Supreme Court of Mauritius, 23 janvier 2020, 2020 INT 11 – Dukhira K.H. v Luckoo S.

1 Dukhira K.H. v Luckoo S.

2020 INT 11

Cause Number 1803/16

IN THE INTERMEDIATE COURT OF MAURITIUS

In the matter of:

Mr. Kevinsingh Heymankesh Dukhira

Plaintiff

v.

Sanjay Luckoo

Defendant

Ruling

In this plaint, it is common ground that Plaintiff is the owner of a portion of land of the extent of 753 square metres at Ebene being lot E 275, more fully described in Volume 6449 No.19 and Defendant is the owner of an adjacent portion of land on which stands a concrete residential house which was constructed by the Defendant. Paragraph 3 of the plaint is reproduced below: “3. Whereas the defendant has illegally constructed:- (a) a concrete shrine (Mahabirswamy) has been erected at a distance of sixty centimetres (0.60m) from the said boundary limit. The roof of which is at a distance of thirty centimetres (0.30m) from the said boundary limit;

2 (b) a shelter made up of iron frame structure (porch) under C.I.S. and has been built at a distance of ninety- five centimetres (0.95m) from the said boundary limit, the roof of the said shelter is at a distance of fifty centimetres (0.50m) from the said boundary limit.” Plaintiff avers that despite the fact that frequent amicable requests were made to Defendant to pull down the Altar and the porch he has up to now failed to do so. A notice dated 18 April 2013 was allegedly served on Defendant calling upon him to pull down the Altar and to shorten the corrugated iron sheets to a distance of 900 mm, but he has failed to comply with the requirements and exigencies of the said notice. Plaintiff has averred that by Defendant’s acts and doings which amount to “faute”, prejudice is being caused to him meaning continuous trouble and annoyance to him and which is estimated in the sum of Rs.500, 000. He is, therefore, moving for a judgment condemning and ordering Defendant: (i) to pull down the prayer structure “concrete shrine Altar”; (ii) to reduce the iron sheet covering of the porch to a distance of 900mm from the boundary line within a delay to be fixed by the Court; (iii) to pay the sum of Rs.500,000/- as damages; (iv) such other order as the Court may deem just and reasonable. Defendant’s plea is that a pulling down order is not warranted for the following reasons: (a) the concrete shrine is found wholly on the property of the Defendant; (b) the concrete shrine causes absolutely no prejudice to the Plaintiff. Its dimensions are 1.5m by 1.5m and is normally used only twice daily. Once in the morning and once in the evening. One cannot see the adjoining land from the said concrete shrine as it is made of brick and there is furthermore the wall separating the properties of the Plaintiff and the Defendant. The said brick wall has been built wholly on the property of the Defendant;

3 (c) the prejudice caused to the Defendant by the pulling down order being made will therefore outweigh the benefits if any drawn by the Plaintiff. Defendant has further averred that an order reducing the size of the length of the iron frame structure is not warranted for the following reasons: (a) the iron frame structure including the roofing thereof are found wholly on the Defendant’s property and nothing protrudes on Plaintiff’s property; (b) the statutory distance as regards the wall of the iron frame structure has been respected as envisaged in the relevant regulations; (c) the only possible prejudice (which is denied) which may be caused by the roof being at less than the statutory distance is that rainwater could have flowed onto it and directly onto the property of the Plaintiff. However, Defendant has put into place a rainwater harvesting system which operates to gather all rainwater in tanks which is subsequently used for miscellaneous purposes. There is therefore no prejudice whatsoever caused to the Plaintiff by the roof being at less than the statutory distance; and (d) the prejudice caused by the granting of the order reducing the length of the roof of the iron frame structure therefore exceeds the benefits by the Plaintiff. Defendant has further averred that the demand of Plaintiff was unreasonable and he was not bound to comply with the said notice and that Plaintiff is not residing on the adjoining property which in effect is bare land and as such no prejudice has been caused or is being caused to Plaintiff. Furthermore, Plaintiff has failed to disclose that he filed a plaint having the same cause of action as the present one and same was struck out on 23 June 2016 as neither the Plaintiff nor his legal advisers were present in Court (Cause Number 578/2014 refers); and Defendant will have no objection should the Plaintiff construct a religious shrine on his property at less than the statutory distance. He has moved that the present case be dismissed with costs. The first witness for the Plaintiff, Mr. M.F.R. Ramiah, Sworn Land Surveyor hereinafter referred to as “S.L.S.” gave evidence in Court as follows. His services were retained by Plaintiff to survey a plot of land of the extent of 752 square metres and not 753 square metres as averred belonging to Plaintiff registered and transcribed in Vol.6449 No.19 and which is a morcellement where there are different plots of land. It is a highly posh area in Ebene. He agreed that on the first page of his

