Koya Haji Vs. Bhaskaran [Kerala High Court, 20-08-1984]

Koya Haji Vs. Bhaskaran [Kerala High Court, 20-08-1984]

Specific Relief Act, 1963 – Section 39 – Mandatory injunction to demolish constructions – Principles relevant for consideration.

# 1984 KLT 929 : 1984 KLJ 661


Hon’ble Mr. Justice K.S. Paripoornan

Koya Haji Vs. Bhaskaran

S.A. No. 915 of 1979


Advocates : For Appellant: M.C. Sen, Joseph John For Respondent: P. Ramakrishnan Nair


K.S. Paripoornan, J.

1. S. A. No. 915 of 1979 is filed by defendants in O. S. No. 2 of 1974 of the Munsiff’s Court, Kalpatta and S A. No. 957 of 1979 is filed by the defendants in O. S. No. 17 of 1974 of the Munsiff’s Court, Kalpatta. The defendants in both the suits are the same, but the plaintiff in the two cases (respondent in the appeal) are different. The questions that arise for consideration in both the cases are similar. The suits were filed by the plaintiffs praying for the issue of a

# Mandatory injunction to demolish a sun-shade

encroaching upon the plaintiffs’ respective properties and to restore the properties to their original condition. The plaintiffs in the two suits are the owners of adjacent properties of the defendants. Defendants put up three sun-shades to their room above the common partition wall, projecting over the rooms of the plaintiffs. The plaintiffs averred that the constructions were started when they were away and in their absence. On coming to know of the unauthorised construction over the common wall and the putting up of the sun-shades which resulted in encroachment of the plaintiffs’ land, the plaintiffs protested. The defendants did not pay any heed to the same, but continued the construction. In the circumstances the suits were laid praying for mandatory injunction directing the defendants to demolish the sun-shades encroaching upon the plaintiffs’ properties and to restore the properties of the plaintiffs to their original condition.

2. Defendants contended that the plaintiffs’ rooms and the defendants’ rooms are not part of the same building. They were separate. There was no construction in the common wall and that the sun-shades did not project to the plaintiffs’ properties. A commissioner was appointed. He prepared a sketch and a report. On defendants’ objection the trial court directed a plan to be submitted instead of a sketch. After considering the entire evidence in the case the trial court found (1) that the plaint A schedule room and the room in the possession of the defendants were separated by a single partitioning wall. There was no vacant space in between the two buildings. The plaintiffs and the defendants are equally entitled to the partitioning wall and the defendants are not exclusively entitled to that wall; (2) the sun-shades project in the property of the plaintiffs and the plaintiffs have just cause to complain; (3) the plaintiffs are entitled to injunction against the defendants to restrain the defendants from encroaching on the plaint A schedule property; (4) the plaintiffs are entitled to a decree for directing the defendants to demolish the sun-shade projecting in the plaint B schedule and constructed on the eastern side of the partitioning wall of the plaint A schedule property and the room in the possession of the defendants. The defendants will also demolish the wall constructed on the sun-shade extending the wall constructed horizontally to the partitioning wall. A permanent injunction was granted restraining the defendants from trespassing into the plaint A and B schedule properties

3. In appeal, the Appellate Court concurred with the trial court. The Appellate Court considered C.M.A. 114 of 1975 filed by the plaintiff to review the order setting aside the commissioner’s sketch. The order setting aside the commissioner’s plan and sketch were reviewed and the sketch was restored to file. (2) There was evidence that the sun-shades put up by the defendants project on the roof of the plaintiffs and this clearly encroaches upon the property of the plaintiffs. The decision of the trial court was affirmed. The defendants have filed the above second appeals from the decisions in OS. 21974 and OS. 17 of 1974, as affirmed by the lower Appellate Court in AS. Nos. 161 and 162 of 1975

4. It is common ground that there is encroachment upon the properties of the plaintiffs. It is also conceded that the sun-shades put up by the defendants project on the roof of the plaintiffs. It has been found that the projection in the properties of the plaintiff afford the plaintiffs just cause to complain. At the time of hearing of the second appeals, counsel for the appellants, Mr. M. C. Sen, pressed the only question, numbered as No. 4 in SA. 915 of 1979 and question No. 4 in SA. 957 of 1979. The said question is to the following effect:

“Whether the courts below should not have refused the relief of mandatory injunction to demolish the sun-shades when actually there was no damage or nuisance caused to the plaintiff and that the plaintiff has approached the court long after the construction?”

5. It is the case of the plaintiffs that the constructions were begun by defendants when the plaintiffs were away and immediately after they came to know of the unauthorised construction, they protested. Notwithstanding their protest, the defendants continued the construction. Para.4 of the plaint contains the relevant averments in this regard. The fact that during the construction the plaintiffs protested, has not been specifically denied in the written statement. The plea of the defendants throughout was that there is no unauthorised construction or encroachment in the plaintiffs’ properties nor was there any construction on the common wall. It is also seen that the plaintiffs have filed the suit within about 15 days after the construction was over. It is true that a mandatory injunction to demolish or to remove a building already finished at considerable cost and trouble will not be ordinarily granted unless material damage would otherwise ensue. Courts exercise a judicial discretion in the grant of a mandatory injunction and weigh the amount of substantial mischief done or threatened to the plaintiffs, and compare it with that which injunction, if granted would inflict upon the defendant. The mere sentimental satisfaction of the plaintiff, without any real substantial benefit that is likely to arise to him by the grant of a mandatory injunction, will not weigh with the court. These principles are fairly well settled. But it should be borne in mind as observed by Wadsworth, J. in

