IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL SECOND APPEAL No. 338 of 2005 M.B.BANSWARA V/S HARIRAM & ORS Mr. RAJ KAMAL SONI, for the appellant / petitioner Mr. RAMIT MEHTA, for the respondent Date of Order : 21.9.2007 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the appellant, perused the impugned judgments, and the record. Assailing the impugned judgments and decrees, it was contended that the plaintiff has filed the suit for abatement of the public nuisance, for which permission of the Court was required under Section 91 C.P.C., which has not been obtained, and action under Order 1 Rule 8 has also not been taken, therefore, the suit could not be decreed. Other contention raised is, that the taxi stand has been established under resolution of the Traffic Committee, who has not been impleaded as party, and even the resolution thereof has not been challenged, therefore also, the suit could not be decreed. Then learned counsel relied upon the site inspection note, and then submitted that there is no infringement of any civil right of the plaintiff, which might have been established on record, therefore, the suit could not be decreed. I have considered the submissions. So far the question of requirement of permission of the Court, or requirement of compliance of Order 1 Rule 8 is concerned, firstly no such objection was raised in the trial Court; then when the objection was raised before the learned lower appellate Court, the learned appellate Court, in para 15 of the judgment, has found, that by the impugned action of the defendants, the nuisance has been created on the public street, and its width has been reduced, and therefore, the plaintiff including the other neighbours have been deprived of its convenient use, and therefore, the bar of Section 91, or Order 1 Rule 8, is not at all attracted. In this background, a bare look at the cross- examination of the plaintiff, P.W.2 shows, that therein he has positively asserted, that the suit has been filed for his personal gain only. In that view of the matter, this contention cannot be accepted. So far the objection about non-impleadment of the Traffic Committee, and non-challenging the resolution of the Traffic Committee is concerned, the learned lower 2 appellate Court has found, at page 17, while deciding issue No.7, framed in this regard, that the matter rests only in the realm of pleading on the side of the defendant, and there is nothing to show, that any decision was taken by the Collector, or the Traffic Committee, for establishment of the Taxi Stand. From a look at the plaint it is clear, that it doesn't even whisper, as to how the taxi stand has been established, except that the defendant’s have earmarked the land for taxi stand, and have established taxi stand, where various taxi vehicles are parked, resulting into increase of movement of the taxi vehicles, and substantial reduction in the width of public lane, and it is the defendant's case, that it was done under resolution of the Traffic Committee, but then, when no material has been placed on record, in this regard, that in establishment of the taxi stand, instead of defendant, somebody else was responsible, who has not been made as party, the objection cannot be entertained, and has rightly been turned down. Then so far as the infringement of civil right of the plaintiff is concerned, of course the learned trial Court has decided issues No.1 to 4 against the plaintiff, but then, the learned lower appellate Court has considered the matter threadbare, including the findings of the learned trial Court, and the legal position prevailing in this regard, and has come to the conclusion, as noticed 3 above, that by the impugned action of the defendant, the width of the road has been reduced, and the neighbours, including the plaintiff, stand deprived of the convenient use of the public way, and thus, the suit has been decreed. In my view, the finding is a pure finding of fact, and is not vitiated on any of the grounds available under Section 100 CPC. The appeal thus, does not involve any substantial question of law. The same is, therefore, dismissed summarily. ( N P GUPTA ),J. /tarun/ 4