Karnataka HC Remands Villagers’ Suit Over Alleged Road Encroachment To Reconsider Whether Section 91 CPC Bars It.

The plaintiffs filed O.S. No. 152/2019 seeking a declaration that the ‘A’ schedule property was a public road, mandatory relief to remove an alleged encroachment, and a permanent injunction. They proceeded in a representative capacity after obtaining leave under Order I Rule 8 CPC.

The defendants applied under Order VII Rule 11(a) and (d) CPC to reject the plaint, relying, among other things, on Sections 80 and 91 CPC and Section 61 of the Karnataka Land Revenue Act. The trial court rejected the application. The defendants challenged that order in this revision petition.

Section 80 CPC applies to suits against the Government or a public officer concerning an act done in an official capacity; absence of notice under that provision does not, by itself, justify rejection where the suit is against private defendants.

Section 91(1)(b) CPC permits two or more persons, with the Court’s leave, to sue in respect of a public nuisance or other wrongful act affecting or likely to affect the public, even without special damage. Under Section 91(2), the provision does not preclude a suit based on an independent right or injury.

On an application under Order VII Rule 11 CPC, the court must read the plaint as a whole and consider documents forming part of the plaintiffs’ case; it must assess whether the suit is barred on its pleaded foundation, without assuming the defence or finally deciding disputed facts.

No precedent was cited.

The High Court held that Section 80 CPC did not furnish a ground for rejection because the defendants were private parties; questions concerning whether a public authority was a necessary or proper party could not support rejection on that basis.

However, the trial court had not adequately examined the distinct objection under Section 91 CPC. The declaration that the property was a public road and the associated injunction required the court to determine whether the pleaded case concerned only a public right shared by the community, or also disclosed an independent injury—such as obstruction of the plaintiffs’ access to their houses. The reference to access alone could not establish that independent injury without examining the pleaded facts.

The High Court therefore remitted the matter for that examination and did not finally decide the Section 91 objection or the Section 61 issue.

The trial court was directed to pass a fresh order; the High Court did not itself reject the plaint or determine whether the property was a public road.