R. S. A. No. 4788 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4788 of 2009 (O&M) Date of Decision : July 28, 2010 Satnam Singh and another .... Appellants Vs. Smt. Jindo and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arun Abrol, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 14281-C of 2009 : This is application for impleading legal representatives of plaintiff Jamal Masih (since deceased), who died during pendency of the first appeal. It is alleged in the application that the deceased plaintiff has left behind widow, three sons and three daughters, as mentioned in paragraph 2 of the application, as his only legal heirs. The application is accompanied by affidavit. Accordingly, the application is allowed, subject to all just exceptions and persons mentioned in paragraph 2 of the application are ordered to be brought on record as legal representatives of R. S. A. No. 4788 of 2009 (O&M) 2 plaintiff-Jamal Masih (since deceased), for the purpose of this appeal. Main Appeal : Instant second appeal has been filed by defendants Satnam Singh and his father Kapur Singh, who remained unsuccessful in both the courts below. Suit was filed by Jamal Masih (since deceased and represented by respondents as legal representatives). The plaintiff alleged that there is a public street in Village Kalanaur, comprised of khasra no.522/1. Defendants' house is located on southern side of the said street. Plaintiff's house is also located along the street. Defendants have encroached upon a portion of the disputed street by raising walls from points A to B and from B to C, as depicted in the site plan and thereby, encroached upon the street and they intended to raise further construction in the street. The aforesaid encroachment is causing public nuisance and is also causing hardship to the plaintiff. Accordingly, plaintiff sought mandatory injunction for removal of the encroachment already made and also permanent injunction from raising any construction over any part of the street. Defendants admitted the existence of the street, although alleged that there is no khasra number of the street. Defendants also admitted that house of the defendants is located on southern side of the adjoining street. Location of the plaintiff's house in the same street is denied. Defendants also denied that they have encroached upon any part of R. S. A. No. 4788 of 2009 (O&M) 3 the street. Various other pleas were also raised. Learned Civil Judge (Senior Division), Gurdaspur, vide judgment and decree dated 27.03.2002, decreed the plaintiff's suit. First appeal preferred by the defendants stands dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, vide judgment and decree dated 02.05.2009. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that suit filed by the plaintiff relating to public nuisance is barred by Section 91(1) of the Code of Civil Procedure (in short – CPC), which stipulates that suit relating to public nuisance may be filed either by Advocate General or with the leave of the Court, by two or more persons, whereas in the instant case, the suit was filed by Jamal Masih alone and leave of the Court was also not sought for filing suit. I have carefully considered the aforesaid contention, but find no merit therein, although apparently the contention sounds very forceful. Section 91(1) CPC is an enabling provision and it has enlarged the scope of locus standi to file a suit. Normal rule of law is that a person, having right or being effected by a wrongful act of the opposite party, has locus standi to file the suit. However, under Section 91(1) CPC, even persons to whom no R. S. A. No. 4788 of 2009 (O&M) 4 special damage has been caused by the public nuisance or other wrongful act, may also file the suit by complying with the conditions stipulated in Section 91(1) CPC. However, this provision does not, in any manner, restrict the right of a person, who independently of this provision, has right or locus standi to file the suit in view of wrong caused to him. This fact is made further clear by Section 91(2) CPC, which provides that nothing in this Section shall be deemed to limit or otherwise affect any right of suit, which may exist independently of its provisions. The net result of Section 91 CPC is that a person otherwise having right to file a suit may do so and nothing in Section 91 CPC would affect his said right. However, in the case of public nuisance, two or more persons, with the leave of the Court, may also file suit, although no special damage has been caused to them by the public nuisance or other wrongful act. Thus, Section 91 CPC is an enabling provision enlarging the scope of locus standi to file the suit, but it does not, in any manner, inhibit or restrict the right or locus standi of a person to file the suit, which exists independently of the provisions of Section 91 CPC. In the instant case, the plaintiff not only claimed public nuisance by encroachment made on the public street by the defendants and their threatened action to raise further construction, but also pleaded that it is causing hardship to him as his house is also located along the street. Perusal of judgment of trial court reveals that disputed street is the only approach for ingress to and egress from the plaintiff's house. Consequently, R. S. A. No. 4788 of 2009 (O&M) 5 if the disputed street is encroached upon or if any obstruction is caused in the disputed street, it causes hardship to the plaintiff and therefore, special damage is caused to the plaintiff and on account thereof, the plaintiff has locus standi to file the instant suit independently of the provisions of Section 91 CPC and irrespective of the fact that wrongful acts of the defendants are also resulting in public nuisance. The plaintiff in this case has pleaded and proved hardship to him being caused by the wrongful acts of the defendants as the disputed street, which is the only access to the plaintiff's house, has been encroached upon. Consequently, plaintiff had locus standi to file the instant suit and the contention raised by the counsel for the appellants cannot be accepted. There is concurrent finding of fact by both the courts below that defendants have encroached upon the disputed street. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal in any manner. Plaintiff even sought appointment of Local Commissioner for demarcation, but the said prayer was also opposed by the defendants giving rise to adverse inference to be drawn against them. Lower appellate court is the final court of fact. Finding of fact regarding encroachment made by defendants in the disputed public street cannot be interfered with in second appeal as the said finding is not shown to be based on misreading or misappreciation of evidence. For the reasons aforesaid, I find no merit in the instant second R. S. A. No. 4788 of 2009 (O&M) 6 appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. July 28, 2010 ( L. N. MITTAL ) monika JUDGE