in the trial court as also the allegations in the plaint were vague and insufficient to grant any relief to the Plaintiff.

The appellate Court below instead of dismissing the Plaintiff's suit on this ground made out a new case for the Plaintiff, namely, the case that the

Plaintiff had a customary right of privacy in respect of his house. As the suit was remanded and the order of the lower appellate Court was non -

appealable the Defendants could still object to the course adopted by the appellate court below in the present second appeal before this Court.

This position has been conceded by counsel for the Plaintiff.

After remand by the Senior Subordinate Judge by his order dated 16-3-2007 the trial Court decided the issue as to whether the Plaintiff had a

customary right of privacy in respect of his house in favour of the Defendants and ultimately dismissed the Plaintiff's suit by his order dated 2-12-

2010.

After this decision the Plaintiff went up in appeal before the Senior Subordinate Judge, Srinagar who by his order dated 7-9-1955 again

remanded the case under Order 41 Rule 25 CPC after recasting issue No. 1 in the following manner:

Whether there is any customary right of privacy in the locality in which the house in question is situated? O.P.P.

On receiving report from the trial court which was in favour of the Plaintiff, the appellate Court below decreed the Plaintiff's suit and hence this

second appeal to this Court.

From the facts given above it is absolutely clear that although the Plaintiff did not amend his plaint to base his claim on customary right of privacy

either in the house or in the locality, yet the appellate Court below passed series of orders of remand recasting the issue on these lines. In other

words, the lower appellate Court tried to make out a new case for the Plaintiff every time without considering the important question as to whether

such an issue could be raised on the pleadings of the parties

The Plaintiff also in spite of having adduced evidence on the issue recast by the lower. appellate Court did not care to amend his plaint or the relief

sought by him. The position, therefore, is that while the Plaintiff's suit has been decreed on the basis that the Plaintiff had established customary

right of privacy in the locality there is absolutely no foundation for such a relief in the plaint filed by the Plaintiff.

Mr. A.N. Kak has strenuously argued before us that the Plaintiffs suit is liable to be dismissed on the ground that the Courts below had made

out a new case for him for which there was no foundation in the pleadings and the appellate Court below was not entitled to travel beyond the

pleadings of the parties. In my opinion this contention of the learned Counsel must prevail.

Mr. Sharma appearing for the Plaintiff has argued that as the order of remand under which the issue as to customary right of privacy was framed

was passed with the agreement of the parties, it was not open to the Defendants to challenge that order. I have carefully gone through the first

judgment of the appellate Court below and I am unable to agree with this contention. The lower appellate Court in its. judgment dated 16-3-2007

observed as follows:

The learned Counsel for the parties have agreed that the issues struck by the trial Court were vague and did not cover the real points at issue

between the parties.

This observation of the learned Judge cannot be interpreted to mean that counsel for the Defendants conceded that fresh issues should be framed

by the Court even if there was no foundation for such an issue either in the plaint or in the evidence of the Plaintiff given in the suit. All that counsel

for the Defendants agreed to was that issues struck by the trial Court being vague the Plaintiff was not entitled to any relief. In fact from the

observation of the learned Judge which he made before the observation quoted above which is as follows:

The learned Counsel for the Appellant has contended that the plaint of the Plaintiff did not disclose and right of the Plaintiff which entitled him to get

the windows closed and to restrain the Defendants from opening any windows in their wall.

it would appear that the Defendants' counsel merely argued that the Plaintiff's suit on the allegations made by him did not reveal any cause of

action. Under these circumstances I am not in a position to agree with Mr. Sharma that the order of remand referred to above was passed with

consent of the parties.

Mr. Sharma further contended that the Appellants have not taken any specific ground in their memorandum of appeal that the order of remand

was bad as it framed a new case for the parties. It is true that no specific ground of appeal to this effect has been taken, but it is clearly alleged in

the grounds of appeal that the Plaintiff is not entitled to a decree as he has not pleaded the case found by the Court below in his pleadings. In such

circumstances the contention of Mr. Sharma must be over - ruled.

