1. This is an appeal by defendants 1 to 4 in an action brought by the plaintiffs in which they claimed a declaration as regards the rights of the public to use a certain well, also that the public had a right of way over seven dhurs of land appertaining to the well. They sought also recovery of possession after demolition of the wall erected by the defendants which the plaintiffs claimed to be an obstruction to his right of user. The case in the Court below was held to be maintainable in spite of the fact that the provisions of O. 1, R. 8 of the CPC, had not been complied with, and also in spite of the fact that the plaintiffs failed either to allege or prove special damage. In my judgment, the case is disposed of on the authority of the decision which has not been referred to at the Bar by either party. Before dealing with that authority I would like to make some observation regarding the decision in 60 Cal 1003,1 where two learned Judges of the Calcutta High Court are reported to have held that:
Any individual member of the public has the right to maintain a suit for removal of obstruction of a public highway, if his right of passage through it is obstructed, without proving special damage.
2. If the learned Judges intended to hold that a single member of the public might bring an action, without the consent of the Advocate-General and without proving special damage, in respect of a public nuisance, I most respectfully disagree with them. A very long line of decisions in India has established the proposition that the law with regard to this matter in India is the same as in England; and, indeed in my judgment, it would be quite impossible to hold a contrary view having regard to the provisions of Section 91 of the CPC, which, by necessary implication states that to be the position. Had the facts of that case been brought to the notice of the learned Judges of the Calcutta High Court, they would have seen (specially in the Patna case) that this Court has not laid down any proposition which is not in conformity with the law as laid down by a large number of decisions of the Indian High Courts, and it would have been observed that the decision of their Lordships of the Judicial Committee of the Privy Council in 47 All 151,2 did not (as it is suggested) reverse the decision of the Indian High Courts to the effect that an action with regard to a public nuisance to be maintained, must establish special damage, or be brought under the provisions of Section 91 of the CPC.
3. There Lord Dunedin, delivering the judgment of their Lordships of the Privy Council, and referring to a number of cases, accepted the Madras view as against the Bombay view on a very limited question relating to the conduct of religious processions through the streets and over the public highway, and it is with regard to that matter and that matter alone that their Lordships' decision was directed in the case in 47 All 151. If the matter ever comes up for decision before their Lordships of the Privy Council, I have he doubt that it will be pointed out that their decision was limited to the narrower and not to the wider question whether an action with regard to a public nuisance could be maintained without the proof of special damage. I would add that every one of the decisions to which their Lord, ships of the Privy Council referred, namely, the decisions in 2 Bom 457,3 18 Bom 693,4 34 Bom 5715 and 24 Cal 524,6 related expressly to religious processions and not to what I describe as the ‘wider question’. In my judgment the law in India is precisely the same in this regard as it is in England and it does not depend on the technical question of whether in the circumstances of the case an indictment could be maintained. Technical objections of that kind do not obtain in India. But the main principle upon which this question is to be discussed and upon which the whole matter rests is that where all members of the public have suffered inconvenience or damage, an action by an individual will not lie excepting as indicated by Section 91 of the CPC. The law in England in this respect has never been altered, and with regard to the case in hand the principle laid down in the well-known case in 4 Ex. 43,7 applies.
4. There is no doubt with regard to the facts of this case in spite of the loose pleadings, and it is quite clear that the plaintiff is one of the limited members who enjoys the use of a certain well. The user of that well has been obstructed by the action of the defendants, and the short question is whether an action in those circumstances would lie at the instance of the plaintiff alone. O. 1, R. 8 of the CPC, has nothing to do with the matter at all O. 1, R. 8, as has been pointed out by a number of decisions, is an enabling section which entitles one party to represent many who have a common cause of action; but it does not force one to represent many if his action is maintainable without the joinder of the other persons. In any event the test in this case is not whether O. 1, R. 8, applies, and for the reason which I have stated clearly it has nothing to do with the matter. The fact that he has not complied strictly with the order and rule does not in any way prevent his action. The real test, as I have indicated, is whether this is a public nuisance or not.
5. Now, I do not think I can do better than-referring to the decision of Kelly, C.B in 4 Ex. 43. In that case a number of inhabitants of a village had a right by prescription to a continuous now of water for domestic purposes from what was called a spout. This right had been obstructed by the defendant and by which the quantity of water coming from the spout had been diminished. In an action brought by the plaintiff alone, in which he alleged that he in common with the other inhabitants, enjoyed this customary right, the question arose whether his action was maintainable without the proof of special damage, Kelly, C.B, in his judgment (Martin and Bramwell, B.B concurred and Channel, B., expressed an opinion in the same sense) made this observation:
I think it is clear on the authorities, and especially on the case of Westbury v. Powel cited in Fineux v. Hovenden.8 that such an action is maintainable. It was there determined that where-the inhabitants of Southwark had a common watering place, and the defendant stopped it, the plaintiff being an inhabitant, might bring an action on the case, there being no other remedy but by action; and the action was accordingly held maintainable without actual and particular damage to the plaintiff.
6. Later he observes:
It is conceded that any inhabitant who had suffered actual damage from want of water could maintain an action for the injury done him. But that actual damage is not in each a case a necessary ingredient, is established by the passage cited by my brother Martin from 1 Wms Saunders 346(a), in the note to Mellor v. Spateman,9 where it is laid down that a commoner may have an action on the case without proving any specific injury to himself against a person wrongfully depasturing cattle on the common; and the author observes: ‘The law considers that the right of the commoner is Injured by such an act, and, therefore, allows him to bring an action for it to prevent a wrong-doer from gaining a right by repeated acts of encroachment. For wherever any act injures another's right, and would be evidence in future in favour of the wrong-doer, an action may be maintained for an invasion of the right without proof of any specific injury’.
7. The learned Chief Baron later refers to 1 Bing (NS) 549,10 in which Tindal, C.J made this observation:
The erection of the tunnel is to be considered as a permanent obstruction to the plaintiff's right, and, therefore, an injury to the plaintiff, even though he receives no immediate damage thereby. The right of the plaintiff to this way is injured if there is an obstruction in its nature permanent. If acquiesced in for twenty years, it would become evidence of an abandonment and renunciation of the right of way.
8. It is needless to say that the observations which I have read from a case precisely similar to the one before me, clearly show that an action would lie without proof of special damage. In my opinion, the decision of the learned Judge in the Court below was right although perhaps for reasons somewhat different from the ones which he expressed. That in my view concludes the matter and for the reasons which I have stated I think the appeal fails and must be dismissed with costs.
9. In the circumstances the plaintiffs are entitled to the declaration they claimed and I would grant an injunction restraining the defendants from obstructing the user of the well by the plaintiffs and other individuals. Leave to appeal is refused.
V.B.B/A.L
10. Appeal dismissed.