Order

1. Heard the parties.

2. The writ petitioners are defendants of Civil Suit No.01/2020. The civil suit was filed by the respondents under Section 91(1) and (2) CPC claiming relief that defendant Nos.1 to 4 be restrained by a decree of perpetual injunction from making any construction on the purchased plot, beyond the map sanctioned by the Nagar Palika on 12.07.2019, without leaving setback. Further prayer was that the residential premises should not be allowed to be used for commercial purposes and the defendants be restrained from letting out the premises. Further injunction was sought for asking the defendants to remove the construction which was against the sanctioned map.

3. Along with the plaint, a separate application for leave of the court to file the suit was also filed. However, no order on the application for leave was passed. In the meantime, the petitioners filed an application for rejection of plaint under Order VII Rule 11 CPC mainly on the ground that without the leave of the court, the plaint could not have been proceeded with as required under Section 91 CPC. The learned trial judge by the impugned order dated 06.01.2020 rejected the prayer for rejection of plaint and observed that the leave was already granted keeping the right of the defendants protected.

4. Learned counsel for the petitioners contends that a plain reading of Section 91 CPC requires leave of the Court if it has been filed for removal of public nuisance or other wrongful act.

5. Learned counsel for the respondents contends that the law simply requires filing of the suit with leave of the court by two or more persons. It does not require that the leave should be granted by a speaking order. If separate prayer was there for grant of leave and the court proceeded with the matter, then, by necessary implication, leave was already granted. Moreover, the suit was also under Sub-Section (2) of Section 91 CPC, whereunder there is no requirement of leave, hence, prayer is not entertainable.

6. Provision of Section 91 CPC is reads as follows:-

“91. Public nuisances and other wrongful acts affecting the public:-

(i) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted;

(a) By the Advocate-General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.

(ii) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.”

7. Evidently, the suit was not filed by the advocate general, rather, under Clause (b) by two or more persons. Moreover, the provisions of Sub-section (2) makes it abundantly clear that the right to sue would not be affected, if it exits independent of the said provisions. The plaintiffs could have brought the suit for prevention of nuisance arising out of construction without following the building by laws.

8. This Court does not find that the impugned order is erroneous leading to miscarriage of justice. Hence, there is no reason to interfere with the impugned order in exercise of power under Article 227 of Constitution of India.

9. Accordingly, this Civil Writ Petition stands dismissed as devoid of any merit.