# Nidamarti Jaladurga Prasdayudu v. Ladooram Sowcar, AIR 1936 Mad. 687


“The courts have recognized that, when the issue of a mandatory injunction would involve the removal of a completed structure which entails no inconvenience and only a slight invasion of the plaintiff’s rights, not committed wantonly or after protest, pecuniary compensation is the more appropriate remedy………………I have not been referred to any case in which a similar compulsory acquisition of a considerable strip of land has been effected under the guise of monetary compensation in lieu of an injunction;”

The principles to be borne in mind in the grant of a mandatory injunction have been stated in the classical passages of A. L Smith, L J. in

# Sheffer v. City of London Electricity Lighting Go., 1895(l) Ch. 287

(1891-94 All E. R. Reprint 837-848) In

# Kelsen v. Imperial Tobacco Co, Ltd., 1957(2) All. E R.343

at page 351, quoting with approval the following passages from Sheffer’s case.

“Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is primafacie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorised by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the court may award damages in its place.”

“So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that (1) If the inquiry to the plaintiff’s legal rights 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. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct,-as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction.

McNair, J. observed as follows:-(1957 (2) A.E.R. 343 at 352).

“I have no doubt at all that in the present case I have a discretion, which I have to exercise judicially, to award damages in lieu of an injunction, if I see fit. It is true that the injury to the plaintiff’s legal rights in this case is small. The sign in his air space does him no harm and does not diminish his enjoyment. I doubt whether it is a case in which one can estimate the damage in terms of money, because the damages, if estimated at all, would have to be stated to be nominal. I do not find, however, that it would be in any way oppressive to the defendants to grant an injunction. It is true that considerable expense stated to be some £220, was incurred some seven years ago in erecting the sign, but I have no evidence at all whether the defendants have not had good value for that expenditure. I know that Messrs. Gallagher are apparently prepared today to pay £75 a year for a smaller advertisement in a less prominent position. Further-more, I think it is relevant in this connexion that the defendants throughout the case have been insisting on the right to display this advertisement as a matter of right. I think that that is a circumstance which the court is entitled to take into account in determining whether a small money payment with a declaration of right should be sufficient or whether an injunction should be granted. Cases in which an injunction has not been granted on the ground of hardship have, I believe, been mostly cases in which there has been some accidental invasion of the plaintiff’s rights.”

It has been held in

# Moolchand v. Chhoga, AIR 1963 Raj. 25

at p. 35) that a principle to be borne in mind in the matter of granting mandatory injunction which is a discretionary relief is that whether an injury caused to a person would constitute a sort of perennial trespass a trespass day in and day out-upon his rights normally and a mandatory injunction is the only appropriate remedy. Another principle which is equally well-settled is that the plaintiff is entitled to a mandatory injunction where the defendant inspite of protest by the plaintiff proceeds in an unlawful and high – handed manner. In the light of the above judicial dicta, I am of opinion that the plea raised by the appellant’s counsel is bound to fail for more reasons than one. It is common ground that there is encroachment upon the plaintiffs’ property and also that construction has been effected on the wall. The defendants were throughout taking the stand that there was no encroachment on the plaintiffs’ property and there has been no construction on the common wall. In Para.4 of the plaint the plaintiff averred that while the construction was going on, protest was launched, but the defendant did not pay heed to the same and continued the construction. This averment was not denied in the written statement. There is no specific plea in the written-statement filed by the defendants that even if there is any encroachment upon plaintiffs’ land, no damage or nuisance was caused to the plaintiffs and this is a case wherein the discretionary relief of mandatory injunction should be refused. Whether any damage or substantial damage or injury or inconvenience or nuisance was caused to the plaintiffs, is a matter for pleading and proof. The defendants have failed to advert to these aspects in their pleadings and in adducing evidence. In order to sustain the plea that the relief of mandatory injunction to demolish the sun-shades should not have been granted, it was for the defendants to plead and prove that there was no damage or injury or nuisance caused to the plaintiffs. The plaintiffs protested while constructions were going on. They have also approached the court for necessary relief sufficiently early. On these premises, the question of law posed before this Court for consideration cannot be adjudicated in the absence of requisite plea and proof to show that there was no damage or injury or nuisance caused to the plaintiffs by the encroachments made by the defendants. The construction was continued even after protest and prima facie injury is caused; this would constitute a “perennial trespass” and the defendants have by their conduct disentitled themselves from urging that damages may be assessed in substitution for an injunction. The plea of the defendants throughout was that there was no encroachment, and that the construction was in their own property. But the fact was otherwise. The invasion of the plaintiffs’ rights is not accidental. The over-whelming consideration discernible from the decisions of the courts quoted above, disentitle the appellants (defendants) from putting forward the plea that the relief of mandatory injunction should not have been granted by the courts below in these cases.

6. For the reasons stated above, I hold that the Second Appeals are without merit. The decisions of the courts below are not liable to be interfered with. The Second Appeals are dismissed with costs.


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