' This civil revision is directed against judgment, dated 14-5-1988 passed by learned Additional District Judge, whereby the appeal of the respondent assailing the judgment, dated 31-1-1987 by learned Civil Judge decreeing the suit of the petitioner for Rs,19,000 by way of damages, against the respondent Corporation was accepted and the suit was dismissed.
' The suit was based on the claim for damages for the loss suffered by the petitioner due to the negligence of the respondent to properly maintain and clean its silage drain running in front of the house of the petitioner with the result that the refuse gutter poured into the house of the petitioner seriously impairing its structure. The damages were assessed at Rs,24,500. Mandatory injunction to force the respondent to properly maintain the sullage drain was also prayed for.
' The suit was resisted and it was pleaded that there was an underground sewerage line laid by Multan Development Authority and the sullage water of the locality passing through the drain in question fell into the said sewerage line. The contention that any damage was caused by the overflowing of sullage water into the house of the petitioner was denied.
2. Number of issues were framed. For the purpose of disposal of this revision petition issue No,5 is material and is reproduced hereunder:--
(5) Whether the plaintiff is entitled to recover Rs,24,500 as damages from the defendant on the grounds as contained in the body of the plaint?
3. Learned Civil Judge after recording evidence, came to the conclusion that the petitioner was entitled to recover damages from the respondent which were assessed at Rs,19,000 and were decreed accordingly. Prayer for issuance of mandatory injunction was turned down. This judgment, on appeal by the respondent, was reversed by lower appellate Court.
4. Learned Additional District Judge held that it was not "specifically clear" that the damage to the house of the petitioner was caused due to the negligence of the respondent. He referred to some evidence on record to reach this conclusion. According to him the petitioner abandoned the house and went to America for two years and in that state of desertion it was damaged. This was treated to be a case of contributory negligence on his part disentitling him to any damages.
5. It is argued by the learned counsel for the petitioner that it stood conclusively proved on record that the house was damaged and the said daitiage was solely attributed to wilful neglect on the part of the respondent to properly maintain and regularly clean the sullage drain passing in front of the house of the petitioner. It is urged that without referring to and properly appraising material evidence, the well-reasoned judgment of trial Court was set aside and it being also a case of non- reading of evidence, interference by this Court in revisional jurisdiction was eminently called for.
6. On the other hand learned counsel for respondent has argued that from the evidence it could not be positively proved that the damage to the house had any nexus with the alleged negligence of the respondent and in the absence of such a proof question of awarding compensatory damages to the petitioner could hardly arise.
7. From the evidence on record no doubt is left that indeed house of the petitioner suffered major damage requiring extensive repairs. In fact this position was not controverted by learned counsel for respondent during the arguments. His entire stress was that respondent could not be held liable for damages.
8. Under the law respondent is responsible to properly maintain the sewerage drains. See sections 54 and 60 of Punjab Local Government Ordinance, 1979. The sole question that is left to be determined is as to whether respondent has been discharging its duty about the proper maintenance of drain in question or not. There is ample evidence to show that it did not. Manzoor Hussain P.W.5 has specifically deposed that the damage to the house was caused due to the overflow of the drain water. P.W.4 Bashir Ahmad, a tenant in the house has made a more explicit statement:-- {{URDU TEXT}} ' D.W.1 Ghulam Muhammad Jamadar, a man charged with the duty to clean the drain has stated that the level of the drain was higher than that of the house.
' Keeping in view this statement the deposition of Abdul Hameed P.W.2 assumes significance when he says:-- {{URDU TEXT}} ' That is not all. Allah Nawaz, P.W.6, special attorney of the petitioner has deposed:- {{URDU TEXT}}
9. Learned Additional District Judge failed to notice the above, amongst other, evidence before recording a finding that "as a matter of fact how and with whose negligence the damage was caused to the house, is not borne out from the record". It is a case of non-reading of evidence, having an important bearing on the outcome of the case, and the impugned judgment stands vitiated.
10. In the tort of negligence foreseeability is the sole test of whether damages are recoverable. The degree of likelihood required in torts of negligence is lower than in contracts. It is well-settled that where a duty of care C exists, the authority or body is liable for an injury caused to an individual by a breach of the duty to take care so owed to him.
11. Under the doctrine res is loquitur a plaintiff establishes a prima facie case of negligence where
(1) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the mishap and (2) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident/mishap was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitute a failure to proper care for the plaintiff's property.
' Where the thing which causes the mishap is shown to be under the management of the defendant or his employees, and the accident/mishap is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident/mishap arose for want of care.
12. The petitioner had succeeded in proving that the respondent's wrong was the sole or dominant cause of his injury. His absence from Pakistan and leaving the house locked provided no justification for the respondent to act negligently and fail to ensure that the sullage water running in the drain did not enter the house. Significantly, plea of contributory negligence was not taken and no issue was framed on it. Learned Additional District Judge misdirected himself by non- suiting the petitioner on the erroneous consideration of availability of circumstances suggestive of contributory negligence.
13. The upshot of the above discussion is that the impugned judgment is not sustainable and is set aside with the consequential restoration of decree of trial Court. The petitioner is entitled to costs throughout.