JUDGMENT Sharpe, J. - This appeal arises out of a suit brought by the Plaintiffs-Appellants for declaration of their right of way over the suit land and for removal of an obstruction said to have been caused by the Defendants and for an injunction prohibiting future obstruction. The suit was contested by the Defendant who denied that there was any path or any right of way over the suit land and contended that the suit was not maintainable. On the pleadings, four issues were framed and Issue No. 1 was whether the suit was maintainable in its present form. A commissioner was appointed to hold a local investigation on the prayer of the Plaintiffs, and after the submission of his report and various adjournments, the case was fixed for hearing on the 27th of May, 1942. The case was opened and one of the Plaintiffs, who were eleven in number, was examined and cross-examined. On the basis of certain admissions made in his cross-examination the learned Munsif at once held that the disputed path was a public highway and not a village path, that the 11 Plaintiffs had not obtained authority from other members of the public for restoration of the way in question and dismissed the suit on the ground that it was not maintainable under sec. 91 and Or. 1, r. 8. C. P. C. On appeal, the learned District Judge affirmed the decision of the trial Court. He discarded the objection of the Appellants that the Court was wrong in disposing of the suit in this summary fashion without taking the evidence of the witnesses who were present in accordance with the provisions of Or. 18, r. 4, C. P. C. He also upheld the view of the lower Court that the admissions of the Plaintiff were sufficient for coming to the conclusion that the path was a public way and consequently that the view was correct that sec. 91 was a bar. In that connection he observed also that it had not been shown that any of the 11 Plaintiffs had suffered special damage and that the proper thing was for them to ask for permission to sue afresh if special damages could be proved or to withdraw the suit if special damages could not be proved. He apparently agreed with the contention that Or. He apparently agreed with the contention that Or. 1, r. 8, C. P. C., was not in itself a bar but he considered that in view of the admissions of the Plaintiff it would be idle to remand the case for taking further evidence. In his opinion the fact that no specific objections with regard to these grounds of non-maintainability were taken in the written statement was immaterial. Consequently, he dismissed the appeal. 2. Mr. Chaudhuri for the Appellant has contended that the procedure adopted by the trial Court and confirmed by the Appellate Court is erroneous since there had been no compliance with the provisions of Or. 18, r. 4, C. P. C., and the suit was decided without taking the evidence of the witnesses who were in attendance and which they were prepared to offer. He has maintained further that the views of the Courts below cannot be supported since they relied only on a few isolated passages from the cross-examination of one of the Plaintiffs and did not consider his evidence as a whole or the effect of the Defendant's denial of the existence of any path or other materials already on the record, such as the report of the Commissioner who held a local investigation or the order of the Magistrate who held a local inspection in connection with the application made to him for re-opening of the way in dispute. Mr. Mr. Chaudhuri has urged also that both the Courts below have entirely omitted to consider properly whether the path was a village path or a public highway within the full sense of that term and, whilst not disputing the view taken in Surendra Kumar Basu v. The District Board of Nadia 46 C. W. N. 261 (1941) that if, in fact, the suit can be held to be one for removal of a public nuisance, proof of special damage will be required, he has claimed that he is entitled to an opportunity to produce all his evidence to show that the disputed way is only a village path in which case proof of special damage will not be required and also that he should get an opportunity to prove special damage in case it should be decided on evidence that this suit in fact relates to a "public nuisance." He has pointed out that the Defendant did not claim in his written statement that the suit was barred either under sec. 91 or Or. 1, r. 8, C. P. C., and has contended that the Plaintiffs should not have been taken by surprise but should have been given proper facilities to meet the objections disclosed for the first time in the cross-examination of one of the Plaintiffs. He asked therefore that the suit should be remanded to the trial Court for decision after taking evidence of the parties. 