P L D 1962 (W (PLP)

BASHIRUDDIN AHMAD, J.‑This is an appeal by the defendant arising out of a suit for damages. The material facts of the case are these: Somewhere in January 1952 the Corporation of the City of Lahore constructed a drain along the house of Siraj Din, situate in Rajgarh Street, Kot Abdullah Shah, Mozang, Lahore, and a sump for sewerage water. On the 5th of May 1952, the occupants of the house noticed cracks in the wall of the said house and the owner telegraphically informed the Chief Executive officer of the Lahore corporation about it. The staff of the Lahore Corporation closed the drain and the pit for sullage‑water as it was found that water from this pit escaped into the founda tion of the plaintiff's house, with the result that the upper storey of the house collapsed on the 7th of May 1952. The plaintiff, therefore, claimed damages to the extent of Rs. 5,635 on the ground that the damage was the direct result of negligence on the part of Corporation in the construction and maintenance of the sewer and the sullage pit from which the water instead of flowing into the main sewer escaped into the foundations of the plaintiff's house.

2. The defendant Corporation denied that the construction of the drain or the sump was defective and maintained that the foundations of the plaintiff's house were rot laid according to the specifications and further that the plaintiff constructed a projec tion towards the street without obtaining the necessary sanction. Lastly, it was urged that water from a tighar used by the owner of a neighouring house, under construction, for mixing building material, had in fact escaped into the foundations of the plaintiff's house and had also caused damage to the sump.

3. On the pleadings of the parties the trial Court framed the following issues :‑ (1) Was the injury caused to the plaintiff's house due to escape of water from the sewer and the drain constructed by the defendant in front of the plaintiff's house ? (2) If so, was the escape of the water due to the faulty construction of the drain and the sewer by the defendant ? (3) If the first two issues are proved, did the defendant effect necessary repairs to the drain and the sump in order to prevent the leakage of water after they were informed ? If not, are they not liable to pay the plaintiff any damages ? (4) Are the defendants liable for any damages even if they made necessary repairs after having been informed of the fault in the sewer and the drain ? (5) Was any act or conduct of the plaintiff itself responsible for the damage caused and what is its effect ? (6) Is the extent of damage caused to the plaintiff's house so much that the house shall have to be re‑constructed ? If so, what is its cost to rebuild it ? (7) if it is held that the house is repairable what would be the cost of the repairs ? (8) To what amount, if any, is the plaintiff entitled ?

4. On a careful consideration of the evidence, the trial Court held under issues Nos. 1 and 2 that the loss to the house of the plaintiff had occurred through leakage of water from the sump constructed by the defendant near the house of the plaintiff. It was held under issue No. 3 that the defendant Corporation closed the sump and the drain after the house of the plaintiff had been damaged. Issue No. 4 was decided in the affirmative. Issue No. 5 was decided against the defendant. It was held under issue No. 6 that it was not necessary to reconstruct the entire house. The trial Court found under issue No. 7 that the plaintiff was entitled to get Rs. 3,528 from the defendant on account of the damage to his house. Accordingly, the suit of the plaintiff was decreed to the extent of Rs. 3,528 with proportionate costs against the defendant. As against that judgment and the decree passed by the Senior Civil Judge, Lahore, dated the 17th of October 1955, the defendant Corporation has come up in appeal.

