Raja Saeed Akram Khan, C.J. The petitioners, who are residents of Chanat Tehsil Dhirkot District Bagh, LA-XIV, Bagh-I, claim that a project for the reconditioning of the Channat to Mandri road, was approved, and an invitation for bids was issued on 17.06.2022. They allege that the respondents are attempting to deviate from the approved project by constructing a new road and misuse the allocated funds meant for road reconditioning. They filed a writ petition before the High Court which has been disposed of through the impugned judgment.
2. At the very outset, a query was made to the learned counsel for the petitioners that writ petition was filed by the respondents in representative capacity without permission of the Advocate General which is mandatory requirement under Section 91 read with Order I, Rule 8 of the Code of Civil Procedure, 1908 (CPC); he submitted that the writ petition was not filed in representative capacity, furthermore, the learned High Court has not decided the writ petition on this ground.
3. A perusal of paragraph 6 of the impugned judgment reveals that the learned counsel for the respondents has raised a specific objection that the writ petition has been filed without permission of the Advocate General under Section 91, CPC or the Court under Order I, Rule 8, CPC. The learned counsel for the respondents has repeated this objection before us.
4. Although, it is the contention of the learned counsel for the petitioners that the High Court has not decided the writ petition on the strength of Section 91, CPC or Order I, R. 8, CPC, however, in our estimated view this contention has no force. If there are key points delving deep to roots of the case and the High Court does not address or opts not to rule upon, the Supreme Court, positioned at the apex of the judicial hierarchy, owes the authority to consider such key points that have not been sufficiently addressed by the lower Courts.
5. Order I, Rule 8, CPC postulates that: "8. One person may sue or defend on behalf of all in same interest: (1) Where there are numerous persons having the same interest in one suit:
(a) One or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) The Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub- rule (1), may apply to the Court to be made a party to such suit"
The rule lays down that when there are numerous persons with the same interest in a suit, one or more of them can, with the permission of the Court, sue or be sued, or defend the suit on behalf of, or for the benefit of, all persons sharing that common interest. This rule is also applicable to the writ petitions.[1] It is emphasized that the representation of numerous persons with the same interest in a suit requires the permission of the Court. The principal consideration on the basis of which permission is granted is, whether there is sufficient community of interest between the numerous persons to justify the institution of representative suit, and, whether the rights of all such persons are being asserted or only the personal rights of some of them are involved. Permission is to be applied by the person desirous of suing on behalf of numerous persons, or of suing numerous persons in representative capacity, or by a defendant wanting to defend on behalf of numerous persons in a representative capacity. A perusal of the record shows that the writ petition in its nature was filed in representative capacity without obtaining permission from the Court as required under Order I, Rule 8, CPC, hence, leaving aside the merits of the case the writ petition .was liable to be dismissed on this sole ground.
6. Section 91 of the CPC speaks that: "91. Public Nuisances.-(1) In the case of a public mulsance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
The term 'public nuisance' is not defined in, CPC, however, in accordance with Section 2(44) of the General Clauses Act, 1897, it is to be given the same meaning as is assigned to it by Section 268 of the Pakistan Penal Code, 1860, which defines public nuisance as any act or illegal omission which causes common injury, danger or annoyance to the public or to people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who have occasion to use any public right. Section 91 provides that such type " of legal action is required to be initiated with consent of the Advocate General in writing but in this case the permission of the Advocate General has also not been obtained by the petitioners before filing the writ petition. In the similar circumstances, this Court has held in the case reported as Arshad Hussain Khan and others vs. Inhabitants of Islam Nagar and others [2018 SCR 1220] as follows: ".... The respondents, herein, filed a writ petition before the Azad Jammu and Kashmir High Court in the representative capacity under Article 44 of Azad Jammu and Kashmir Interim Constriction Act, 1974. As the CPC is applicable to the writ proceedings before the High Court, hence, for filing of the writ petition in the representative capacity, the permission of the Advocate-General as visualized by Section 91 of the CPC or permission of the Court as is required by Order I, Rule 8 of the Code of Civil Procedure, was a condition precedent for filing of the writ petition. Without obtaining the permission of the Advocate-General or the Court, the writ petition in the representative capacity was not competent and was liable to be dismissed on this sole ground. Reference may be made to the cases reported as Raja Ali Shan vs. Messrs Essem Hotel Limited and others [2007 SCMR 741], Mir Alam and 2 others vs. Sahibzada and 7 others [2007 SCMR 1157] and Islamuddin and others vs. Ghulam Muhammad and others [PLD 2004 Supreme Court 633]."
In view of the above, we are of the unanimous view that the writ petition filed by the petitioners was even liable to be dismissed for not complying with the provisions of Order I, R.8 read with Section 91, CPC and the learned High Court, although on other grounds, committed no illegality in dismissing the writ petition.
Resultantly, finding no' force, this petition for leave to appeal stands dismissed with no order as to costs.
1. 2005 CLC 144, 2005 YLR 1742, 2005 YLR 1541, 2004 MLD 1671.