SHARMA, J. - (1.) THIS is an appeal by the defendant Gokalchand and five others against the appellate judgment and decree of the learned District Judge, Jaipur City. The suit giving rise to this appeal was filed by the plaintiff Brij Narain whose house adjoined the house of the defendants. It was alleged by the plaintiffs that the defendants had opened a big window in a room which they had recently constructed. Through this window, the privacy of the plaintiffs' house was invaded. The plaintiffs therefore, prayed for the closure of the window. There was also a prayer for the closure of the certain ijardars with respect to which the plaintiffs claim had been dismissed and no appeal has been filed by him. The defendants denied that the plaintiffs had any right of privacy in his house and pleaded that his house was overlooked from the house of the defendants through certain apertures in a wall standing on the open roof even before the room in which the window in dispute is situated was constructed. It was, therefore, pleaded that the plaintiff had no right to have the window closed.
(2.) THE learned Munsif, Jaipur City, West, who heard the suit found that privacy of the plaintiff's house was invaded through the window in dispute and, therefore, gave a decree that the defendants should fix akashi patali jali in the said window keeping its slope towards the sky and he also gave a permanent injunction against the defendants restraining them from opening any window in future in the western wall of room. Against the above decree of the Munsif, the defendants went in appeal to the learned District Judge, and the learned District Judge agreeing with the Munsif dismissed the appeal and maintained the decree. Against this decree of the learned District Judge, Jaipur City, the defendants have come in appeal. Mr. G. C. Kasliwal on behalf of the appellants argued that the plaintiff did not allege in his plaint that there was any right of privacy obtaining in the city of Jaipur and, therefore, the lower courts were wrong in awarding the decree which they have done to the plaintiff. It was further argued that it was not proved by the plaintiff the any such custom obtained in Jaipur and the only thing that he has said insist plaint is that the right of privacy of his family was invaded through the window in question. This, it was argued was no sufficient. It was further argued that it was not proved that the rooms and the Chowk which were visible through the window were used by the females of the house. Unless it was proved, the plaintiff had no right to obtain a decree for the closure wholly or partially of the window on the ground of invasion of privacy. Reliance was placed on two decisions of Allahabad High Court; one in the case of Bhagwan Das and others vs. Zamurrad Husain and another (1) (AIR 1929 All. 675), and the other in the case of Mst. Karimunnissa Bibi vs. Mira Baksh and others (2) (AIR 1929 All. 809. ). In the first mentioned case it was held by a Division Bench that: - ''where a person alleges that another infringed upon his right of privacy, he must prove that customary right of privacy exists in the neighbourhood in which he lives and further that he is individually or as member of his particular class entitled to take advantage of such customs. " In the second case cited above, it was held by Boyce J. that: - "where a custom of privacy existed in the locality in which the plaintiff lived and the sued the defendant that her right of privacy was infringed by certain construction made by defendant and where her house was already overlooked from another house and she did not show any reason why she did not object to being overlooked from that particular house and where she endured without protest the invasion of her privacy by the defendant for two years, she is not a person who is entitled to right of privacy although her suit is brought within limitation. " On behalf of the respondent, it has been argued by Shri R. K. Rastogi that the fact that right of privacy obtained in Jaipur City has become so notorious that it is no more necessary for the plaintiff to allege that right of privacy obtains in Jaipur City. He relied upon certain decisions of the Chief Court of the then Jaipur State in order to show that the right of privacy had been recognised in Jaipur City for a very long time by judicial courts. One of these decisions is in the case of Kesar Lal vs. Mali (3) (J. L. R. 1924, Vol. I. Pt. V. p. 3) and the other is in the case of Kher Uddin vs. Pt. Jagannath (4) (J. L. R. 1925, Vol. I. Pt. IX, p. 11. ). These decisions are of the years 1924 and 1925 respectively. Again, reliance was placed upon an unreported case of Ramdattamal vs. Dr. Chandbeharilal (Appeal No. 122 of 1997) and the connected appeal No. 131 of 1997 Dr. Chandbearilal vs. Ram Dittamal, decided on 12th of August, 1942. In all these cases it was recognised that the right of privacy existed in the city of Jaipur. In the last mentioned case it was observed that : - "there could be no question now about the existence of the right of privacy in Jaipur territory as it has already been held that it exists vide (Civil Second Appeal No. 196 of 96, Kanahya vs. Sedbu) decided on 16th August, 1940. " Right of privacy was claimed in that case in respect of a house