Alfred Henry Lionel Leach, C.J.
1. The respondents instituted a suit in the Court of the District Munsif of Chidambaram for the issue of a mandatory injunction against the appellants requiring them to remove a wall which they have built close to the respondent's house. The wall is six feet high and according to the respondents it has been built across a public road. The respondents say that as the result of the obstruction to the road they are unable to approach their house from the left and the enjoyment of their property has been seriously interfered with. They have not stated all this in the plaint, but have left it to be inferred from a plan which they filed with the plaint. If the respondents' allegations are true, there can be no doubt that the appellants' action does seriously affect them as the owners of the house, and therefore they have suffered special damage. Before the District Munsif the appellants raised the plea that the suit could not be maintained because the respondents had not expressly averred special damage. The appellants succeeded; in persuading the District Munsif to accept this plea and dismiss. the suit.
2. The respondents appealed to the District Judge of South Arcot, who reversed the judgment of the District Munsif and remanded the case to the District Munsif for trial on the merits. In adopting this course the District Judge relied on the decision of this Court in Munusami v. Kuppusami : AIR1939Mad691 . In that case Wadsworth, J., held that the judgment of the Privy Council in Manzur Hasan v. Muhammad Zaman had established that the English rule requiring special damage to be shown in an action by a member of the public for the removal of an. obstruction to a public way does not apply in India. The appellants contend that Wadsworth, J., has not correctly interpreted the judgment of the Judicial Committee and they ask that the decision of the District Munsif be restored.
3. In Manzur Hasan v. Muhammad Zaman the Privy Council held that a civil suit for a declaration lies at the instance of a private individual against those who interfere with a religious-procession or its appropriate observances when the procession is passing along a public street and does not interfere with the use of the street by the public and complies with the lawful directions of the Magistrates. In that case the Judicial Committee considered the decisions of this Court in Parthasarathi lyengar v. Chinnakrishna Aiyangar I.L.R.(1882) Mad. 304 and Sadagopachariar v. Ramarao I.L.R.(1902) Mad. 376 in which it was held that a civil suit lies against those who prevent a religious procession passing along a public highway, without the necessity of proving special damage. Their Lordships also considered the decision of the Bombay High Court in Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga I.L.R. (1877) 2 Bom. 457 where it was held that a civil suit does not lie in such a case without proof of special damage. Their Lordships accepted the opinion of this Court as being the correct one.
4. In the Bombay case the plaintiffs who were Muhammadans had sued to establish their right to carry tabuts in procession along a public road and alleged that the defendants had obstructed them. The plaintiffs did not allege any personal loss or damage caused to them by the action of the defendants and it was held that in those circumstances the suit could not be maintained-The remedies provided by the English law in the case of a public nuisance were discussed at length and the decision was based on the English rule that there must be special damage averred and proved before a private individual can be granted an injunction in such a case. The judgment of the Board was delivered by Lord Dunedin who with reference to the Bombay decision said:
The judgment really proceeds entirely on English authorities, which lay down the difference between proceedings by indictment and by civil action.
In their Lordships' opinion such a way of deciding the case was inadmissible. The distinction between indictment and action in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied in India.
The Calcutta High Court in Mandakinee Debee v. Basanta Kumaree Debee I.L.R.(1933) Cal. 1003 and the Lahore High Court in Municipal Committee, Delhi v. Mohammad Ibrahim I.L.R.(1934) Lah. 517 have interpreted this passage as meaning that the English rule ought never to be applied in India and as already indicated Wadsworth, J., has come to the same conclusion. In Chowdhury Bibhuti Narayan Singh v. Maharaja Sri Guru Mahadev Asram Prasad Sahi Bahadur I.L.R.(1940) Pat 208 a Bench of the Patna High Court arrived at a different conclusion. It was there held that the English rule had not been rejected except in cases relating to religious processions along public streets. In delivering the judgment of the Bench, Meredith, J., stated that if the matter ever came up for decision before the Privy Council again it would be pointed out that the decision of their Lordships in Mansur Hasan v. Muhammad Zaman was limited
to the narrower and not to the wider question whether an action with regard to a public nuisance could be maintained without the proof of special damage.
It is not necessary for the purpose of disposing of the present appeal to decide whether the passage quoted from the judgment of the Privy Council in Manzur Hasan v. Muhammad Zaman applies to all suits relating to public nuisances but even if it were necessary we should not feel disposed to indulge in prophecy. It is here abundantly clear that if the respondents' allegations are correct, the wall erected by the appellants must constitute a nuisance to the respondents. We have been told that in England it has been held that because a person is compelled to go a longer way round by reason of an obstruction in a public street it does not follow that he has suffered special damage. It is not necessary to consider such a case, nor is it necessary to consider whether the law was correctly interpreted by this Court in Siddeswara v. Krishna (1890) 1 M.L.J. 321 : I.L.R. Mad. 177 because there can be no doubt that if the facts alleged in the present case are true, the wall will interfere with the enjoyment of the respondents' house and therefore there will be special damage. The respondents are, however, in error in not averring in their plaint that they have suffered special damage and making this the basis of their claim. We are told that when the case was before the District Judge on appeal from the decision of the District Munsif the respondents asked for permission to amend their plaint in this respect, but the District Judge did not consider it necessary to deal with the application because in his opinion the decision of Wadsworth, J., in Munusami v. Kuppusami : AIR1939Mad691 , was sufficient for the respondents' case. The application for leave to amend has been renewed in this Court and we consider that it should be granted. The respondents will be allowed to incorporate suitable amendments on the presentation of a formal application to amend.
5. For the reasons we have indicated the appeal fails and will be dismissed with costs.