POORNAPRAGYANA AND OTHERS Vs. SHANTADEVI

JUDGEMENT

(1.) THIS second appeal is filed by the Plaintiff in O.S. No. 68 of 1990 on the file of the Civil Judge (Jr. Dn.), Gangavati questioning the judgment and decree of the first appellate Court allowing the appeal in R.A. No. 20 of 1997, setting aside the judgment and decree of the trial Court dated 7.8.1997 and remanding the matter for fresh disposal for the reasons stated in paragraph 23 of the judgment.

(2.) HEARD the learned Counsel for the parties and perused the impugned judgment.

(3.) THE first appellate Court extracted Section 91(1) Code of Civil Procedure and gave much importance to the wordings "suit for declaration and injunction" in Section 91(1) Code of Civil Procedure and arrived at the conclusion referred to above. But, the first appellate Court has conveniently ignored the words "or for such other relief as may be appropriate in the circumstances of the case" in the same provision. A combined reading of Section 91(1) Code of Civil Procedure makes it clear that in case of public nuisance or other wrongful act, a suit for declaration and injunction or for other reliefs can be instituted. If declaration is not sought in the suit, the suit will not be defective. The first appellate Court failed to consider these aspects of the matter. Hence, the judgment and decree of the first appellate Court is contrary to Section 91(1) Code of Civil Procedure and bad in law.