(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
Section 91 (1) of the Code prior to its amendment by the Amendment Act, 1976, authorised the Advocate-General or two or more persons having obtained his consent in writing to institute a suit. The provision with regard to the obtaining of the Advocate-General’s consent has now been modified by the provisions of S. 91 stated above.
This section is a procedural provision. It does not purport to create any new right, nor does it purport to deprive anybody of a right derived from the general law of the land. Consequently, it does not control representative suits under Order I, Rule 8 (discussed in detail earlier in Part I) or modify the right of a person to sue apart from the provision of this section.
Thus a representative suit brought not on behalf of the public of a place but of one particular community forming part of it, i.e., for declaration of its right to take out a procession along a particular route and for removal of certain obstructions did not earlier require previous consent of the Advocate-General or the leave of the court.
Meaning of Public Nuisance:
The term “public nuisance” occurring in S. 91 has not been defined in the Code of Civil Procedure. It is an act which interferes with the enjoyment of a right which all members of the community are entitled to, such as the right to fresh air, to travel on the highways, etc. (Osborn).
In view of the provisions of S. 3 (48) of the General Clauses Act, the definition of “public nuisance” as given in S. 268 of the Indian Penal Code will apply to the present Code. It says: “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”
The consensus of judicial opinion has, in recent years, veered round the view that the English rule that the plaintiffs cannot maintain a suit in respect of an obstruction to a highway unless they prove special damage to themselves personally in addition to the general inconvenience to the public is not applicable in India.
A suit seeking relief in respect of public nuisance is maintainable although sanction of the Advocate-General as it obtained prior to the Amendment Act, 1976, or the leave of the court, had not been obtained as required by S. 91, C.P.C., if the plaintiff proved special damage. Special damage is that damage which by reason of a nuisance would be suffered by some individual beyond what is suffered by him in common with other persons affected by that nuisance.
Award of damages for previous suit improper:
Where suit for declaration and injunction against nuisance as in representative capacity and another application to treat suit to be instituted under Section 91 were
rejected, held that as there was no suit before Court for trial and no written statement was filed the question of defendants claiming damages will not arise.