Section 91 of CPC – Legal Provisions:

Section 91 of CPC applies only to suits relating to Public Nuisance.

As per section 268 of Indian Penal Code—A person is guilty of a public nuisance who does any act or
is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or
to the people in general who dwell or occupy property in the vicinity, or which must necessarily
cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public
right.

Provisions:

Section 91 of CPC states the provisions regarding the persons who may sue, which are as follows:
1. Advocate General of State Government;
2. Two or more persons with the leave of court
3. Any private person who has sustained special damage.

Remedies in cases of Public Nuisance:

1. A person committing Public Nuisance can be punished under Indian Penal Code.
2. Executive Magistrates under section 133 and section 134 of CrPC may remove Public Nuisance in
certain circumstances by exercising summary powers.
3. A suit can be instituted for declaration, injunction or for other appropriate relief without proof of
Special damage.
4. A Suit may also be filed by private individual, where he has suffered Special damage.

In Soltau v. De Held (1851), the plaintiff resided in close quarters to the Roman Catholic Church. The chapel
bell of the church was rung all through day and night. It was held that the continuous ringing of the bells \

constituted a public nuisance.

Essential of Section 92 CPC

Section 92 of the Code of Civil Procedure, 1908 deals with public charities and offers several ways to fix a
public trust that isn’t working properly. Under this Section, the Court of the District Judge has the power to
administer public charities. The following are the key components of the provision:

1. It allows the Advocate General or two or more other parties with an interest in the trust to file a
lawsuit regarding a breach of the trust with the court’s permission for the reliefs specified therein.
2. The plaintiffs are merely acting as the beneficiaries’ representatives, and the action is brought on
behalf of all.
3. It shields public trusts with charitable or religious purposes from being harassed by lawsuits
brought against them.
4. Before the Advocate General files an action of this sort, prima facie evidence fulfilling breach of
trust or any of the required factors for obtaining court orders must be present.
5. The litigation may be brought against people in possession of trust property who have a claim
against the trust, or against trustees who have committed a breach of trust.

In the case of Bishwanath v. Sri Thakur Radha, 1967 it was determined that to invoke Section 92
of the Code of Civil Procedure, three requirements must be met:
 1. Firstly, the trust was established for charitable or public purposes,
2. Secondly, there was a breach of trust, and
3. Lastly, a court order was required to be followed in the administration of such a trust.

If any of the three elements mentioned in this case is not met, then the suit will fall beyond the purview of the
aforementioned Section.

Paramatmananda v. Ramji Tripathi, (1974)

It was decided in the case of Paramatmananda v. Ramji Tripathi (1974), that just the accusations in
the plaint should be examined in the first instance to determine whether the complaint fits within
the purview of Section 92. However, if the evidence is taken and it is discovered that the breach of
trust alleged has not been established and that the prayer for the direction of the Court is vague and
not based on any solid foundation in fact or reason, but is made solely to bring the suit under
Section 92, then the suit must be dismissed.

Conclusion:

As a result, we can conclude that a decision in a lawsuit brought under Section 92 of the CPC
has a final effect against the entire world, either as a judgement in rem or by considering
everyone as a party to the lawsuit. A lawsuit under Section 92 CPC may only be brought to a
permanent public trust, and the judgement in such a lawsuit would be rendered in rem
rather than in personam. When the District Judge rules that the property is a public trust
and establishes a plan for its management, and no one objects to the public or permanent
nature of the trust, no party can dispute the permanent nature of the trust.
 The Black’s Law Dictionary, while construing the concept of ‘appeal’ in its most original and
natural sense, explains it as “the complaint to a superior court for an injustice done or error
committed by an inferior one, whose judgment or decision the Court above is called upon to
correct or reverse. Sections 96 to 108 & Order 41 of the Code of Civil Procedure, 1908 deal
with appeals from original decrees known as First appeals.

GROUNDS OF AN APPEAL.

An appeal under the Civil Procedure Code can be made under the following grounds:

• A decision has already been made by a judicial or administrative authority.

• A person is aggrieved of such decision, whether or not he is a party to the proceeding.
• The appeal is entertained by a reviewing body.

WHO CAN FILE AN APPEAL?

