K. L. ROY, J. ( 1 ) THE assessee is limited company doing business as selling agents of a textile mill. For the assessment year 1955-56 the assessee was assesssd on a total income of Rs. 1,61,089. The taxes payable thereon were Rs. 69,973, leaving a distributable balance of Rs. 91,116. For the assessment year 1956-57, the total income assessed was Rs. 1,07,429 and the taxes payable thereon were determined at Rs. 46,668 leaving distributable balance of Rs. 60,761. The assessee-company did not declare any dividend either in respect of its accounting year for the assessment year 1955-56 or for the assessment year 1956-57. On being required by the Income-tax Officer to show cause why the provisions of Section 23a would not be applied to the assessee-company, the assessee claimed that, as it had suffered a loss of Rs. 11,88,000 in respect of 12,000 shares of Elphinstone Mills Ltd. of Bombay purchased by the assessee, it was not possible for reasonable for it to have declared any dividend in either of the two aforesaid years. In its income-tax assessment for the aforesaid two years, the assessee had claimed a loss of Rs 11,88,000 as loss in share dealings. This claim had been disallowed by the Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal as it was found that the 12,000 shares in Elphinstone Mills Ltd. were purchased by the assessee at a price far in excess of the reigning market price in order to enable Messrs. Soorajmull Nagar mull, who were the managing agents of the assessee-company, to acquire the managing agency of the said Elphinstone Mills. The loss was held to be a capital loss and was disallowed as a deduction in the assessee's assessment to income-tax for the aforesaid two years. In the proceedings under Section 23a, the Income-tax Officer was of the opinion that the capital loss could not be taken into consideration in determining the assessee's commercial profits for either of these two years and accordingly, he passed orders under the aforesaid section levying additional super-tax on the undistributed balance for each of the two aforesaid years. In the proceedings under Section 23a, the Income-tax Officer was of the opinion that the capital loss could not be taken into consideration in determining the assessee's commercial profits for either of these two years and accordingly, he passed orders under the aforesaid section levying additional super-tax on the undistributed balance for each of the two aforesaid years. ( 2 ) ON appeal against the aforesaid order under Section 23a, the Appellate Assistant Commissioner accepted the assessee's contention with the following observation :"it cannot, however, be denied that there was an actual loss in the transactions, and, therefore, the appellate must be taken to have incurred that loss. In view of the fact that there was absolutely no commercial profit in the year of account which could warrant any application of the provisions of Section 23a of the Act, the provisions of the aforesaid section were not applicable in 1955-56 assessment. Similarly, if this loss is carried forward, the position in the assessment for the year 1956-57 would also be the same. In my opinion, therefore, the orders under Section 23a are not warranted by the circumstances in the two prevailing years under consideration. " ( 3 ) DISSATISFIED with the aforesaid decision the department appealed to the Tribunal. Before the Tribunal the department representative contended that the loss arose in respect of 12,000 shares in Elphinstone Mills Ltd. , and the loss had been held to be on capital account. He pointed out that the loss itself had not actually arisen but was only a notional loss in the sense that the shares were not parted with by the company and the loss arose only on the revaluation of the shares at the ruling market price on the last day of the corresponding accounting year. It was argued that variations in the value of any capital asset of a company were not normally recorded in the books of account and, at any rate, they could not be taken into account in determining its commercial profits. The Tribunal accepted the proposition that in determining the commercial profits, no account should be taken of a capital loss. It was, however, of the opinion that, in considering the reasonableness of the dividend to be declared under Section 23a, capital losses should also be taken into account. The Tribunal accepted the proposition that in determining the commercial profits, no account should be taken of a capital loss. It was, however, of the opinion that, in considering the reasonableness of the dividend to be declared under Section 23a, capital losses should also be taken into account. It dealt with the argument of the departmental representative that the loss claimed was only a notional loss and not a real loss in the following words :"in this context we have to examine the argument of the departmental representative that the capital loss was only a notional loss. The income-tax authorities have taken the view that the shares in the Elphinstone Mills Ltd. were purchased at inflated rates because a part of the purchase price was paid for helping Messrs. Soorajmull Nagarmull to acquire the managing, agency of the mills. On that argument itself, we do not see how the loss can be called notional. On that basis there was no loss on the price paid for the shares because the ruling price at the time of the perchase and on the last day of the accounting year were nearly the same. But then the balance of Rs. 11,88,000 has been given over irretrievably by the company as a part of its contribution to help Messrs. Soorajmull Nagarmull to acquire their managing agency. To that extent, there was a depletion of the company's resources. This view of the matter has, however, not been upheld by the Tribunal and according to the Tribunal the shares were purchased at an inflated rate as investment shares and the correct value of the investment as on the last day of the accounting period involved the company in loss on account of depreciation of its investments. This depreciation in the value of its investments the company was entitled to record in its books of account on any commercial principle. We are, therefore unable to accept the contention of the departmental representative that the capital loss was a notional loss. Having held that the capital loss was not a notional loss it is still necessary to consider whether in spite of the capital loss it would be reasonable for the company to distribute the dividends. We are, therefore unable to accept the contention of the departmental representative that the capital loss was a notional loss. Having held that the capital loss was not a notional loss it is still necessary to consider whether in spite of the capital loss it would be reasonable for the company to distribute the dividends. " ( 4 ) ULTIMATELY, the Tribunal held that any distribution of dividends on the part of the company wonld have made inroads into the capital of the company for either of the years and it would be unreasonable to insist on the company declaring any dividend in these years. Accordingly the Tribunal up held the order of the Appellate Assistant Commissioner and dismissed the department's appeal. ( 5 ) AT the instance of Commissioner the following question of low has been referred to this court by the Tribunal :"whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that, in view of the capital loss of Rs. 12,00,000 suffered by the assessee on account of depreciation in the value of the shares of Messrs. Elphinstone Mills Ltd. payment of any dividend at all during any of the two relevant accounting years would have been unreasonable ?" ( 6 ) THE Tribunal has recorded in the statement of the case that the department representative suggested that the question to be referred should bring out specifically the department's contention that the loss suffered by the assessee-company was only a notional loss and not a real loss. The Tribunal rejected the suggestion, as no such question had specifically been asked