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Sec.91 of the CPC would apply to the extent the suit involves allegations regarding public nuisance apprehended by the members of the locality. In this regard, it would be pertinent to note the relevant provisions contained under Sec.91 of the CPC which provides as follows:
"Sec.91: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."

Therefore, going by the mandate of sub-section (1) of Sec.91of the CPC, the plaintiffs were legally obliged to secure leave of the court as contemplated in that provision before instituting the suit to the extent it involves public nuisance or other wrongful act affecting or likely to affect the public. It is admitted case that the plaintiffs have not obtained leave of the court as mandated under Sec.91 of the CPC. It is also to be noted that sub section (2) of Sec.91 expressly declares that the said provision of Sec.91 does not limit or otherwise affect any right of suit, which may exist independently of RSA No. 1209/04 - : 32 :-

its provisions. It is by now well established, as held in the rulings as in Municipal Board, Mangalaur v. Mahadeoji Maharaj, reported in AIR 1965 SC 1157, etc., that any person, who has suffered special damage on account of public nuisance can bring a suit without complying with the formalities of sub section (1) of Sec.91. But in the instant case, it is the admitted case of both parties that the construction of the open vault cemetery in question has not been completed in its entirety and that in view of the interim injunction passed, the actual functioning of the vault type cemetery has not yet commenced. Therefore, even the plaintiffs do not have a case that they have actually suffered any special damages on account of the pollution or other problems caused by the actual functioning of the cemetery. Therefore, the plaintiffs cannot also avail of the benefit of sub section (2) for any alleged public nuisance, which has actually resulted in special damage suffered by them on account of such public nuisance. Therefore, it is held that the suit to the extent it alleges the cause of action of public nuisance is not maintainable as the leave of the court was not secured as contemplated under Sec.91(1) of the CPC before institution of the suit. However, it is to be held that this will not in any way preclude this Court from RSA No. 1209/04 - : 33 :-
47. Another important issue to be examined is as to whether the plaintiffs could successfully establish regarding private nuisance apprehended by them. As already held herein above in view of the bar contained under Sec.91(1) of the CPC, the allegations of public nuisance apprehended by the inhabitants of the locality as projected in the plaint cannot be entertained in this case as mandatory leave under Sec.91(1) CPC has not been obtained in this case. Still further, as the plaintiffs have no case that they have actually suffered any damage or injury out of such alleged public nuisance so far as the functioning of the cemetery has not actually commenced, they cannot project any case of public nuisance on RSA No. 1209/04 - : 98 :-