- (1.) THIS appeal arises out of a suit for injunction brought against four defendants by one Chhotmal on 9. 1. 48. The houses of the defendants are adjacent to the house of the plaintiff. It was alleged that six widows were constructed by them in their houses on 10. 4. 41 which overlooked the premises of the plaintiff thereby interfering with his privacy. With regard to one of these windows situated on the ground floor in the house of Karnidan defendant No. 1, it was further alleged than the defendant No. 1 used to trespass into his house through it. With regard to the remaining windows it was alleged that the defendants used to throw diary water through them in the house of the plaintiff. It was averred that plaintiff was precluded from making any construction to screen these windows on account of an order of the Municipal Board. It was accordingly prayed that a mandatory injunction may be issued requiring the defendants to close these widows and a permanent injunction may be issued to them restraining them from opening new widows overlooking the house of the plaintiff. The suit was contested by the defendants intearalia on the ground that the plaint did not disclose wether there was any customary easement right of privacy prevailing in the locality where the houses of the parties were situated. An application for amendment of the plaint thereupon was filed by the plaintiff on 27. 11. 50. It was asserted in the application that a custom of privacy was impliedly pleaded in the plaint but as it had not been pleaded specifically it was prayed that the following amendments may be allowed; - (1) In para 1 of the plaint and the words "the custom of Parda is observed in the family of the plaintiff. " (2) In para 6 of plaint add the words "because a decision was given about it on (date not given) on Account of the defendant's opening the above windows the plaintiff and members of his family cannot use the necessary apartments like the latrine because opposite the latrine the defendants have opened a window. Further the privacy of the plaintiff and members of his family has been interfered with on account of the windows which interfered with the observance of Parda. Thus there is substantial and material interference with the right of privacy of the plaintiff which is actionable. The plaintiff is thus entitled to get the windows closed.
(2.) THE above amendment was disallowed by the trial court. A preliminary issue was framed as to whether the plaint disclosed any cause of action and arguments were heard. During the course of arguments the case of the plaintiff relating to the defendants committing trespass through the window on the ground floor and throwing dirty water through other windows was given up. THE learned Munsif held that as no customary easement right of privacy had been pleaded the plaint did not disclose any cause of action. He accordingly dismissed the suit. The plaintiff filed an appeal against the above decree. In the memorandum of appeal also the case was based on the alleged custom of Parda in the family of the plaintiff and the interference with his privacy on account of the opening of the windows. It was asserted that the learned Munsiff erred in disallowing the amendment of the plaint. The learned Senior Civil Judge held that the amendment of the plaint was rightly disallowed and that the plaint as it had been filed did not disclose any cause of action and the suit was accordingly rightly decreed. One argument addressed on behalf of the appellant before me was that the plaint as originally instituted did disclose the cause of action in so far as it was alleged that the defendants used to trespass into the house of the plaintiff through one of the windows and that they threw dirty water into his house through the remaining windows. This part of the case was abandoned in the trial court at the time of arguments as is clear from the judgment of that court. It was not taken in the grounds of appeal filed in the first appellate court. Nor was is taken at she time of arguments in the court. That part of the case was one which could be abandoned as it did not raise any question of jurisdiction. It is settled law that where a plea whether of fact or of law is one which can be waived or abandoned and is so abandoned it cannot be raised again in second appeal. (See Bheru vs. Hiralal (1 ). What we have to see therefore is whether the plaint disclosed any cause of action so far as the alleged invasion of the right of privacy was concerned. It was not pleaded in the plaint that there was any customary easement right of privacy prevailing in the locality where the house of the plaintiff is situated. As such it cannot be said that the plaint disclosed any cause of action for there is no statutory right of privacy. Next it was argued that the trial court should have allowed the amendment prayed for. In his application the plaintiff wanted to add certain facts which the plaintiff had not chosen to mention in the original plaint. These facts were within his knowledge when the plaint was instituted. It was held in Gopal Krishanamurthi vs. Sreedhara Rao (2),that where certain facts are alleged which were available to the plaintiff and which he did not choose to mention in the original plaint, it is not open to the court to permit such an amendment as it would amount to permitting a new case to be made on facts which were available but were not pleaded. The plaintiff cannot therefore be allowed to make fresh allegations of fact by way of amendment. So far as the other amendment which he sought is concerned even if that amendment is allowed the plaint would not disclose a cause of action. For all that he wanted to add was that the custom of Parda is observed in the family of the plaintiff. A person is not entitled to a customary easement right of privacy merely on the ground that a custom of Parda is observed in his family. A customary easement right of privacy is not a personal right of an