situated in the locality now known as the now colony in Jaipur City. " It was further argued by Shri R. K. Rastogi on the basis of a decision of their Lordships of the Privy Council in the case of Effuah Amissah vs. Effuah Karbah and others (5) (AIR 1936 P. C. D. 147.), that where a particular custom has by frequent proof in courts, become so notorious that the court takes judicial notice of that, it is not necessary to prove that by calling witnesses acquainted with that. Further it was argued that the defendants have also not seriously disputed that no right of privacy existed in Jaipur City and they have satisfied themselves simply by saying that because the house of the plaintiff was overlooked from other houses in the neighbourhood as also from the house of the defendants themselves, there was no right of privacy to the plaintiff with respect to his house. In reply to Mr. Kasliwal's argument that there was no evidence on record to show that the portions of the house which were overlooked through the window in dispute were occupied by the females of the plaintiff's house, it was argued that there was such evidence on record and that the lower courts have therefore, rightly found that the portions which were overlooked through the window in dispute were in the use of the females. It was finally argued that simply because the chowk and the rooms of the plaintiff's house were overlooked from the roof of the neighbouring houses or through some apertures in a wall on the open roof of the defendants' house, the defendants could have no further right of invasion of the privacy of the plaintiff's house by opening a big window like the window in dispute in a room recently constructed. Reliance was placed upon the decision in the case of Tika Ram Joshi vs. Ram Lal Sah and others (1) (AIR 1935 All. 754.), and Abdul Rahman and other vs. Bhagwan Das and others (2) (ILR 1929 All. 582. ). Reliance was also placed upon a decision of this Court in an unreported case between the same parties in appeals Nos. 110, 111 and 112 of 1951, decided on the 30th of Sept. , 1953. I have considered the arguments of both the learned counsel. I certainly feel that the plaintiff has not been as clear in his pleadings as he ought to have been when alleging his right of privacy in his plaint. It would certainly have been better had he said that the right of privacy obtained in the city of Jaipur and that his females observed parda. He has satisfied himself simply by saying that through the recently constructed window of the defendants' house, the privacy of the plaintiff's house is invaded. But the word bepardagi which he has used in the plaint is the word which is well known to the people of this side of the country. The defendant has nowhere said in his written statement that there was no bepardagi of the plaintiff's house from the window in question. Also in the various decisions of the then Jaipur Chief Court placed before me it is well-recognised that right of privacy obtained in the city of Jaipur. The defendants nowhere took up the position that no question of bepardagi arises in the city of Jaipur. Under the circumstances, I do not think that the omission of the plaintiff to specifically plead in his plaint that the right of privacy obtained in the city of Jaipur was fatal to the plaintiff's suit. As regards the arguments of the learned counsel for the appellant that no evidence was produced by the plaintiff to prove that custom of privacy prevailed in the Jaipur city, it may be said that judgment of Jaipur Chief Court referred to above fully proved that there was such a custom. The defendants nowhere denied that such a custom did not exist nor did he produce any judgment of the courts of Jaipur before me in which it might have been held that the custom of privacy did not obtain in Jaipur city. It may be taken that the custom of privacy has become so notorious in the city of Jaipur that the courts can take even judicial notice of it. The contention of the learned counsel for the appellant in this regard has therefore, no force. Mr. G. C. Kasliwal argued that it was not proved by the plaintiff that the portion of the house which is overlooked through the window was occupied by the females. On looking to the evidence, I find that there was the evidence of the plaintiff Brij Narain as well as his witness P. W. 2, Chandar Kishore, who has clearly said that through the window in suit, the Zanana portion of the plaintiff's house can be clearly seen. The lower courts inspected the locality and they have found that in this regard the evidence of the plaintiff is true. The defendants have said that through the window in dispute, the Zanana portion of the plaintiff's house cannot be seen. There is, therefore no reason for me to hold in second appeal against the finding of the lower courts that the portion of the plaintiff's house which can be looked through the window in dispute is not occupied by the ladies of the house. | The only question that remains to be seen is whether in view of the fact that the house of the plaintiff was overlooked from the roofs of the houses of certain neighbours as also from certain apertures in the wall of the defendants house on the open roof, the opening of the present window does not invade any right of privacy. It has been