Any of the following persons can file an appeal:

• Any party to the original proceeding or his/her legal representatives.

• Any person claiming under such party or a transferee of interests of such party.
• Any person appointed by the court as the legal guardian of a minor.
• Any other aggrieved person after taking leave of the court.

MEMORANDUM OF APPEAL.

Any appeal under these provisions must be supported with a memorandum of appeal, which
is a document comprising of the grounds of appeal. The constituents of a valid
memorandum of appeal include:

• The grounds for filing an appeal.

• Signature of the appellant or his/her pleader.
• The attachment of the certified copy of the original judgement.

The court has the right to reject or amend any memorandum which it finds to be
inappropriate. The court shall record the reasons for such rejection.

The memorandum can be divided into two parts:

• Formal part
• Material part

In the formal part, the following should be included:

1. Heading of the case: the case should begin with the name of the court, the name and
address of the parties to the appeal should be given first.
2. An Introductory state of the appellant: this must give the particulars of the decree or order
appealed form.
3. The valuation of the appeal:

The material part of an appeal includes the following ground of an appeal:

1. The grounds of an appeal or objection should be written distinctively and specifically.

2. They should be written concisely.
3. They must not be framed in a narrative or an argumentative form.

Section 96 provides, An appeal shall lie from any decree passed by court exercising Original
Jurisdiction, an appeal may lie from original decrees which is passed exparte i.e. without hearing of
the parties. No appeal lies against the decree passed by small cause court, if the value of the subject-
matter does not exceed Rs. 10,000

Section 97 provides that the failure to appeal against a preliminary decree is a bar to raising any
objection to it in the appeal against a final decree. The Court in the case of Subbanna v.
Subbanna provides that, the object of the section is that questions which have been urged by the
parties & decided by the Court at the stage of the preliminary decree will not be open for re-agitation
at the stage of preparation of the final decree. It’d be considered as finally decided if no appeal is
preferred against it.

SECOND APPEAL

Section 100 of the Civil Procedure Code provides that an appeal can be moved to the High
Court from every decree passed in appeal by any subordinate Court if the High Court finds
that the case includes a substantial question of law. Also, the High Court may hear the
appeal on any other substantial question of law not formulated by it if it feels that the case
involves such question. It may be noted that a second appeal is only meant for questions of
law and hence cannot be made on the grounds of an erroneous finding of fact. In another
important note, second appeals cannot be made for a decree if the subject matter of the
original suit is intended to recover a sum lesser than Rs. 25,000.

Chunilal Mehta and Sons Ltd vs Century Spinning Co Ltd 1962

The proper test for determining whether a Legal Issue raised in the case is substantial would
be whether it is of public importance or whether it directly and substantially affects the
rights of the parties and if so whether it is an open question in the sense that it is not finally
settled by this Court or by the Privy Council or by the Federal Court or is not free from
difficulty or calls for a discussion of alternative views.

Letters patent appeal

An appeal by a petitioner against a decision of a single judge to a different bench of the same court
is known as Letter Patents Appeal (LPA). Section 100A expressly bars a Letters Patent Appeal from an
order of a learned Single Judge of the High Court, on/after 01/07/2002, in an appeal arising from an
original/appellate decree. The bar is absolute & applies to all such appellate orders.

Powers of Appellate Court

Section 107 prescribes the powers of an appellate Court:

• To remand a case;
• To frame issues & refer them for trial;
• Reappraisal of evidence when a finding of fact is challenged before it;
• To summon witnesses;
• Can reverse inference of lower Court, if not justified;
• Appreciation of evidence.

DIFFERENCE BETWEEN SECOND APPEAL AND REVISION

Despite the similarities in outlook, the nature of a second appeal and revision vary, the likes
of which has been elaborated below:
SECOND APPEAL REVISION

Involves a substantial question of law Involves a jurisdictional error

Filed to oppose a decree passed by the appellate court Filed in cases where there was not any appeal in the first place

The High Court is entitled to rectify a legal error of the lower court The High Court is not entitled to amend the decision of a lower cou

The High Court may decide an issue of fact An issue of fact cannot be decided by the jurisdictional body

The High Court is not vested with any discretionary powers, and hence it cannot refuse to grant relief on equitable grounds The High Court may decline interference on the satisfaction that su
Section 114 of the court refers to review. Review means to reconsider, to look again or to re
examine. In legal sense, it is a judicial re-examination of the case by the same court and by the same
Judge.