individual but is a right attached to property. The right cannot be stretched to oppressive lengths. Protection for only those parts of a house can be assured which are usually utilized by females. In Gokal Prasad vs. Radho (3) it was observed at page 385: - "in India, or at any rate in the North Western Provinces, the custom of the Parda has for centuries been strictly observed by all Hindus except those of the lowest castes, and by all Muhammandans except the poorest. It cannot be doubted that the male relations of a pardanashin woman and the woman herself would consider it a disgrace were her face to be expend to the gaze of male strangers, and whilst that is the view of those amongst whom the custom of the parda prevails, I think it is more reasonable that a neighhour should not be allowed to erect new buildings or to open or extend doors or windows in old buildings in such a way as would substantially interfere with those parts of his neighbour's house or premises which are used by Pardanashin women of the latter's family. " It will thus be seen that an actionable case can only arise when there is substantial interference with the privacy of those parts of the house which are used by pardanashin women. There is no allegation in the plaint in this suit that the parts of the house which are overlooked from the windows of the defendants are used by pardanashin women. As such even after amendment the suit would be liable to be dismissed without recording any evidence. The house of the plaintiff is situated in the city of Jodhpur. The learned counsel for the appellant was unable to find out any judicial decision in which it might have been held that there was a customary easement right of privacy available in the city of Jodhpur. In Gopilal vs. Fatehlal (4) it was held that no customary easement right of privacy had been proved. But a reference was made to a Full Bench decision of the Marwar Chief Court in Gulabmal vs. Dana Poona etc. (Reference Case No. 1/36-37 decided on 6th March 1937 ). A perusal of the judgement in the latter case show that the attention of the learned Judges was only drawn to one instance in which a right of privacy was recognised in Phalodi. The case was decided by His Highness the Maharaja Sahib Bahadur in appeal No. 61-28 in Sevak Poman Balmukand vs. Sewak Jasani Maga. In that case the opening of windows was restrained on the ground that they overlooked the open site of a neighbour. That decision was clearly arbitrary. Such a right is not recognised and cannot be recognised in any civilised society. The learned Judges of the Chief Court held that the right of privacy existed in Marwar as a customary right in certain communities and was dependent for its recognition upon proof of its existence in the community or class to which the occupant of the dominant heritage belonged. The only reason given in support of the finding is that the right of privacy is based on the peculiar conditions of domestic or social life and that it can be safely laid down that in Marwar more than in any other place the notions of privacy prevail among certain communities in all the strictness and that any attempt to interfere with them would be highly resented. This authority can carry little weight. At the same time they quoted with approval the following passage occurring in the judgment of Edge, G. J. Godal Prasad vs. Radho (3): - "a customary right of privacy, under certain conditions, exists of India. A substantial interference with such a right, where it exists, if without the consent or acquiescence of the owner of the dominant tenement affords a good cause of action. Each case, in which a right is in dispute must be decided upon its own facts, the primary question in all cases being whether the privacy in fact and substantially exists and has been and in fact enjoyed. If this is answered in the affirmative, the next question is whether the privacy has been substantially interfered with by the acts done by the defendant without the consent or acquiescence of the person seeking relief against such acts. " It cannot be inferred even from the Full Bench judgment that customary right of privacy exists at everysingle spot in Marwar. In Gokal Prashad vs. Radho (3) it was observed that a customary right of privacy, under certain conditions, exists in India and in the North Western Provinces. It was herd by a Division Bench of the Allahabad High Court in Bhagwandus vs. Zamurral Hussain (5): - "assuming that the decision to which we have referred should still have full force, it cannot amount to more than this that a customary right of privacy is not unknown in the United Provinces. It could not possibly be suggested that the effect of that decision was that a customary right of privacy exists at every single spot in the United Provinces, or that every single individual in the United Provinces is entitled to rely upon such a custom. " Their Lordships were disposed to reconsider whether the decision in Gokal Prashad vs. Radho (3) should still retain its full force after nearly half a century had passed when the force of the custom of Parda had considerably decreased. But they found it unnecessary to do so, as it had not been alleged in the plaint that customary right of privacy existed in the particular neighbourhood in which the house of the plaintiff was situated. Their Lordships held that the whole suit should have failed at the outset as that was the matter which went to the root of the case. In the present case also as has been pointed above it was not pleaded that a customary right of privacy existed in the locality in which the house of the plaintiff was situated. Nor was this plea incorporated in the amendment which was sought by the plaintiff. This defect was fatal apart from the other defects pointed out above namely that no allegation was made that there was substantial interference with the privacy of any apartment used by females. In the result the appeal is dismissed with costs. . ;