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Ganapathi Mudaliar Vs. Ponnuswami Koundar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1970)2MLJ295
AppellantGanapathi Mudaliar
RespondentPonnuswami Koundar and ors.
Cases Referred and Murugesa Muddy v. Arunagiri Mudaly
Excerpt:
- .....for themselves and as representatives of the villagers of elrampattu under order 1, rule 8, civil procedure code, for a permanent injunction restraining the defendants from putting up warps on. both the margins of the north street of elrampattu village and thereby causing obstruction and inconvenience to the free flow of traffic along the street. it is also the plaintiffs case that there are 22 houses abutting the north street on the northern side and four houses on the opposite side and that the defendants are causing obstruction in the said north street by spreading out their warps on street margins on either side of the street thus interfering with the right of access of the house owners on either side of the street. the plaintiffs wanted an. injunction for removal of this.....
Judgment:

G. Ramanujam, J.

1. The first defendant in O.S. No. 120 of 1963 on the file of the District Munsif's Court, Tirukoilur is the appellant before me. The suit was filed by the plaintiffs for themselves and as representatives of the villagers of Elrampattu under Order 1, Rule 8, Civil Procedure Code, for a permanent injunction restraining the defendants from putting up warps on. both the margins of the north street of Elrampattu Village and thereby causing obstruction and inconvenience to the free flow of traffic along the street. It is also the plaintiffs case that there are 22 houses abutting the north street on the northern side and four houses on the opposite side and that the defendants are causing obstruction in the said north street by spreading out their warps on street margins on either side of the street thus interfering with the right of access of the house owners on either side of the street. The plaintiffs wanted an. injunction for removal of this obstruction on the said street by spreading out the warps. The defence case is that the defendants have a customary right to spread out the warps in the street margins in the places marked A B and C D in the Commissioner's plan Exhibit C-2. The defence also contends that the suit is bad for the reason that the plaintiffs have not obtained sanction of the Advocate General under Section 91 of the Code of Civil Procedure and that the plaintiffs have not suffered any special damage so as to entitle them for the reliefs claimed in the suit.

2. The trial Court after going through the evidence on record in some detail has held (i) that the alleged customary right pleaded by the defendants to spread out the warps along the margins of the north street was not proved, (2) that the plaintiffs are entitled to file the suit in a representative capacity under Order 1, Rule 8 Civil Procedure Code, for the reliefs claimed and (3) that the occupants of the house on either side of the street had in fact suffered injury and special demages on account of the spreading out of the warps on. the northern side of the north street in question, though such spreading of the warps might not be a hindrance for the egress or ingress of the residents of the locality.

3. On appeal, the learned Subordinate Judge, Cuddalore, agreed with the findings arrived at by the trial Court and dismissed the appeal. It is against these concurrent decrees and judgments of the Courts below the present appeal has been filed.

4. With reference to the defence plea of customary right, it is found that in the past, warps were laid to a length of 120 feet and only recently they were being laid to a length of 213 feet, that the warp normally occupied a width of 6 feet 4 inches leaving a space of 5 feet between the houses and the warps and that when the warp was laid, the inmates of the houses situated on that side of the street could not step into or step out of their houses directly from or into the street. The Commissioner finds that the length of the north street is about 314 feet excluding the thrashing floor lying at its eastern end, the breadth of the street varies from 20 feet to 100 feet, that it is one of the main streets in the village and that normally the stand for spreading the warp is erected at a distance of 35 feet away from the eastern end of the street. He also finds that when he visited, the warp itself was spread to a distance of 213 feet and the existence of these warps on the northern side of the street caused considerable hindrance to the inmates of the houses lying on that side of the street and it practically deprived them of the direct access to the street. The report of the Commissioner has been considered by the Courts below and the same has been accepted as correct. I have no reason, to differ from the findings of fact arrived at by the Courts below on the basis of the Commissioner's report and other evidence-adduced in this case that the defendants have not established any customary right to spread their warps on the street margin as alleged, that by their conduct in spreading the warps on the northern side of the street at A B they have caused considerable inconvenience and nuisance to the inmates of the houses on the northern side of the street and that though the warps laid on the southern side of the street at C D to a length of 278 feet caused no hindrance to the pedestrians, as they had enough space at the eastern end of the street for the villagers to walk across it was nevertheless an obstruction on the street. I am inclined to agree with the Courts below that the customary right to spread the warps on the street margin had not been established on the evidence in the case.

