A co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property absolutely and simply on the ground of his co-ownership and without reference to the amount of damage to be sustained by the one side or the other from the granting or the withholding of the injunction.

A.N.Grover, J.

1. This appeal arises out of a suit for a prohibitory injunction restraining the defendant from making constructions on the site in dispute which is said to be joint of the parties. The defendant pleaded that the chabutra existed in the site in dispute for the last 30 years, that the plaintiff had already made similar encroachment on another part of the joint sehin and that the suit was barred by time. It was also asserted that in the absence of any allegation regarding special damage, the plaintiff could not maintain the suit. The following issues were framed by the trial Court:

1. Whether the suit is within time?

2. Whether the plaintiff is entitled to the injunction prayed for?

3. Relief.

2. The trial Court found that the defendant could only keep three blocks of steps in front of the three doors of his house and was not entitled to build the chabutra. It was also found that the chabutra had been constructed after the institution of the suit. A decree for a mandatory injunction was, therefore, passed directing the defendant to demolish the chabutra and to maintain only three blocks of steps in front of three doors of his house not exceeding width of the three doors and the defendant was further restrained from building any chabutra on the joint courtyard of the Chaudhry family. The matter was taken in appeal to the Court of the learned Senior Subordinate Judge who found that the suit of the plaintiff in so far as it related to encroachment of the site of the three chabutras that formerly existed in front of the three doors of the defendants house was clearly barred by time but that the rest of the claim was within time. The finding that certain constructions were made during the pendency of the suit was not disturbed but the suib was dismissed on the ground that the plaintiff had not made any application at any stage for seeking an amendment of the plaint with a view to add the relief for the grant of mandatory injunction. The relief which had been claimed in the plaint was for a prohibitory injunction and the learned Senior Subordinate Judge considered that unless there was an amendment of the plaint a decree for a mandatory injunction could not have been granted. The plaintiff is aggrieved by the decision of the Senior Subordinate Judge and has come up to this Court in second appeal.

3. The first point that has been raised on behalf of the appellant is that the plaintiff could not have been non-suited purely on the ground that he had not sought amendment of the plaint so as to add the relief for the grant of a mandatory injunction. It is submitted that it is the duty of the Court in such cases to grant an appropriate relief and take subsequent events into consideration as admittedly the constructions in dispute had been made during the pendency of the suit. It is argued that the trial Court had rightly granted a decree for a mandatory injunction in spite of the fact that the prayer in the plaint was only for the grant of a prohibitory injunction. My attention has been invited to Meghaji Mohanji v. Anant Pandu-rang, AIR 1948 Bom 396 (A), which had laid down that there are eases where it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. This principle will be applied where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. In Vishram Arjun v. Irukulla Shankariah, (S) AIR 1957 Andh Pra 784 (B), the general principle was reiterated that the primary duty of the Courts is to do justice and rules of procedure are intended only to advance the cause of justice rather than to impede the same. It is the duty of the