Nathu v. Sheosa

1. This second appeal raises two questions of law:

(1) Whether the relief of injunction has been rightly refused,

(2) Whether costs have been rightly apportioned.

2. The suit which gave rise to this second appeal was instituted by the present appellants on 5th February, 1921, for the following reliefs:—

1. Beatification of the instrument of sale Exhibit P-3, dated 6th February, 1918, inserting the words “pot-hissa No. 1” before the words “mango trees standing therein” valued at Rs. 133.

2. Declaration that plaintiffs have a 6-anna share in the two mango trees with 4 stumps situate in pot-hissa No. 1 and that they are owners of the well situate as aforesaid to the extent of 8 annas and that they may be put in joint possession of the same.

3. Damages on account of shadow rights in respect of 4-anna share in the mango trees for 3 years, valued at Rs. 40.

4. Perpetual injunction restraining the defendants from ever prohibiting the plaintiffs from going to the well and taking water thereof for use and from prohibiting them from taking the mango produce according to their share, valued at Rs. 133, and for costs and such other reliefs as the Court thinks fit to grant.

3. The plaintiffs purchased the property in suit described in paragraph 1 of the plaint from respondent Kali's husband, Govinda Tei as per Exhibit P-3. Their allegations so far as the relief of injunction was concerned, was that the defendant No. 1 Sheosa who was a purchaser of Goviada's brother Shrawan's share in the property obstructed them in the enjoyment (1) of their right to take water from the well, and (2) of their share of the mango crop from the trees. It is significant that the plaintiffs date their cause of action as having accrued on the very day of the sale deed Exhibit P-3 which however was registered on the next day which shows that no enjoyment was in all probability had, although the sale deed formally mentioned that the possession of the property sold was given on the date of the sale. The defendant No. 1 contested the claim as regards the extent of the right, title and interest of the vendor in the well and as also in the mango trees, and denied the plaintiffs' claim in full. There was no express denial by the defendant No. 1 of the plaintiffs' allegation that the defendant obstructed plaintiffs in the enjoyment of the property purchased. The first Court held that Govinda had a 2-anna share in the mango trees and that as regards the well be had an 8-anna share therein; that, although at the partition the land in which the well is situate went to the share of Shrawan, still Govinda was interested to the extent of an 8-anna share in the right of taking water from it; that there was a mistake in giving the description of the property in the sale deed; that the plaintiffs were not entitled to claim shadow rights; that they were entitled to the injunction prayed for. As the result of these findings the plaintiffs' claim for rectification of the instrument, declaration of title to the extent of 2-anna share in the mango trees and of the right to take water from the well in defendant No. 1's portion of the field to the extent of 8-anna share, and for injunction, was decreed, and the claim as to plaintiffs' costs was that they were allowed in proportion to the claim decreed. Against this decree the defendant No. 1, Sheosa alone appealed to the Court of the Additional District Judge, Amraoti, and joined his co-defendant Kali as respondent No. 3. Ground No. 4 in the memorandum of appeal to the Lower Appellate Court related to the relief of injunction granted by the 1st Court. The Appellate Court confirmed the decree of the first Court in all respects except as regards the relief of injunction which it disallowed in the following words:—

“I agree with the appellant that no case for injunction is made out”.

4. The decree of the Lower Court was varied by dismissing the claim for injunction and adding that the user of water is for gardening purposes only. As regards costs the Court passed the following order:—

“The appellant's costs so far as he succeeds shall lie on respondents 1 and 2 and the rest on the appellant”.

5. The plaintiffs complain before me that their claim for injunction has been improperly dismissed and the decree as regards costs is illegal. It is urged that as the plaintiffs' allegation of fact in the plaint that the defendant obstructed the plaintiff in the enjoyment of their rights to the mango grove and to the water of the well was not specifically denied or traversed by the defendant No. 1 he must be deemed to have admitted it under Or. VIII, r. 5 of the CPC and therefore the Lower Appellate Court was bound to have decreed the claim for injunction. But I am not prepared to uphold this contention.