5. As regards the question whether sanction under Section 91 of the Code of Civil Procedure is necessary in this case, the Courts below have taken the view that such a sanction is not necessary for this suit, I am also of the same view. The Courts below have relied upon the decisions in Venkayya v. Narasayya (1956) A.W.R. 607 : A.I.R. 1957 Andh. 975, Ramabrahma Sastri v. Lakshminarasimhan (1956) A.W.R. 578 : A.I.R. 1957 Andh. 44 and Subbamma v. Narayanamurthi : (1949)1MLJ56 in support of their view that no sanction, under Section 91 Civil Procedure Code is necessary in a case where the plaintiffs come forward with a suit to abate nuisance alleging special damages or inconvenience. In the said cases, it has been clearly laid down that where a complaint is made by an individual or a representative body under Order 1, Rule 8, Civil Procedure Code, of an. actionable wrong or of a special damage or inconvenience, apart from the inconvenience or damage caused to the public in general, by reason. of a public nuisance, a suit is maintainable and Section 91 Civil Procedure Code will not be a bar. Same view has also been expressed in Munusami Chetti v. Kuppuswami : AIR1939Mad691 , Subbamma v. Narayanamurthi : (1949)1MLJ56 , Murugesa Mudaly v. Arunagiri Mudaly : AIR1951Mad498 and Thangavel Nadar v. Sudalaimada Nadar (1962) 2 M.L.J. 201.

6. With respect I agree with the views expressed in the cases cited above. Admittedly the street in question is a public one over which all the members of the public have a right to pass and re-pass and a right to obstruct it cannot be acquired either by custom or prescription, nor even by a grant. The right of passage exists on the whole street which is normally presumed to extend up to the private property on either side. The obstruction of the right of passage may be a public nuisance and in the absence of special damage, i.e. damage peculiar and particular to the plaintiffs and different from the damage suffered by public, the only civil remedy is by way of a suit under Section 91, Civil Procedure Code. But where an obstruction is caused in the public street as in this case depriving the plaintiffs of their right of access to and from their dwelling houses, they could sue for invasion or interference of that right. In. such cases, the damage is caused directly to the occupiers of the houses on either side of the street by obstruction of their access and a suit in respect of it will lie without proof of special damage or without the sanction under Section 91, Civil Procedure Code.

7. I take the view that a normal user of the public street like walking on it, is a user that could not be obstructed to and if obstruction takes place, a suit under Order 1, Rule 8, would lie without the consent under Section 91, Civil Procedure Code, and without proof of actual or special damage. The right of the owner of the property adjoining a public street to have access to the street is totally different from the right of passage along the public street. The former is a private right of property and any obstruction thereto is actionable, whereas the latter is a public light and no action will lie for an obstruction in the absence of proof of special damage or sanction under Section 91 (1), Civil Procedure Code. Sub-section (2) of Section 91 makes it clear that Sub-section (1) does not limit or otherwise affect any right of suit which may exist independently of Section 91.

8. On the last point, as to whether the spreading out of the warps has caused special damage to the house owners, so as to warrant an injunction from the Court, I find that the Courts below have specifically found that the plaintiffs have suffered special damage in respect of the warps laid on the northern side. I have no reason to differ from their said findings. Therefore the plaintiffs are entitled to an injunction for preventing the nuisance caused by the spreading out of the warps in the space marked A B in the Commissioner's plan Exhibit D-2.

9. As regards the nuisance alleged on the southern side of the street, I am of the view that the defendants cannot resist the relief of injunction prayed for by the plaintiffs even in respect of the same, even though no special damage has been shown to have been suffered by the plaintiffs in respect thereof in view of the decision of this Court in Subbamma v. Narayanamurthi : (1949)1MLJ56 . and Murugesa Muddy v. Arunagiri Mudaly : AIR1951Mad498 .

10. In the circumstances, I find that there are no merits in the second appeal, and that the same is liable to be dismissed. It is accordingly dismissed but in the circumstances without costs.

11. No leave.


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