3. For the Respondents, Mr. Borah has argued that in view of the admissions of the Plaintiff in his cross-examination, the view of the lower Courts is correct, since it is clear from those admissions that the disputed way is a public one and that all persons interested have not been made parties. He contends that the objections regarding maintainability were sufficiently indicated in the written statement of the Defendant and he relies on the decisions in the cases of Bissessar Pathak v. Harbans Lal A. I. R. [1937] Pat. 54, Mt. Ram Kali v. Munna Lal A. I. R. 1939 All. 586 and Maharaja Bir Bikram Kishore Manikya Bahadur v. Chairman, Municipality, Camilla 39 C. W. N. 590 (1935), in support of his claim that sec. 91 and Or. 1, r. 8, C. P. C., are attracted and that proof of special damages is necessary. 54, Mt. Ram Kali v. Munna Lal A. I. R. 1939 All. 586 and Maharaja Bir Bikram Kishore Manikya Bahadur v. Chairman, Municipality, Camilla 39 C. W. N. 590 (1935), in support of his claim that sec. 91 and Or. 1, r. 8, C. P. C., are attracted and that proof of special damages is necessary. Those decisions are, however, of no real assistance since they relate to suits in respect of "public nuisances." 4. In my opinion, the contentions of the Appellants are substantial and I think they have some legitimate grievance in regard to the manner in which their suit has been tried. I cannot agree with the argument that the Defendant in his written statement gave proper notice of the objections that the suit was not maintainable as framed because of the provisions of sec. 91 and Or. 1, r. 8, C. P. C. The objection in the written statement was stated in the usual general terms that the suit could not proceed as it was not framed according to the rules of the Civil Procedure Code. I do not think it can be reasonably inferred from this objection that it related to sec. 91 or Or. 1, r. 8, C. P. C., more specially as the main case for the Defendant was that there was no path at all in existence and no way over which anyone had a right of passage. The argument now advanced that the finding is correct, that there was a public road, seems entirely inconsistent with this pleading and I am not prepared to accept it. True, it is certainly for the Plaintiffs to establish their case but the disposal of the suit after examination witness did not, in my opinion, give the Plaintiffs an adequate opportunity of so doing. The provisions of Or. 18, r. 3 appear to have Keen ignored and the summary disposal of the suit without giving the Plaintiff any opportunity of rebutting the objection which was specifically indicated for the first time in the cross-examination of one of the Plaintiffs was, in my opinion, neither fair nor proper. 5. The provisions of Or. 18, r. 3 appear to have Keen ignored and the summary disposal of the suit without giving the Plaintiff any opportunity of rebutting the objection which was specifically indicated for the first time in the cross-examination of one of the Plaintiffs was, in my opinion, neither fair nor proper. 5. It must be admitted that the admissions of the Plaintiff may prove damaging and it may be that the Plaintiffs will ultimately be unable to satisfy the Court by the evidence which they adduce that the path in question is a village path and not a public highway but they should at least be given an opportunity of establishing their case and I do not agree with the view that the Court can summarily override the provisions of Or. 18, r. 4, C. P. C., and refuse to examine witnesses in attendance. It may be of course that in certain cases preliminary issues decided without examination of all or even of any of the witnesses produced, either with consent of the parties or where it is manifest that their evidence will be irrelevant or unnecessary, but where, as in the present case is being summarily dismissed on the finding that the path is a public way and that their is no proof of special damage, both substantial questions of fact, the provisions of Or. 18, r. 4, C. P. C., cannot, in my opinion, be ignored. In this connection I cannot agree either wit view of the lower Appellate Court that "in view of the admissions of one of the Plaintiffs it would have been idle to have proceeded mine a number of witnesses. Equally would it be idle to remand the case. The plaint would have to be amended in such a way as to change the character of the suit and witnesses produced after such remand would he studiously instructed to undo the damage caused by this perhaps inadvertent statement of one of the