6. Section 54 of the Specific Relief Act (I of 1877) lays down that when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely:—

(a) Where the defendant is trustee of the property for the plaintiff;

(b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) Where the invasion is such that pecuniary compensation would not afford adequate relief;

(d) Where it is probable that pecuniary compensation cannot be got for the invasion;

(e) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

7. That the present case does not come under clause (a) is clear. Whether it falls under any of the clauses (b), (c), (d) and (e) was for the plaintiffs to establish by proving facts and circumstances entitling them to claim it thereunder.

8. In Woodroffe's Law relating to Injunctions in British India, 4th Edition, at page 15, we find a statement of the general principles upon which an injunction is issued. It is stated that the relief is granted upon the principle quia timet; that is, the Court assists the party who seeks its aid, because he fears (quia timet) some future probable injury to his rights or interests, and not because an injury has already occurred, which requires any compensation or other relief. A satisfactory proof that defendants threaten the commission of a wrong (which is within their power) is sufficient ground to justify the relief. But there should be proof of an imminent risk of substantial damage: Gangabai v. Purshotam Atmaram (1908) 31 Bom. 146 , 9 Bom. L.R 912 following Fletcher v. Bealey(2). These and other similar precautionary reliefs were formerly granted by Court of Equity, on Bills Quia timet, to support which it must have been shown, firstly that there was a title in possession or expectancy in the plaintiff, and secondly that there was danger to the property: Satoor v. Satoor(3). The following passage is to be found at pages 16 and 17.

“The issue of an injunction is not a matter ex debito justitioz, but one which is purely within the discretion of the Court. The latter is not bound to grant that relief because it is lawful to do so. But the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles, and capable of correction by a Court of appeal. * * Where there is a discretion exercisable, the Court is bound to look at all the circumstances of the case. Ghanasham Nilkant Nadkarni v. Moroba Ramchandra Pai (1894) 18 Bom. 474. The jurisdiction of the Court being thus equitable is governed upon Equitable principles and therefore the Court will amongst other things, look to the conduct of the person who moves it.

9. It has been held in Fletcher v. Bealey(2) that there are at least two ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. In the words off Pearson, J., who decided the case, “it must be proved that it (damage) will be irreparable, because if the danger is not proved to be so imminent that no one can doubt that if the remedy is delayed the damage will be suffered, I think it must be shown that if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action.” This view has been accepted by the Bombay High Court in Gangabai v. Purshottam Atmaram (1908) 31 Bom. 146 , 9 Bom. L.R 912. It will be seen that this is the principle which underlies the provisions of section 54 of the Specific Relief Act.

10. In this case the first Court had granted the injunction to the plaintiff, whereas the Lower Appellate Court in its discretion has thought fit to interfere with such grant. Where the appeal attacks the exercise of discretion, and the Appellate Court interferes in favour of the appellant, I presume, and it will be a lawful presumption in second appeal, that the appellant in the Lower Appellate Court must have satisfied that Court that the discretion had been improperly exercised by the first Court. The plaintiffs complain that the discretion has been improperly exercised by the Lower Appellate Court in refusing a relief which was already granted by the trial Court. I think that the burden of proving that the judgment appealed against is wrong lies on the present plaintiffs-appellants and that they have not discharged it: see Nabkisor Mandal v. Upendrahissor Mandal 1922 P.C 39 , 30 M.L.T 234 , 20 A.L.J 22 , 35 C.L.J 116 , 42 M.L.J 253 , 1922 M.W.N 95 , 26 C.W.N 322 , 3 P.L.T 311 , 24 Bom. L.R 346 , 15 M.D.W 417 (P.C) and Bhubanmohini Dan v. Kumudbala 1924 Cal. 467 , 28 C.W.N 131 , 39 C.L.J 140.

