A suit for declaration and injunction based on public nuisance is not maintainable without the consent of the Advocate General unless the plaintiff can show that he has sustained special damage.

1. - This appeal is directed against the judgment and decree dated August 19, 1977, of the Civil Judge, Nagaur, affirming the judgment and decree dated October 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 October 3, 1973. The appeal preferred against this by the defendants was dismissed by the Civil Judge, Nagaur, by the judgment dated August 19, 1977. Pokar Ram died during the pendency of the suit Ram chandlal 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 Section 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 Section 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 Section 91, C.P.C., as amended by the amendment Act No. 104 of 1976, which came into force on February 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 Section 91, C.P.C. as it stood before amendment and required prior permission if the Advocate General.

4. I find force in the submissions made by the counsel for the appellants. The present suit was R id on February 16, 1970. The unamended Section 91(1), C.P.C. which was in force at the time was as under:-

"In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case."
This section was amended by the Amending Act No. 104 of 1976, which came into force on February 1, 1977. by virtue of Section 97 of mending Act No. 104 of 1976, the amended provisions of Section 91 would not apply to any suit, appeal or proceeding instituted or filed before the commencement of the Amending Act and every such suit, appeal or proceeding shall be disposed of as if Section 30 of the Amending Act had not come into force. The amendment in Section 91 is clearly retrospective and does not affect the pending suits, appeals or proceedings. The present suit which was K bled on February 16, 1970, was, therefore, to be governed by the provisions as they stood before the amendment. In order to maintain a suit based on public nuisance, the plaintiff has either to allege and prove special damage or must m obtain the consent in. writing of the Advocat