P L D 1964 (W (PLP)

FAIZULLAH KHAN, J.‑--For the purposes of this second appeal by the Municipality. Peshawar the following statement of facts would suffice:- Sayed Abdullah Shah, plaintiff‑respondent, sued Municipality, Peshawar, through Executive Officer, for the recovery of Rs. 10,000 as damages. The gravamen of the plaintiff's claim was that the Municipality had maintained the municipal water main running close to his house and shops in such a bad state of repairs that it had eventually burst and caused the foundations of his property to settle down, which made the plinth area crack, resulting in extensive damage to the whole building.

2. The Municipal Committee resisted the suit on the pleas, inter alia, that the Provincial Government was necessary part" to the suit, that the suit was liable to dismissed for failure of the plaintiff to serve the statutory notice that the suit was not maintainable against the Municipal Committee through its Executive Officer, that the house was not damaged due to lack of the repairs of the water‑pipe, but it was brought about by the act of the plaintiff himself in watering the orchard and letting the water deep to the foundations. The following issues were settled in the suit‑ (1) Whether the Government of West Pakistan is a necessary party? (2) Whether the suit in the present form is proper? (3) Whether the required notice has been properly served on the defendant before the institution of the suit, if not, to what effect? (4) Whether the plaintiff has suffered any loss to his property due to the negligence of the defendant? (5) On proof of issue No. 2 how much damages the plaintiff is entitled to recover from the defendant? (6) Relief.

3. The learned trial Court, held that the Government of West Pakistan was not a necessary party, that the form of the suit was proper, that the damage to .the property amounting to Rs. 6,000 had been caused due to the negligence of the Municipal Committee, but the plaintiff was non‑suited for his failure to serve notice under section 96‑A of the North‑West Frontier Province, Municipal Act, 1950. In the result, plaintiff's suit was dismissed, but the parties were left to bear their own costs.

4. On appeal by the plaintiff, Mr. Shafi‑ur‑Rahman, the learned District Judge of Peshawar, by his judgment and decree dated 15th October 1963, accepted the appeal as he thought that the failure of the plaintiff to issue the statutory notice under section 96‑A was excusable, in that its non‑compliance had been brought about by the act of the Municipal Committee in not appointing an officer "as the Committee may appoint in this behalf," for the purposes of receiving the notice contemplated by section 96‑A, with regard to the quantum of damages the learned District Judge in view of the extensive damage to the property as disclosed by the report of Mirza Ali Ahmad, Commissioner, and his statement, thought that the appropriate amount of damage was Rs. 9,000, and that the amount of damages assessed, by the learned trial Court by the "pinning method", was not the proper estimate. The learned District Judge accordingly accepted the appeal and granted the plaintiff a decree for Rs. 9,000 with costs. The Municipal Committee has come up in appeal.

5. Three contentions were raised on behalf of the Municipal Committee: (1) that the learned District Judge had erred in holding that non‑compliance with the statutory notice under section 96‑A was excusable, (2) that the learned trial Court had erred in holding that notice under section 80, C. P. C. had been served. It was complained that this matter was argued before the learned District Judge, but he had riot adverted to it in the judgment, and (3) that the learned District Judge had erred in increasing the quantum of damages from Rs. 6,000 to Rs. 9,000.