11. Although the plaintiffs' cause of action is put down in paragraph 7 of the plaint as having accrued on 6th February, 1918, i.e, the date of the purchase itself, and they were deprived of the enjoyment of their rights by the alleged obstruction, they delayed filing their suit until the very last day of the three years, period of limitation. This itself clearly shows that the infringement of their rights by the alleged act of obstruction on the part of the defendant No. 1, was not treated by them as being one of a nature which raised an apprehension of an imminent danger to their legal right which would cause such substantial injury to them as could not be compensated by an award of damages. This delay of almost three years on plaintiffs' part which speaks of long in-action, is in my opinion a very strong piece of conduct which disentitles them from claiming in this suit the relief of injunction. The plaintiffs have on their own admission, been sitting quiet over the affair for the last three years; from this I presume that the infringement complained of was not such as involved “irreparable damage” or made “the danger imminent”. There is nothing in the record before me to show that the defendant's attitude in the past has been so very defiant as raised a reasonable apprehension in plaintiffs' mind that they will have to institute action after action against him for protection of their legal rights. I have the assurance of the respondent's pleader, and I also think that since the rights of the parties have now been definitely settled and adjudicated upon in this suit, there will no longer be any ground for a reasonable apprehension of any imminent danger to the plaintiffs' enjoyment of his rights once settled and declared. Under these circumstances I do not think that the Lower Appellate Court was wrong in varying the decree as regards the injunction. The grounds Nos. 1 and 2 therefore fail.

12. As regards ground No. 3 of the second appeal I find that the directions in the judgment and the decree of the Appellate Court do not correspond. Firstly, whereas in the judgment the Court has allowed the defendant-appellant's costs so far as he was successful in appeal, it did not say anything as regards plaintiffs-respondents' costs on that portion of claim in appeal which was dismissed. Secondly, even in the absence of any directions modifying the 1st Court's award of costs in the judgment, the appellate decree contains a clause for payment of only Rs. 28-5-9 by the defendants to plaintiffs out of those costs. This on the face of it is erroneous. I have with the help of the pleaders of the parties worked out the costs of the Courts below. So far as the Lower Appellate Court is concerned the net amount payable by the plaintiffs to defendant Sheosa after setting off the amount payable to plaintiffs by the defendant for that Court, comes to Rs. 13-14-0. In the first Court Rs. 75-0-9 were awarded as plaintiffs' proportionate costs against defendants. Out of that the Lower Appellate Court's decree directs only Rs. 28-5-9 to be paid by defendant No. 1 to plaintiffs. This leaves a balance of Rs. 46-11-0 which the plaintiffs claim as against the defendant No. 2; but as I have now held that the plaintiffs' claim for injunction has been rightly dismissed and these costs include costs about that relief also, they cannot recover costs on this portion of their dismissed claim. Deducting only the proportionate costs on Rs. 133 (the value of the claim for injunction for purposes of Court-fees and the pleader's fee) which comes to Rs. 10 on account of Court-fee and Rs. 6-8-0 for pleader's fee, total Rs. 16-8-0, from Rs. 46-11-0 the net amount recoverable by the plaintiffs from the defendant on account of costs of first Court comes to Rs. 30-3-0. No doubt the defendant was entitled to his costs of the first Court on the dismissed portion of the claim, but neither the first Court nor the appellate Court has allowed any such costs to him; as he has also not challenged the omission I do not see any valid reason to award them for the first time in second appeal. The appeal therefore so far as costs are concerned succeeds to the extent of Rs. 13-14-0+Rs. 30-3-0: Rs. 44-1-0 only. As the main relief in this second appeal was the relief of injunction, and the relief as to costs was of secondary importance, and as the plaintiffs appellants have failed in obtaining the main relief, I do not think I should allow them any costs in this appeal in respect of the little success they got as regards costs of the two Courts. I therefore direct the appeal do stand dismissed with costs. I however direct that costs payable to the defendant-respondent Sheosa in this Court will be calculated on Rs. 146 only.

13. I take this opportunity of correcting an accidental slip in the decree of the lower appellate Court by deleting the word “only” occurring between the words “purposes” and “by plaintiff” and inserting it between the words “used” and “for gardening purposes.”

14. Appeal dismissed.