4 memorandum of survey namely Doc. A, he mentioned that his survey was done as per the Land Surveyors’ Act 1976 namely Section 9(1)(a) and (b) as amended when his said survey was carried out by him on 29 th of August 2013 and completed on 24 th

of March 2014 and registered on 26 th of March 2014. His report/ memorandum of survey viz. Doc. A is compatible with the averments of Plaintiff as regards the Altar and porch but Defendant, Mr. Sanjay Luckoo, was never summoned as per the law he applied namely Section 9(1)(a) and (b) of the Land Surveyors’ Act 1976 as amended to attend the survey but one Mr. Sanjaye Lukhoo who was only notified by way of a gentleman agreement ex facie the report. None of the parties including the other adjoining owner has produced their title deeds to the surveyor prior to survey which is also contrary to the provisions of the Cadastral Survey Act (Act 22 of 2011) in force at the time of survey. The second and last witness on behalf of the Plaintiff left to testify was the Plaintiff himself and who was deposing in Court as follows. Plaintiff is the owner of a portion of land of the extent of 753 square metres at Ebene being lot E 275, transcribed in Volume 6449 No.19 but not as per a certified copy of his title deed and which was not produced in Court. Ebene city was a morcellement and his plot of land was found in the centre of Ebene. Then, the question was put whether the said plot of land was found in a morcellement known as Ebene City, a posh area and was found in the vicinity of Cybercity among others. Learned Counsel for the Defendant objected to that question as the issue of posh is irrelevant to the facts in issue in this case as posh tries to prove that it is an area where the land has a high value. Learned Counsel for the Plaintiff stated that it was relevant to the issue of prejudice which has been pleaded and he is trying to establish how his enjoyment of that land is affected and he is explaining the locality where his land is to be found and this has already been admitted. Learned Counsel for the Defendant maintained his objection by saying that this line of questioning is to elicit value to prove prejudice. His ground of objection was that the Plaintiff was asked particulars as per Question 11 meaning detailed particulars of the prejudice allegedly caused to Plaintiff and for communication of documentary evidence if any in support thereof. The answer was that the prejudice is that the construction is contrary to the distance provided by law and Plaintiff is protecting his right of ownership. Now the Plaintiff cannot travel outside his pleadings to prove prejudice as he is bound by his pleadings.