Nature and Scope

According to the general principle of law, once the judgment is passed the court becomes functus
officio. A right of review is both substantive as well as procedural. As a substantive right, it has to be
conferred by law, either expressly or by necessary implications. There can be no inherent right of
review. As a procedural provision, every Court or tribunal can correct an inadvertent error which has
crept in the order due to procedural defect or mathematical or clerical error or by misrepresentation
or fraud

Object and Application

A person aggrieved by a decree or order may apply for review of a Judgment. But the concept,
purpose and provisions ‘’person aggrieved’’ varies according to the context, purpose and provisions
of the statue. A person who is neither a party to the proceedings nor a decree or order binds him,
cannot apply for review as the decree or order does not adversely or prejudicially affect him
Rectification of an order stems from the fundamental principle that justice is above all.

Circumstances for Reviews

A) No Right of appeal is allowed
Where no right of appeal is allowed to an aggrieved party, he can file a review application.

B) Right of appeal lies but not availed.

A review petition is also maintainable in cases where appeal is provided but no such appeal is
preferred by the aggrieved party. However when appeal is already pending in the Court, no review
petition can be entertained. But if the review petition is filed first and subsequently appeal is filed,
the jurisdiction of the court to deal with the review application is not affected.

Grounds for review

(i) Discovery of new and important matter or evidence.
A review is permissible on the grounds of discovery by the applicant of some new and important
matter or evidence which, after exercise of due diligence, was not within his knowledge or could not
be produced by him at the time when the decree is passed. The underlying object of this provision is
neither to enable the Court to write a second Judgment nor to give a second innings to the party
who has lost the case because of his negligence or indifference. Therefore, a party seeking a review
must show that there was no remiss on his part in adducing all possible evidence at the trial.
such evidence must be:-
(a) Relevant
(b) Or of such character that if it had been given it might possibly have altered the judgment.

(ii) Mistake or error

What is an error apparent on the face of the record cannot be defined precisely or exhaustively, and
it should be determined on the facts of the each case. Such error may be one of fact or of the law.
No error can be said to be apparent on the face of the record if it is not self-evident and requires an
examination or argument to establish it.

In the case of Thungabhandra Industries ltd v. Govt of A.P, the Supreme Court rightly observed:
“…….where without any elaborate argument one could point to the error and say here is a
substantial point of law which stares one in the face, and there could reasonably be no two opinions
entertained about it, a clear case of apparent on the face of the record would be made out.
Revision
A. Meaning
Section 115 of the Code of Civil Procedure empowers A High Court to entertain a revision in any case
decided by a subordinate Court in certain circumstances. Revision means the action of revising,
especially critically or careful examination or perusal with a view to correcting or improving.

B. Nature and Scope

The High Court's revisional power cannot be invoked unless the following conditions exist:

1. there must be a case decided;

2. the court deciding the case must be subordinate to the High Court;
3. no appeal should lie to the High Court against the decision;

in deciding the case the subordinate court must appear to have;

(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction vested in it by law; or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity.

The powers given are clearly limited to the keeping of subordinate courts within the bound of their
jurisdiction. Though Revisional Jurisdiction is only a part of general appellate jurisdiction, it cannot
be equated with that of a full fledged appeal.

In Pandurang Ramchandra v. Maruti Ramchandra , it was held that

’’..But an erroneous decision on a question of law reached by the subordinate court which has no
relation to questions of jurisdiction of that court, cannot be corrected by the High court under S.
115."

