Excerpt
.....43 - public nuisance-unfenced well. - section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with.
section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - 2. there is no doubt that the existence of an unfenced well at a distance of only eight yards from the highway, and open to it, must cause danger to the public, and the omission to fence the well thus possesses some of the elements which constitute a public nuisance; but unless the omission is an illegal omission, the definition of a public nuisance is not..........highway, and open to it, must cause danger to the public, and the omission to fence the well thus possesses some of the elements which constitute a public nuisance; but unless the omission is an illegal omission, the definition of a public nuisance is not satisfied. in section 43t of the indian penal code the word 'illegal' is defined to be applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action. the two first conditions do not exist, and the omission to fence a well in one's own premises does not, per se, furnish ground for a civil action; and it seems very doutbtful whether damage caused by the fall into the unfenced well of a person who had strayed from the road would furnish ground for a civil action. there would be contributory negligence, for the person so falling into the well would be bound to keep to the public road, and his fall would be the consequence of his neglect of this duty.3. acting upon this view, we set aside the conviction and sentence and direct the return of the fine.
Full Judgment
Innes, JJ.
1. In England a man is bound by statute to fence wells in his premises within twenty-five yards of, and open to, the highway. There is no such statutory obligation in India.
2. There is no doubt that the existence of an unfenced well at a distance of only eight yards from the highway, and open to it, must cause danger to the public, and the omission to fence the well thus possesses some of the elements which constitute a public nuisance; but unless the omission is an illegal omission, the definition of a public nuisance is not satisfied. In Section 43t of the Indian Penal Code the word 'illegal' is defined to be applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action. The two first conditions do not exist, and the omission to fence a well in one's own premises does not, per se, furnish ground for a civil action; and it seems very doutbtful whether damage caused by the fall into the unfenced well of a person who had strayed from the road would furnish ground for a civil action. There would be contributory negligence, for the person so falling into the well would be bound to keep to the public road, and his fall would be the consequence of his neglect of this duty.
3. Acting upon this view, we set aside the conviction and sentence and direct the return of the fine.