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Madras High Court
Sayyad Azuf vs Ameerubibi on 27 November, 1894
Equivalent citations: (1895) ILR 18 Mad 163
Bench: M Ayyar, Best


JUDGMENT

1. The suit was brought for an order directing defendant to close a window opened by him in a wall newly built by him. Plaintiff’s case is that the window opens on to a passage immediately to the west of the wall, which passage leads to the plaintiff’s house, and the privacy of which is invaded by reason of the window. The District Munsif found it to be a fact that plaintiff’s privacy was thus invaded and gave her a decree directing the closing of the window.

2. On appeal the District Judge affirmed the District Munsif’s decree.

3. Hence this second appeal, in which we are referred to the decision of Holloway and Innes, JJ., in the case of Komathi v. Gurunada Pillai 3 M.H.C.R. 141 where it was held, following the English law on the subject, that the invasion of privacy by opening windows is not a wrong for which an action will lie. As observed by Innes, J., the person whose privacy is so invaded has it in his power to build on his own ground so as to shut out the view from the offending window. To the same effect is the decision of the Calcutta High Court in Mahomed Abdur Hakim v. Birju Sahu 5 B.L.R. 676 and of the Bombay High Court in Shrinivas Udpirav v. Reid 9 Bom. H.C.R. 266. The cases in Manishankar Hargovan v. Trikam Narsi 5 Bom. H.C.R. 42 and Kuvarji Premchand v. Bai Javer 6 Bom. H.C.R. 143 are decisions with reference to the special custom of Guzerat. The decisions of the Allahabad High Court in Gokul Prasad v. Radho I.L.R. 10 All. 358 and Abdul Rahman v. Emile I.L.R. 16 All. 69 rest on the customary right which prevails in various parts of the North-Western Provinces.

4. Following the decision in Komathi v. Gurunada Pillai 3 M.H.C.R. 141 we allow the appeal and, setting aside the decree appealed against, direct that plaintiff’s suit be dismissed; but considering the circumstances of the case, we direct that each party do bear his and her costs throughout.


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