JUDGMENT Mukhbrjea, J. - This appeal is on behalf of the Defendant and arises out of a suit commenced by the Plaintiff for a permanent injunction restraining the Defendant from placing a pucca roof on a building that stands on a plot of land which the Defendant holds as a tenant under the Plaintiff. The disputed land which measures about 3 cottas and odd chataks is a plot of bastu land situated at Kankinara in the District of 24-Par-ganas, and the Defendant took lease of the same on and from the 1st of Eaisakh, 1334, for purposes of residence. The kabuliyat shows that the Defendant is an ordinary monthly tenant who is liable to be evicted on 15 days' notice. There is a stipulation in the lease, that the tenant will be able, with the permission of the landlord, to raise structures with brick walls, but with tiled or corrugaged tin roof, upon the land for purposes of residence. The Plaintiff alleged that in violation of this express covenant contained in the lease, the Defendant was attempting to raise pucca roof upon the building which necessitated the present suit. It may be mentioned here that the suit was instituted at a time when the construction of the pucca roof of the ground floor was already completed, and that upon the 1st floor was not yet begun. The roof of the 1st floor was constructed during the pendency of the suit, and the Defendant gave an express undertaking that he would pull down the roof in case the decision went against him. As there was no specific, prayer in the plaint in respect of the ground floor roof, the Courts below have refused the Plaintiff any relief by way of injunction so far as the roof of the ground floor is concerned. As regards the roof on the first floor, both Courts have decreed the Plaintiff's suit, and have given a mandatory injunction against the Defendant directing him to pull down the roof-and also a perpetual injunction restraining him from erecting a pucca roof in future. It is against this decision that, the present second appeal has been preferred. Mr. As regards the roof on the first floor, both Courts have decreed the Plaintiff's suit, and have given a mandatory injunction against the Defendant directing him to pull down the roof-and also a perpetual injunction restraining him from erecting a pucca roof in future. It is against this decision that, the present second appeal has been preferred. Mr. Atul Chandra Gupta who appears for the Appellant has assailed the propriety of the decision of the lower Appellate Court on the ground, that the Subordinate Judge in granting injunction totally misdirected himself as to the law that is applicable in such cases and which is embodied in sec. 54 of the Specific Relief Act. According to the learned Sub-Judge, as there was a negative covenant in the lease that the tenant would not raise any pucca roof on the building, an injunction should be granted to enforce compliance with this covenant irrespective of any question of damage to the Plaintiff, and irrespective of the fact as to where the balance of convenience lies. Mr. Gupta argues that this view is wrong, and that the remedy by way of injunction is always discretionary and should not be granted, when there is no damage or apprehension of any damage to the Plaintiff. Mr. Gupta has further contended, that as the interest of the landlord is not prejudiced in the least by the construction of the pucca roof and the tenant still remains a ticca tenant and is bound to remove all the structures, if and when the landlord chooses to evict him, no injunction should have been granted in this case. 2. In order to appreciate these contentions it is necessary to look into the facts a little more closely. The Defendant is admittedly a ticca tenant, and under sec. 108 of the Transfer of Property Act he is not competent to raise any permanent structures without the consent of the landlord. The kabuliyat reiterates this statutory obligation and lays down that with the consent of the landlord the tenant would be able to construct a building with brick-built walls, but with corrugated tin or tile roofs only. 108 of the Transfer of Property Act he is not competent to raise any permanent structures without the consent of the landlord. The kabuliyat reiterates this statutory obligation and lays down that with the consent of the landlord the tenant would be able to construct a building with brick-built walls, but with corrugated tin or tile roofs only. This is certainly a negative covenant, though couched in an affirmative form amounting to a prohibition of the erection of a brick-built roof over the structures, for otherwise there would be no sense in using the words "brick-built" in case of walls, and omitting it in case of roofs, which are to be of tiles or corrugated tin only. It is also clear that as regards the roof of the 1st floor, with which only we are concerned in this appeal the Plaintiff instituted the suit, before the roof was actually erected, and it was erected only after the institution of the suit and after a restraint order was passed by the Court. The question is whether under these circumstances, the injunction granted by the Courts below was proper or not. Ordinarily the propriety of an order of injunction is a question of fact, but the complaint that is made here is this that the Court of Appeal below misappreciated the law in holding that it had no discretion in the matter, and as soon as breach of a negative covenant is