Kadarbhai vs Rahimbhai And Ors. on 12 March, 1889

Bombay High Court
Kadarbhai vs Rahimbhai And Ors. on 12 March, 1889
Equivalent citations: (1889) ILR 13 Bom 674
Author: C Sargent
Bench: C Sargent, Candy


Charles Sargent, C.J.

1. It is not in dispute that the window in the south wall of the plaintiff’s house is an ancient window into which the light passed without any obstruction before the defendants built their present wall. It is found by the Subordinate Judge, who visited the plaintiff’s house, that the effect of the new wall will be to render the back room so dark as to render it “impossible to walk about or do anything in it.” The only question is, therefore, as to the form of relief to which the plaintiff is entitled. The Joint Judge considers that the plaintiff will be adequately indemnified by the defendants opening another window for him to the east of the window in question, the light into which will not be interfered with by the defendants’ house. This, however is a form of relief which the plaintiff cannot be compelled to accept. He has an absolute and indefeasible right under Section 26 of the Limitation Act, XV of 1877, to have substantially the same amount of light enter his room through the particular aperture through which it had always passed, or to be indemnified for the diminution of light caused,–see Tapling v. Jones 11 H.L.C. 290 at p. 305. Whether the relief should be by injunction or damages is a question of no little difficulty in cases of this description. Section 54, Sub-clause (c) of Specific Belief Act provides that a perpetual injunction is only to be granted where “pecuniary compensation would not afford adequate relief.” In determining where pecuniary compensation is sufficient in any particular case, it has been the practice on the Original Side of this Court, and the practice would appear to be equally adapted to the special circumstances of towns in the mofussil, to follow the ruling in the English case of Holland v. Worely L.R. 26 Ch. D. 578 and 585, “that damages should be given where the injury is not so serious that the property might not still remain the plaintiff’s and be as substantially useful to him as before.” Applying that rule to the facts as found by the Subordinate Judge, and which were not disputed on appeal, and treated as correct by the Joint Judge, it is beyond all question that the room, after the defendants’ wall has been built, will be clearly not as substantially useful as before, and that damages would, therefore, not be an adequate compensation. We must, there-force, reverse the decree of the Court below, and grant a perpetual injunction restraining the defendants from raising their wail so as to obstruct the passage of light into the window in question; and as the defendants have thought fit to carry up the wall since the decree of the Court below, notwithstanding the appeal to this Court, a mandatory injunction must issue directing them to remove it. Appellant must have his costs throughout.

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