B NIHAL CHAND Vs. MTBHAGWAN DEI

JUDGEMENT

(1.) This is a defendant s appeal from a decision of the District Judge of Saharanpur, reversing the decision of the trial Court and decreeing the plaintiff s claim for the closing of a newly constructed door which had been opened by the defendant in his house on the side of the sahan and rooms of the plaintiff on the ground that it invaded the plaintiff s right of privacy. The trial Court found that no customary right of privacy had been proved, but the lower appellate Court considered that apart from the question of customary right and the changes that had taken place in India during the last 50 years

(2.) In considering these and other similar passages Boys, J., remarked:

(3.) The earlier decision was pronounced before the Easements Act was extended to this Province, and Mr. Pathak has pointed out that Section 18 of that Act, provides that an easement may be acquired in virtue of a local custom and he argues that the plaintiff-respondent in this case was bound by definite evidence to prove that a custom of privacy existed. On the other hand, there have been some recent cases in which it appears that a right of privacy was presumed. In Bhagwan Das v. Zamurrad Husain 1929 All. 676, the referring Sir Lal Gopal Mukherji, J., remarked that the custom of privacy which undoubtedly exists, should not be carried to an oppressive length and where there is a clear remedy available to a plaintiff, he should not have anything except by way of damages at the outside, and in this view he was confirmed by the decision of the Bench in the case of Fazal Ilaq v. Fazal Haq . It was held by a Bench of this Court that a customary right of privacy within certain limitations exists in the North Western Provinces, and a material interference with such a right is an actionable wrong. The question of whether the plaintiff had to prove a definite custom of privacy is therefore not free from difficulty, but in my opinion the balance of authority is in favour of the conclusion that at any rate in a case like the present, where the plaintiff is a Vaisha living in a town and the defendant has opened a door which exposes the whole of the plaintiff s sahan as well as the rest of the house to his view, it must be held that there has been an invasion of privacy, and to this extent I agree with the decision of the learned Judge. It has been argued that, as the trial Court has; pointed out, the plaintiff herself does not keep strict purdah and that she is not entitled to complain because she has in fact exposed herself to the public view, being, indeed a Congress volunteer. The right of privacy however is an easement attached to land and not to a person. If there was a right of privacy existing in the house which, no doubt, is occupied by other ladies of the same caste, it does not follow that it has been destroyed because the plaintiff herself has not always observed purdah. My conclusion therefore is that there was a right of privacy which has been violated by the opening of the door and it amounts to a substantial injury that the lower appellate Court has found which can only be stopped by the closing of the door.