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MADRAS HIGH COURT
S.JAI KRISHNAN – Appellant
Versus
JIMMI CARTER – Respondent
SA 1277 2007
INJUNCTION - SUIT FOR MANDATORY INJUNCTION - SUBSEQUENT DEVELOPMENT - CAUSE OF ACTION - SUBSISTENCE - [S.A.No.1277 of 2007]Where the original cause of action for filing a suit for mandatory injunction has become irrelevant due to subsequent developments, such as the demolition of the plaintiff's wall and the construction of a new one, the suit becomes infructuous and should be dismissed.
Fact of the Case:
The plaintiff filed a suit for mandatory injunction to remove a construction adjacent to his western parent wall, which was made of mud and clay, and for permanent injunction restraining the defendant from putting up a window on the wall facing the western side. The trial court dismissed the suit, but the first appellate court allowed the appeal and decreed the suit. The defendant filed a second appeal, contending that the cause of action had become irrelevant due to subsequent developments, such as the demolition of the plaintiff's western parent wall and the construction of a new one.
Finding of the Court:
The High Court held that the subsequent developments had made the original cause of action for filing the suit irrelevant. The plaintiff's western parent wall, which was the subject of the mandatory injunction prayer, had been demolished and replaced with a new RCC construction. The prayer for permanent injunction restraining the defendant from putting up a window on the wall facing the western side had also become insignificant as the plaintiff had put up construction without leaving any vacant space on the backyard. Therefore, the High Court allowed the second appeal and set aside the order of the lower appellate court, thereby restoring the dismissal order passed by the trial court.
Issues: Whether the suit for mandatory injunction is barred under Section 69 of the Specific Relief Act in the absence of any suit notice being issued by the plaintiff before filing the suit claiming the said relief against the first defendant?Whether the plaintiff is entitled to the decree for mandatory injunction and permanent injunction on the principles of right to privacy, when he himself has not let out any side set back on the western side of the suit property so as to enable the first defendant to enjoy such a right so far his property?
Ratio Decidendi: When subsequent events have an impact on the rights of the parties, the relief can be moulded. However, the subsequent events must be of such a nature and dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events.In the present case, the subsequent developments, such as the demolition of the plaintiff's western parent wall and the construction of a new one, had made the original cause of action for filing the suit irrelevant. Therefore, the suit had become infructuous and should have been dismissed.
Final Decision: The High Court allowed the second appeal and set aside the order of the lower appellate court, thereby restoring the dismissal order passed by the trial court.
S.A.No.1277 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2023
CORAM
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
S.A.No.1277 of 2007 and
C.M.P.Nos. 7580 and 7584 of 2023
S.Jai krishnan
...Appellant
Vs.
1. Jimmi Carter
2. The Commissioner
Nagapattinam Municipality
Kadambadi, Nagapattinam
...Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the decree and judgment dated 28.09.2007 made in
A.S.No.24 of 2007 on the file of the Subordinate Judge, Nagapattinam, in
reversing the decree and judgment dated 06.02.2007, made in
O.S.No.340 of 2005 on the file of the District Munsif Court,
Nagapattinam.
For Appellants
: Mr.G.Ethirajulu
For Respondents
: Mr.Mr.S.Raghu for R1
: Mr.P.A.Srinivas for R2
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S.A.No.1277 of 2007
J U D G M E N T
The instant second appeal has been filed at the instance of the first
defendant.
2.
For the sake of convenience, the parties will be referred to
according to their litigative status before the Trial Court.
The brief facts, which give rise to this second appeal are as
follows:
3.
According to the Plaintiff, he is the owner of the suit
property comprised in S.No.2199, 22/1 in Block N.41, Ward No.4 in
Nagapattinam. The first defendant has purchased a house on the western
side of the above said property in S.No.2200. The first defendant's house
was adjacent to the plaintiff's main wall, in which the roof of the plaintiff
was resting. The first defendant has made an arrangement to remove the
tiled roof and to put up RCC construction. Since the house of the plaintiff
is very old, and the western main wall is made up of clay and mud, he
requested the first defendant not to raise pillars nearer to the plaintiff's
western main wall, and also requested him not to have any window on the
eastern wall of his house, as the same would endangers the privacy of the
plaintiff. It was the specific submission of the plaintiff that, at the time
of construction, the first defendant had agreed to
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S.A.No.1277 of 2007
leave 1 ½ foot space from the plaintiff's western main wall. However,
contravening to his promise and also in contravention to the approved
plan of the second defendant, the first defendant had put up a wall, very
near to the plaintiff's western main wall. Inspite of the objection for such
an illegal construction, the first defendant had proceeded with
construction hurriedly by employing more number of masons and
labours. Further, the plaintiff had complained regarding such illegal
construction of the first defendant to the second defendant. Even then, the
second defendant did not take any steps to stop the construction. Hence
the plaintiff had come forward with a suit for the relief of mandatory
injunction and also for permanent injunction.
4. The said suit was resisted by the first defendant by contenting
that on 14.11.2002, the first defendant had purchased the property from
One Krishnaswamy and he wanted to put up RCC roof after removing the
tiles and he also obtained approved plan from the Corporation. Thus
defendant submits that the alleged western main wall belongs to him.
The first defendant further submits that he has not put up any
construction endangering the plaintiff's wall, and the so called window
will in no way affect the privacy of the plaintiff or the family members.
Hence prayed to dismiss the suit.
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S.A.No.1277 of 2007
Evidence and documents:
5. Before the trial Court, the Plaintff has marked 5 documents as
Exs.A1 to A5, and the defendants marked 3 documents as Exs.B1 to B3.
As a Court document, Exs.C1 and C2 have been marked. On behalf of
the plaintiff, defendants and as Court witness, each one witness was
examined.
Findings of the Courts below:
6. The trial Court, after considering the oral and
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