P.K. Bahri, J.

1. This Civil Revision pertains to an interim order made by the learned Sub Judge by which he had negatived the plea of the petitioners/ defendants that the suit was not maintainable in view of the provisions of Section 91 of the Code of Civil Procedure and Section 478 of The Delhi Municipal Corporation Act.

2. The suit was brought by the respondent / plaintiff pleading that the plaintiff is having his business at first floor of premises No. 336/3, Naya Katra, Chandni Chowk, Delhi and the plaintiff is selling the cloth in wholesale and large number of traders and customers visit his shop on the first floor and the petitioners/ defendants 1 & 2 are having business premises again on the first floor and they are dealing in wholesale business of selling Dupattas. There exists a big courtyard on the first floor and besides the two shops, there are other shops also located on the said first floor. The customers and the shopkeepers had to go through a long passage on the ground floor and then had to climb up the stair to reach the first floor and the big common courtyard in front of the said shops on the first floor is meant for common use of the shopkeepers as well as the customers.

3. The petitioners are stated to have, on or about September 20, 1977, erected two big steel racks in front of the shop of the plaintiff/respondent. Those racks are of 10 ft. height and they have been fixed upto the roof and the said racks have obstructed the passage of the plaintiff and had deprived the plaintiff and his customers the use of the portion of the common courtyard and the said racks have also obstructed the light and air of the shop of the plaintiff which has become quite dark. Thus, the plaintiff sought relief of mandatory injunction requiring the petitioners and the municipal corporation to remove the said illegal construction of the steel racks in front of the shop of the plaintiff and had also sought relief of permanent injunction restraining the petitioners from placing any boxes, cartons or constructing any further racks in the said courtyard, particularly in front of the shop of the plaintiff.

4. Counsel for the petitioners has vehemently argued that the act complained by the respondent in the plaint amounts to a public nuisance and thus, in view of Section 91 of the Code of Civil Procedure, the suit could not be maintainable except in consonance with the provisions of Section 91, which clearly lay down that in case of a public nuisance or other wrongful act affecting or likely to affect the public, a suit for declaration and injunction or for such other relief may be instituted by the Advocate General, or 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.

5. The learned Counsel for the petitioners, however, forgets that Section 91(2) makes it clear that nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. It is obvious that if a particular right of suit arises in favour of a particular person, even if there is public nuisance, even then such right of suit is not affected by provisions of Section 91(1) of the Code of Civil Procedure.

6. In the present case, it is not any public street in which any nuisance is being created so that it could be treated as a public nuisance, as contemplated by Section 91 of the Code of Civil Procedure. The act of the petitioners, which is complained of, has occurred on a common courtyard to which the customers visiting the shops on the first floor have right of access besides the shops are located on the first floor. Assuming for the sake of arguments that it has also some element of public nuisance as customers generally can visit the said place without any hindrance, even then the cause of action has accrued to the plaintiff as his individual rights are being affected by the acts of the petitioners/defendants. It is the business premises of the respondent/plaintiff which are being affected allegedly by the construction of the said steel racks and thus, it is evident that respondent/plaintiff has an independent right to sue in respect of the alleged acts of the petitioners even if those acts of the petitioners may also amount to public nuisance as well. Section 91(2) of the Code of Civil Procedure clearly gives the right to file a suit which is independent of the provisions of Section 91(1).

7. Similar ratio has been laid down by Haryana High Court in Ram Parkash Manchanda v. Amin Chand, 1983 85 PLR page 589 and also by Kerala High Court in Godavari Bhai v. Cannanore Municipality, Cannanore, AIR 1985 Kerala 2. So, the learned Sub Judge was right in coming to the conclusion that the suit was not barred by the provisions of Section 91 of the Code of Civil Procedure. I endorse the said finding.

8. As far as Section 478 of The Delhi Municipal Corporation Act is concerned, the said Section contemplates giving of prior notice for bringing a suit against Corporation or its employees if the suit complained of any act performed by Corporation or its employees. The very wording of the Section does not contemplate giving of a notice to the Corporation if the relief sought against the Corporation is for omission of the Corporation to perform its statutory duties.

9. Be as it may, in case relief sought in the suit is of injunction and which does not brook any delay inasmuch as if injunction is not obtained, there was likelihood of more injury being caused to the rights of the plaintiff, in such a case prior notice is not liable to be given to the Corporation for bringing a suit for injunction.

10. In the present case, not only the relief of mandatory injunction has been sought requiring the removal of the already constructed steel racks, an urgent relief of permanent injunction is also sought to restrain the defendants from placing any obstruction in the courtyard. Such a suit could not brook any delay and thus, such a suit, in my view, is maintainable without serving any prior notice on the Corporation under Section 478 of the Delhi Municipal Corporation Act.

11. So, I find that the order of the learned Sub Judge does not call for any interference. I dismiss this revision petition and direct that the lower Court record be immediately sent to the Trial Court concerned for further proceedings in the suit. Parties are directed to appear before the Trial Court for further proceedings on the 10th January 1994. As the proceedings remained protracted due to pendency of this Civil Revision, the learned Sub Judge may decide the case at an early date. The office to see that the Trial Court file reaches the lower Court before the date fixed.

12. Parties are left to bear their own costs. Revision dismissed.