GANAPATHI MUDALIAR Vs. PONNUSWAMI KOUNDAR

JUDGEMENT

(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.) 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.