SILVA v. SILVA.

SILVA v. SILVA.

D. C., Galle, 5,913.

Co-owners-Right of one co-owner to build a house on the common land, without consent of the other co-owner-Injunction-Insufficient grounds for applying for-Civil Procedure Code, s. 667-Damages.

One co-owner cannot build a house on a land held in common without the consent of the other co-owners.

Section 667 of the Civil Procedure Code, under which the defendant had obtained an injunction to restrain the plaintiff from building on the land held in common, is intended to punish person; obtaining an injunction on more or less frivolous pretexts.

Irremediable damage is not the only sufficient reason for the issue of an injunction.

If upon an application for injunction the Court, in the exercise of its discretion, allows the injunction, and damages result therefrom, it would not be right to punish the applicant for possible errors of judgment on the part of the Court which issued the injunction.

THE plaintiff, alleging himself to be entitled to certain undivided shares of a land called Padinchiwatta, complained that the defendant, having failed to obtain a partition of the said land, maliciously applied for and obtained an injunction against the plaintiff on the 27th May, 1898, and prevented him from building, and completing a substantial house which was then being built by the plaintiff, and that from the date of service of the writ of injunction to the final decision of the said case the building and all the materials used for it were exposed and seriously damaged to the extent of Rs. 400.

The defendant admitted that he and plaintiff were co-owners of certain shares in the said land, but denied that plaintiff suffered damages by the injunction which was issued at the instance of the defendant.

The issues tried were-

(1) Whether defendant having a right as co-owner to object to the building of a house by the plaintiff, the plaintiff could claim any damages; and

(2) Whether any damages had accrued to the plaintiff by the issue of the injunction.

After hearing evidence, the District Judge found that the defendant had probable grounds for praying in the partition suit No. 5,076 for the injunction complained of, and that plaintiff was not entitled to any damages, in that the defendant as a co-owner

had a right to object to the building of a house and to restrain him from that act.

The plaintiff's case being dismissed, he appealed.

The case came on for argument on the 12th February, 1903, before Layard, C.J., and Moncreiff, J.

Bawa, for appellant.-The defendant had no grounds for asking for a writ of injunction. One co-owner may restrain another by injunction only when his co-proprietory rights are being violated (Silva v. Adria, 2 S. C. C. 166). So long as a land is being put to the uses for which it was specially adapted, no restraint by injunction is permissible. Hendrick v. Hendrick, decided on 25th January, 1898. If the land was purchased for a particular purpose, operations by one co-owner in furtherance of it are not necessarily an infringement of the other co-owner's right. The land owned by the parties was bought by the parties for building purposes. If a building was put upon it.. it cannot be said to injure the rights of the co-owners. It rather benefits them. Moreover, plaintiff had done nothing new at the time defendant applied for the injunction. The defendant had allowed the plaintiff to raise the walls of the house without objection, and it was not open to him to restrain the continuance of the walls (Voet, 10, 3, 7). By section 667 of the Civil Procedure Code a person taking out a writ of injunction on insufficient grounds, or a person whose action is dismissed after the issue of the injunction granted, is liable to compensate the party on whom the injunction has been issued for the expense or injury caused to him. The defendant's action for partition in which the injunction was applied for and granted was dismissed, and as m

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