JUDGMENT 1. - This appeal is directed against the judgment and decree dated August 19, 1977, of the Civil Judge, Nagaur, affirming the judgment and decree dated October 30, 1973, of the Munsif, Magistrate, Deedwana, decreeing the plaintiffs suit for declaration and injunction. 2. The plaintiffs Srichand and Pokar Ram filed a representative suit under Order 1, Rule 8, C.P.C. against Ram Chandra and his wife Chandri in the Court of Munsif, Deedwana, for declaration and injunction alleging, inter alia, that the defendants had encroached a portion of the public thoroughfare in the town of Ladnu by constructing an ora and thereby narrowed the width of the public road. The plaintiffs filed a suit for declaration and injunction and therein prayed that the encroachment made by the defendants lie removed and the ora which had been constructed by them covering the public thoroughfare lie demolished. Ramchander, defendant No. 1, filed a written statement contesting the averments made in the plaint. It was alleged that the suit land was his pattasud land and no encroachment on any public way was made by the defendants. The Munsif held against the defendants and decreed the plaintiffs suit by the judgment dated October 3, 1973. The appeal preferred against this by the defendants was dismissed by the Civil Judge, Nagaur, by the judgment dated August 19, 1977. Pokar Ram died during the pendency of the suit Ram chandlal so died during the pendency of the appeal before the Civil Judge. His legal representatives were brought on record. One of the contentions raised before the learned Civil Judge was that the present suit was not maintainable as it was not instituted after obtaining the consent of the Advocate General as required by Section 91, C.P.C. The learned Civil Judge negatived this plea and upheld the decree passed by the Munsif, Deedwana. The learned Civil Judge by referring to the provisions of Section 91, as amended, held that the present suit was filed under Order 1, Rule 8, C.P.C. and therefore, it was not necessary to obtain the consent of the Advocate General before filing the present suit. 3. Learned Counsel for the appellants has contended that the learned Civil Judge has fallen into an error in relying on the amended provisions of Section 91, C.P.C., as amended by the amendment Act No. 104 of 1976, which came into force on February 1, 1977. 3. Learned Counsel for the appellants has contended that the learned Civil Judge has fallen into an error in relying on the amended provisions of Section 91, C.P.C., as amended by the amendment Act No. 104 of 1976, which came into force on February 1, 1977. According to him, the mere fact that the suit was filed under Order 1, -Rule 8, C.P.C. would not dispense with the requirement of Section 91, C.P.C. as it stood before amendment and required prior permission if the Advocate General. 4. I find force in the submissions made by the counsel for the appellants. The present suit was R id on February 16, 1970. The unamended Section 91(1), C.P.C. which was in force at the time was as under:- "In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case." This section was amended by the Amending Act No. 104 of 1976, which came into force on February 1, 1977. by virtue of Section 97 of mending Act No. 104 of 1976, the amended provisions of Section 91 would not apply to any suit, appeal or proceeding instituted or filed before the commencement of the Amending Act and every such suit, appeal or proceeding shall be disposed of as if Section 30 of the Amending Act had not come into force. The amendment in Section 91 is clearly retrospective and does not affect the pending suits, appeals or proceedings. The present suit which was K bled on February 16, 1970, was, therefore, to be governed by the provisions as they stood before the amendment. In order to maintain a suit based on public nuisance, the plaintiff has either to allege and prove special damage or must m obtain the consent in. writing of the Advocate General for instituting a suit for declaration and injunction. In the absence of such consent a private individual could not maintain an action in respect of a public nuisance unless he was able to show that he had sustained special damage. writing of the Advocate General for instituting a suit for declaration and injunction. In the absence of such consent a private individual could not maintain an action in respect of a public nuisance unless he was able to show that he had sustained special damage. Section 91, however, enabled two or more persons to bring a suit for declaration and injunction in respect of a public nuisance even without the proof of such special damage if the said suit was filed after obtaining the consent of the Advocate General. In the present case, the plaintiffs had neither pleaded that special damage was caused to them nor the present suit was instituted after obtaining the consent of the Advocate General. As such the present suit was clearly not maintainable. This Court in Pukkha Ram & ors. v. Mangu & ors., S.B. Civil Second Appeal No. 337 of 1976, D/d. 5.2.1987 held and observed as under:- "The Civil Judge dismissed the plaintiffs suit on the ground that the suit was not filed with the consent of the Advocate General as required by Section 91(1), C.P.C. The learned Civil Judge has clearly held that the suit was against obstruction to a public highway and it was based on public nuisance. There was no pleading regarding special damage to the plaintiff and, therefore, the suit could be maintained only with the consent of the Advocate General as envisaged by Section 91(1), C P.C. The allegations in the plaint show that the suit was founded on the ground that the public way on the road Shyampura to Bandola was obstructed. No special damage to the plaintiff was pleaded. The provisions of Section 91(1) were clearly attracted. In a case of a public road proof of special damage is necessary. The learned Civil Judge was right in holding that without proof of special damages a suit for removing the obstruction from a public highway was not maintainable." This view finds full support by a judgment of the Calcutta High Court in Surendra Kumar v. Dist. Board, Nadia, AIR 1942 Cal. 360 , where B.K. Mukherji, J., (as he then was) enunciated the. Board, Nadia, AIR 1942 Cal. 360 , where B.K. Mukherji, J., (as he then was) enunciated the. principles as under: "A private individual has no right of action in respect of a public nuisance, such as an encroachmen; upon the public road which has the effect of withdrawing a part of the highway from the use of the public unless he can show that he has sustained some special damage over and above that inflicted upon the public at large; the object being to avoid multiplicity of litigation." ****************** "Consequently where a plaintiff seeks relief in respect of a public nuisance, and the suit is not brought in conformity with the provisions of Section 91(1), it is bound to fall unless special damage is shown." Where a suit is required to be filed after complying with the provisions of Section 91, C.P.C. the fact that it was filed under Order 1, Rule 8, C.P.C. would not render it maintainable even though the conditions of Section 91 were not complied with. In Surendra Kumar's case, B.K. Mukherji, J, further said:- "I will now advert to the two other points raised by Mr. Basu in the appeal. I agree with him that the Court below was not right in holding that the plaintiff could avoid the necessity of proving special damage, if he had brought the suit in a representative capacity. Order 1, Rule 8, C.P.C., as is well established, is a purely enabling section. It entitles under certain circumstances only some of the interested persons to bring a suit on behalf of all, but it does not force one to represent many if his action is maintainable without the joinder of these persons vide 24 Cal. 385; 26 16 Pat. 190.25. If it is necessary to prove special damage in suits by private individuals the necessity is not obviated by bringing the suit under Order 1, Rule 8, C.P.C." 5. In the present suit, no special damage was shown to have been caused to the plaintiffs, and the consent of the Advocate General was also not obtained before filing the suit, the same was liable to be dismissed being not in conformity with the provisions of Section 91, C.P.C. 6. Accordingly, the appeal is allowed; the judgment and decree passed by the learned courts below are set aside and the plaintiffs suit is dismissed. Parties shall bear their own costs.Appeal allowed. Accordingly, the appeal is allowed; the judgment and decree passed by the learned courts below are set aside and the plaintiffs suit is dismissed. Parties shall bear their own costs.Appeal allowed. *******