for by the department in its application under Section 66 (1 ). This aspect of the matter would be relevant in dealing with the contention which Mr. Pal, appearing for the Commissioner, raised before this court. ( 7 ) IN C ommissioners of Income-tax v. Gangadhar Banerjee and Co. This aspect of the matter would be relevant in dealing with the contention which Mr. Pal, appearing for the Commissioner, raised before this court. ( 7 ) IN C ommissioners of Income-tax v. Gangadhar Banerjee and Co. (Private) Ltd. , their Lordship of the Supreme Court quoted with approval the observations of the Judicial Committee of the Privy Council in Commissioner of Income-tax v. Williamson Diamongs Ltd. , [1958] A. C. 41, [1959] 35 I. T. R. 290 (P. C.), that in considering the reasonableness of distribution of a dividend not only the past losses and smallness of profit in the current year need be considered but all other matters relevant to the question should also be taken into consideration. Capital losses, if established, would be one of them. In view of the approval of these observations by the Supreme Court, Mr. B. L. Pal fairly conceded that he could not argue that the Tribunal was in error in holding that payment of any dividend during any of the two relevant accounting years would have been unreasonable in view of the capital loss of Rs. 12 lakhs suffered by the assessee. He, however, contended that the question as referred to this court by the Tribunal assumes that the loss that arose to the assessee on account of depreciation in the value of the shares was a capital loss. Mr. Pal submitted that the tribunal was in error in holding that depreciation in the value of investments could lead to a loss until and unless the investments were realised. Until such realisation the loss is only a notional loss, or, as Mr. Pal put it, a paper loss, which could not be taken into consideration in determining the reasonableness of the declaration of dividend under Section 23a. In our opinion, Mr. Pal is not entitled to raise the aforesaid contention. As we have already pointed out, this contention was specifically raised before the Tribunal by the departmental representative at the hearing of the appeal but the Tribunal rejected that contention and held that the balance of Rs. 11,88,000 had been given over irretrievably by the company as a part of its contribution to help Messrs. Soorajmull Nagarmull to acquire the managing agency. To that extent there was depletion of the company's resources. 11,88,000 had been given over irretrievably by the company as a part of its contribution to help Messrs. Soorajmull Nagarmull to acquire the managing agency. To that extent there was depletion of the company's resources. The shares were purchased at an inflated rate as investment shares and the correct value of the investment as on the last day of the accounting period involved the company in loss on account of depreciation of its investment. This depreciation in the value of its investment the company was entitled to record in its books of accounts on any commercial principle. In asking for a reference under Section 66 (1) the Commissioner never challenged that finding of the Tribunal. Though at the stage of the finalisation of the statement of the case the departmental representative wanted to raise such a question, the Tribunal rejected the prayer of the departmental representative. The Commissioner did not apply to this court under Section 66 (2) for a direction on the Tribunal to refer such a question of law. In this state of affairs, Mr. Pal cannot be allowed to argue that the finding of the Tribunal, that Rs. 12 lakhs was a capital loss suffered by the assessee, was erroneous. It is now well settled by several decisions of the Supreme Court that, unless the Tribunal has referred a question under Section 66 (1) or if on being asked the Tribunal refuses to refer a question and no application is made to the High Court to direct the Tribunal to refer such a question under Section 66 (2), the High Court would have no jurisdiction to entertain a question not referred to it. ( 8 ) MR. Pal did not dispute that if the loss of Rs. 12 lakhs was a capital loss then the Tribunal's decision that it would be unreasonable for the assessee-company to have declared any dividend in any of the two years under reference was correct. Accordingly, we must answer the question referred to this court in the affirmative and against the revenue. The Commissioner will pay the costs of this reference. ( 51 ) READING this report as a whole, it will appear that he was definitely making a distinction between portions of the western wall. In some places there were cracks. Accordingly, we must answer the question referred to this court in the affirmative and against the revenue. The Commissioner will pay the costs of this reference. ( 51 ) READING this report as a whole, it will appear that he was definitely making a distinction between portions of the western wall. In some places there were cracks. The reasonable conclusion that I can arrive at is that there were cracks on inner face of the western wall of plaintiffs' premises No. 17, Ganesh Chandra Avenue, but they were thin cracks and might not have been noticed by Mr. P. Bose, but his lack of notice cannot prevail against the more direct evidence of Mr. Biswas, Mr. Sinha and Mr. Paul whose questions and answers I have already stated above. I, therefore, hold that there were thin cracks on the inner face of the western wall of premises No. 17 and there were other cracks in other parts. I answer the issue accordingly. Issue 3 : ( 52 ) THIS issue raises the question whether there has been any change of level as alleged in para 15 of the plaint. ( 53 ) THE relevant document on this point is Mr. P. Bose's report dated April 26, 1965, marked Ex. B1 in this suit. The portion of the report dealing with this question of the change of level has already been quoted above. The gist of that report is that from the print of the front elevation showing the cracks marked in red and annexed with the report and otherwise it is provided that there is disturbance in the plinth below shop windows and the marble top to the plinth at the second column from the corner column marked A1 has separated out with a drop of about ? ins. from the rest and slopped down towards corner column with a maximum of 1? ins. level difference. The second report of Mr. P. Bose dated May 28, 1965, shows that there is no overall settlement of the structure at the plaintiffs' premises No. 17, Ganesh Chandra Avenue as a whole. ins. from the rest and slopped down towards corner column with a maximum of 1? ins. level difference. The second report of Mr. P. Bose dated May 28, 1965, shows that there is no overall settlement of the structure at the plaintiffs' premises No. 17, Ganesh Chandra Avenue as a whole. The evidence as well as that report emphasize that due to dragging effect of the settlement of the defendant's structure at No. 15, Ganesh Chandra Avenue there is a settlement of the defendant's western attached portion only causing differential settlement in the building at No. 17, Ganesh Chandra Avenue with consequent cracks. They also express and point out to the conclusion that at the south-west corner of premises No. 17, Ganesh Chandra Avenue this settlement was measured to be 1? ins. and the fact that these cracks appeared ten years after completion of the plaintiffs' structure at No. 17, Ganesh Chandra Avenue and that they appeared after the completion of six storeys of the defendant's structure at No. 15, Ganesh Chandra Avenue and progressing in magnitude and number of further storeys were being built, was not a coincidence but was connected as cause and effect. This is clearly explained by Mr. P. Bose in his evidence in answer to Q. 106. He also gives direct evidence in answer to Q. 109 saying that at the south-west corner where column 22 adjoins column A1 of the plaintiffs' structure at No. 17, Ganesh Chandra Avenue, that plinth level at A1 has gone down by 1 ? ins. I do not find that there