C. Object and Application

Revisional Jurisdiction doesn’t allow High Court to interfere and correct errors of facts or of law.
When the order is within the Jurisdiction of the subordinate Court, even if the order is right or wrong
or in accordance with the law or not, unless it has exercised its jurisdiction illegally or with material
irregularity the high Court has no jurisdiction to interfere. The high Court will not interfere in
revision until it comes to the conclusion that the impugned order has occasioned a failure of justice
or has caused an irreparable injury to the party against when it is made. The Revisional power under
Section 115 of the Code clearly is the nature of a power to issue a writ of certiorari. Its ambit is not
as large as certiorari as Revisional Jurisdiction can only be exercised in the failure of Jurisdictional
error but not in any other manner.
 Section 144 encoded the “Doctrine of Restitution” in Code of Civil Procedure, 1908. The doctrine of
restitution is based upon the well-known maxim “actus curiae neminem gravabit”, i.e. the act of court shall
harm no one.

The expression of “restitution” means “an act of restoring a thing to its proper power”. It provides putting a
party back in possession of land, tenement of property, who had been unlawfully dispossessed or deprived of
it.

In other words, the principle of the doctrine of restitution is that on the reversal of a decree, the law imposes
an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to
the other party for what he has lost, and the Court in making restitution is bound to restore the parties, so far
as they can be restored, to the same position they were in at the time when the Court by its erroneous action
had displaced them from.

Illustrations
A obtains a decree against B for possession of immovable property and in execution of the decree obtains
possession thereof. The decree is subsequently reversed in appeal. B is entitled under this section to restitution
of the property, even though there is no direction for restitution in the decree of the appellate court.

Section 144: Application for Restitution

Section 144 does not confer any new substantive right to the party, but merely regulates the power of the
court in that behalf.

If any party who is entitled to any benefit by way of restitution, apply for restitution, the court which passed
the decree shall order for such restitution, by way of any order, including order for the refund of costs and for
the payment of interest, damages, compensation and mesne profits, which are property consequential on
such variation, reversal, setting aside or modification of the decree or order.

Which court has power of Restitution?

As per Section 144, parties can apply for restitution in the court which passed the decree or order and the
expression “Court which passed the decree or order” shall be deemed to include, —

• where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction,
the Court of first instance;
• where the decree or order has been set aside by a separate suit, the court of first instance which passed
such decree or order.

Where the court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the court
which, if the suit wherein the decree or order was passed were instituted at the time of making the application
for restitution under this section, would have jurisdiction to try such suit.

BAR TO SEPARATE SUITS

Sub-section (2) of section 144, bar the institution of separate suit for such relief which could be obtained by
the application for restitution.

Object
Sec. 144 is founded on the equitable principle that one who has taken advantage of a decree of a court should
not be permitted to retain it if the decree is reversed or modified. That is why the marginal note to Sec. 144(1)
reads ‘application for restitution’ and the word ‘restitution’ in its ethological sense means restoring to a party
on the modification, variation or reversal of a decree what has been lost to him in execution of the decree or
indirect consequence of the decree. (Zafar Khan v. Board of Revenue (1984))

Pre-requisite conditions for restitution

For the order of restitution-
• there must be an erroneous judgment;
• the benefit of that erroneous judgment has been received by one party; and
• the erroneous judgment has been reversed, set aside or modified.

If these conditions are satisfied, the court must grant restitution. It is not discretionary but obligatory. (Lal
Bhagwant Singh v. Kishen Das, AIR 1953 SC 136)

Limitation
An application under Section 144 is an application for execution of a decree and is governed by Article 136 of
the Limitation Act, 1963. The period of limitation for such an application is twelve years and it will start from
the date of the appellate decree or order.

Appeal
Section 2(2) of the CPC expressly states that the determination of a question under Section 144 is appealable.
 1. Procedure to be followed by court when court has no jurisdiction to try suit pending
before it

It is a settled legal position as explained by Hon’ble

Supreme Court in Raizada Topandas Vs. Gorakhram reported
in AIR 1964 SC 1348 that the plaintiff chooses his forum and files
his suit. If he establishes the correctness of his facts, he will get his
relief from the forum chosen: If he frames his suit in a manner not
warranted by the facts, and goes for his relief to a Court which
cannot grant him relief on the true facts, he will have his suit
dismissed

2. Dhulabhai And Others vs The State Of Madhya Pradesh

The appellants served notices under s. 80 of the Code of Civil Procedure and filed the
present suits for refund of the tax on the ground that it was illegally collected from them
being against the constitutional prohibition in Art. 301 and not saved under Art.
304(a) of the Constitution.