Kanbi Deva Karsan vs Kanbi Bava Punja

S.J. Chkatpar, J.—The only point in the present appeal relates to the right of privacy claimed in respect of an ''osari'' (verandah) in the Plaintiff''s building and its infringement. In the Plaintiff''s building there is a room opening into the osari in question on the ground floor. This osari has a door leading to a street 14 feet wide. It has also a window opening on the street. On the other side of the street is the Defendant''s building. The Defendant bad recently made some construction opening two windows on the ground floor and two windows on the first floor it is admitted that from three of the windows, it is possible to look into the osari of the Plaintiff the Plaintiff alleged that the osari was being used by the female members of the family and he had a right of easement of privacy by custom. The Plaintiff so the same time admitted that the osari was visible from the door opening into the street; so the osari was not a part of the building specially secluded from observation. Bom the lower Courts held that the Plaintiff had tailed to establish his right of privacy. The learned Judge of the lower appellate Court after reviewing the authorities observed:

Therefore in all such cases it is necessary to see whether the Plaintiff was at any time in the enjoyment of the right of privacy claimed by him. If such privacy was never enjoyed by him in fact, a neighbour should not be prohibited from opening windows and doors facing the house of the Plaintiff. As it is clear in this case that the Appellant''s osari was visible from the street in my view no injury is caused to him by the newly opened windows of the Respondent''s house. It also appears that Appellant''s brother''s house is facing the Respondent''s brother''s house in this locality, and there are windows and doors facing each other in both the houses. x x x This would show that no inconvenience is being caused to the residents of this locality by the houses having windows and doors facing each other. It is also not clear that the ''osari'' is being used by the women for such purposes as would constitute it a portion secluded from observation. The parties are Kheduts and the women of Kheduts do not observe ''Parda''. No inconvenience would be caused to the women of that Kheduts if they are observed by strangers when working or sitting in their osari. From this point of view also no right of privacy in respect of this osari is established by the Appellant.

Now it is not disputed that the right of privacy exists in Saurashtra, formerly called. Kathiawar, by custom to the same extent as it does in Gujarat. In the case of -- Thakar Damodar Gordhandas v. Thakar Ramji Jetha 18 KLR 309, Rendall, Judicial Assistant of Kathiawar, held that the custom as to right of privacy must be considered to apply to Gujarat and Kathiawar generally in the absence of any special circumstances to the contrary, and he relied upon particularly the case of -- Manishankar Hargobind v. Trikam Narshi 5 BHCR ACJ 42, wherein it was stated:

Series of decisions extending over a long number of years, has settled the question that, in accordance with the usage of Gujarat, a man may not open new doors and windows in his house, or make any new apertures, or enlarge old ones, in a way which shall enable him to overlook those portions of his neighbour''s premises which are ordinarily secluded from observation and in this manner to intrude upon that neighbour''s privacy; and that an invasion of privacy is an infraction of a right, for which the person injured has a remedy at law.

Rendall, Judicial Assistant, further observed that though the benefit of the custom had been extended even to classes not following the pardah system in respect of apartments or places used for such particular purposes as sleeping, bathing and perhaps cooking by women, the Court should be very unwilling to extend the operation of these principles to any other than really necessary cases where a real grievance demanded and a remedy granted rather on grounds of traditional morals and ideas of decency than of pure sentiment and that the important thing in such cases was to base the decision upon the particular circumstances of each case, for, unless every such claim was strictly tested and examined, the result would tend to create very alarming consequence to the owners of the buildings in the locality. In that case between the two buildings, there was a public road 60 feet or more and it was held that though the intervention of a public road did not necessarily cure an invasion otherwise established, but that, where the distance between the buildings of both the parties was about 60 feet or more, a substantial invasion would not be possible. I may also refer to a later decision in the case of -- Darji Harjivan Kala v. Vala Ebhal Champraj and Ors. 1 WISLR 115, wherein Murphy, Judicial Commissioner, W.I.S. Agency, held that the right of privacy existed in Kathiawar but it was essential to prove in each specific case that the particular right sought to be enforced existed and that it had been substantially invaded by the Defendant. The point in that case was whether such right extended to open verandahs and compounds and the learned Judicial Commissioner held that it did not. He observed that the right which had been upheld was confined to cases in which admittedly private apartments such as sleeping rooms and kitchens had become liable to be overlooked by the opening of the new apertures.

Coming to the Bombay decisions, I may first refer to the case of -- Dhed Mulia Bhana v. Dhed Sundar Dana ILR Bom 1, which referred to the case of -- Manishanker Hargovind v. Trikam Narshi 5 BHCRACJ 42 above referred to. In that case the Defendant constructed a window and apertures in the back wall of his house and they commanded the view of the Plaintiff''s ''Khadki'' or courtyard which could be used for females to bathe and similar purposes of privacy. From the Defendant''s windows the people sleeping in the Plaintiff''s house could be seen and from apertures, though above a man''s height a person, if he was so inclined, could peep through into the Plaintiff''s house and the male apartment next to the open verandah (osari). The Plaintiff sued for an injunction restraining the Defendant from making any openings in his wall. It was held that though it was doubtful whether the Plaintiff was entitled to relief on the ground of the invasion of his privacy, still as there was a written agreement between the parties whereby the Defendant''s father agreed that he would not make any opening in his back wall, the Plaintiff had the right to require the Defendant to close the said apertures and window. In a later ruling of the same High Court in the case of -- Maneklal Motilal v. Mohanlal Narotamdas ILR Bom 496, the right of privacy was recognised in respect of a bedroom. In a still later case of the same High Court of -- B Bhajgovind Chunilal Sevak Vs. Harilal Gordhandas Sevak, , Divatia J., reviewed all the prior authorities and held that the right of privacy existed not merely in some parts of Gujarat but in the whole of Gujarat, and reference was made to the case of -- Manishanker Hargovind v. Trikam Narsi 5 BSCR ACJ 42, wherein the alleged right of privacy was held not to apply to an open courtyard. In a recent case of --Jivraj Virjee v. Keshayji Lakhamshi AIR 1952 Kutch 22, the Judicial Commissioner of Kutch held that the right of privacy could be claimed in respect of premises or those parts of premises which were secluded from observation. It, therefore, followed that privacy could not be claimed in respect of a garden, a courtyard or a verandah not intended for being secluded from observation.

The gist of the above rulings is that the right of privacy by custom extends only to those portions of the claimant''s house which can be considered as private, the essence of the right being based upon privacy. Such portions may be a bed room, a bath room, or such specially reserved apartments for women which are secluded from outside gaze. The right cannot extend to such places as verandahs and osaris. In the present case, it is clear that the osari in respect of which the right was claimed was visible from the street through the door, if not from the window as well, by anybody passing through that street. It could not be called such a secluded portion in respect of which the right could be claimed.

Under the circumstances, I have no hesitation in agreeing with the views of the learned District Judge that the right of privacy was not established. I therefore dismiss this appeal with costs.