was any effective cross-examination on this answer given by Mr. P. Bose to Q. 109. The next evidence is the photograph, marked Ex. A16 in this suit, showing the level changing of a column. In addition to this evidence there is also the evidence of Mr. Biswas, the plaintiffs' contractor. Mr. Biswas, giving evidence on the photograph Ex. A16, says that the photograph shows the plaintiffs' premises No. 17, Ganesh Chandra Avenue and its southern wall showing the cracks on the columns and it has shifted towards the west because the levels of both the portions had changed. He demonstrated this change of level and how the cracks have appeared. According to him, that portion went down and that portion was attached. He demonstrated this change of level and how the cracks have appeared. According to him, that portion went down and that portion was attached. So, the level changed and it could be seen from the photograph particularly when examined at the corner. Again, in answer to Qs. 367-368 Mr. Biswas says that the floors of plaintiffs' premises No. 17, Ganesh Chandra Avenue had sunk with the result that the floors also have cracked and he also says that the level of the building has changed and in the extreme western corner of No. 17, Ganesh Chandra Avenue it would be near about as much as 1 ? ins. to 2 ins. On this point he gives further evidence in answer to Qs. 370-375. The gist of his evidence is that the plinth had sunk with the result that the glass bricks and marble stones have cracked. One portion of the door has sunk so horribly that it could not be closed and it had to be opened by cutting it and replacing it. His evidence is that the whole door slumped and the bottom portion of it had to be cut and re-fixed. ( 54 ) ONE part of the defence put forward was that plaintiffs' premises No. 17, Ganesh Chandra Avenue was out of plumb and, therefore, indicated inherent constructional defects which might have produced the cracks. That defence has no substance. If plaintiffs' premises No. 17 was out of plumb from the beginning then the cracks would have been produced long ago and not after ten years and immediately after the defendant had put up its six storeys of structure. Secondly, plaintiffs' whole case is that it was this dragging the defendant's structure which might have caused the plaintiffs' building to bet out of plumb. In fact, the question was put to Mr. Biswas while he was on the box and in answer to Q. 721, when he was asked that if premises No. 15 inclined towards the west then premises No. 17 would not be out of plumb towards the west if there was no gap, the answer was that it could be because of the movement of the soil underneath and because of the dragging it had lost the plumb. He explained that earlier also in answer to Q. 719. He explained that earlier also in answer to Q. 719. In fact, there is a series of questions put to the engineer appointed by the Court, Mr. K. N. Sinha, from Qs. 451-456 on this point but even he, who said in Q. 454 that it was not part of his investigation to find out how the plaintiffs' premises got out of plumb, says in answer to Q. 456 that the defendant's premises. No. 15 is affected so far as settlement is concerned if during the settlement there is an out of plumb and I cannot help it. Similarly, Mr. P. Bose in answer to Q. 352 said that it was not surprising that the plaintiffs premises was out of plumb. The other engineer, Mr. K. C. Paul, spoke of this buckling tendency of defendant's premises No. 15, Ganesh Chandra Avenue and in answer to Q. 112 makes it clear: the fact is that the buckling tendency, if it is through and through for the length of 22 ft. attachment, then it is something else. But if it is in some particular places, where the column is thrust against the column of the other building, then that place excepting the other places may come out of plumb. As against this mass of evidence, the casual and perfunctory evidence of Sarkar about premises No. 15 being in plumb cannot avail. It is all the more so because if there is a uniform settlement at defendant's premises No. 15, them the structure at No. 15 will keep the plumb. ( 55 ) ON these facts I hold that there has been a change of level as alleged in para 15 of the plaint and I answer issue 3 affirmatively. ( 56 ) BEFORE taking up the next issue 4, I should like to briefly dispose of issues 5, 6 and 7. Issues 5, 6 and 7: ( 57 ) ISSUES 5 raises the question of plaintiff's latches which is pleaded in para 21 of the written statement, but no evidence has been given of plaintiffs' laches at all or even of delay, the plaintiffs have been vigilant and protesting at all relevant times. It was the defendant who seemed to be always in an unseemly hurry to build the construction. It was the defendant who seemed to be always in an unseemly hurry to build the construction. ( 58 ) THE sixth issue raises the question, whether the plaintiffs' claim is barred by acquiescence or estoppel as pleaded in para 22 of the written statement. The pleading is that the plaintiffs acquiesced in the construction and allowed the defendant to continue the construction at No. 15, Ganesh Chandra Avenue as a result of which the defendant has changed its position and has incurred considerable expenses for the purpose of the construction of the building. Therefore, the defendant pleads that the plaintiffs are estopped from challenging the defendant's right to complete the construction at No. 15, Ganesh Chandra Avenue in accordance with the plans sanctioned by the Corporation of Calcutta. The difficulty of the defendant is that this whole change of the foundation from concrete bored piles and changing of columns were without the sanction of the Corporation of Calcutta. That has already been discussed earlier in the judgment. ( 59 ) THE letter dated December 12, 1963, written by Mr. Biswas to the defendant which is disclosed as defendant's document No. 22 in the brief of documents marked Ex. 1 in this suit makes certain points very clear. In order to appreciate those points it will be necessary to refer to the letter to which Mr. Biswas's letter was an answer. That letter was a letter of the defendant dated December 10, 1963, which is the defendant's document No. 21 in the brief of documents marked Ex. 1 in this suit, which admitted in these terms the damages caused until that point of time:we confirm that upto this day the under mentioned damages have been caused to your premises No. P-38, Mission Row Extension due to the construction work going in at our premises No. 15, Ganesh Chandra Avenue. We hereby agree to make good the loss you have sustained up-to-date by re-constructing the under-noted damages. Subsequent damages, if caused, will be covered by the insurance policy No. 4585301. Particulars of damage - (1) 5 ins. C/b compound wall (2) Floor of the 4 ft. wide open passage (3) Open drain (4) Sewer line. We hereby agree to make good the loss you have sustained up-to-date by re-constructing the under-noted damages. Subsequent damages, if caused, will be covered by the insurance policy No. 4585301. Particulars of damage - (1) 5 ins. C/b compound wall (2) Floor of the 4 ft. wide open passage (3) Open drain (4) Sewer line. ( 60 ) NOW, this letter is significant for it is an admission that the defendant has caused damage to the plaintiffs' premises at No. 17, Ganesh Chandra Avenue by the defendant's construction at No. 15, Ganesh Chandra Avenue. The damages, therefore, are admitted, not only damages upto that time which the defendant promised to make good but also promised to insure the plaintiffs against future damages. Very little remains of the defendant's present denial, therefore, that they had not been negligent, nor are they liable for damages to the plaintiffs. ( 61 ) NOW, coming to the reply of Mr. Biswas dated December 12, 1963, the point which Mr. Biswas emphasizes in that reply are - (I)the under-mentioned damages were confirmed as having been caused by the defendant, (ii) clearer definition of the particulars of damage caused upto December 10, 1963, by itemizing more clearly the four specific damages and (iii) that insurance, if any, should cover also risks of vibration and subsidence which was clearly expressed. It was on that basis and on those conditions that the defendant's construction could go on. ( 62 ) THE insurance policy tells a strange tale in this connection. The insurance was taken up with Commercial Union Assurance Co. Ltd. Ratanlal Rampuria, a director of the defendant-company, was himself a director of this insurance company. That will be found from Ex. Q. in this suit which contains the particulars of directors filed under the Companies Act before the Registrar of Companies. There are insurance policies, one relating to the workmen's compensation with which this suit is not concerned and that was dated October 22, 1963, marked Ex. 8 in this suit. The relevant insurance policy is Ex. 7 which makes a strange reading. To begin with, it only agrees to indemnify the defendant insured against liability arising from accidents in respect of 'accidental damage to property'. 