The right of privacy is a customary right and it is open to the Court to see whether the custom is, in the circumstances, reasonable and whether it has ceased to be enforceable by desuetude.

( 1 ) THIS is a plaintiffs second appeal in a suit for mandatory injunction directing the defendant to dose the windows opened by him in the rooms on the first floor of his house facing the plaintiffs property, and a prohibitory injunction restraining the defendant from discharging dirty water in the 5 wide lane between houses of the parties.

( 2 ) THE parties are displaced persons having settled down at Dehradun after partition. Their respective houses are divided by a 5 wide lane. The suit was filed when the defendant sought to raise the construction on the first floor of his house. The plaintiffs house is to the south of the land while the defendants house is to the north thereof. The plaintiff did not claim that the land was his private property, but he claimed that it was not a public street and only the owners and residents of the houses to the south of that lane had a right to use it. The closure of the two windows, opened by the defendant in the two rooms on the first floor of his house, was sought on the ground that they infringed the plaintiffs privacy and the defendant was sought to be prevented from discharging the dirty water of his house through the lane on the ground that it was not a public street and he could discharge the same through the public street to the north of his house.

( 3 ) SO far as the alleged infringement of the right of privacy is concerned, it has been found by the two Courts below that only 1/2 part of the one of the two windows overlooks the open courtyard in the front of the plaintiffs house, learned counsel for the plaintiff urged that the right of privacy was a well-recognised customary right in this part of the country and the two Courts below were in error in not ordering the closure of the windows. Before looking into the cases relied upon by the learned counsel, I must also observe that the window overlooks the outer courtyard of the plaintiffs house and not the inner court-yard. That outer courtyard opens on the 5 wide lane between the houses of the parties and even before the construction of the first floor of the defendants house, it was overlooked completely from the open roof of his house. There could be, in my opinion, no right of privacy in respect of an outer courtyard of ones house which opens on the street in the front of the house. The right of privacy used to be recognized in respect of the inner courtyard.

( 4 ) LEARNED counsel for the appellant cited the case of Ganeshi Lal v. Smt. Rasool Fatima (1976 all WC 605) : (AIR 1977 All 118) in which M. Hamid Hussain, J. , was rather critical of the decision of Dhavain, J. , in Basai v. Hasan Raza Khan (AIR 1963 All 340) and referred to certain old decisions which show that the right of privacy was a well-recognized customary right in this part of the country and said that it was not open to a learned single Judge of this Court to go against the decisions of a Division. Bench. With respect I would observe that the right of privacy being a customary right, it is always open to the Court to see whether the custom is, in the circumstances, reasonable and whether it has ceased to be enforceable by desuetude. Be that as it may, the customary right of privacy may be said to exist only in respect of the inner courtyard, and the inner parts of a house inhabited by women and cannot by any stretch, be said to exist in respect of the outer Court yard of a house which opens on the front street. The decision in Kumi behari v. Brij Behari Lal (AIR 1947 Oudh 139) is also of no help. The customary right of privacy was found to exist in that case "in the plains of the United Provinces". Dehradun is on the hills and, at any rate, not in the plains. Moreover, it was held in that case that it is not every infringement of privacy which is actionable. It must be shown that there has been a substantial and material infringement of privacy. The right of privacy cannot be carried to an oppressive length. Each case must be decided upon i