KHAJI SAYYAD HUSSAIN SAHIB Vs. EDIGE NARASIMHAPPA

JUDGEMENT

(1.) The suit which gave rise to the second appeal was instituted for an injunction against the defendants directing them to remove a bund which, according to the plaintiff, obstructed a public cart-track and for annas eight as damages. The defendants denied that there was a public right of way for carts at the place in question and also denied that the plaintiff sustained any special damage. The District Munsifi passed a decree in plaintiff s favour stating that the plaintiff had a right of easement to pass along the way and that the defendants obstructed the plaintiff in the exercise of that right. The Subordinate Judge on appeal has found that there was a public cart-track at the place when the bund was put up by the defendants but he dismissed the suit on the ground that the plaintiff did not allege or prove any special damage.

(2.) In second appeal it is contended by the learned Counsel for the appellant that the plaintiff was put to special inconvenience by the obstruction because it was necessary for him to pass along the way in order to reach a. certain field of his to which the way led. Beyond this nothing has been alleged by the plaintiff. Paragraph 8 of his plaint is the only one that contains any allegation of damage. It states that the plaintiff wanted to take his cart along the way that the cart was obstructed by the bund and that therefore he sustained loss. At the hearing he attempted to prove that the cart contained stones which w.:re required for his field and that owing to the obstruction of the way the stones were thrown down and the cart returned. It is not contended that the plaintiff would be entitled to claim the price of the stones which were thrown away nor as jointed out by the Subordinate Judge, has the plaintifl made any such claim. It is not disputed by Mr. Narayaua Row, the learned Vakil, for the respondents that if the plaintiff alleged and proved that he sustained any special damage the suit would not be maintainable. The question is, is the fact the plaintiff sustained inconvenience in going to his field sufficient to entitle him to maintain the suit? i.e., could it be regarded as special damage sufficient to entitle him to any relief for the obstruction of a public right of way? We are of opinion that on the authorities we are bound to hold that this is not sufficient. The English rule that an action for the obstruction of a public highway is not maintainable unless special damage is alleged and proved, has been so long accepted in this country that it is impossible to question it now. Moreover the legislature has now accepted the same view as shewn by Section 91 of the Civil Procedure Code. The following observations occur in Clerk and Lindsell on Torts, 4th Edn. pp. 395 & 396:--But mere personal inconvenience caused by the plaintiff being delayed by an obstruction in the high road without pecuniary damage, will not suffice nor is it enough that the plaintiff has been put to expenses in exercising his right of abating the obstruction and it is immaterial that the degree of personal inconvenience suffered may be in excess of that suffered by the rest of the public, for the Court cannot enter into the consideration of the quantum... In Herbert v. Groves (1794) 1 Essp. 148 whereby reason of an obstruction the plaintiff was compelled to carry his goods by a circuitous route, but no proof of any pecuniary loss, resulting therefrom was given, the plaintiff was non-suited. And in Chaplain v. West Minister Corporation (1901) L.R. 2 Ch. 339 it was held that the erection of an electric standard in a public thorough fare, opposite to the plaintiff s premises, whereby the transit of merchandise, from vans to warehouse across the public pathway, was impeded, afforded no ground for action." Sec also Mayo v. Heaton Urban District Council (1904) L.R. 68 I.P. 7.

(3.) It seems to me to be clear that the mere fact that a person has to use a way more often than another and is therefore put to more inconvenience will not entitle him to maintain an action for obstruction of the way. The learned Counsel for the appellant is probably right in his contention that actual pecuniary damage is not necessary in all cases to justify an action. He refers to Abzul Miah v. Nazir Mahammad (1895) I.L.R. 22. C. 551 in support of his argument. There in consequence of the obstruction of a public way the plaintiff was deprived of the only access to a grazing ground. The damage caused by such deprivation is certainly tantamount to pecuniary damage. The observation of Muthuswami Aiyar, J. in Siddeswara v. Krishna (1903) I.L.R. 14 M. 177 carries the case no further. In Grcasly v. Codling 2. Bing. 263 which was also relied on by Mr. Swamiuadhan, the plaintiff was a seller of coal and suffered damage by the obstruction because it prevented him from making as many trips as he otherwise could and therefore reduced his income. We doubt whether Mohart Ram Chowdhri v. Joti Prasad (1912) 8 A.L.J. 19 is consistent with the law as laid down in the English and Indian Cases. We must hold that the plaintiff has not alleged or proved anything which can be regarded as special damage. In the absence of sufficient allegations in the plaint it would be useless to allow the plaintiff to adduce any fresh evidence.