MOVVA BUTCHAMMA Vs. MOVVA VENKATESWARARAO AND OTHERS
HIGH COURT OF ANDHRA PRADESH
Movva Venkateswararao And Others
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CHINNAPPA REDDY,J. -
(1.) The Appellant in this appeal under Clause 15 of the Letters Patent filed the suit out of which the appeal arises for a mandatory injunction for removal of certain obstructions placed on plots marked 2 (a) and 3 (a) in the plan and for a permanent injunction restraining the defendants from interfering in any manner with the right of the plaintiff to use the street A B C D for the passage of men, cattle and carts for reaching plot No. 1 belonging to her. The suit was based on the allegations that A B C D was a public street that the plots marked 2(a) and 3(a) were parts of the public street and that the defendants had encroached upon plots 2 (a) and 3 (a) and caused certain obstructions to be placed therein which interfered with the right of the plaintiff to the free use of the street for the passage of men, cattle and carts. Both the lower Courts found the facts substantially as alleged by the plaintiff, namely, that A B C D was a public street, that plots 2 (a) and 3 (a) were parts of the public street and that the plaintiff had a right to use the street for the passage of her men, cattle and carts. On those findings both the lower Courts as well as our learned brother Kumarayya J. were clearly of the opinion that the plaintiff was entitled to a permanent injunction restraining the defendant from interfering with her right to use the street for the passage of men, cattle and carts. The prayer of the plaintiff for a mandatory injunction for removal of the obstructions placed upon plots 2 (a) and 3 (a), though granted by the trial Court, was rejected by the lower appellate Court on the ground that notwithstanding the obstructions placed in plots 2 (a) and 3 (a), the street was wide enough to afford a passage to men, cattle and carts and the plaintiff had not established any special damage entitling her to relief by way of a mandatory injunction. Our learned brother Kumarayya J. agreed with the view of the lower appellate Court that the plaintiff was not entitled to the relief of mandaory injunction.
(2.) Mr. K. Suryanarayana the learned Counsel for the appellant contended that on the findings arrived at by the lower Courts a mandatory injunction directing the defendants to remove the obstructions should have been granted and the refusal to give this relief of mandatory injunction is inconsistent with the grant of the relief of permanent injunction granted by all the Courts. We find force in the contentions of Mr. Suryanarayana.
(3.) Before dealing with the contentions of Mr. Surayanarayana we may observe that our learned brother Kumarayya J. repelled a contention that the suit was not maintainable for non-compliance with provisions of Order 1 Rule 6 and Section 91, C. P. C. Kumarayya, J. observed :
"The English rule requiring such proof (i. e., proof of special damage) is applicable to India. Hence a person can maintain a suit for establishing a public right and for removal of an obstruction which constituted a public nuisance without the sanction of the Advocate General under Section 91, C. P. C. and without proof of special damage".
Our learned brother further observed that proof of special damage was wholly unnecessary in the case of suits for removal of obstruction to village pathways, which he distinguished from public highways. Kumarayya J. held that village pathways being limited to a mere section of the public and to the public at large, there was no public nuisance and the English doctrine that there can be no private action for a public wrong was wholly inapplicable to such cases. The learned Counsel for the respondent did contend before us that the suit was maintainable. ;
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