MIAN GHULAM AHMAD, J.- Mr. Rasool Bakhsh Laghan, Civil Judge, Lahore, on 31-10-1964, awarded against the Lahore Municipal Corporation, a decree for recovery of Rs. 8,807/- as damages, to be received by Mian Amir-ud- Din etc. Plaintiffs, who had laid a claim to an amount of Rs. 13,156/-, on account of damage to the foundations of their house having been caused due to water leakage from the municipal drain running along the southern side of their house. The Corporation filed an appeal on 28-4-1966, which was dismissed on 10-5-1968, by a Learned Additional District Judge, Lahore, Mr. Masud Ahmad Ansari. The Municipal Corporation, Lahore has preferred the second appeal, accompanied by an application under section 5 of the Limitation Act.
2. The appeal was admitted to regular hearing on 24-2-1969 whereafter Mian Amir-ud-Din died, and an application on 21-10-90 (C.M.No. 4819-C-1990) was submitted, with a prayer that the late respondent No.1 be replaced by his two sons, Mian Salah-ud-Din and Mian Sabah-ud-Din. Later, six other respondents were also reported to have expired. They were Mian Hamid-ud-Din, Mian Muhammad Aslam, Mst. Amtul Rauf, Mst. Amtul Aziz, Mst. Tallat and Mst. Farida . C. M. No .1 C of 1991 was filed on 1-10-1991 for bringing on record their legal representatives. Actually a request was made for deletion of their names and for treating the remaining respondents as their successors- in-interest. Efforts have been made to effect service upon all of them , but none out of them has turned up today in the Court.
3. In the course of proceedings of the first appeal, Mian Ala-ud-Din, one of the plaintiffs- respondents dated on 19-5-1967, and an application for impleadment of his legal representatives was made on 8-11-1967. Although under the law Reforms Ordinance, 1972, there has taken place a drastic change in the statutory provisions, applicable in the event of such a development, the legal position at the relevant time was very stringent; and it was held that as within the prescribed period of limitation of 90 days, no move had been made for substitution of deceased plaintiff- respondent by his legal heirs, the appeal stood abated. The Corporation sought cancellation of such abatement but the request was strenuously resisted by the respondents, according to whom their interests in the amount claim decreed being indivisible, and the prayer made for un-doing abatement of appeal being barred by time, request of the appellant was liable to be turned down.
4. Learned Additional District Judge has dealt with the matter in its true perspective, and with a very correct approach, and has observed that the question of such interests being separable has to be examined in the light of the evidence available on record, and no on the basis of the evidentiary material to be collected, by taking further proceedings, or on taking into account extraneous confederations, The decree is silent as to the specific share of Ala-ud-din deceased in the decretal amount, and it has to be resumed that his interest in the amount in question is indivisible and un- ascertain able Had the interest been distinct and divisible, as also ascertainable, abatement of appeal, to that extent, could be ordered and total abatement could be avoided, in accordance with the principle enunciated in Allah Rakha V. Nawab and others (PLD 1967 Lahore 613)
5. It has not been possible for the learned counsel appearing for the appellant as to how it is having died before enforcement of Law Reforms Ordinance, 1972, and on what premised abatement of appeal in toto could be obviated. It is a small amount, which the plaintiffs- respondents have to receive form the Municipal Corporation. The amount of nine thousand rupees (approximately), in the year 1964, would easily be worth one lacs rupees today, and thus the decree-holders have already been made to lose a lot, speaking in monitary terms, by dins of the matter having been lingering on, and having been kept alive over decades by the corporate Body, which should not have grudged making payment of that petty amount t of those who had suffered at the hands of its officials, by reason of their acts of omission and commission. It is to be pointed out that although, as averred, the matter had been reported to the authorities, and the municipal officials did pay a visit of the spot and detected the sin-soil percolation or permeation of water, passing through the pipes, no effective and prompt measures were adopted to remedy the wrong, and by carrying out the requisite repairers, and damage to the house continued unabated, bringing in its wake risk of its demolition. The damage had been assessed by the owners\occupants of the house, it appears, in a very reasonable way and not in an exaggerated or dishonest manner.
6. The observations recorded and the finding given by the learned courts below do not cal for any interference or modification. Merits of the matter and soundness of the findings recorded by the learned Civil Judge, respecting different issues, need not actually be discussed, since the first appeal filed by the Municipal Corporation had failed on a purely technical and legal ground, the same being unexceptionable. The instant appeal being devoid of any merit, is hereby dismissed, with no order as to costs.