Plaintiffs at the present stage." It may well be that the Plaintiffs will try to avoid or explain the admissions of the Plaintiff by further evidence, but this cannot he helped in view of the manner in which the suit was tried and, in any case, sufficient attention does not seem to have been paid by the lower Courts to the evidence of the Plaintiff as a whole. In that evidence will he found other statements which are not consistent with the view that the way is a public highway. Neither the Commissioner's report nor the order of the Magistrate in the application before him nor the settlement records appear, prima facie at least, to support the claim that the path is a public highway and as already noted, such a view is quite inconsistent with the Defendant's own case. 6. As stated above it is not contested that if the obstruction complained of relates to a public highway, in other words, if the suit is for removal of a "public nuisance" then on the authority of the case of Surendra Kumar Basu v. The District Board of Nadia 46 C. W. N. 261 (1941), the Plaintiffs will have to establish special damage in order to avoid the bar of sec. 91, C. P. C. Mr. Chaudhuri has, however, relied on the decisions of Mt. Ram Kali and Another Vs. Munna Lal and Others, AIR 1939 All 586 , Choudhury Bibhuti Narayan Singh v. Maharaja Sri Guru Mahadev Sahi Bahadur I. L. R. 19 Pat. 208 (1939), Harish Chandra Saha v. Pran Nath Chakrabutty 39 C. L. J. 347 (1913) and Kali Charan Naskar v. Ram Kumar Sardar 17 C. W. N. 73 (1912) in support of his contention that in the case of a village pathway no question of special damage arises. No decision of a contrary nature has been cited by Mr. Borah for the Respondents. The decision in Harish Chandra Saha v. Pran Nath Chakrabutty 39 C. L. J. 347 (1913) is clear that "it is only in the case of a public highway that the question of special damage arises; where the case is one of a village path, there is no question of special damage." The decision of Kali Charan Naskar v. Ram Kumar Sardar 17 C. W. N. 73 (1912) emphasises that "there is a distinction between a public highway and a village path and a suit under sec. 30. 30. C. P. C. (of the Code of 1882) is maintainable when a right to a village pathway is the subject-matter of litigation even in the absence of special damage." It follows therefore that the question whether the path is a village path or a public highway is a material question of fact to be decided after bearing all available evidence and the summary decision that the way was a public highway and that there was no proof of special damages appears to me to have been improper. 7. As regards the omission to comply with the provisions of Or. 1, r. 8, the lower Appellate Court appears to have accepted the view with which I agree, that this is an enabling section and is not in itself a bar to the suit. I am not prepared to accept the contention that merely because certain oilier persons joined with the Plaintiffs in making an application to the Magistrate they have necessarily the same interest as the Plaintiffs. If, however, there is a defect in this respect it is one which may be remedied even now with the permission of the Court and even if it be not rectified it will not prevent the Plaintiffs maintaining a suit in their own right if they have a right to relief independently of other persons having the same interest, though a decision in the absence of those persons will not affect their interest if they are not made parties. In this connection the decision of Mt. Ram Kali and Another Vs. Munna Lal and Others, AIR 1939 All 586 and Choudhury Bibhuti Narayan Singh v. Maharaja Sri Guru Mahadev Asram Prasad Sahi Bahadur I. L. R. 19 Pat. 208 (1939) may be seen. 8. It may be noted also that no objection with regard to non-joinder or mis-joinder was taken in the written statement of the Defendant and in view of the provisions of the Or. 1. r. 13. C. P. C., it appears that so far as the Defendant No. 1 is concerned it should be held that any such objection on this ground has been waived. In my opinion, therefore, this appeal must be allowed. The decrees of the Courts below are get aside. The suit is remanded to the trial Court for proper disposal after giving the parties an opportunity of adducing their evidence in accordance with law. In my opinion, therefore, this appeal must be allowed. The decrees of the Courts below are get aside. The suit is remanded to the trial Court for proper disposal after giving the parties an opportunity of adducing their evidence in accordance with law. The Appellants will get their costs of this Court. Further costs will abide the result of the suit.