5 Learned Counsel for the Plaintiff replied that it was that protection of his right of ownership which means protection from risks, trouble, annoyance and prejudice and the issue of value as per his line of questioning is relevant in order to elicit value of the land. Had the answer been ambiguous then the Defendant would have asked for further and better particulars on that. Learned Counsel for the Defendant further objected by saying that his learned friend was making a selective reading of the answer given to Question 11. The whole of the reply given is as follows. The prejudice is that the construction is contrary to the distance established by law and Plaintiff is protecting his right of ownership. So, when he is saying he is protecting his right of ownership he is saying he is protecting his right because the Defendant has not constructed at the statutory distance. The matter was accordingly fixed for arguments. The main thrust of the arguments of learned Counsel for the Defendant is that the Plaintiff is bound by his pleadings and as such he cannot travel outside the answers to demand of particulars as per Question 11 as prejudice which has been referred is not linked to the value of the property of Plaintiff. He should have averred that special type of damage or prejudice and the answers were clear and there was no need to ask for further particulars. The main contention of learned Counsel for the Plaintiff is that “faute” has been averred and prejudice is estimated in the sum of Rs. 500,000. It is trite law that a party should be bound by his pleadings. Plaintiff is protecting his right of ownership in relation to the boundaries of his land and to the value of his land. Having been satisfied with the answers given to Question 11, a plea has been given without any motion for a demand of further and better particulars. Evidence is not pleaded and evidence can be ushered in relation to prejudice, trouble and annoyance and in relation to the amount of Rs. 500,000. I have given due consideration to the arguments of both learned Counsel. It is a useful starting point to quote an extract from the case of New Beau Bassin Co- operative Store v Juggroo [1980 MR 320] which reads as follows: “A cause of action is constituted by the averment of facts which, if denied, require to be proved to enable a plaintiff to obtain a remedy he seeks. The nature and extent of the remedy sought is a legal consequence of those facts and, as such, is a matter of law which the court has to apply.”

6 At this stage, it is significant to note that the tenor of the evidence to be adduced has to be imperatively within the bounds of the pleadings for it to be of any weight as highlighted in the Supreme Court case of Tostee J.Y. v Property Partnerships Holdings (Mauritius) Ltd [2015 SCJ 41] as follows: “The case of Ramjan v Kaudeer[1981 MR 411][1981 SCJ 387] may also be referred to whereby the court had relied upon cases of Chetty v. Vengadasalon[1901 MR 22], Deena v. Malaiyandee 1940 Pt.II MR 156 and Ramdharry v. Dhumun[1942 MR 108] as being examples of judgments which have been quashed on appeal on the ground that the decisions were based on issues which did not appear in the pleadings. The case of Ramjan v Kaudeer (supra) further referred to certain passages of Bullen and Leake, and Jacobs Precedents of Pleadings 12 th Ed. which were quoted in the judgment of Jagatsingh and Walter v. Boodhoo (supra) and explained that once a party has stated the facts on which he relies, these facts are binding and the Court cannot ground its judgment on other facts which may come to light in the course of the trial” (emphasis added).

Now, the provisions of the law regulating the contents of a plaint are enshrined in Rule 3(1) (b) of the Rules of the Supreme Court 2000 and are provided below: “3. Contents of plaint with summons (1) A plaint with summons shall – (a) (…) (b) State the substance of the cause of action; (…)” Given that our District, Industrial and Intermediate Court Rules 1992 are silent on that issue, we follow Supreme Court Rules for guidance as no repugnancy whatsoever is being caused to our rules of court (see – Jhundoo v. Jhurry[1981 SCJ 98]).

An excerpt from the case of Mauritius Commercial Bank Limited v The Mauritius Union Assurance Company Limited [2010 SCJ 97] affords a useful illustration of the term “substance of the cause of action” meaning all material facts

