BHULOGANATHAM PILLAI Vs. RAJAGOPALA PILLAI

JUDGEMENT

(1.) The respondents instituted a suit in the Court of the District Munsif of Chidambaram for the issue of a mandatory injunction against the appellants requiring them to remove a wall which they have built close to the respondent's house. The wall is six feet high and according to the respondents it has been built across a public road. The respondents say that as the result of the obstruction to the road they are unable to approach their house from the left and the enjoyment of their property has been seriously interfered with. They have not stated all this in the plaint, but have left it to be inferred from a plan which they filed with the plaint. If the respondents allegations are true, there can be no doubt that the appellants action does seriously affect them as the owners of the house, and therefore they have suffered special damage. Before the District Munsif the appellants raised the plea that the suit could not be maintained because the respondents had not expressly averred special damage. The appellants succeeded; in persuading the District Munsif to accept this plea and dismiss. the suit.

(2.) The respondents appealed to the District Judge of South Arcot, who reversed the judgment of the District Munsif and remanded the case to the District Munsif for trial on the merits. In adopting this course the District Judge relied on the decision of this Court in Munusami V/s. Kuppusami . In that case Wadsworth, J., held that the judgment of the Privy Council in Manzur Hasan V/s. Muhammad Zaman (1924) 48 M.L.J. 23 : L.R. 52 I.A. 61 : I.L.R. 47 All. 151 (P.C) had established that the English rule requiring special damage to be shown in an action by a member of the public for the removal of an. obstruction to a public way does not apply in India. The appellants contend that Wadsworth, J., has not correctly interpreted the judgment of the Judicial Committee and they ask that the decision of the District Munsif be restored.

(3.) In Manzur Hasan V/s. Muhammad Zaman (1924) 48 M.L.J. 23 : L.R. 52 I.A. 61 : I.L.R. 47 All. 151 (P.C), the Privy Council held that a civil suit for a declaration lies at the instance of a private individual against those who interfere with a religious- procession or its appropriate observances when the procession is passing along a public street and does not interfere with the use of the street by the public and complies with the lawful directions of the Magistrates. In that case the Judicial Committee considered the decisions of this Court in Parthasarathi lyengar v. Chinnakrishna Aiyangar (1882) I.L.R. 5 Mad. 304, and Sadagopachariar v. Ramarao (1902) I.L.R. 26 Mad. 376, in which it was held that a civil suit lies against those who prevent a religious procession passing along a public highway, without the necessity of proving special damage. Their Lordships also considered the decision of the Bombay High Court in Satku Valad Kadir Sausare V/s. Ibrahim Aga Valad Mirza Aga (1877) I.L.R. 2 Bom. 457, where it was held that a civil suit does not lie in such a case without proof of special damage. Their Lordships accepted the opinion of this Court as being the correct one.