ILA PAL CHOWDHURY Vs. K C DUTT

JUDGEMENT

(1.) This is the Plaintiff's appeal against the dismissal of her suit on the preliminary ground that it is not maintainable in law. The suit was one for mandatory injunction or for damages in the alternative, for inter alia alleged violation of certain building rules of the Calcutta Corporation in the matter of construction of a certain structure by the Defendant No. 1 K. C. Dutta in his premises No. 83 Chowringhee Road. In the plaint there were allegations of collusion, culpable negligence and gross dereliction of duty against the Corporation of Calcutta which was made Defendant No. 2 in the suit. The Plaintiff also complained of obstruction of light and air of her premises No. 13, Chowringhee Terrace, adjoining the Defendant's premises No. 83, Chowringhee Road, by reason of the offending unauthorised construction and its adverse effect on the sanitation thereof and made general allegations of inconvenience, disadvantage, loss and damage, and damages were claimed against both the Defendants jointly and severally as alternative to the Plaintiff's prayer for demolition of the offending structure which affected or purported to affect only the owner Defendant No. 1.

(2.) There were several issues, framed in the suit, including an issue as to maintainability of the action in law which appears to have been urged as a preliminary objection at the hearing and the learned Subordinate Judge, having agreed with the Defendants on this point, dismissed the Plaintiff's suit upon the view that, for the alleged breaches of the Municipal law, the Plaintiff can have, in the circumstances of the present case, no remedy in the Civil Court against the offending owner, Defendant No. 1, or the Municipal Corporation, Defendant No. 2. The propriety of this view is challenged by the Plaintiff in her present appeal.

(3.) The learned Subordinate Judge dealt with the case upon the footing that the sole question before him was whether the violation of the building rules was actionable per se or, as he put it in one place in his judgment, whether, "apart from nuisance or trespass, a neighbouring owner can bring a suit for the violation of building rules of the Corporation." In so doing, the learned Judge assumed that the Plaintiff's claim of relief was not founded upon any complaint of trespass or nuisance. It will be necessary to consider whether this assumption is correct.