8 in this suit. The relevant insurance policy is Ex. 7 which makes a strange reading. To begin with, it only agrees to indemnify the defendant insured against liability arising from accidents in respect of 'accidental damage to property'. Secondly, this insurance does not expressly cover any damage done to plaintiffs, premises No. 17, Ganesh Chandra Avenue and only covers damages to the defendant's property at No. 15, Ganesh Chandra Avenue. Thirdly, by express typed exclusion this insurance excludes liability in respect of underpinning in building or other structure by an express clauses in the policy being clause 5 (f) of the exception clauses in the policy. Naturally there was a good deal of controversy and exchange of correspondence over such a kind of insurance which meant no practical benefit to the plaintiffs. It may also be emphasized here that in Ex. 7 the insurance policy in the clauses defining the description of accidents apart from saying accidental damage to property expressly used these words ?happening at the site and occurring during and in connection with the RCC construction for the building at 15, Ganesh Chandra Avenue, Calcutta?. Naturally such expressions 'at the site' and the damage to the property at No. 15, Ganesh Chandra Avenue would mean no relief to the plaintiffs and their premises at No. 17, Ganesh Chandra Avenue. It will not be necessary to discuss in detail all the letter relating to the change in the policy conditions and only a bare reference need be made to the insurance company's letter dated November 22, 1963, marked Ex. 9, which is defendant's document No. 14, the defendant's leter to the insurance company dated November 22, 1963, marked Ex. 10 and the insurance company's letter dated November 22, 1963, marked Ex. 12 ending dated November 29, 1963, which is defendant's document No. 19, and all of which documents are included in the brief ofdocuments marked Ex. 1 in this suit. ( 63 ) ON the top of all these defects in insurance policy criticism has also been made that the policy has not in fact been renewed. The period of the policy was from October 23, 1963 to October 22, 1964. It has been said that this policy in fact was not renewed in 1964. Mr. Sambhudas Banerjee came from the Commercial Union Assurance Co. Ltd. to give evidence in this case as a witness for the defendant. The period of the policy was from October 23, 1963 to October 22, 1964. It has been said that this policy in fact was not renewed in 1964. Mr. Sambhudas Banerjee came from the Commercial Union Assurance Co. Ltd. to give evidence in this case as a witness for the defendant. He frankly admitted in answer to Q. 154 that this insurance does not cover any risk for any damage happening at the plaintiffs' premises (Qs. 154-155 ). He also had to admit in answer to Q. 159 that there was no endorsement on Ex. 7 to show that this cl. 4 was not applicable and the policy was in fact extended to cover risks of vibration and subsidence occurring to the plaintiffs' premises. In Q. 161 he admitted again that there was no other conditions in the policy to protect the plaintiffs. He could not prove the renewal slip or any endorsement of such renewal on the original policy. The series of questions from Qs. 52 to 82 show that there was in fact no renewal. ( 64 ) INSURANCE, in those circumstance, could not be regarded either in fact or in law as an acquiescence or an agreement by the plaintiffs. In the first place, the insurance contract is not between the plaintiffs and the insurance company or a tripartite policy between the plaintiffs, the defendant and the insurance company. In the second place, it is only a cover for damages for accidents and not for negligence and lack of due care and caution on the part of the defendant. In the third place, in any event, it cannot mean that the plaintiffs can neither recover their damages under the insurance even though such damages are caused by the defendant, no ask the defendant to stop causing further damage to the plaintiffs' premises at No. 17, Ganesh Chandra Avenue. ( 65 ) I, therefore, answer issue 6 in the negative and I hold that there has been no acquiescence or estoppel barring the plaintiffs' claim. ( 66 ) THE seventh issue raises the question whether the plaintiffs had given particulars of negligence and, if not, was the suit maintainable. I find that all the particulars that the plaintiffs knew were given in the plain and even they annexed to the plaint the reports of Mr. ( 66 ) THE seventh issue raises the question whether the plaintiffs had given particulars of negligence and, if not, was the suit maintainable. I find that all the particulars that the plaintiffs knew were given in the plain and even they annexed to the plaint the reports of Mr. K. C. Paul, a qualified engineer, dated February 15, 1965 and April 6, 1965. These reports of the technical engineer given all the particulars that the plaintiffs could know. The particulars broadly stated in the plaint are (i) that there was no adequate shoring, (ii) that the digging was beyond the depth of the plaintiffs' foundation, (iii) the attachment, (iv) cracks and (v) foundation not with due care and caution. In such circumstances I cannot hold that the plaintiffs did not give particulars. Whether the particulars were sufficient or not was an entirely different matter. But even then the facts remains that the defendant never asked or made any application for further and better particulars. ( 67 ) I, therefore, hold on the facts of this case that sufficient particulars were given in the plaint and specially in the annexures to the plain containing the two reports of Mr. K. C. Paul, the engineer, and I hold that the suit is maintainable and cannot fail on the ground of lack of particulars. I answer the 7th issue accordingly. Issues 4 ad 8 : ( 68 ) WHAT remains now are the two issues 4 and 8. The fourth issue raises the question whether there is any evasion of the plaintiffs' right to or enjoyment of the plaintiffs' premises as alleged in para 20 of the plaint. The eighth issue raises the question to what reliefs the plaintiffs are entitled. ( 69 ) MR. M. N. Banerjee, learned Counsel for the defendant, submits that the law recognizes only a natural right of support for the land but does not recognize it or extend it to support a building. He submits that there is, in law, no right to support a building except by prescription. He submits in this case the plaintiffs' building at No. 17, Ganesh Chandra Avenue is less than twenty years old. This raises a very significant question of law, specially in connection with sky-scrapers and multi-storeyed buildings in Calcutta. ( 70 ) I shall briefly review the legal position as I read it. He submits in this case the plaintiffs' building at No. 17, Ganesh Chandra Avenue is less than twenty years old. This raises a very significant question of law, specially in connection with sky-scrapers and multi-storeyed buildings in Calcutta. ( 70 ) I shall briefly review the legal position as I read