7 necessary for the purpose of formulating a complete cause of action as reproduced below: “ Having found that the requirement of our relevant Supreme Court Rule that the plaint “ shall state the substance of the cause of action” has been satisfied, (…)The defendant is entitled to know what it is that the plaintiff alleges against him…….” in Odgers on the Principles of Pleadings and Practice, under the heading “The function of Pleadings” or “Indeed a plaintiff need not plead law, yet it is his duty to state with precision all the material facts “necessary for the purpose of formulating a complete cause of action”, referred to in A.Z.A.A. Cassim v The United Bus Service Co. Ltd [1986 MR 242].” Moreover, Rule 13 of the Rules of the Supreme Court 2000 provides that:- “Every pleading shall clearly and distinctly state all matters of fact that are necessary to sustain the plaint, plea or counterclaim as the case may be.” Indeed, the cursus of our case law shows a rigorous application of Rule 3(1) (b) because procedural fairness imposes on the Plaintiff an undeniable duty to inform the Defendant in a concise and precise manner what it is that the Plaintiff is alleging against him. It boils down to mean that “a cause of action” comprises of “every fact which is material to be proved to enable the Plaintiff to succeed; in other words, every fact which, if traversed, the plaintiff must prove to obtain judgment” (see- Heera v Ramjan & Ors.[1976 MR 220]) “so that a plaint which will not aver all material facts would, therefore, not disclose a cause of action” (see – Geerjanan P. v The Mauritius Commercial Bank Ltd [2006 SCJ 320], Compagnie Mauricienne de Textile Limitée v. Scott Shipping International Ltd.[2015 SCJ 8], Metex Trading Co.Ltd. v The State of Mauritius & Ors.[2014 SCJ 219], Constantin Roland v Jhuboo Scilla Par Vaty [2014 SCJ 221] and Tostee J.Y. v Property Partnerships Holdings (Mauritius) Ltd [2015 SCJ 41] ). As explained by the learned author Odgers on High Court Pleading and Practice 23 ed. at page 124:

8 “The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus to arrive at certain clear issues on which both parties desire a judicial decision. In order to attain this object, it is necessary that the pleadings interchanged between the parties should be conducted according to certain fixed rules (…)” (emphasis added). At this stage, I find it appropriate to reproduce the answers given by Plaintiff in relation to the demand of particulars by Defendant: “Q.11. The Defendant moves for communication of detailed particulars of the “prejudice” allegedly caused to the Plaintiff and for communication of documentary evidence, if any, in support thereof. A.11. The prejudice is that the construction is contrary to the distance established by law and Plaintiff is protecting his right of ownership. Q.12. The Defendant moves for communication of detailed particulars of the alleged “trouble and annoyance” referred to therein and for communication of documentary evidence, if any, in support thereof. A.12. Please refer to answer 11. Q.13. How is the said sum of Rs.500,000/- claimed at paragraph 6 of the plaint arrived at? The Defendant moves for communication of a detailed breakdown of the sum claimed and also for communication of documentary evidence, if any, in support thereof. A.13. This is an estimate. (…) UNDER PARAGRAPH 3 OF THE PLAINT Q5. The Defendant moves for communication of documentary evidence, if any, in support of each and every averment contained therein. A.5. The report of the surveyor and photos are available for inspection at the office of the undersigned during office hours.”

9 It is apposite to note that It has been delimited in particulars that the Plaintiff is not residing on his portion of land and that he based himself on his surveyor’s report and photos as far as his averments in this plaint are concerned. At no time has it been averred in the plaint that Plaintiff’s averments of failure of the Defendant to respect the statutory distance from the boundary limit of his adjoining property to that of Plaintiff by the erection of the two above structures was following the survey carried out by Mr. M.F.R. Ramiah, S.L.S. Such a material fact has only been introduced in answers to particulars. At this particular juncture, I find it apt to quote the case of Gungadin J. v The State of Mauritius Anor. [2015 SCJ 193] where it was tersely stated that to decide as to whether a plaint discloses a cause of action, the essential averments contained in the plaint with summons will have to be examined closely. After having complied with that exercise, the matter was set aside without recourse being had to particulars in order to render valid or to cure that otherwise invalid cause of action. This is because, it is not the function of particulars to take the place of essential averments in the plaint in order to fill the gaps to make good an inherently bad plaint (as per Scott L.J. in Pinson v Lloyds & National Foreign Bank Ltd. [1941] 2 KB 72 at 75); see also – Charlie Carter Pty Ltd v. The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 at 419 and H 1976 Nominees Pty Ltd v. Galli (1979) 30 ALR 181 at [13] – [23] which pertain to a Common Wealth jurisdiction namely Australia derived from the English rules of procedure like ours.) – otherwise any bogus or nonsensical plaint will be endlessly cured by way of particulars which is against the overriding principle of procedural fairness ensuring proportional expenses and thus undermining faith in our civil justice system as fundamentally defective plaints would de facto be non-existent. Thus, particulars cannot be a substitute for the material facts that are imperative to form the substance of a valid cause of action within the meaning of Rule 3(1) (b) of the Rules of the Supreme Court 2000. It is not the function of particulars to take the place of necessary averments in the pleading/plaint, nor to state the material facts omitted in order to fill the gaps to make good an inherently bad pleading/plaint. Thus, the evidence is bound to be uncertain in relation to the present incomplete cause of action. True it is that a notice was sent to the Defendant by Plaintiff as per