The Plaintiff in his plaint has neither based his suit on customary right of privacy in his house nor on customary right of privacy existing in the

locality. But the appellate Court below has decreed the suit on the footing that the Plaintiff has proved a customary right of privacy in the locality. In

other words, the suit is decreed on a case for which there is no foundation in the pleadings.

It is well settled that it is not open to a Court to make out a new case for the Plaintiff and that a suit cannot be decreed on a claim which is not

stated in the plaint. In a case Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, their Lordships of the Supreme Court observed as follows:

It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be

found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the

plaint so as to incorporate in it an alternative case. The allegations on which the Plaintiff claimed relief in respect of these shares are clear and

emphatic. There was no suggestion made in the plaint or even when its amendment was sought at one stage that the Plaintiff in the alternative was

entitled to this amount on the ground of failure of consideration. That being so, we see no valid ground for entertaining the Plaintiff's claim as based

on failure of consideration on the case pleaded by him.

From the observations quoted above it is quite clear that the appellate Court below committed a serious error of law in decreeing the Plaintiff's suit

on grounds which were outside the pleadings of the Plaintiff and more particularly because in spite of a fresh issue having been struck the Plaintiff

did not choose to amend his plaint. Similar are the observations made by the Privy Council in the case AIR 1932 95 (Privy Council) and these are

as under:

Their Lordships heard counsel's argument in full but they must observe that they cannot lend any countenance to the view that a Plaintiff is entitled

to throw over the case of negligence which he has alleged and spoken to in evidence and then ask their Lordships to find negligence established on

a quite different species facti. To permit this might work grave injustice to a Defendant who had properly directed his evidence to the case which

he had been told he had to meet.

In the case before the Privy Council their Lordships refused to decree the claim of the Plaintiff for damages where the Plaintiff sought to substitute

one kind of negligence for another.

I am, therefore, of the opinion that the Plaintiffs suit must be dismissed on the ground that it was not open to the appellate Court below to make

out a new case for the Plaintiff when the case found by it was neither pleaded in the plaint nor was any amendment sought for in spite of there being

sufficient opportunity for the Plaintiff to do so.

It was next contended by counsel for the Appellants that the judgment of the appellate Court below is not in accordance with law and it has

made a wrong approach to the case. The contention was that instead of finding that the Plaintiff had established a customary right of privacy in the

locality, the appellate Court below has inferred a right of privacy merely from the fact that Purdah is observed by some members of the locality.

I have perused the judgment of the lower appellate Court and I find that the Court has, in fact, fallen into this error. It has not at all applied its mind

to the question as to whether the Plaintiff has proved the customary right of privacy on which he had led evidence. It is well settled that onus to

prove the existence of a custom is on the person who alleges such a custom. It was, therefore for the Plaintiff to have proved by cogent and

reliable evidence that there was a customary right of privacy in the locality.

The custom on which the Plaintiff relies has not so far received any judicial recognition, nor is it recorded in any public register. The evidence of the

Plaintiff does not show that there were numerous instances under which this custom was exercised. The evidence led by the Plaintiff consists of

certain witnesses who depose to the effect that such a custom exists. As against this there are witnesses of the Defendant who have denied the

existence of such a custom. From the evidence of some of the witnesses for the Plaintiff it appears that in that very locality there are other houses

similarly situated wherein the windows overlook the houses of others, Such evidence is an important factor to negative the existence of the custom

as sought to be proved by the Plaintiff. It is, however, not necessary for me to go into this question, because I am of the opinion that the Plaintiff's

suit must be dismissed in toto on the ground that the customary right has not been pleaded by the Plaintiff in his plaint. If I had found that the

Plaintiff would otherwise be entitled to a decree, I might have remanded the case to the appellate Court below for a fresh decision after proper

appraisement of the evidence on the question of custom, but in view of the fact that there is no foundation for the customary right claimed by the

Plaintiff in the plaint, no question of remand arises.

For the reasons given above I allow this appeal, set aside the judgment and decree of the appellate Court below and dismiss the Plaintiff's suit

with costs throughout.

J.N. Wazir, C.J.

I agree.