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Present: The Hon. Mr. A. G LasceUes. Acting Chief Justice, and
Mr. Justice Middleton.
PIERIS et ah v. PABILIS APPU et ah
C., Kalutara, 3,204.
Injunction, improperlyobtaining—Damages—Principleof assessment^
Where a plaintiff obtains an injunction on insufficient grounds,he is liable in damages to the party affected by such injunction. Inawarding such damages the real damage suffered ' ought to beascertained. The plaintiff should not be punished for any breachof duty, and no extraordinary presumption should be made againsthim.
The principle laid down by Romer J. in Mansell v, British LinenCo. Bank (1) followed.
HE first plaintiff, alleging that by agreement between himselfand the defendants he allowed ‘ the defendants to prospect
for plumbago in a land called Pelpitigodakelle on certain terms andconditions; that the defendants wert put in possession of the landin pursuance of the said agreement;* and complaining that thedefendants were working the mines in an unskilful and unworkman-like manner to the loss and damage of the plaintiff, prayed that thedefendants be ejected from the land, and for an injunction restrainingthe defendants, their servants, agents, and workmen from miningon the land and from removing and disposing of the plumbago alreadydug, until the hearing and determination of the action.
The District Judge granted the injunction prayed for. Thesecond plaintiff claimed to be entitled to a share of all plumbagodug under the said agreement.*
The defendants denied that they worked the mines in the un-skilful and unworkmanlike manner alleged in the plaint, and statedthat they had delivered possession of the land to the plaintiff on25th October, 1905. The defendants claimed a sum of Rs. 5,000in reconvention as damages suffered by them by reason of theplaintiff having unlawfully obtained the injunction and ^stoppedthem from working the mines.
On 18th December, 1905, the defendants moved that the injunc-tion be dissolved; the District Judge, bv his order dated the 12thJanuary, 1906, disallowed the motion. The case came .on for trialsubsequently, and the District Judge (C.R. Cumberland, Esq.)
(1) L. R. (1892) 3 Ch, 159, at p. 163.
"( 31 )•dismissed the1 plaintiffs' action, set aside the injunction, and, beingof opinion that the plaintiff was not justified in obtaining the in-junction, awarded the second and third defendants Rs. 1,000 eachas damages (.14th March, 1006).
The plaintiff appealed.
H. J. C. Pereira (with him Schneider), for the plaintiff, appellant.H. A. Jayewardene, for the defendants, respondents.
Pur. ado, vult.
2nd October, 1906. Lascelles A.C.J.—
The principal ground of this appeal is the decision of the DistrictJudge with regard to the claim in reconvention, but it will be con-venient to deal first with two points raised in the petition of appealhut not, I think, very strenuously pressed by the appellant'scounsel.
The first plaintiff, appellant, contends that, inasmuch as thedefendants did not restore possession of the plumbago pits to himon the 25th October, 1905, the 32 tons extracted between, that date.and the 7th – December, when working was stopped by injunction,should be apportioned between him and defendants in accordancewith the original agreement of 10th June. With regard to this, Ineed only say that I am satisfied with the finding of the Court belowon the second issue. I think defendants, so far as circumstancespermitted, did in fact restore possession to the first plaintiff'sagent.,.
The first appellant further contends that he i's at any rate entitled■to recover his one-sixth share in the owners' share in this, plumbagofrom the defendants. But this is a mere matter of distributingbetween himself and his co-heirs of the ground share in the plumbagolying at the petitioner's house. To condemn the defendants, whohave never refused to pay the owners' ground share in respect of theplaintiff's one-sixth share, in the ground share, would be *as absurd asit would be unjust.'. *
The principal ground of appeal is the decision on the .claim inTeconvention. It is urged by the appellants that the injunctionwas no*b improperly. obtained, and that there is no evidence tosupport the damages awarded. The affidavit sworn by DonAbraham Andradi on ,5th December alleged two ^ grounds for theissue of an injunction, namely: (1) That the defendants were miningand tunnelling in an unworkmanlike manner so as to injure .the. pitspermanently; and (2) that defendants were preparing to removeand dispose of the plumbago which they had already extracted6-
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1906.without paying the plaintiffs their share or selling the balance to
Octoberthem in accordance with the lease of 25th October. It is obvious
T..MW.T.M that the first only of those allegations afforded ground for an in-A.C.J. junction to stop work at the pits. The danger indicated by thelatter allegation could have been met by an order for the safecustody of all plumbago extracted from the pits pending the judg-ment of the Court.
Now, the District Judge has found that the plaintiffs have failedto prove that the pits were worked so as to cause permanent damage,and I do not see how, on the evidence before him, he could havecome to a different conclusion. The only question therefore is theamount of damages to be awarded.
This is not a case to quote the words of Romer J. in Mansell v.British Linen Go. Bank (1), f‘ where the plaintiff is to be punished forany breach of duty, or where any extraordinary presumption is to bemade against him. It is simply a case of ascertaining the realdamage sustained. ” The direct effect of the injunction was tocurtail by about nine weeks the term of five years for which thedefendants are entitled to work the pits. If the- rent had beenpayable in money, it would have been easier to assess the damagerepresented by the loss of the period. But the rent, as is usual inthe leases of plumbago, consists of a ground share or proportion ofthe plumbago brought to the pit's mouth. The pits, when the workwas stopped, were producing 3 to 3£ tons of plumbago, worth fromRs. 300 to Rs. 350 per ton, but owing to the uncertainty whichattends plumbago mining, it would not be fair to presume againstthe plaintiff that' the defendants would continue to the end oftheir lease, or indeed for any long period, to obtain the same quan-tity of plumbago, or that plumbago would command the sameprices.
It may be taken as certain that second and third defendants didsustain damage by being prevented from working at a time whenthe pit was being worked so successfully, and the mere operationof stopping work of this kind and re-commencing it after the lapse ofsome weeks must in itself have entailed considerable cost.
Though it is difficult to estimate the damages with any precision,I think the amount awarded by the Judge is fair, and certainly doesnot err on the side of excess. -_I would dismiss the appeal with
Middleton J.—I agree. 1
(1) L. R. (1892) 3 Ch. 159. at p. 163.
PIERIS et al. v. PABILIS APPU et al