5. For the appellant it has been argued that the finding that the damage to the house of the plaintiff occurred due to leakage of water from the sump constructed by the defendant near the house of the plaintiff was incorrect. We proceed to examine the evidence on which the finding on issues Nos. 1 and 2 is based. The evidence is relevant to the decision of these issues is to be found in the statements of Safdar Ali, Muhammad Nazir, Mian Muhammad Shaft, Abdul Hamid, Ghulam Sarwar Khan and Siraj Din plaintiff. Safdar Ali who lived in the house as a tenant of the plaintiff for about five years said in his statement that the house was in a good condition. Continuing the witness said that he was on duty when he learnt that the house had cracked. He returned from duty to find his children sitting outside the house. He noticed that the floor as also the walls and roof of the house were all cracked. Safdar Ali said further in his statement that he was busy in taking out the household effects when the employees of the Corporation came there and filled up the sullage pit. Muhammad Nazir who worked as an Assistant in the office of the Director Agriculture, deposed that the house of the plain tiff suddenly collapsed. He went to the spot and inspected the same in the presence of the Corporation employees and noticed that there were holes in the sump towards the house of the plaintiff. Muhammad Nazir goes on to say that the staff of the Corporation closed the sump and constructed a new drain in the middle of the street. Mian Muhammad Shafi stated that the plaintiff's house was in a good condition before the Corpora tion constructed a sump at the corner of the house six months before it collapsed. The sullage‑water of the locality collected in this sump and when the staff of the Lahore Corporation visited the place and inspected the sump they found that there were cracks in the pit and the water from the pit instead of flow ing into the main sewerage had escaped into the foundations of the house of the plaintiff. Ghulam Sarwar Khan, Consulting Engineer, who was called as the 6th witness for the plaintiff clearly stated that the house fell down on account of leakage of water from the sump. He said further that the water from the sullage pit escaped into the foundations of the house of the plaintiff which led to the sinking of the foundations and the collapse of the house. The plaintiff while appearing as his own witness stated that ten years ago he built this house at a cost of Rs. 10,000 and that the house fell down on account of percola tion of the water from the sump into the foundations. The plaintiff continued that he built the house after obtaining the necessary sanction from the Corporation and constructed the projection towards the street at the time when he built the house after obtaining permission for constructing the projection.

6. The defendant Corporation examined Mr. Badar‑ud‑Din, Municipal Engineer, and Muhammad Hussain, Overseer. Their evidence is unanimous that the sump was constructed in cement concrete and cement bricks and was all cement plastered and that the question of leakage of water from the sump did not arise. The Municipal Engineer and the Overseer both declared that the foundations of the house in dispute were not laid according to specifications and that water from a tighar, close to the house and not from the sullage tank had escaped into the foundations of the house of the plaintiff and it fell down.

7. No reliance can be placed on the testimony of the Municipal Engineer or the Overseer. Apart from the con sideration that these gentlemen are in the employ of the Corpora tion, there is the further fact that neither the Municipal Engineer nor the Overseer bad any technical qualification and as such it is not possible for us to accept as correct what they stated both as regards the construction of the drain and the sump. The defence that the water from a tighar made for the purpose of mixing building material by the owner of a neighbouring house is equally untenable because the Municipal Engineer admits that the tighar was made on the pacca portion of the street. The suggestion made in cross‑examination to some of the plaintiff's witnesses in this regard was repelled and Mr. Ghulam Sarwar Khan, Consult ing Engineer, who is technically qualified definitely said that it was impossible that the water from a tighar used for mixing lime resulted in damage to the house. The opinion of the expert is certainly entitled to great weight and must be preferred to the statements of Mr. Badar‑ud‑Din and Muhammad Hussain,' who are not technically qualified. In view of the material on record we are satisfied that the plaintiff succeeded in proving that damage to his house was due to the negligence on the part of the defendant Corporation, and this belief in our mind is further confirmed by the fact that immediately on receipt of the telegram from the plaintiff the staff of the Corporation not only closed the drain but also the sump meant for storage of sullage‑water.