it. ( 71 ) THE right to have one's land supported by one's neighbour's land is known in law as a 'natural' right. This was laid down by Lord Campbell, C. J. as early as in (1) Humphries v. Brogden, (1850) 12 QB 739 (744 ). It was regarded that a nuisance would be committed if such a support was removed either laterally or from beneath where the ownership of the top soil, as in mining areas, is different from the ownership of the subsoil. The actual subsidence of the plaintiffs' land is the essence of this claim and not just the withdrawal without any effect. In (2) Darley Main Colliery Co. v. Mitchell, 11 AC 127, it is laid down that where a series of subsidences separate by interval of time are caused by series of excavations, each new subsidence is a ground for a fresh cause of action and this nuisance, so regarded in the law of torts, arises when the support ceases to do its work and not when the excavation is made. ( 72 ) WHAT is, however, important is to emphasize that although there is no 'natural' right to the support of buildings, there can be an acquired right for such a support and also sometimes consequential damages may be obtained in an action for the withdrawal of support to land if its effect is to cause damage to buildings a well. But this will only be the legal result if the subsidence would have occurred in any event had there been no buildings creating additional weight. That is how I read the two decisions in (3) Brown v. Robins, 4 Handn 186 and (4) Stroyan v. Knowles, 6 Handn 454. In other words, disturbances of the natural right to the support for land may sometimes give rise to a claim for consequential damages in respect of injury to buildings. In Stroyan v. Knowles (Supra), the defendant's mining operations caused the plaintiffs' land to subside and this subsidence damaged the plaintiffs' factory. In other words, disturbances of the natural right to the support for land may sometimes give rise to a claim for consequential damages in respect of injury to buildings. In Stroyan v. Knowles (Supra), the defendant's mining operations caused the plaintiffs' land to subside and this subsidence damaged the plaintiffs' factory. The Court held that although the support for the factory, not having continued for the requisite period, had not been acquired by prescription, yet since its weight did not contribute to the causing of the subsidence the plaintiff was entitled to consequential damages for the loss. In (5) Partridge v. Scott, 3 Mandw 220, Baron Alderson expressed the celebrated opinion that, a man has no right to load his own soil so as to make it require the support of its neighbour. That is why this right of support for the buildings, unlike the support for land, is not considered as a 'natural' right in law or as a kind of right inherent in the ownership of land with buildings upon it. But then this right to the support of a building may be acquired by grant or even by prescription. Where it has been acquired either by grant or by prescription, a nuisance will be committed if the support is withdrawn. The leading case on the point in (6) Dalton v. Angus, 6 AC 740. There the plaintiff and the defendant owned adjoining properties each with a house, though not touching the other, was supposed laterally by the neighbouring land. The plaintiff converted his house into a factory. As a result, the building became heaver than it was before and required a stronger support than previously. In that case more than twenty years later, that is, after the expiry of the relevant period of prescription, the defendant demolished the house and made excavations upon the site. The result was that the plaintiffs' factory subsided. The Court on those facts held that the lapse of twenty years had given the plaintiff a right by prescription not merely the right to the support of the original house but also to the support of the building as converted into a factory. The plaintiff, therefore, succeeded in his claim. In this connection, the decision of (7) Cory v. Davies, (1923) 2 Ch D 95 may also be seen. The plaintiff, therefore, succeeded in his claim. In this connection, the decision of (7) Cory v. Davies, (1923) 2 Ch D 95 may also be seen. ( 73 ) LORD Selborne, L. C. in Dalton v. Angus (Supra), treated the right to lateral support from adjoining land acquired after twenty years prescription for a building as an easement. Lord Selborne observed:support to that which is artificially imposed upon land cannot exist ex jure nature, because the thing supported does not itself so exist; it must in each particular case be acquired by grant, or by some means equivalent in law or grant, in order to make it a burden upon the neighbour's land, which (naturally) would be free from it. The learned Lord Chancellor drew support for this distinction from the observation of Willes, J. in (8) Bonomi v. Backhouse, 1 EBande 655 where the learned Judge had said:the right to support of land and the right to support of buildings stand upon different footings, as to the mode of acquiring them, the former being prima facie a right of proper analogous to the flow of a natural river, or of air, though there may be cases in which it would be sustained as a matter of grant; whilst the latter must be founded upon prescription or grant, express or implied; but the character of the rights, when acquired, is in each case the same. Again Lord Selborne expressed the view:i think it clear that any such right of support to a building or part of a building, is an easement - Page 793. ( 74 ) COLLINS, L. J. in (9) Southwark and Vauxhall Water Company v. Wandsworth District Board of Works, (1898) 2 Ch. D 603 (612-613) formulates the legal position in this way:i think it is clear in such that, though the pulling-down owner must be careful to little as possible with the adjoining house, he is certainly not called upon to take active steps for its protection, as, for instance, by shoring it up. There is a broad distinction between exercising a right with reasonable care so as not to do avoidable damage, and taking active measures to insure the continuance of something that is not a right in the adjoining owner. There is a broad distinction between exercising a right with reasonable care so as not to do avoidable damage, and taking active measures to insure the continuance of something that is not a right in the adjoining owner. Chadwick v. Trower, (1836) 3 Bing NC 334 and 6 Bing NC 1, merely decides that, supposing there is a duty upon a person pulling down his own house to take care not to injure his neighbour's vault in so doing, where he knows of its existence, though it has acquired no right to support, there can be no such duty where he does not know of it. And it cannot be the law that the pulling down owner is bound to find a substitute or equivalent for the support which he has a right to remove. That he has such right is clear; see Dalton v. Angus, (Supra), I think the result is that though the person pulling down is bound to do no unnecessary damage, he is not fixed with any obligation to take active steps to mitigate a mischief which follows inevitably upon the reasonable exercise of his own rights. I think, therefore, the only obligation on the defendants was to use reasonable care to do no unnecessary damage to the plaintiffs. ( 75 ) THESE observations emphasize certain points which in this branch of the law have become increasingly important since Collins, L. J. made these observations. The points the learned Lord Justice emphasized are: (I) Care to interfere as little as possible with adjoining house; (ii) exercise the right with reasonable care so as not to do avoidable damage; (iii) a passive and not an active duty to insure the continuance of something that is not a right in the adjoining owner; (iv) that this passive duty implies that no unnecessary damage to the adjoining owner should be done although there is no active obligation; and (v) obligation to use reasonable care to do no unnecessary damage to the plaintiffs. ( 76 ) I think the time has come when Courts should recognize the sociological needs and obligations of the ownership and use of property vis-?