found by the lower courts that through the window in dispute almost every portion of the plaintiff's house occupied by the females can be seen and that the same cannot be said of the apertures previously existing in the defendant's house and also of the roofs of the houses of the neighbours I quite agree with the learned District Judge when he says that there is a difference between overlooking from the open roof and overlooking through a window and apertures. Any body on open roof can be seen and the occupants of the house which can be seen from the roof can take precautions against those who have a mind to overlook the house. Same precautions cannot be taken against one who tries to peep through a window. Similarly. , there is a difference between being overlooked from the apertures on an open roof and a window or aperture in a roofed room. An open roof can not be used so frequently as a room which is roofed and the present window is such that a man not only standing but even sitting and probably lying down can peep through the window towards the plaintiff's Zanana portion. It cannot be therefore, denied that there has been invasion of the plaintiff's privacy through the window in a very substantial measure. In the case of Mst. Karimmunnissa Bibi vs. Mira Baksh and others (1) (AIR 1929 All. 809.), it is not clear whether the privacy of the plaintiff's house could be invaded from the existing constructions to the same extent as through the recent constructions. Moreover, in that case, the plaintiff had endured without prejudice the invasion of privacy by the defendants for two years. This was an important factor which must have been weighed in favour of the defendant in the said case. In the present case there is clear finding of both the lower courts that a much larger portion of the plaintiff's Zanana house can be seen through the window in dispute than through the existing constructions and the present suit was brought only about a month after the cause of action accrued and in the intervening period a notice had been served by the plaintiff upon the defendants. The facts of the present case are therefore, distinguishable from the facts of the case relied on by the learned counsel for the appellant. It was held in the case of Abdul Rahman and others vs. Bhagwan Das and others (2) (ILR 1929 All. 582.), referred to above that: - "the fact that the plaintiffs' Zanana house might be to some extent overlooked by persons standing on the roof of the defendants' house was no justification for the defendants' opening fresh doors or windows in the wall of their upper storey looking towards the plaintiffs' house, whereby the plaintiffs' house might be over-locked without the persons inspecting it being visible to the occupants of that house. " In another case of Allahabad High Court, Tika Ram Joshi vs. Ram Lal Sah and others (3) (AIR 1935 All. 754.), it was held by Harries, J. that - "it cannot be said that where premises are already overlooked by apertures, the opening of further apertures overlooking such premises cannot be actionable. " In the case of Gulab Chand and others vs. Brij Narain (C. S. A. Nos. 141 and 142 of 1951), which was a case between the same parties as figure in this appeal, the same view was taken by this Court. It cannot, therefore, be laid down as a general principle that because the house of the plaintiff is overlooked from certain other houses of the neighbours or through certain aperture's in the defendant's house, the opening of a new widow or aperture would not infringe in any substantial measure the right of privacy of the plaintiff's house. It has been held by both the lower courts that through the window in suit, the right of privacy of the plaintiff's house has been substantially infringed and that the fact that the portions of the plaintiff's house can be overlooked from other houses, of the neighbours and through the existing apertures of the defendants' house on the open roof cannot be fatal to the plaintiff's present suit. I, therefore, maintain the decree of the lower court, so far as it relates to the providing of akashi patali jali in the window in dispute in the manner directed by the first court. So far as the permanent injunction is concerned, I feel that the decree as it is may create unnecessary difficulty in the way of the defendants as in terms of that decree they would not be able to open any window or apertures at all. I would therefore modify the decree of the lower court to this extent that the defendants shall be restrained from opening any apertures or windows in their western wall which might infringe the privacy of the plaintiff's house. The appeal is partially accepted and the decree of the lower court is modified only to this extent that the defendants shall be restrained from opening any apertures or windows in their western wall which might invade the privacy of the plaintiff's house. In other respects the appeal is dismissed. As the appeal substantially fails, the appellants shall pay the costs of this appeal to the respondent. Mr. G. C. Kasliwal has prayed for leave to file an appeal to D. B. under sec. 18 (2) of the High Court Ordinance. I, however, do not find any such important question in the case as to give the said leave. His request is, therefore, refused. .;