MAHABIRJI BIRAJMAN MANDIR Vs. PREM NARAIN SHUKLA

JUDGEMENT

(1.) THIS is an appeal by Sidh Maha-birji Birajman Mandir through Pandit Mahabir Prasad Dixit and by Mahabir Prasad Dixit himself, defendants, against the order of the lower appellate Court allowing the appeal and remanding the suit for a fresh hearing after affording the plaintiff, Prem Narain Shukla, an opportunity to produce his evidence in the case which was permitted by the trial Court under order dated 10-31961. It was also ordered that the defendants would be entitled to give evidence in rebuttal. This order was made subject to another direction that the trial Court will look into the question of privilege if raised in a proper manner and by a competent authority.

(2.) THE plaintiff had instituted the present suit for demolition of the wall which the defendants had constructed by the side of the windows in the wes- tern wall of his house and thereby stopping the free flow of air and light through such windows, and also for a mandatory injunction to restrain the defendants from interfering with the plaintiff's construction of a shed to protect the rain water from reaching the room through the said windows and from interfering with the plaintiff's using the windows and ventilators. In addition, damages were claimed.

(3.) THE plaintiff summoned the case diary of a criminal case investigated by the local police to show that the windows existed even in 1954 when the criminal offence had been so investigated. The case diary' was summoned from the Superintendent of Police and was produced before the Munsif by a clerk of the police office. The Superintendent of Police did not formally address the Court claiming privilege but the clerk was directed to claim privilege. The Investigating Sub-Inspector who had investigated the offence had also been summoned. The Munsif allowed the claim of privilege with the result that that evidence could not come on the record. The suit was eventually dismissed with costs and the plaintiff went up in appeal. The lower appellate Court was of opinion that the privilege was not claimed in a proper form, nor by the Head of the Department, and consequently, set aside the decree of the trial Court though leaving the matter open in case the privilege was claimed airesh.