1. This application in revision by the defendants in the suit for declaration and perpetual injunction was against a decision of lower appellate Court dated 8-9-1993 by which it set aside an order of the trial Court dated 20-7-1993 rejecting the plaint under Order VII, rule 11 of Civil P.C. on account of a bar in section 91 of Civil P.C. and remanded the suit for its decision on merits in accordance with law.
2. A forty-four feet wide road intervened between the houses of the parties to the suit. Their houses abutted on the road. Road vested in and was managed by the Municipal Corporation of Lahore.
3. Defendants were alleged to have encroached upon a portion of the road measuring approximately 10 x 20 feet, and, consequently narrowed down its width. The plaintiff brought a suit for declaration; perpetual injunction and damages in the sum of Rs.24,000 against the defendants. They contested the suit and raised number of preliminary objections to its maintainability and also traversed averments in the plaint on merits. A few applications of miscellaneous nature were filed. Those were undecided. The trial Court took up the consideration of an objection founded on section 91 of Civil P.C. for barring the institution of the civil suit without obtaining the sanction from the Advocate-General of the Province and by its order passed on 20-7-1993 sustaining it rejected the plaintunder Order VII, rule 11 of Civil P.C. Against the above order of the trial Court, plaintiff preferred an appeal. It was allowed by learned Additional District Judge, who reversed the decision of the trial Court and remanded the suit for its trial on merits. This decision was sought to be revised at the instance of defendants in the suit.
4. It was urged on their behalf that section 91 of Civil P.C. barred institution of a civil suit in respect of a public road by an individual in his own right without the consent in writing of the Advocate-General of the Province in terms of subsection (1) of section 91 of Civil P.C. and, therefore, the trial Court rightly relying upon the averments in the plaint invoked Order VII, rule 11, clause (d) of Civil P.C. for a summary rejection of the plaint. Learned counsel referred to the cases of Abdullah and others v.
5. Muhammad Amin PLD 1968 Lahore 1235, Ghulam Muhammad and others v. Murad Baksh and another PLD 1969 Lahore 95, Mst. Khurshid Begum and 7 others v. Inam Rabbani and another 1979 CLC 570 (Lahore), Zareef Ahmad Khan and 3 others v. Province of the Punjab and another 1986 SCMR 684. It was argued by him that alleged act of encroachment on the public road for narrowing down its width was a public nuisance and without averring special damage to him, the suit in his individual capacity could not have been instituted by the plaintiff.
6. There was no doubt that an obstruction to a public road by building over any part of it or making an encroachment on any portion of it necessarily caused an obstruction to the person or persons who may have an occasion to use it and was a public nuisance. Section 91 (1) gave authority to the Advocate- General of the Province or with his consent to two or more persons for instituting a suit in respect of a public nuisance without showing any special damage having been caused to them.
7. Subsection (2) carved out an exception to the general rule enacted in subsection (1) and saved the right of suit which may exist independently of it. In case of a special damage caused or inconvenience suffered, the right of an individual to sue in respect of a public nuisance was not affected. Rather, subsection (2) of section 91 of Civil P.C. clearly saved it. It was not denied that the house of the plaintiff abutted on the public road. Likewise, the house of the defendants existed on the opposite side of the same road. Like the public in general, the plaintiff was also entitled to use of full width of the public road and any obstruction thereto or encroachment on any part of it infringed the right of the public generally and the plaintiff particularly, whose house was in the immediate adjacency of the public road. It was well-settled that a person in the immediate neighbourhood and entitled to use public thoroughfare has a special cause of action where it was obstructed and he could sue without proof of special damage. This view was supported by cases reported as AIR 1937 Patna 620, AIR 1941 Patna 249; AIR 1972 Rajasthan 103. Here in this case, the plaintiff had averred special damage caused to him by obstruction to and encroachment upon the public road by the defendants. Therefore, upon averments in the plaint, his right to institute a suit for removal of the alleged obstruction to the public road or encroachment onits full width was not impaired or affected. Section 91 was not a bar to the institution of the suit by the plaintiff in his individual capacity and its trial on merits. Lower appellate Court rightly construed the effect of subsection (2) of section 91 of Civil P.C. on the right of the plaintiff to sue in his own right respecting a public nuisance. Further, a judgment of the Supreme Court in 'Pakistan National Oils Limited and another v. Sattar Muhammad 1980 SCMR 686 relied upon in the judgment of the lower appellate Court also gave assistance in support of the above view. Remand for trial of the suit on merits was not open to any exception. Civil revision was devoid of legal force. It is, therefore, dismissed in limine.