PAHLAD MAHARAJ Vs. GAURI DUTT MARWARI

JUDGEMENT

(1.) This is a second appeal from a decision of the Subordinate Judge of Monghyr, reversing a decision of the Munsif and decreeing a suit for the removal of an encroachment on a public thoroughfare. The plaintiff and the defendant live on opposite sides of a narrow road through a village and the defendant has built on the thoroughfare a structure containing a platform and a privy, and the thoroughfare being of very narrow proportions, this must naturally give rise to nuisance to persons not only passing through the thoroughfare but particularly to the plaintiff who lives on the opposite side of the road. Now it is immaterial to consider whether or not the suit was brought; in a representative capacity. The simple point is that the person living on the opposite side of the road, that is to say the plaintiff, suffers special damage.

(2.) The Court of first instance seemed to be under the impression that the plaintiff had to prove special damage in the matter of financial loss; but the Court of first instance nevertheless finds, and its view has not been dissented from by the Appellate Court, that the defendant had encroached on the public road and had erected the platform, privy and drains and steps upon it and that such structure had caused inconvenience to the public. The finding is that the plaintiff being a person living on the opposite side of the road has suffered the particular inconvenience referred to which is held generally as having been suffered by the public. In such circumstances the right to bring a suit on the part of the plaintiff is indisputable.

(3.) It is perfectly true that in the case of public thoroughfares generally a mere stranger to a district cannot on the ground that he is a member of the general public bring a suit for the removal of an obstruction unless he can prove some particular damage, if for example smoke is emitted in undue quantity in the streets of Calcutta, it will hardly lie in the power of an inhabitant of Patna to say that whereas he is a member of the public and pays occasional visits to Calcutta he is interested as of right to bring a suit for the removal of the nuisance. But as has been recognized in principle and confirmed by the Privy Council, a person in the immediate neighbourhood and entitled to use a local public thoroughfare has a special cause of action and that irrespective of whether he has proved special damage or not. The real principle is, as I have said, that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss. The plaintiff here was in a particular position to suffer loss and must be deemed to have suffered the loss from the inconvenience and nuisance committed by the defendant.