The judgment established that the English rule requiring proof of special damage in cases of obstruction to a public way does not apply to India, based on the decision of the Privy Council in Manzur Hasan v. Muhammad Zaman.

Wadsworth, J.

1. The plaintiffs sued for a declaration that there was a public path running between the house belonging to the third plaintiff and the house belonging to the defendants and for an injunction requiring the defendants to remove the wall obstructing this alleged path. The trial Court found that, though there was no proof of a public path, there was a path common to the third plaintiff and the defendants measuring 3i feet in width and granted a declaration and injunction accordingly. The learned District Judge on an appeal by the plaintiffs held that there was a public path, that it was 8 feet in width and that there was no objection to the frame of the suit. Defendants therefore appeal.

2. The main question in appeal is whether the plaintiffs can maintain the suit for establishing a public right of way and removal of an obstruction which constituted a public nuisance, without the sanction of the Advocate-General under Section 91 of the Code of Civil Procedure and without proof of special damage. Undoubtedly, according to the view held by this Court in the past, such a suit would not lie. I have been referred to the rulings in Hussain Sahib v. Narasimhappa (1912)23MLJ539 and Kandasami Kovundan v. Karupanna Kovundan (1913) M.W.N. 1001 and admittedly there are many other decisions to the same effect. These decisions, however, are prior to the decision of the Privy Council in Manzur Hasan v. Muhammad Zaman. The Privy Council were actually dealing with the case of a right to go in procession without interference, but in discussing the right to file a suit for declaration of such a right without proof of special damage, their Lordships consider the case of Satku valad Kadir Sausare v. Ibrahim Aga valad Mirza Aga I.L.R.(1877) 2 Bom. 457 where the English rule, that plaintiffs could not maintain a suit in respect of an obstruction to a highway unless they proved some damage to themselves personally in addition to the general inconvenience occasioned to the public, has been adopted. Their Lordships point out that the judgment in the Bombay case proceeds entirely on English authorities which lay down the difference between proceedings by indictment and by civil action. They point out that such a way of deciding the case was inadmissible and that the distinction between indictments and actions in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied in India. Now, this decision has been considered in at least two cases of other High Courts expressly dealing with the right to sue for removal of an obstruction in a public way. One is that of the Calcutta High Court, Mandakinee Debee v. Basantakumaree Debee I.L.R.(1933) 60 Cal. 1003 where Jack, J., held that an individual member of the public could sue for the removal of an obstruction of a public way if it affected him personally, without proof of special damage. He also found on the facts of that case that there was special damage and Mallik, J., agreed with the finding of special damage and did not consider the effect of the Privy Council decision as to the general right of suit. Another case on the same lines is Municipal Committee, Delhi v. Mohammad Ibrahim I.L.R.(1934) 16 Lah. 517 where the learned Chief Justice and Din Mohammad, J., observe that the principle of English law requiring proof of special damage in the case of a suit by an individual member of the public to remove an obstruction from a public way does not apply to India. The learned Judges follow the decisions in Mansur Hasan v. Muhammad Zaman and Mandakinee Debee v. Basantakumaree Debee I.L.R.(1933) 60 Cal. 1003 above referred to. They also observe that the owners of houses abutting on the public highway in question which was obstructed have an actionable claim on the ground of the diminution of the amenities of those houses. To this extent it may be said that they put their decision both ways - both on the ground that a member of the public can bring