Toon Lal and Others vs Sonoo Lall and Others

Wort, Ag. C.J.

The appellant in this case was the plaintiff in an action in which he claimed an injunction to restrain the defendant (the respondent in this appeal) against erecting buildings in such a way as to obstruct the plaintiff''s light and air. It appears that he succeeded in the trial Court and the defendant went on appeal. Whilst the appeal was pending it would appear that the defendant erected certain constructions which are now claimed to have been in disobedience of the injunction granted by the trial Court. The appeal was compromised and a decree passed accordingly.

Subsequently the appellant made an application which he described as an application in execution--an entire misnomer in my judgment. Although his rights are laid down by Order 21 and although a part of his claim related to a form of execution, certainly the more important part of his application could be more properly described as an application for attachment. However the nomenclature perhaps does not affect the rights of the parties.

Now what appears to have happened was this that the defendant had erected on the wall, which according to the judgment and decree was not to be extended for more than five feet in height, certain posts upon which a chat was built. With regard to that the learned Judge in the Court below is clear. His statement is this:

So, as the decree stands, whatever construction is made after the judgment of the lower Court is against the terms of the decree. Hence the applicant appellant has disobeyed the decree.

Mr. S.M. Mullick faintly argued that what the Judge decided was that the defendant disobeyed the spirit of the injunction and not the exact terms. With that contention I cannot possibly agree having regard to the finding to which I have just referred. Now the question arises, what was the plaintiff''s remedy? Before the trial it appears that he had applied under Order 21, Rule 32, Sub-clause 5 for an order enabling him (the plaintiff) to demolish the objectionable building and (as I understand) an alternative claim to attach the person of the defendant until he purged his contempt which (according to the appellant) the disobedience of the decree amounted to. The trial Judge gave him the relief which he claimed under Clause 5 of Order 21, Rule 32 and that was the substance of the appeal in the lower Appellate Court.

The appellant, it appears, filed a cross-appeal and it is to be noted that in his cross-appeal he did not ask for the alternative remedy of the Court committing the defendant to prison which he might have done. Therefore the only question before the Judge in the lower Court was whether the plaintiff was entitled to be allowed to demolish the building. It is quite unnecessary to deal with that point elaborately, because the Code speaks for itself and the relief to which the party is entitled under Clause 5 is a relief to which he will be entitled only in the case of a mandatory injunction which this was not. It was an injunction prohibiting the defendant from erecting walls so as to obstruct the light and air of the plaintiff. There could be no doubt about that matter and therefore so far as the appeal relates to that question, all that need be said is that the learned District Judge was obviously correct in the conclusion at which he arrived.

But he has made an observation that as the injunction was not a mandatory injunction and as the form of relief which the appellant sought was that form of relief applicable only to a case of mandatory injunction, the plaintiff would be forced to bring a separate suit to convert the prohibitory injunction into a mandatory injunction. This is a matter which the plaintiff himself must decide. But if it is established, as it has been established in this case, that the defendant has disobeyed an injunction, the remedy to which the plaintiff is entitled is laid down by Order 21, Rule 32, and in the case of an injunction prohibiting the defendant from doing some act and for disobedience of that injunction, the remedy would be by attachment or, to put it in the terms of Order 21, Rule 32 by "his detention in the civil prison or by attachment of his property or by both."

Whilst therefore holding that the Judge was right in coming to the conclusion that the plaintiff was not entitled to the relief under Clause 5, I must say that he was not right in saying that the plaintiff was bound to bring another suit and wish to add that the Judge had not exhausted the forms of relief to which the plaintiff was entitled.

I would add one word only and that is the Judge''s decision that the plaintiff is not entitled to the relief he claims does not preclude him from claiming that other form of relief if he thinks proper, applying to the Court having jurisdiction in the matter, which I suppose in this case is the Court of the Munsif.

The appeal is dismissed but in the circumstances there will be no costs.

Manohar Lall, J.

I agree.