established, the Plaintiff is entitled to an injunction as a matter of right. The case of Doherty v. Allman L. R 3 A. C 709 (1878). is the leading English authority on the point, and Lord Cairns, L. C, made the following observation in that case. If there had been a negative covenant, I apprehends according to well-settled practice a Court of equity would have no discretion to exercise. If patties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of equity has to do is to say by way of injunction, that which the parties have already said by way of covenant that the thing shall not be done, and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience or of the amount of damage or injury-it is the specific performance by the Court of that negative bargain which the parties have made with their eyes open, between themselves. This principle has been followed in many cases since then, and among others in McEacharn v. Colton [1902] A. C. 104. Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch. 287. Osborne v. Bradley [1903] 2 Ch. 448. and Elliston v. Readier [1908] 2 Ch. 374. 3. Mr. Gupta contends that this principle is not applicable to India, where the law relating to injunctions is regulated by statute law and is embodied in sees. 52 and 54 of the Specific Relief Act which always leave the Court a discretion in the matter of granting injunctions. In my opinion, there is no difference between the English and the Indian law on this point. The remedy by way of injunction is always discretionary. It is not more discretionary in India than in England. The rule enunciated by Lord Cairns is not a rule of law, but a rule of practice, which guides and does not fetter the discretion of the Court in a rigid and inelastic manner. In the case of breach of a negative contract, the injunction is granted to enforce specific performance of the contract itself, and both under sec. 54 of the Specific Relief Act as well as under English law, the principles applicable to specific performance of contracts guide the Court in the matter of granting injunction in such cases. In a suit for specific performance of a contract, questions of comparative convenience or inconvenience, or the nature and extent of damage to the Plaintiff do not ordinarily arise, though the Court can grant damages in lieu of specific performance, as laid down in sec. 19 of the Specific Relief Act. In England under Lord Cairns Act-there is express provision under which the Court, if it thinks fit, could award damages in substitution for injunction, but as Lindley, L. J., pointed out in Shelfer v. City of London Electric Lighting Co. 19 of the Specific Relief Act. In England under Lord Cairns Act-there is express provision under which the Court, if it thinks fit, could award damages in substitution for injunction, but as Lindley, L. J., pointed out in Shelfer v. City of London Electric Lighting Co. that: in exercising the jurisdiction attention ought to be paid to well settled principles: and ever since Lord Cairn's Act was passed the Court of Chancery has repudiated the notion that the legislature intended to turn the Court into a tribunal for legalising wrongful act; Or in other wards, the Court has always prohibited against the notion that it ought to allow a wrong to continue simply because the wrong doer is able and willing to pay for the injury ho may inflict. 4. In the words of Kekewich, J.: When a man is suing on a covenant it is immaterial whether there is damage or not. A man is entitled to enforce that covenant which is a species of property." See Collins v. Castle. L. R. 36 Ch. Div. 243, 254 (1887). So the rule itself which was formulated by Lord Cairns is based on sound principles, and there is no reason why it should not be applied in India. As I have said already, it is a rule of practice and not of law, and circumstances might exist, which would make the application of the rule inequitable. The case of Sharp v. Harrison [1922]1 ch. 502 is an apposite illustration. There also was a breach of a negative covenant but the Defendant gave proper undertaking, and it was found that the granting of a mandatory injunction would inflict damage upon the Defendant which was out of all proportion to the relief that might be given to the Plaintiff. The Court under such circumstances gave the Plaintiff nominal damages and costs for the breach. Astbury, J., expressly said that Prima facie, when a Defendant commits a breach of a negative covenant with his eyes open, and after notice, the Court will grant a mandatory order but there is and must be, some limitation to this practice. Judging the facts of the case from this standpoint, I find no justification for interfering with the injunction order passed by the lower Court. Judging the facts of the case from this standpoint, I find no justification for interfering with the injunction order passed by the lower Court. So far as the roof of the ground floor is concerned it has been allowed to stand, but as regards the 1st floor roof, I do not see. why the Defendants should not be directed to pull it down, seeing that it was constructed after the institution of the suit, and after an undertaking was given by the Defendant, that he would pull down the same, if the decision went against him. There is no circumstance here which would justify a departure from the rule laid down in Doherty v. Allman (1) and I would hold therefore that the appeal should stand dismissed with costs.