8. On the question of liability of the Corporation for negligence, we do not entertain any doubt. The learned counsel for the Lahore Corporation referred to section 192 of the City of Lahore Corporation Act, XV of 1941 and also relied on Green v. The Chelsea Waterworks Company ((1894) 70 L T R 547). Section 192 occurs in Chapter 16, Act V of 1941, which deals with the general powers for supplying the city with water. It runs as under: ‑ "Neither the owner nor occupier of any land or building in which pipes, mains or other works are situated, nor the Corporation shall be liable to pay compensation to any person for any damage caused by any leakage of water or any failure to keep in repair such pipes, mains or other works, unless the owner or occupier or the Corporation has knowledge thereof and has failed to take reasonably prompt action to report the same to the prescribed officer or to stop the leakage or to execute the required repairs, as the case may be." In Green v. The Chelsea Waterworks Company, a main belonging to a Waterworks company burst and he water flooded in the plaintiff's premises causing considerable damage, and it was held that the company being authorised by Act of Parliament to lay main, and having been guilty of no negligence, were not liable in damages to the plaintiff. The authority is clearly distinguishable inasmuch as in the case before us in appeal we are concerned with the question of negligence on the part of the Corporation in construction and maintenance of the sewer. We consider that the rule expressed by Lord Campbell in the Southampton: and Itchin Bridge v. The Southampton Local Board (8 E B 801, 812), and referred to by Mr. Justice Blackburn in Mersey Docks case (Law Reports I. H. L. lC4) to the effect "that to every case the liability of a body created by statute must be determined upon a true interpretation of the statute under which it is created" has to be applied in all such cases. Adverting to the City of Lahore Corporation Act (Pb. Act XV of 1941) we find that municipal drains fell under Chapter 13 and the relevant section is 160, which runs as under "For the purpose of receiving, storing, disinfecting, treat ing, purifying, distributing, or otherwise disposing of sewage the Chief Executive Officer may‑ (a) construct any work within or without the City ; (b) purchase or take on lease any land, building, engine, material or apparatus, either within or without the City; and (c) enter into an arrangement with any person, for a period not exceeding three years, for the removal or disposal of sewage within or without the City." Section 161 reads as below: ‑ "The Chief Executive Officer may enlarge, arch over or otherwise improve any municipal drain, and may discontinue, close up or destroy any such drain which has, in his opinion, become useless or unnecessary Provided that if, by reason of anything done under this section , any person is deprived of the lawful use of any drain the Chief Executive Officer shall, as soon as may be, provide for his use some other drain as effectual as the drain which has been discontinued, closed up or destroyed." It will be seen that the statute does not confer any immunity on the Corporation for doing anything in a negligent manner. The principle laid down in The Sanitary Commissioners oil Gibralter v. Orfila and others (15 A C 400) is that in the absence of a contrary intention, the duties of a body created by a statute are the same as those imposed by the general law on a private person doing the same thing. Once it is found on evidence that the Corporation did not take proper care in laying the sewerage or constructing the sullage pit from which the water percolated into the foundations of the house of the plaintiff, we think the rule in Rylands etc. v. Fletcher (L R Eng. and Irsh. App. Cas. Vol. 3 p. 330) applies. Shortly stated, the facts in that case were that "the plaintiff worked the mines under his agreements with Messrs. Hulton and Whitehead. In the course of doing so, he came upon old shafts and passages of mine formerly worked, but of which the workings had long ceased; the origin and the existence of these shafts and passages were un‑known. The shafts were verticle, the passages horizontal, and the former especially seemed filled with marl and rubbish. Defendants employed for the purpose of constructing their new reservoir persons who were admitted to be competent as Engineers and Contractors to perform the work, and there was no charge of negligence made against the defendants, personally. But in the course of excavating the bed of the new reservoir, five old shafts, running vertically downwards, were met with in the portion of the land select ed for its site. The case found that `on the part of the defendants there was no personal r3egligecce or default whatever in or about or in relation to, the selection of the said site, or in or about the planning or construction of the said reservoir, but in point of fact, reasonable and proper care and skill were not exercised by, or on the part of the persons so employed by them, with reference to the shafts so met with as aforesaid, to provide for the suffi ciency of the said reservoir to bear the pressure of water which, when filled to the highest proposed, it would have to bear'. The reservoir was completed at the beginning of December 1850, and on the morning of the 11th of that month, the reservoir, being then partially filled with water, one of the aforesaid vertical shafts gave way, and burst downwards, in consequence of which the water of the reservoir flowed into the old passages and coal‑workings underneath, and by means of the under ground communications then existing between them and the plaintiff's workings in the Red House Colliery, the colliery was flooded and the workings thereof stopped." The Lord Chancellor while determining the principle upon which the case had to be decided referred to Smith v. Kenrick (7 C B 564) and Baird v. Williamson (15 C B (N S) 376). In the former case the owner of a coal mine on the higher level worked out the whole of his coal, leaving no barrier between his mine and the mine on the lower level, so that the water percolating through the upper mine flowed into the lower mine, and obstructed the owner of it in getting his coal. It was held that the owner of the lower mine had no ground of complaint. In the latter case, the defendant the owner of the upper mine, did not merely suffer the water to flow through his mine without leaving a barrier between it and the mine below, but in order to work his own mine beneficially he pumped up quantities of water which passed into the plaintiff's mine in addition to that which would have naturally reached it, and so occasioned him damage. Though this was done without negligence, and in the due working of his own mine, yet he was held to be responsible for the damage so occasioned. It was in consequence of his act, whether skilfully or unskilfully performed, that the plaintiff had been damaged and he was therefore held liable for the consequences." On the basis of the above authorities, it was ruled in Rylands etc. v. Fletcher: ‑ "The defendants, in order to effect an object of their own, brought on to their land, or on to land which for this purpose may be treated as being theirs, a large accumulated mass of water, and stored it up in a reservoir. The consequence of this was damage to the plaintiff, and for that damage, however, skilfully and carefully the accumulation was made, the defen dants according to the principles and authorities to which I have adverted, were certainly responsible." The next case on the subject is Charing Cross etc. Electricity Supply Co. v. London Hydraulic Power Co. (L T R Vol. 111, p. 198). In that case the facts were that "the plaintiffs, an electric lighting company, acting under their statutory powers, had placed under the surface of certain streets electric cables for the supply of electricity and the defendants, also acting under their statutory powers, had placed under the same streets mains containing water at a high pressure for the supply of hydraulic power. The plaintiff's cables were laid under or close to the defendants' mains, which had been previously laid. 1n four streets the defendants' water mains burst and damaged the plaintiffs' cables. In an action by the plaintiffs for the damage to their cables it was found that there was no negligence on the part of the defendants, that the pipes which had burst were sound and sufficient, and that the bursting was caused by subsidence of the soil which the defendants did not cause, and could not by reasonable care have detected. Held: ‑ "That, as the defendants had brought into the road a dangerous thing, which had escaped and damaged the plaintiffs' cables, they were liable for the damage, even though they had not been guilty of any negligence." In Hardaker and another v. The Idle District Council and another (L T R Vol. LXXIV 69) the facts as stated in the head‑note were: "A local authority empowered under an Act of Parliament to make a sewer under a highway, employed a contractor to carry out the works. The contractor negligently failed to give proper support to a gass main which he had cut under in the course of the carrying out of the works, and in consequence of this negligence the gass main sank and broke so that gass escaped into a house abutting on the highway, and there exploded, causing injury to the occupier." In an action to recover damages: "Held that, in the construction of the sewer there was cast upon the local authority a duty towards the public of sup porting properly any gass‑pipes that might be interfered with; and that the duty could not be got rid of by employing a contractor to do the work ; and that therefore the local authority was liable to the plaintiff for the damage caused by the breach of their duty to support the gass main." The Borough of Bathurst v. William Macpherson (4 A C 256) may also be referred to in this connection with advantage. An Indian decision on the subject is to be found in Dholka Town Municipality v. Patel Desaibhai (I L R 38 Bom. 116) in which the plaintiffs sued the defendants for damages on the ground that the drainage channel constructed by the municipality was not properly kept and the plaintiffs crops were damaged. Scott C. J. observed: "The exemption from liability of local bodies on the ground of non‑feasance is confined to neglect of highways and does not apply to drainage works carried out by the local bodies for their convenience, which they are bound to maintain in proper state of repairs so that they shall not be a nuisance to the neighbouring owners." From the above we can safely hold that the weight of the authorities seems to be on the side of the plaintiff‑respondent in this case.