-vis the adjoining neighbour and the Law of Torts requires to be adjusted to the present sociological needs of the society where congestion in cities is growing fast and where modern engineering and technological advance are putting up high-risers and, sky-scrapper in close and intimate proximity with neighbouring lands I should like on this branch to invoke the 'neighbour' doctrine in this branch of the law, which was enunciated by Lord Atkin in (10) Donoghue v. Stevenson, (1932) AC 532 (580 ). Lord Atkin made the following observations:at present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether your style it such or treat it as in other systems as a species of culpa, is no doubt based upon a general public sentiment of moral wrong-doing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour, receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. ( 77 ) THIS is the growing doctrine of neighbour in the law of negligence in torts. It is assuming an extremely important role in congested cities which are all over-built and where buildings stand in closest proximity and contiguity. ( 77 ) THIS is the growing doctrine of neighbour in the law of negligence in torts. It is assuming an extremely important role in congested cities which are all over-built and where buildings stand in closest proximity and contiguity. There is a sociological obligation, which the law will recognize or should recognize in the light of the above observations of Lord Atkin that the concept and character of a neighbour's duty are changing in the present context of metropolitan building chaos. Lord Atkin raises the question, who is my neighbour, in the Law of Torts. Surely, one who is building a high-riser or a multi-storeyed building or a sky-scrapper in one of the business centres in a city like Calcutta, adjoining his house and attaching it with his next-door owner, does answer the test of neighbour. Therefore, it follows that he must take reasonable care to avoid acts or omission which can reasonably be foreseen and which are likely to injure the neighbour. It is neither straining the law nor straining the ethics to say that in such a case the persons are so 'closely and directly affected by act' that law would require that I should exercise due care and caution. A duty to exercise care arises in this new sociological context. Anyone without much over-straining of logic or language can foresee that an unusually high building like a multi-storeyed building with eleven storeys or a sky-scraper is bound to affect the owner of the adjoining building. I do not think in doing so and in taking this view I am inventing new legal rights in the Law of Torts. I am only acknowledging the well-recognized rights in the Law of Torts in their modern complex I do not consider that I am venturing to make some new principles in this respect for I recall Lord Macmillan in Donoghue v. Stevenson (Supra), made the observation that the categories of negligence are never closed. The principle of negligence is always there. But naturally what is or is not negligence must change with physical and environmental change in a growing and developing society. Lord Macmillan made that observation just exactly where he was discussing society and he observed:the law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. Lord Macmillan made that observation just exactly where he was discussing society and he observed:the law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. What, then, are the circumstances which give rise to this duty to take care? In the daily contracts of social and business life human beings are thrown into, or place themselves in an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation give rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust itself to the changing circumstances of life - pages 618-19 the sky-scraper or the multi-storeyed building is such a changing circumstance. One who raises it has to submit to a legal obligation which can bring him within the law of negligence whose categories are not closed and, wherever necessary, will include such phenomenon. ( 78 ) THE avenue of the development of the law in the modern age is the broadening concept of negligence. Strict liability in tort has now fallen into some disfavour. It is unlikely that any new tort will be formulated although no doubt the re-orientation of the complex tort of intimidation by the House of Lords in (11) Rooken v. barnard, (1964) AC 1129 has caused a good deal of commotion. But, nevertheless negligence holds the possibilities for expansion. In the 14th edition of Salmond on Torts it has been stated:when relationships come before the Courts which have not previously been subject of judicial decisions the Court is unfettered in its power to grant or refuse a remedy for negligence. The action on the case for negligence has no limits set upon its territory, save by previous decisions upon such specific relationships as have come before the Courts. Lord Radcliffe in (12) Lister v. Romford Ice Co. The action on the case for negligence has no limits set upon its territory, save by previous decisions upon such specific relationships as have come before the Courts. Lord Radcliffe in (12) Lister v. Romford Ice Co. , (1957) AC 555 (591-592) observed:none really doubts that the common law is a body of law which develops in the process of time in response to the development of the society in which it rules. Its movement may not be perceptible at any distinct point of time, nor can we always say how it gets from one point to another, but I do not think that for all that we need abandon the conviction of Galileo that some-how or by some means, there is a movement that takes place. ALTHOUGH no doubt the neighbour principle is now accepted as part of the Law of Torts, how far does it extend will be a matter for the future to see. In the present context of facts, with which I am dealing, I have no hesitation in holding that whatever view one takes of a 'neighbour' this one comes within that purview. The potentialities of the neighbour principle are already being tested in diverse directions. In (13) Hedley Byrne and Co. Ltd. v. Helter and Partners Ltd. , (1964) AC 465 the House of Lords used the neighbour principle to justify the inclusions of careless statements within the sphere of negligence, an achievement which may be described as a significant break-through or advance or expansion of the Law or Torts in modern times. On the other hand, the Privy Council in (14) Commissioners of Railways v. Quinlan, (1964) AC 1054 described the neighbour principle as 'somewhat overworked shorthand' and did not extend that neighbour principle to modify the 19th century principle that an occupier of property owed no duty to a trespasser other than not to inflict intentional or reckless injury. ( 79 ) AT this stage the discussion has to branch off from negligence to the doctrine of (15) Rylands v. Fletcher, (1868) LR 3 RL 330. Rylands v. Fletcher has become a concept by itself and has almost developed into a suburban doctrine on the fringe of the formal area of the law of negligence. ( 79 ) AT this stage the discussion has to branch off from negligence to the doctrine of (15) Rylands v. Fletcher, (1868) LR 3 RL 330. Rylands v. Fletcher has become a concept by itself and has almost developed into a suburban doctrine on the fringe of the formal area of the law of negligence. Its importance lies in the fact that Rylands v. Fletcher's (Supra), liability is imposed without any need for proof for negligence or lack of care on the part of the defendant. ( 80 ) THESE two torts, viz. , of negligence and the Rylands v. Fletcher (Supra), liability, have common features and ever since this rule was propounded by Blackburn, J. indicates the influence of its origin from the action on the case for nuisance which was before the learned Judge. Very often the provinces of these two torts overlap. But, nevertheless, there are distinctions