S S V KRISHNAN PILLAI Vs. KILASATHAMMAL

JUDGEMENT

(1.) The question for determination in this second appeal is whether the mandatory injunction granted , by the lower Courts against the defendant was properly granted. There is really no serious dispute about the facts. of the case. The dispute relates to a lane of about 5% feet in width. It is admitted that this lane is the common property of both the parties. It is also clear that on a previous occasion defendant threatened to deal with the lane in. a manner not consistent with its being the common property and thereupon an injunction was issued against him. The injunction, however, issued in that case does not cover the present case. The facts, so far as the present case is concerned, are, as found by the lower Courts, that 10 or 12 years ago the defendant who owned apparently both the properties on either side of this lane, put up a sort of a platform as a sort of a roof or covering for the lane and built a thatched shed thereon. About 1921 he altered the tiled shed into a terraced structure. There is also some question about a pial, that has been put up by the defendant on the common lane. The pial is not of a very large dimension. So far as the pial itself is concerned, though it seems to be clear that it is not a very recent construction, still the lower Courts have issued a mandatory injunction for its removal. I do not feel persuaded that the damage to the defendant by its removal can at all be regarded as anything serious so as to justify the continuance of the infringement of the rights of the plaintiff. On a balance of convenience, which alone is the principle on which such cases can ultimately be decided, I have not the slightest hesitation in this case that, so far as the pial is concerned, nothing has been shown by the defendant why the removal of it, which has been ordered, should not be allowed to stand. There are no equitable considerations whatever with regard to it. I, therefore, refuse to interfere with that part of the judgment which relates to the pial.

(2.) As regards, however, the terrace that has been put up, the same also has been ordered to be demolished and removed by the mandatory injunction issued by the lower Courts. It is clear from the admitted facts and from the findings of both the Courts that the lane has been used by both the parties only as a passage. If it was used as a passage, and if, as is admitted, it is only 5i feet in width, it can be used only as a passage for human beings for going in and coming out and possibly for cattle, and even as a passage it will not be available for other purposes. I put the question to the learned vakil for the respondent how his enjoyment of this common lane has been interfered with by the defendant putting up that shed or terrace over the lane. He has not been able to answer it. He merely, in answer, referred to his legal right. Of course the legal right is assumed, but when it is a question of the relative convenience or inconvenience and the extent of damage to the one party of the other, the Court is bound to take into consideration the extent to which by reason of the encroachment of the common rights committed by the defendant, the plaintiff's enjoyment or accustomed user has been inconvenienced or interfered with. I have not been shown anything on which it is possible to say that the manner in. which the plaintiff has been enjoying or using the property has been in the slightest degree interfered with or inconvenienced.

(3.) Again, there is the fact found and practically admitted that this shed was put up originally by the defendant 10 or 12 years ago. There seems to be some dispute as to whether there wag or was not some objection on the part of the plaintiff when this shed was put up. But I will assume for the purpose of the decision in this case that some objection was made. Assuming then, that in spite of the objection the defendant put up the shed 10 or 12 years ago, we have then in this case the obvious fact that the plaintiff lay quiet till. 1921 when this suit was instituted. I do not propose to put it on any ground of acquiescence, nor on any ground of estoppel. I do not think there are facts in this case on which the, one or the other can be found in favour of the defendant. Yet there is undoubtedly this laches on the part of the plaintiff. In all matters of equitable relief the Court is entitled to take the laches of the party seeking relief into consideration in granting or refusing it. I have not the shadow of a doubt in my mind that English Courts of equity having before them such a case as this, in which the plaintiff has been sleeping over his rights for 10 or 12: years, would undoubtedly have refused. the remedy by way of mandatory injunction. If indeed in this case it had been shown that what was done by the defendant in 1920 or 1921, namely, the putting up of the terrace, constituted in its-nature any further or increased interference by the defendant with the plaintiff's rights, one may disregard the lapse of time between the original structures and the institution of the suit. But this is clearly not a case in which the new structure put up can possibly be regarded as in any manner tending to further deprivation of the plaintiff's rights. On this ground alone, the laches, therefore, it seems to me that the plaintiff is clearly disentitled to the relief claimed by way of mandatory injunction. Again I am not at all sure that having regard to the circumstances of this case sufficient material or any material whatever has been placed before the lower Courts on which they could have come to the conclusion that it was a proper case for mandatory injunction. Undoubtedly, the discretion to be exercised by the Courts of law in granting or refusing the mandatory injunctions is a judicial discretion and it must be exercised on principles which are capable of enunciation.