6. After hearing the learned counsel for the parties at some length, we have formed the opinion that there is no merit in any one of the contentions raised on behalf of the appellant. With regard to the contention that plaintiff's suit should have been thrown out for non‑compliance of the statutory requirements of section 96‑A, it will be convenient to read section 96‑A, which runs thus:- "An owner or occupier of a building adjacent to which a public drain or pipe, or mains or other works are out of repairs to such an extent as is likely to cause damage to his building shall be bound to give immediately a notice in writing of the same to such officer as the committee may appoint in this behalf. Any person who neglects or fails to comply with the provision of this section shall not be entitled to any compensation for the damage caused to his building." It will be manifest from reading the language of section 96‑A that it has been made obligatory on the owners or occupiers of buildings adjacent to which a public drain or pipe; or mains or other works are out of repairs, which are likely to cause damage to buildings, to give immediately, a notice of the same to such officer as the committee may appoint in this behalf., The section further states that any person who neglects or fails to comply with the provision of this section shall not be entitled to any compensation for the damage caused to his building. It will be plain from the language of the section that the owner or occupier of the building 'is required to give notice to "such officer" as may be appointed in this behalf. In other words, the failure of the Municipality to appoint such officer automatically relieves the owner or occupier of the house to serve the statutory notice. It is a well‑settled principle of construction of Statutes that "Statutes which encroach on the rights of the subject, whether as regards person o property, are similarly subject to strict construction. They should be interpreted if possible so as to respect such rights". I would borrow .the words of Lord Blackburn in Metropolitan Asylum District v. Hill ((1881) 6 A C 193). "It is clear that the burden lies on those who seek to establish that the Legislature intended to take away the private rights of individuals, to show that by express words, or by necessary implication, such an intention appears." Applying the above test to the present case, the owners and occupiers of the property within the meaning of section 96‑A are required to give notice to "such officer as may be appointed "by the Municipal Committee, and in cases where the Municipal Committee has failed to designate such officer, it cannot be heard (sic) say that notice should have been served on some other official of the Municipal Committee. To accept such an argument would be tantamount to reconstructing section 96‑A and not con struing it, and putting words into the section which are not there.

7. As regards the objection pertaining to the serving of notice under section 80, C. P. C., the learned trial Court has recorded a categorical finding that such a notice was served on the appellant, and from the judgment of the learned District Judge it appears that this point was not agitated before him, and we are not prepared to hear the appellant's counsel that the point was agitated before him. In case this point had been urged before the learned District Judge, and at the time of writing the judgment it had escaped the attention of the learned District Judge, the proper thing for the appellant was to have made this point a specific ground of appeal, duly supported by an affidavit, which has not been done in this case. The fact is that there is a concurrent finding of two Courts that a notice was served and this finding of fact, according to law, is conclusive and cannot be assailed in second appeal. But for the satisfaction of the parties, we see no reason on the record for differing with the trial Court if it was within our competency to examine the question, as we find that the plaintiff appeared as his own witness arid distinctly stated that a notice under section 80 was duly served through the counsel and that Exh. P. 7/2 was the copy of the notice. It is important to observe here that the appellant examined several witnesses, but none of them cared to controvert the statement of the plaintiff.

8. This brings us to the last contention pertaining to the quantum of damages. We find ourselves in complete agreement with the well considered judgment of the learned District Judge on this point. Mirza Ali Ahmad (R. W. 1) an Ex‑Engineer, was appointed as a Commissioner and in his well considered report he had assessed the amount of damages at Rs. 9,

000. It will be proper to reproduce para. 3 of his report, which is to the following effect:- "Damages started from the foundation on the main road side to the bursting of a Municipality Water Main, which caused the foundation to settle down. This settlement was so violent that it made the plinth cracked and this action pulled the whole structure to south‑west corner and thus the whole building from back to front and from one side to the other, developed count less cracks. The intensity of the damage was so acute that even the wooden structure was also badly effected and this made the whole building unsafe for any further use. The present condition of the building shows that it cannot be repaired ordinarily but had to be demolished and then reconstructed after deepening and strengthening the foundation " Much was tried to be made out on behalf of the appellant on the statement of Mirza Ali Ahmad in cross‑examination, then he stated, "if the property in suit is re‑constructed through under pinning process it would cost about six to seven thousand rupees. Under pinning means that the property is supported by wooden props and the walls are constructed from beneath without demolishing the old walls." In view of the extensive damage to the property, especially the foundation, the reconstruction of the house by under pinning method is in our view out of question for the short and sensible reason that on account of & image to the foundation, the foundation was required to be dubbed very securely to avoid further damage.

9. For all the foregoing reasons, we dismissed the appeal with costs, by our short order dated 1st April 1964 S. Q. Appeal dismissed.