between them. While the Rylands v. Fletcher liabilities do not require either negligence or lack of care, yet lack of care must have to be established in the case of the nuisance. It has been said that nuisance is a wider concept than Rylands v. Fletcher liability which embraces many forms of annoyance quite unconnected with the escape from land. The one recent House of Lords decision discussed the growing nature of this branch of law. That decision is (16) Read v. J. Lyons and Co. Ltd. (1947) AC 156 (167) where Viscount Simonds observed:now the strict liability recognised by this House in Rylands v. Fletcher is conditioned by two elements which I may call the condition of escapes and the condition of non-natural use of the land. Now these two conditions are (a) escape and (b) non-natural use of land. The question often is the escape, the escape of what object? Obviously the lists of things are not closed and can be expanded to come within the doctrine of Rylands v. Fletcher (Supra ). In Rylands v. Fletcher itself the object that escaped was water. Since then judicial decisions have added many other objects to the list like gas (17) North-Western Utilities Ltd. v. London Guaratnee and Accident Company, (1936) AC 108, electricity (18) Eastern and South African Telegraph Co. v. Cape Town Tramways Co. , (1902) AC 381, vibration in (19) Hoare and Co. v. Mc. Since then judicial decisions have added many other objects to the list like gas (17) North-Western Utilities Ltd. v. London Guaratnee and Accident Company, (1936) AC 108, electricity (18) Eastern and South African Telegraph Co. v. Cape Town Tramways Co. , (1902) AC 381, vibration in (19) Hoare and Co. v. Mc. Alpine, (1923) 1 Ch 167 and such other objects as fire, explosive and noxious substance. In fact, they have now come to be called in law as 'rylands v. Fletcher (Supra), objects'. ( 81 ) THE case of Hoare and Co. v. Mcalpine, (Supra), shows that where in preparing a site for a large building in the heart of the city the defendants drove a large number of piles into the soil thereby setting up such a heavy vibration as to cause serious structural damage to an old house belonging to the plaintiffs with the result that the greater part had to be taken down in compliance with the dangerous structure notice, the plaintiffs were entitled to damages. The ratio of this decision is that the principle Rylands v. Fletcher (Supra), as explained in (20) National Telephone Co. v. Baker, (1893) 2 Ch D 186 and (21) Attorney General v. Cory Brothers, (1921) 1 AC 521 applied to such a case. Incidentally it was pointed out in that case that even if the plaintiffs' house was in an abnormally unstable condition the defendants were responsible as insurers for all damages caused by the escape of the vibration they had so created. ( 82 ) ASTBURY, J. , delivering the judgment in Hoare and Co. v. Mcalpine (Supra), repelled the argument which was made before me at the Bar in the instant case. Astbury, J. observed as follows:the following proposition is sought to be established from these passages: A man cannot limit the operations of his neighbour of his land or increase his neighbour's liability by putting his property for his own purposes into a structural condition in which it is more than ordinarily liable to be affected by that neighbour's legitimate operations. In some circumstances this may be accurate; as applied to the present case it is, in my judgment, inappropriate, and the analogy of contributory negligence does not apply. In some circumstances this may be accurate; as applied to the present case it is, in my judgment, inappropriate, and the analogy of contributory negligence does not apply. ( 83 ) APPLYING this test, if 'vibration' is a Rylands v. Fletcher (Supra), 'object' then the load of the defendant's building at No. 15, Ganesh Chandra Avenue which dragged the plaintiffs' building at No. 17, Ganesh Chandra Avenue, both through the attachment as well as by the foundation of No. 15 going deeper than the foundation of No. 17, and also by the weakening of the foundation which was sanctioned only for concrete bored piles wrongfully and negligently substituted by sal-ball piles by the defendant, is a kind of force which comes within the concept and category of 'rylands v. Fletcher (Supra), objects'. In such circumstances, even the fact that the plaintiffs' structure was in unstable condition as a contributory negligence cannot help the defence in the presence. I have, however, held than there was no contributory or other negligence on the part of the plaintiffs at all on the facts of this case and I have only referred to this aspect of the case not only because it was consideration which weighed with Astbury, J. , in coming to the conclusion in Hore and Co. Mcalpine (Supra), but also because the suggestion was here made that the plaintiffs' building was not built on sound engineering principle and even if it were a fact, it would not have helped the defence. ( 84 ) HAVING explained the Rylands v. Fletcher (Supra), objects and its escape in the context of the present facts before me I shall now proceed to refer to the other limits of the rule in Rylands v. Fletcher (Supra) namely, that it must flow from 'non-natural' use of the land. This was clearly pointed out by Viscount Simonds in Read v. J. Lyons and Co. Ltd. (Supra ). Building a multi-storeyed building on deep foundation and driving piles underground is, I consider, a non-natural use of land within the test of that limit. ( 85 ) APART from negligence and rule in Ryland v. Fletcher (Supra), within the facts and law of which I hold that the defendant has come, there are other grounds on which the defendant's liability is established. Those two grounds are (i) trespass and (ii) subsidence of the plaintiffs' land. Mr. ( 85 ) APART from negligence and rule in Ryland v. Fletcher (Supra), within the facts and law of which I hold that the defendant has come, there are other grounds on which the defendant's liability is established. Those two grounds are (i) trespass and (ii) subsidence of the plaintiffs' land. Mr. Sen, learned Counsel for the plaintiffs, in developing the point of trespass points out the signal fact that the defendant built flush against the foundation structure of the plaintiffs even apart from the attached boundary wall. To build in this manner flush against the plaintiffs' structure is trespass. It is no argument in this regard that the plaintiffs' structure is trespass. It is no argument in this regard the plaintiffs' structure cracked because it was unstable or not built on sound engineering principle. I have already quoted the authority on this particular point in Hoare and Co. v. Mcalpine (Supra), and I need only add the famous observation of Lord Denman, C. J. in (22) Dodd v. Holme, 1 Adande 493 : 110 ER 1296 (1300) observing - a man has no right to accelerate the fail of neighbour's house. ( 86 ) THIS principle was also approved in (23) Bradbee v. Chritst's Hospital, 4 Mandg 714 (759) by Tindal, C. J. On the second point of subsidence it is established on the evidence, which I have already discussed, that the plaintiff's land has subsided and, therefore, the consequential damage to the building standing upon it which has cracked brings it within the doctrine of consequential damages as propounded in the authority of (4) Stroyan v. Knowles (Supra), already quoted above. ( 87 ) THERE is one more authority to which I shall refer. That is the decision of the House of Lords in (24) George Martin Hughes v. John Percival, 8, AC 443. The facts of that case were as follows: The appellant and respondent there were owners of adjoining houses between which was a party-wall, the property of both. The appellant's house also adjoined B's house and between them was a party-wall. The appellant employed a builder to pull down his house and rebuild it on a plan which involved the tying together of the new-house and also the party-wall between it and the respondent's house, so that if one fell the other would be damaged. The appellant's house also