Section 91 (C.P.C.) - A weapon against public nuisance or other wrongful acts affecting public!

Section 91 of Code of Civil Procedure 1908, (C.P.C.), India - A Good weapon against public nuisance or other wrongful act affecting or likely to affect the public

In the year 2001, the Lawyers of District Bar Association, Hisar went on indefinite strike and started not attending courts for indefinite period  because of a personal dispute between an advocate namely Mrs. Shalini Atri and a Police Officer namely Suraj Pal without observing the fact that by doing so they were acting very wrongfully against many people whose court matters were being delayed due to this strike. After observing the difficulties of that suffering people, I along with my wife Smt. Sunita Bansal had filed a civil suit under the provision of section 91 CPC against District Bar Association Hisar in the civil court Hisar and because of this civil suit, the District Bar Association had to withdraw its said strike.

In the year 2013-14 I along with my one friend filed a civil suit under the provision of this section 91 CPC against state of Haryana, Chief Medical Officer Hisar, Drug Controller Hisar and all most all Private Doctors of Hisar city and compelled the state to direct these Private Doctors of Hisar not to prescribe any medicine to any of their patients by writing the name of the company that manufacture it but to prescribe the same only by writing its Generic name so that looting of people by manufacturing medicines company and Doctors could be stooped.  

In this way, I fought against two major wrongful acts affecting the public the under the provision of 91 CPC. Let us see what this section 91 CPC is. 

As per the CPC, the following is the definition of section 91 CPC:      

"(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."

Section 91 (1) of the Code prior to its amendment by the Amendment Act, 1976, authorized the Advocate-General or two or more persons having obtained his consent in writing to institute a suit. The provision with regard to the obtaining of the Advocate-General’s consent has now been modified by the provisions of S. 91 stated above.

The section creates a right of action where there was none before. But it does not take away a pre-existing right. It applies to public nuisances which affect public rights, such as a smooth working of courts, smooth functioning of public transport, smooth working of railway, smooth working of schools/colleges, smooth functioning of hospitals/clinics, smooth using of public highway etc. If a lawyer commits misconduct or cheating with his/her client then remedy is not available u/s 91 CPC, but same is available as per Advocate Act 1963 or as per IPC and CrPC. If a Doctor commits negligence or any other wrong with a person when that person does not come in the definition of the public at large, then this section 91 CPC is helpless rather the provisions of some other laws can be used against that Doctor. To attract this section in the matter of any highway, there must be an obstruction to a public highway and that obstruction must amount to a public nuisance. There is a distinction between a highway which is dedicated to the public at large, and one which is intended to be used by particular classes or limited sections of the public. The section does not apply where the right of way is not in respect of a highway but is a right of way claimed by only certain classes of persons. 

Some time the civil court grants a better relief to the public under section 91 CPC than a relief provided by any High Court or even Apex Court in any writ petition, filed in the public interest.

 

Ajay Bansal 
on 12 September 2018
Published in Civil Law
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