Snippet #22

Saji Koduvath.

Suits against Wrongful Acts: Relevant statutory provisions

Following are the elemental provisions of law concerning the jurisdiction of the civil court in the matters under consideration.

Section 9 of the Civil Procedure Code
Section 91 of the Civil Procedure Code
Secs.38 and 39 of the Specific Relief Act

Sec. 9 of Code of Civil Procedure says as under:

“9. Courts to try all civil suits unless barred.The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred.”

Section 91 of the Civil Procedure Code reads as under:

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

Sec. 38 and 39 of Code of Civil Procedure reads as under:

38. Perpetual injunction when granted: (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
39. Mandatory injunctions: When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Bar of Jurisdiction and Common Law Right

Under section 9 of the CPC, the civil courts will have plenary jurisdiction to try all suits of civil nature, unless the same is expressly or impliedly barred. It is trite law that where the statute neither creates a particular right or liability nor provides any remedy or forum for adjudication of any dispute arising out or such right or liability, there will be no ouster of the civil courts jurisdiction. See: Saraswathi v. Lachanna, (1994)1 S.C.C. 611.

Willes, J, in Volverhomton New Water Works Co. v. Hawkes Ford, expressed his view on jurisdiction of courts as under:

“…..where there is liability existing at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law…..unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has election to pursue either that or the statutory remedy”.(Quoted in: Musstt Anjira Khatoon Hazarika VS Tapan Kumar Das, 2015-1 GauLR 133).

Relying on the Privy Council decision in Secretary of State v. Mask & Co., AIR 1940 PC 43 and the Apex Court decisions in Firm Seth Radhakishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 and Premier Automobiles Ltd. v. Kamlakar Shantnram, AIR 1975 SC 2238, The Gauhati High Court, in Musstt Anjira Khatoon Hazarika VS Tapan Kumar Das, 2015-1 GauLR 133, summarised the legal position as under:

“Applying the ratio of the aforesaid judicial pronouncements the law that emerges is that if a special right is created by a statute and there is procedure for enforcement of such right and that such right did not exist prior to enactment of the special statute, in that event irrespective of whether there is express ouster of civil court’s jurisdiction or not, the jurisdiction of the civil court would stand automatically barred. Of course, in that case also, if there is violation of the principles of natural justice or there is violation of the procedure prescribed under the statute which bars jurisdiction of civil court, in that event instead of express ouster, civil court shall have jurisdiction to entertain a suit. However, if such right was in existence in common law prior to the enactment of the special law, the plaintiff shall have right to elect the forum.”

‘An illegality cannot be cured only because it was undertaken by the Government‘

In Bangalore Medical Trust v. B. S. Muddappa, AIR 1991 SC 1902, the Apex Court (RM Sahai, J.) considered the legality of leasing out a Public Park into private nursing home for a long period. It was observed that an illegality cannot be cured only because it was undertaken by the Government; and that an illegality or any action contrary to law does not become in accordance with law because it is done at the behest of the Chief Executive of the State. It was also pointed out that no one is above law; and that in a democracy what prevails are law and rule and not the height of the person exercising the power.

Construction in Violation of Municipal Building Regulation

A person who is affected by neighbour’s illegal construction which is in infraction of a Municipal regulation will have the locus to maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely rest in the look-out of the local authority. It was observed that unless, by express words or by necessary implication, he is debarred (Sec. 9 CPC) from doing so, the civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said:

“If you have an infringement of a legal right there is a right of action without actual damage being proved…. Where you have an interference with a legal right, the law presumes damage.”

Referring the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima w/o Caetano Joao v. Village Panchayat of Merces, AIR 2000 Bom 444, it was observed that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.

(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994-2 MahLR 869; 1994-1 MhLJ 256;
D. Thomas v. N. Thomas1999-2 MLJ 260;
Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015-1 GauLR 133.)

