SECTION 91 & ORDER I RULE 8, CODE OF CIVIL PROCEDURE, 1908

Public Nuisance and Representative Suits

I. INTRODUCTION

The Code of Civil Procedure, 1908 recognises that certain civil wrongs affect the public at large rather than individual rights alone. To address such collective grievances, the CPC provides two important procedural mechanisms:

1. Section 91 CPC – dealing specifically with public nuisance and other wrongful acts affecting the public.

2. Order I Rule 8 CPC – providing the machinery for representative suits, where numerous persons share the same interest.

Together, these provisions ensure access to justice, prevent multiplicity of suits, and protect collective civil rights even where no individual special damage is proved.

II. SECTION 91 CPC – PUBLIC NUISANCE AND OTHER WRONGFUL ACTS

A. Textual Overview

Section 91 permits institution of a civil suit in respect of:

• A public nuisance, or

• Any wrongful act affecting or likely to affect the public

The suit may seek:

• Declaration

• Injunction

• Or any other appropriate relief

Such a suit may be instituted:

1. By the Advocate-General, or

2. By two or more persons with the leave of the Court, even if no special damage is caused to them.

Sub-section (2) clarifies that Section 91 does not curtail any independent right of suit.

B. Meaning and Scope of Public Nuisance

Public nuisance is not defined in CPC. Courts rely upon Section 268 IPC, which defines public nuisance as an act or omission causing common injury, danger or annoyance to the public or people in general.

Examples include:

• Obstruction of public roads or pathways

• Pollution of air, water, or public spaces

• Illegal constructions affecting public safety

• Hazardous industrial activities impacting a locality

C. Essential Ingredients of Section 91

To invoke Section 91, the following conditions must be satisfied:

1. Existence of a public nuisance or wrongful act

2. Impact on the public or likelihood of public harm

3. Suit instituted by:

   • Advocate-General, or

   • Minimum two persons with leave of the Court

4. No requirement of special damage

D. Nature of Leave of the Court

• Leave of the Court is mandatory when the suit is not instituted by the Advocate-General.

• The purpose is to prevent frivolous or vexatious litigation in the name of public interest.

• Leave may be granted before or even after institution of the suit.

E. Reliefs under Section 91

• Permanent or mandatory injunction

• Declaration of illegality

• Removal of nuisance

• Preventive relief against apprehended injury

Damages are generally not the primary relief, unless independently maintainable.

F. Case Laws on Section 91 CPC

1. Kuldip Singh v. Subhash Chander Jain (2000) 2 SCC 318

Facts:
Residents filed a suit alleging that a dairy being run in a residential area caused foul smell, health hazards, and obstruction, amounting to public nuisance.

Issue:
Whether a suit under Section 91 CPC is maintainable without proof of special damage.

Ratio Decidendi:
The Supreme Court held that proof of special damage is not required in a suit under Section 91 CPC, provided the nuisance affects the public at large.

Significance:
This case reaffirmed the independent civil remedy available for public nuisance and clarified that Section 91 relaxes the common law requirement of special damage.

2. Ramdas Shenoy v. Chief Officer, Town Municipal Council (1974) 2 SCC 506

Facts:
A cinema theatre was permitted to be constructed in violation of town planning regulations, adversely affecting residents of the locality.

Issue:
Whether residents can seek injunctive relief against violations affecting public interest.

Ratio Decidendi:
The Court held that residents have a right to prevent misuse of land that affects public interest, and municipal authorities cannot legalise illegality.

Significance:
The case expanded the scope of public nuisance actions to include statutory violations affecting community rights.

3. Municipal Council, Ratlam v. Vardhichand (1980) 4 SCC 162

Facts:
Residents complained of open drains, stench, and insanitary conditions caused by municipal inaction.

Issue:
Whether the municipality can be compelled to abate public nuisance despite financial constraints.

Ratio Decidendi:
The Supreme Court held that public nuisance cannot be justified on grounds of financial inability.

Significance:
Although arising under criminal law, the principles strongly influence civil public nuisance jurisprudence under Section 91 CPC.

III. ORDER I RULE 8 CPC – REPRESENTATIVE SUITS

A. Concept and Object

Order I Rule 8 allows:

• One or more persons to sue or defend on behalf of numerous persons

• Provided they share the same interest

The rule aims to:

• Avoid multiplicity of proceedings

• Reduce litigation costs

• Ensure binding adjudication for all interested persons

B. Essential Conditions

1. Numerous persons must be involved

2. They must have the same interest

3. Permission or direction of the Court is mandatory

4. Notice to all interested persons is compulsory

5. Decree binds all persons represented

C. Meaning of “Same Interest”

• Same interest does not require same cause of action

• Common grievance or common relief is sufficient

• Explained clearly in the Explanation to Rule 8

D. Mandatory Public Notice

• Notice must be given:

  • By personal service, or

  • By public advertisement

• Expenses are borne by the plaintiff

• Any compromise or withdrawal requires fresh notice

E. Binding Nature of Decree

• Decree operates in rem

• Binding even on non-participating persons

• Ensures finality of adjudication

F. Case Laws on Order I Rule 8 CPC

1. Chairman, Tamil Nadu Housing Board v. T.N. Ganapathy (1990) 1 SCC 608

Facts:
A suit was filed on behalf of numerous allottees challenging arbitrary actions of the Housing Board.

Issue:
Whether representative suit was valid under Order I Rule 8.

Ratio Decidendi:
The Supreme Court held that where numerous persons share the same interest, a representative suit is maintainable, subject to compliance with notice requirements.

Significance:
The judgment clarified procedural safeguards and reinforced the mandatory nature of notice.

2. Kumaravelu Chettiar v. Ramaswami Ayyar (1933 Mad 482)

Facts:
A suit concerning management of temple properties was filed in a representative capacity.

Issue:
Meaning of “same interest”.

Ratio Decidendi:
The Court held that identity of cause of action is not necessary, and community of interest is sufficient.

Significance:
This case forms the basis of the Explanation to Order I Rule 8.

3. T.N. Housing Board v. Ganapathy (Reiterated Principle)

Ratio:
Failure to comply with Order I Rule 8 procedure vitiates the suit.

Significance:
Procedural compliance is not a mere formality but a jurisdictional requirement.

IV. RELATIONSHIP BETWEEN SECTION 91 AND ORDER I RULE 8

Aspect	Section 91	Order I Rule 8
Nature	Substantive right	Procedural mechanism
Subject	Public nuisance / public wrong	Representative litigation
Leave of Court	Mandatory	Mandatory
Notice	Not expressly required	Mandatory
Scope	Public at large	Numerous persons with same interest

They often operate together, but Order I Rule 8 is not compulsory for every Section 91 suit, unless representation of numerous persons is involved.

V. CONCLUSION

Section 91 CPC and Order I Rule 8 CPC together form a robust framework for collective civil justice. They balance:

• Public interest

• Judicial economy

• Procedural safeguards

By permitting actions without proof of special damage and allowing representative litigation, the CPC ensures that public rights are not rendered remediless due to technical barriers.