PURAN CHAND Vs. NITYA NAND

JUDGEMENT

(1.) Puran Chand brought a suit for the grant of a mandatory injunction against the defendant-respondent for the demolishing of the wall ABCD show in the site-plan, Exhibit P.2, pleading that a dispute arose between the parties on the 5th of December, 1921 which ended in a compromise vide agreement, Exhibit P.1, whereby the defendant was allowed to construct a Chobara on his property but he was under no circumstances, to raise his northern wall higher than the line Alif-Beas shown in the plan. The plaintiff alleged that the defendant had built a Chobara on his own property, but he had raised the northern wall of the same beyond the limit Alif-Be by seven feet. This action of the defendant contravened the agreement above mentioned, hence the suit for the grant of a mandatory injunction requiring the defendant to demolish the wall ABCD as shown in the plan, Exhibit P.2. The defendant resisted the suit, admitted the execution of the agreement, but contested the plaintiff's right to get the wall in dispute demolished as according to him it did not infringe the terms of the agreement, Exhibit P.1 and further that it, in no way, impaired the plaintiff's rights. On the pleadings of the parties the following issues were framed :-

(2.) The Subordinate Judge, who tried this case, found both the issues against the plaintiff and dismissed the suit on the 29th of February, 1956. The plaintiff felt aggrieved against that order and approached the Senior Subordinate Judge in appeal who agreed with the findings of the trial Court and dismissed the appeal on the 21st of July, 1956. It is against this order that the plaintiff has come up to this Court in second appeal.

(3.) This appeal came up before me on the 25th of August, 1961 when I after hearing the parties, directed the District Judge, Karnal, to go to the spot and to submit a report. The District Judge accordingly went to the spot and submitted his report dated the 10th of January, 1962. According to him, if the roof in question is lowered by 3 feet the height of the roof will be only 7-1/2 feet from the floor. This will, according to him, very considerably reduce the utility of the room for residential purposes. According to the District Judge it will be feasible to grant pecuniary compensation to the complaining party. The learned counsel for the appellant maintained that the defendant had entered into a negative covenant with the plaintiff and had violated its terms. Under the circumstances the proper remedy which should be granted to the plaintiff is to issue mandatory injunction against the respondent as prayed for. In support of his argument he cited Parma Singh V/s. Tulshi Charan Goswami,1937 ILR(Cal) 367, which lay down that "an injunction in case of breach of a negative covenant is granted to enforce specific performance of the contract itself and both under Section 54 of the Specific Relief Act as well as under the English law of principles applicable to specific performance of contract guide the Court in the matter of granting induction in such cases. The granting of an injunction is always discretionary with the Court. Itt is, however, a settled practice that in case of threatened breach of a negative covenant, injunction will be granted as a matter of course and question of comparative convenience or inconvenience or the nature and extent of damages to the plaintiff would not ordinarily arise. There may be exceptional circumstances where the rule should not be followed". He has also cited some other authorities, but the principles enunciated by those also are the same. The learned counsel for the respondent had cited Chhedi Lal and another V/s. Chhotey Lal, 1951 AIR(All) 199, in which the principles for granting or refusing mandatory injunctions are embodied. It is laid down in that authority -