Gautam And Company, Chittorgarh And Ors vs Abhishek Garg And Ors

Section 91 of CPC reads as under:

"91. Public nuisances and other wrongful acts affecting the public.

1[Public nuisances and other wrongful acts affecting the public]

[(1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-

(a) by the Advocate General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."

Learned counsel appearing for the petitioners submits that the trial court upon objection being made by the petitioners has deferred the issue stating that the issue can only be decided after framing the same and examining it on merits subsequently.

Learned counsel submits that the exercise of power under Section 91(1) CPC as above can only be conducted after leave is granted for the said purpose and inquiry is conducted at the stage. Thus, essentially he submits that reasons have to be recorded before proceedings further.

Per contra, the respondent appearing in person submits that while it is true that the proceedings are in the nature of Section 91(1) CPC, the court has by the impugned order essentially granted leave after giving any notice and no fresh exercise is required to be conducted.

I have considered the submissions.

This Court finds that vide the impugned order dated 29.01.2019, the learned Civil Judge has failed to take notice of the provisions of Section 91 CPC in its true prospective. The law in this regard has been settled by this Court in Kanti Lal Patel & Ors. Vs. Naresh Taldar & Anr. reported in 2014(1) WLC 222, wherein the coordinate Bench of this Court has held as under:

"9. From perusal of the finding given by the court it is apparent that no reasons are given by the court either to grant leave or to reject the objection raised by the petitioners. As per Section 91(1)(b) of the Civil Procedure Code a suit for declaration and injunction or for such other relief as may be appropriate in the circumstances may be instituted by two or more unaffected persons by such public nuisance or wrongful act, but only after having leave by the court. The condition precedent to have leave before institution of such suit clearly indicates that the remedy available under this provision is something extra than the institution of a suit between the parties adversely having lis affecting each other's right. The deviation from a normal course always demands special circumstances and reasons thereof. The legislature knowing it well that the institution of suit as per Section 91(1)(b) Civil Procedure Code is a deviation from normal course, considered it necessary to have leave by the court. Meaning thereby, the court is required to satisfy itself prima facie that the cause sought to be agitated by the public spirited persons is genuine. The genuineness of the cause at this stage is required to be assessed by preliminary examination of facts averred in the plaint and the leave application. The consideration of leave application being a judicial exercise of powers, should be made objectively and not mechanically. Objective consideration of any issue presuppose existence of valid reasons to arrive at a conclusion. If such conclusion is not supported by the reasons then that fails on the scale of objectivity. As such, while granting leave for institution of a suit as per provisions of Section 91(1)(b) Civil Procedure Code, the court is required to record its reasons for granting such leave."

In the present case, the learned Civil Judge has made observations that the facts mentioned in the application moved by the petitioners for giving reasons and inquiry into the question whether the issue falls under Section 91 CPC or not, cannot be left to be answered later on, the proceedings cannot continue unless a leave is granted by the court.

Accordingly, this revision petition is allowed and the order passed by the learned Civil Judge dated 29.01.2019 is liable to be set aside. The case is directed to be remanded back to the concerned Civil Judge to pass orders strictly in terms of Section 91 CPC and in view of the law laid down as above before further proceedings in the case. Taking into consideration the nature, the respondent appearing in person requests for direction for expeditious disposal, the prayer is seems to be reasonable, the learned Civil Judge is directed to decide the application within a period of three months.