FAZAL HAQ Vs. FAZAL HAQ

JUDGEMENT

(1.) The parties to the suit are neighbours. There is a public road in mohalla Panjabian of Pilibhit which runs from north to south. To the east of the said road is the house of the defendants and to the west the house of the plaintiff, which is occupied by the plaintiff and the ladies of his house. In June 1924, the defendants started certain constructions on the upper flat of their house and opened three new doors facing the west. These doors have been marked in the site plan attached to the plaint by the letters A, B and C. The customary right of privacy applies in the neighbourhood where the plaintiff's house is situate, and it applies to the class of persons to which the plaintiff belongs. By opening the doors aforesaid the defendants invaded the plaintiff's right of privacy. The plaintiff protested to the defendants, but the latter heeded him not. The plaintiff approached the Municipal Board of Piliphit who had sanctioned the construction of the defendant's house, but found no redress. He next approached the police, but the latter possessed no preventive or protective resources in a matter like this. He next lodged a regular complaint before a Magistrate but no effective relief could be had.

(2.) The present suit was instituted on 5 July 1924, and originally the plaintiff sought two reliefs: (a) The closure of the three doors and (b) a perpetual injunction restraining the defendants from making any construction calculated to invade the privacy of the plaintiff's house. On 8 July 1924, the Subordinate Judge issued an injunction to the defendants directing them to keep the doors closed. In spite of service of notice the injunction was disobeyed, and on 17th July, a notice was issued to the defendants to show cause why they should not be committed for contempt. On 28 July the Subordinate Judge made a local inspection and found that the defendants had started putting up a balcony towards the west. The plaintiff thereupon added a third prayer to his plaint, namely, for the removal of the balcony. Of the four defendants defendant 1 alone contested the suit and put forward a number of flimsy and unsubstantial pleas. In para. 4 of his additional statement he admitted, however, that a portion of the present female apartment is visible from the doors in dispute.

(3.) The learned Subordinate Judge decreed the plaintiff's suit and ordered the closure of the doors and the demolition of the balcony within six weeks of the date of the decree and also a perpetual injunction. On appeal the learned District Judge affirmed the decree of the Court of first instance. The defendant now comes to this Court in second appeal. The matter is no longer open to any controversy and has indeed been settled by a long course of judicial pronouncements that a customary right of privacy within certain limitations exists in the North-Western Provinces, and a material interference with such a right is an actionable wrong and affords a good cause of action to the person or persons affected thereby. In this respect the rule enunciated above departs from the well-recognized rule of English law which renders invasion of privacy unactionable. In view of the social conditions of this country which prescribe seclusion for females belonging to certain respectable class of the Hindu and Mahomedan communities in answer to communal sentiment and as the practical result of the custom which has descended from olden times, the right of privacy has taken too deep a root to be dislodged by any a priori reasoning.