C. R. No. 6175 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 6175 of 2009 Date of Decision : February 01, 2010 Royal Restaurant-cum-Bar .... Petitioner Vs. Mukesh Wadhwa and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rajinder Goyal, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : This is revision petition by defendant no.3 challenging order dated 20.10.2009 (Annexure P-2) passed by learned Civil Judge (Junior Division), Kaithal thereby dismissing application moved by the petitioner for dismissal of the suit in view of non-compliance with mandatory provision of Section 91 (1) (b) of the Code of Civil Procedure (in short – CPC). Respondents no.1 and 2 have filed suit arraying proforma respondents no.3 and 4 (State of Haryana and District Excise and Taxation Commissioner, Kaithal) as defendants no.1 and 2 and arraying the petitioner Royal Restaurant-cum-Bar, Kaithal as defendant no.3. It is alleged by the plaintiffs that defendants no.1 and 2 have granted license to defendant no.3- petitioner for running Bar in the Restaurant in violation of the excise policy C. R. No. 6175 of 2009 2 of the State inasmuch as the petitioner's Restaurant-cum-Bar is situated within prohibited distances from Radha Sawami Satsang Bhawan, a temple and a girls' senior secondary school. Plaintiffs are residents of Rajinder Seth Colony, which is a thickly populated residential colony. Running of the Bar by the petitioner is causing nuisance to the residents of the colony. The plaintiffs accordingly have sought various reliefs including closure of the Bar, being run by the petitioner. The petitioner, in its application, alleged that the suit has been filed on the basis of alleged public nuisance, but mandatory provision of Section 91 (1) (b) CPC has not been complied with inasmuch as leave of the Court has not been obtained for filing the suit, as required by the said provision. The said application has been dismissed by the trial court by impugned order. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that the suit is based on alleged public nuisance, but the aforesaid mandatory provision of Section 91 (1) (b) CPC has not been complied with. The contention cannot be accepted because the suit cannot be said to be based on public nuisance entirely. On the other hand, the plaintiffs' averments in the plaint (Annexure P-1) reveal that being residents of the locality, they are also feeling pinch of the Bar being run by the petitioner. Consequently, suit filed by the plaintiffs is not barred by Section 91 (1) (b) CPC because it excludes a case, which is based on special damage suffered by the plaintiff. In the instant case, the plaintiffs themselves are suffering the damage or injury on account of Bar being run by the petitioner. Consequently, the suit cannot be said to be bad for non-compliance with Section 91 (1) (b) CPC, which is not applicable. In view of the aforesaid discussion, I find no illegality in the C. R. No. 6175 of 2009 3 impugned order of the trial court. The revision petition is devoid of merit and is accordingly dismissed in limine. February 01, 2010 ( L. N. MITTAL ) monika JUDGE