CHANDRI AND ORS. Vs. SRICHAND

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated Aug. 19, 1977, of the Civil Judge, Nagaur, affirming the judgment and decree dated Oct. 30, 1973, of the Munsif, Magistrate, Deedwana, decreeing the plaintiffs suit for declaration and injunction.

(2.) The plaintiffs Srichand and Pokar Ram filed a representative suit under Order 1, Rule 8, C.P.C. against Ram Chandra and his wife Chandri in the Court of Munsif, Deedwana, for declaration and injunction alleging, inter alia, that the defendants had encroached a portion of the public thoroughfare in the town of Ladnu by constructing an ora and thereby narrowed the width of the public road. The plaintiffs filed a suit for declaration and injunction and therein prayed that the encroachment made by the defendants lie removed and the ora which had been constructed by them covering the public thoroughfare lie demolished. Ramchander, defendant No. 1, filed a written statement contesting the averments made in the plaint. It was alleged that the suit land was his pattasud land and no encroachment on any public way was made by the defendants. The Munsif held against the defendants and decreed the plaintiffs suit by the judgment dated Oct. 3, 1973. The appeal preferred against this by the defendants was dismissed by the Civil Judge, Nagaur, by the judgment dated Aug. 19, 1977. Pokar Ram died during the pendency of the suit Ram chandla1 so died during the pendency of the appeal before the Civil Judge. His legal representatives were brought on record. One of the contentions raised before the learned Civil Judge was that the present suit was not maintainable as it was not instituted after obtaining the consent of the Advocate General as required by Sec. 91, C.P.C. The learned Civil Judge negatived this plea and upheld the decree passed by the Munsif, Deedwana. The learned Civil Judge by referring to the provisions of Sec. 91, as amended, held that the present suit was filed under Order 1, Rule 8, C.P.C. and therefore, it was not necessary to obtain the consent of the Advocate General before filing the present suit.

(3.) Learned Counsel for the appellants has contended that the learned Civil Judge has fallen into an error in relying on the amended provisions of Sec. 91, C.P.C., as amended by the amendment Act No. 104 of 1976, which came into force on Feb. 1, 1977. According to him, the mere fact that the suit was filed under Order 1, -Rule 8, C.P.C. would not dispense with the requirement of Sec. 91, C.P.C. as it stood before amendment and required prior permission if the Advocate General.