adjoined B's house and between them was a party-wall. The appellant employed a builder to pull down his house and rebuild it on a plan which involved the tying together of the new-house and also the party-wall between it and the respondent's house, so that if one fell the other would be damaged. In the course of the rebuilding, the builder's workmen in fixing a staircase, negligently and without the knowledge of the appellant, cut into the party-wall between the appellant's house and B's house, in consequence of which the appellant's house fell, and the fall dragged over the party-wall between it and the respondent's house and injured the respondent's house. The cutting into the party-wall was not authorized by the contract between the appellant and his builder. The House of Lords came to the conclusion that the law cast a duty upon the appellant to see that reasonable care and skill were exercised in those operations which involved a use of the party-wall belonging to himself and the respondent, exposing it to the risk and that the appellant could not get rid of such responsibility by delegating the performance to a third person and was liable to the respondent for the injury to his house. The party-wall in that case may very well be almost near the attached boundary-wall in the present case before me and the result will be more so here because the boundary-wall was not the wall of the defendant but of the plaintiff. The party-wall in that case may very well be almost near the attached boundary-wall in the present case before me and the result will be more so here because the boundary-wall was not the wall of the defendant but of the plaintiff. In the House of Lords decision in Hughes v. Percival (Supra), the House approved of the observation of Chief Justice Cookburn (25) Bower v. Peate, 1 QBD 321 where the proposition laid down was:the answer to the defendant's contention may, however, as it appears to us, be placed on a broader ground, namely, that a man who orders a work to be executed from which in the natural course of things injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief and cannot relieve himself of his responsibility by employing someone else - whether it be the contractor employed to do the work from which the danger arises or some independent person - to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. Lord Fitzgerald sums up the whole law briefly in these terms:what is the law applicable? What was the defendant's duty? The law has been verging somewhat in the direction of treating parties engaged in such an operation as the defendant's as insurer of their neighbours, or warranting them against injury. It has not, however, reached quite to that point. It does declare that under such a state of circumstances it was the duty of the defendant to have used every reasonable precaution that care and skill might suggest in the execution of his works so as to protects his neighbours from injury and that he cannot get rid of the responsibility thus cast on him by transferring that duty to another. He is not in the actual position of being responsible for injury, no matter how occasioned, but he must vigilant and careful, for he is liable for injuries to his neighbour caused by any want of prudence or precaution, even though it may be culpa levisalma - Page 455. He is not in the actual position of being responsible for injury, no matter how occasioned, but he must vigilant and careful, for he is liable for injuries to his neighbour caused by any want of prudence or precaution, even though it may be culpa levisalma - Page 455. IF I may say so respectfully, the law is most clearly and pointedly laid down by Lord Fitzgerald in those observations and the defendant, in my opinion, on the facts of the case before me has not exercised either that vigilance or that care or that prudence or that precaution which was essential both on the law as I understand it and have tried to explain above, and on the facts as I appreciate them. The House of Lords in Southwark's case (Supra), also indicates the adjoining owner's rights. ( 88 ) I, therefore, hold on issues 4 and 8 there has been invasion of the plaintiffs' right to or enjoyment of the plaintiffs' premises as alleged in para 20 of the plaint and they are entitled to the reliefs claimed. I answer both these issues 4 and 8 accordingly. ( 89 ) THE question then is what is the relief to which the plaintiffs are entitled. In the plaint the only relief that the plaintiffs are seeking is a perpetual injunction restraining the defendant, its agents, servants and assigns from carrying on or continuing 'further' works of construction in Premises No. 16, Ganesh Chandra Avenue and 'in raising the existing height' of the structure. On the facts found and on the law discussed above, I hold that the plaintiffs are entitled to this injunction in terms of prayer (b) of the plaint. The other relief was leave under Order 2, Rule 2 of the Code of Civil Procedure, but that I find the plaintiffs have already obtained at the time of filing the suit. ( 90 ) MR. Sen, learned Counsel for the plaintiffs, has submitted before me that the defendant is not entitled to retain that portion of the structure which it built in violation of the Court's order for injunction and for which the defendant was found guilty for contempt and fined. ( 90 ) MR. Sen, learned Counsel for the plaintiffs, has submitted before me that the defendant is not entitled to retain that portion of the structure which it built in violation of the Court's order for injunction and for which the defendant was found guilty for contempt and fined. In para 25 of the petition for contempt affirmed by the plaintiff Sunil Kumar Poddar on August 9, 1965, the defendant has been charged with having made the following constructions at No. 15, Ganesh Chandra Avenue in violation of the order of injunction. (i) The eastern wall of the staircase in the ninth floor had been fully constructed upon the roof beam level; (ii) the walls enclosing the staircase landing on the east and north in the 9th floor have been constructed upto a height of about 4 ft. ; (iii) the eastern wall running from the northern end of the lift room upto the extreme northern end of the building in the 9th floor has been fully constructed and five steel window-frames with glass fitted thereto have been fixed and plastering of the newly constructed wall of this portion has been completed from both outside and inside; and (iv) the entire northern wall running from the east to the west of the building in the 9th floor has been fully constructed and several windows have been fitted and fixed therein and the plastering have been completed from inside and outside. ( 91 ) MR. Sen, therefore, submits this Court should order mandatory injunction for removal of the structures which the defendant had built in violation of the Court's order for injunction by committing contempt of the Court and which has already been so found by the Court. He relied on the decision of (26) Maganlal Punjasa v. Chhotalal Ghela, ILR 26 Bombay 136 for this purpose. That, however, was not a case for contempt of Court by violation of an order for injunction but where the defendant built when the application for interim injunction had been vacated and there the learned Judge held that, even where no mandatory injunction was claimed to pull down a structure, it could do so by taken into consideration the events that had happened subsequent to the filing of the suit. Although the portion of the structure was built by the defendant in contempt of the order for injunction, I would not in my discretion grant an order for pulling down the portion of the structures which the defendant has built in contempt of the Court's order and for which he has already been fined and which fine has been paid. I do not think I need to pass any particular order in that respect. For these reasons, there will be judgment for the plaintiffs with costs. Certified for two Counsel. Let the Court engineer's claim for costs be added. Appeal dismissed.