Table of Content
1. nature of the suit and the application for leave under s. 91 cpc. (Para 1 , 3)
2. leave to sue for public nuisance is a matter between the plaintiff and the court. (Para 4 , 8 , 10 , 11 , 12)
3. right of the defendant to challenge the leave in subsequent suit proceedings. (Para 5 , 6 , 7 , 9 , 13 , 14)
4. court refuses to interfere with the lower court's discretion. (Para 15 , 16)

O R D E R:

This Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order, dated 29.10.2012 in I.A.No.3346 of 2012 in O.S.S.R.No.14228 of 2012 passed by the learned Principal District Judge, at L.B.Nagar, Ranga Reddy District, whereby the application filed under Section 91 (1) (B) read with 151 of the Code of Civil Procedure, 1908 (for short, C.P.C) seeking to grant leave to respondent No.1 herein to sue the revision petitioner for causing public nuisance by representing the public at large and to protect the public property for use of the same by one and all, was allowed.

2. Heard Sri S.Balchand, learned counsel for the revision petitioner and Sri Rajashekar, learned counsel appearing for respondent Nos.1 and 2. Since respondent No.3 reported as not necessary party, no notice was issued to him.

3. Brief facts of the case are as follows:

Respondent Nos.1 and 2 herein filed a suit in O.S.S.R.No.14228 of 2012 (which was numbered as O.S.No.1023 of 2012) on the file of learned District Judge, Ranga Reddy District at L.B.Nagar, seeking for declaration and perpetual injunction against revision petitioner and respondent No.3 herein. Respondent No.1 herein filed the said suit in the capacity of the President of Brindavan Colony Residents Welfare Association, Saroornagar, Hyderabad, with the following relief:

“to declare the schedule A and B properties are public properties which are earmarked for the purpose of construction of Community Hall, and a School in the layout of Brindavan Colony, Lingojiguda, Saroornagar Mandal, R.R.District and to restrain the defendants, their henchmen, attorneys, agents, servants, friends, anybody else claiming through them from alienating or altering the suit schedule A and B properties…”

In the said suit, respondent Nos.1 and 2 herein filed the aforesaid application seeking leave of the Court to file the above suit and the said application was allowed.

4. Before proceeding further, for better appreciation, it is necessary to extract Section 91 (1) of C.P.C, which reads as under:

“91. Public nuisances and other wrongful acts affecting the public.— (1) 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….”

5. The contention of learned counsel for the petitioner herein is that though the petitioner raised various grounds touching upon the merits of the case, including other suits pending before various Courts between the parties, that respondent Nos.1 and 2 are indulging in multiplicity of proceedings with a mala fide intention to harass the revision petitioner with an oblique motive, the trial Court has allowed the application. He further contended that the learned trial Court ought to have applied the principle of res judicata to the present facts of the case, and therefore no permission or leave could have been granted to respondent Nos.1 and 2 to file the suit under Section 91 of the C.P.C. He further contended that when petitioner is claiming right, title and interest over the subject property denying public interest, public nuisance or public right by respondent Nos.1 and 2 does not arise, as the petitioner had already

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