KASHI NATH Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This is a second appeal by the plaintiff against a decree of the lower Appellate Court dismissing his suit for a mandatory injunction which had been decreed by the trial Court but maintaining the decree for damages. The plaintiff brought a suit against the Municipal Board of Agra for Rs. 30 as damages for non-supply of water in the second story of the plaintiff's house during the period May to October 1933 and for a mandatory injunction to the Board to supply water to the plaintiff during prescribed hours of water supply and at the prescribed altitude with such conditions and reservations as the Court deems proper. The plaintiff occupies a double storeyed house in Naiki Maindi, Rakabganj Ward, which is assessed to a water rate of Rs. 19-5-5 per annum and he receives a supply of water in the lower storey of his house but he does not get a supply from the water tap in the upper storey of his house. He brought a suit No. 448 of 1932 against the Board for damages and injunction and this was decreed on 10 February 1933, for damages but not for injunction and the plaintiff had another suit pending in the Court of Small Causes at the time he brought the present suit. One of the grounds on which he sought a mandatory injunction was to avoid a multiplicity of suits. Various grounds of defence were taken and it was denied that the plaintiff was entitled to the relief for injunction. The trial Court considered that the Specific, Relief Act of 1877, Section 54, Sub-section (c) applied which provides that injunction may be granted where the invasion is such that pecuniary compensation would not afford adequate relief." Accordingly the trial Court granted Rs. 30 damages and a mandatory injunction to the defendant to supply water to the tap in the upper storey of his house during the prescribed hours and at the prescribed altitude is decreed. The defendant will for the purpose of carrying out the mandatory injunction effect what improvements be necessary in the system of its water works. If for the supply in question the construction of a cistern in or on the plaintiff's house be necessary, the defendant will construct it at the expense of the plaintiff....

(2.) The Municipal Board appealed and the lower Appellate Court held that there was a statutory liability to supply water to the plaintiff In the upper storey, which was within the altitude of 25 feet prescribed by the Municipal Rules, and that the finding of the trial Court that the water did not reach the upper storey tap of the plaintiff during the months in suit was correct. The finding of the Munsif that the Board failed to supply a cistern on the application of the plaintiff was also held to be correct by the lower Appellate Court. The damages of Rs. 5 per mensem were calculated at the wages, Rs. 5 per mensem, for a man to carry water to the upper storey. On the question of whether the plaintiff was entitled to a mandatory injunction, the Court below found: Now in this case, in order that the appellant Municipal Board may be able to discharge its obligation to supply water in the tap of the upper storey of the plaintiff, it would be necessary to Improve the entire water works plant of the Municipal Hoard, probably by putting up new and powerful engines and possibly by overhauling the present ones. This would certainly require a great deal of engineering skill besides a considerable amount of money to meet the cost. I am definitely of opinion that the Court is not capable of undertaking a work of this magnitude which requires a great deal of personal attention and therefore an injunction like this ought not to be granted by the Court. I nm fortified in this view with the decision in Attorney-General V/s. Staffordshire County Council (1905) 1 Ch. 336 noted at p. 882 of F. Pollock and D.F. Mulla's Specific Relief Act (Edn. 6) in which it was laid down that an injunction will not be granted directing a person to, do repairs, the reason being that the Court will not superintend works of building or of repair.

(3.) The Court further found: I am thus clearly of opinion that a Court of law will be not justified in granting a mandatory injunction in a case like this; firstly because the Court is not capable of enforcing it and secondly because to award damages is certainly an efficacious remedy.