In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:

“An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”

Andhra Pradesh High Court in Bhagwan Das v. Harish ChetwalIt held as under, as appears from the reported judgment, Sarada Bai v. Shakuntala Bai, AIR 1993 AP 20 it was held as under:

“The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”

Liquor Shop causing Public Nuisance

The question that required consideration in D. Thomas v. N. Thomas, 1999-2 MLJ 260 was whether the civil court had jurisdiction to entertain suit for permanent prohibitory injunction restraining defendants from conducting a liquor shop for apprehended injury of public nuisance to the residents of locality. The plaintiffs filed the suit in representative capacity under Order 1, Rule 8 of the CPC. The defendants resisted the suit on the ground that the suit was barred under Sec. 56 of Tamil Nadu Prohibition Act. In this decision the court held as under:

“Under Specific Relief Act, a suit to prevent the nuisance is maintainable under Secs.38 and 39. Plaintiff is also entitled to file a suit for perpetual prohibitory and mandatory injunction from causing any nuisance. Nuisance is an act of omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement, or other right used or enjoyed in connection with land, when it is a private nuisance.
Whether it is public or private, it is common law right and the suit to prevent the occurrence of nuisance is also a suit of civil nature. So the enforcement of such civil right can had through court.”
“Plaintiffs are not claiming any right under Tamil Nadu Prohibition Act and what want to enforce is only a common law right. I do not find any prohibition under Tamil Nadu Prohibition Act that the common law right to prevent a nuisance is taken away by any other provisions of Prohibition Act. Plaintiffs are not claiming any right by virtue of statute which creates a right for do they want enforcement of such a right created by statute. To prevent a person from committing nuisance is all along a common law right and that could be enforced de hors the enactment of Tamil Nadu Prohibition Act.

Forum for Enforcement of Right like Avoidance of Nuisance

It was held in Saraswathi v. Lachanna (1994)1 S.C.C. 611, while considering bar of suit, the court had to see where a particular act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court, then ouster of the civil court jurisdiction had to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out or such right or liability is provided. In such a situation, the ouster of the civil courts jurisdiction is not to be easily inferred.

‘Wrongful Acts’ in Sec. 91 CPC, inserted by 1976 Amendment of the CPC

It is clear that the purport of insertion of the words “other other wrongful act affecting, or likely to affect the public”, in 1976 amendment of the CPC, is to bring in all wrongful acts, which affect the public or that may affect in future, within the ambit of Sec. 91. It is definite that this clause stands independent from ‘nuisance‘, already contained in this Section.

In Adani Wilmar Ltd. Vs. A S Hansraj, 2018-4 Mad LJ641, the Madras High Court held as under:

“The scope of a suit filed under Section 91 CPC by the very language used in the provision gives a very wide amplitude. A plain reading of the Section would go to show that in case of a “public nuisance” or other “wrongful acts” affecting, or likely to affect the public, false within the scope of Section 91(1) CPC. The word “other” also assumes significance as it clearly drawn a distinction from the word “public nuisance”. Similarly the words “likely to affect” taken within its sweep will include any possible act in future. Thus, the overwhelming factor is that of public interest. This is once again made clear by dispensing with the personnel injury termed “special damage”. Two or more persons can file a suit on this nature with the leave of the Court even though no special damage has been caused to such persons by reason of such “public nuisance” or “other wrongful acts”. In our considered opinion, even an advertisement which is likely to affect the public at large can fall within the scope of Section 91 CPC. Taking into consideration the intention of the legislature enabling the filing of a suit by any two persons, after getting the leave of the Court, whenever any act causes “public nuisance” or “other wrongful acts” affecting or likely to affect the public and also taking into consideration the wide amplitude of the language used under Section 91 CPC, this Court cannot give a restricted meaning as sought to be projected by the learned senior counsel for the appellants. The provisions of Section 91 CPC is an important tool for remedying the grievances of a large number of individuals who cannot file independent suits. Such an important right guaranteed under the said provision cannot be defeated by giving it a restrictive interpretation.”

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Created: 07 Jul 2024 at 23:29

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Created: 07 Jul 2024 at 23:29

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