9. Passing on to the question regarding the assessment of damage to the house of the plaintiff, we find that in view of the conflicting estimates submitted by the parties, the trial Court at the request of the defendant Corporation appointed Mr. Qaisar‑ud- Din, Engineer, Punjab University, to assess the compensation payable to the plaintiff as damages. Both the parties were called to the site of the work on the 9th February 1955. The Overseer of the Corporation was present but he did not sign the estimate in token of its acceptance. Another opportunity was given to the Corporation to file further objections but no reply was received. Mr. Qaisar‑ud‑Din assessed the damage at Rs. 3,

528. The plaintiff had assessed it at Rs.5,635, whereas his witness Muhammad Siddiq (P. W. 5), who prepared the estimate, was of the opinion that it was round about Rs. 6,

000. Mr. Badar ud‑Din, the Corporation Engineer, estimated it at Rs. 923 only. The learned trial Judge discarded the estimates put in on behalf of the plaintiff and the defendant both on the ground that neither Muhammad Siddiq, nor Mr. Badar‑ud‑Din were technically qualified. He accepted the estimate prepared by Mr. Qaisar‑ud -Din because the learned counsel who appeared in the Court below on behalf of the Corporation withdrew his objections against the estimated damages assessed by Mr. Qaisar‑ud‑Din.

10. On a careful consideration of all the facts and the circums tances, we are of the view that the decision given by the lower Court is correct. The decree granted to the plaintiff by the Court below is hereby affirmed and the appeal by the defendant Corpora tion is dismissed with costs. R. M. A Appeal dismissed.