10 the averments of the plaint in relation to the alleged two illegal constructions done by him without the statutory distance being observed from the boundary limit which to all intents and purposes is no substitute to the level precision expected from a memorandum of survey carried out by a Sworn Land Surveyor for the court to thrash out the present controversy (see – Gungah P.&Ors. v Mrs. Widow Vassoo Mootoosamy & Ors.[1999 SCJ 301] and Dulloo B v P.Ng King Man & Anor. [2002 SCJ 108]). Anyhow, when a notice was served on Defendant, it was meant for Defendant to pull down the Altar only and as regards the porch, to modify the distance in relation to the boundary line without the statutory distance being pressed and which is in line with the prayer and the amount claimed as damages was only meant to be an estimate without any breakdown given. It was only in the answers to demand of particulars from Defendant that it was mentioned that it was meant to protect Plaintiff’s right of ownership. It would be futile to allow evidence of value under the guise of testimonial evidence from Plaintiff which will further be supported by the prospective production of photographs to be admitted through leave of the Court to establish the truth of their contents, given that they do not pertain to the essential facts of the present case and which could only be comprehensively realised with the help of a Sworn Land Surveyor so that testimonial evidence and photographs emanating from the Plaintiff can in no way whatsoever be used as a substitute when gauged with an expert in that field who could have attached photographs as part of his survey report. Furthermore, an inference of only a demolition of one of the two offending structures not having complied with the statutory distance from the boundary line to be made the subject of the measure of prejudice cannot stand by trying to impute value when no such essential/material facts have been averred and which have in turn been delimited in particulars for the Court to be able to construe that the prejudice is certain to happen let alone that no breakdown of the items of prejudice has been given and no mention has been made by Plaintiff that there was a boundary wall erected by Defendant which was totally found on Defendant’s plot of land and no mention has been made that the Altar and the porch have a direct view in Plaintiff’s property and that there are overhangs on the boundary limit be it caused by the porch or Altar. (vide – Cervello and Ors. v The Vacoas Transport Co. Ltd. [1963 MR 68]). Thus, it is clear that damages of the kind can only be embraced by

11 the averments of essential/material facts to be supported by evidence in order to constitute an “abus de droit” and as such to be able to impute that the prejudice that is being caused to Plaintiff is disproportionate with the advantage that he can derive from the exercise of his rights (see- Boodhna v Ramdewar [2001SCJ 275]).

Therefore, the material fact of value ought to have been averred and then delimited in particulars by reference being made to the right of ownership. Thus, I will not allow any examination in chief along that line with a view to eliciting evidence in relation to the value of the property as conceded by learned Counsel for the Plaintiff himself because doing so would be allowing the Plaintiff to travel outside his pleadings to give evidence which will carry no weight. For the reasons given above, I uphold the objection raised by learned Counsel for the Defendant and in the same breath, I further take the view in the furtherance of the proper administration of justice that given that there is no complete cause of action in the first place disclosed by the averments of the plaint as it has not been averred that they were based on the survey of a Sworn Land Surveyor, it would be futile to pursue any further with the proceedings which are a mere nullity. In the present state of affairs, I non-suit the Plaintiff’s action with costs.

S.D. Bonomally (Mrs.) (Magistrate) 23.1.2020