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Regular First Appeal No. 16 of 1980, decided on 28th July, 1986.

‑‑‑0. I, R. 3‑‑Necessary party‑‑Connotation of‑‑Suit for damages originally filed against employees of a Corporation‑‑Subsequently said corporation having been dissolved, all its debts, obligations, liabilities and rights were inherited by respective Provinces‑‑Provincial Government having inherited all rights and obligation on behalf of dissolved corporation, in respect of Province, held, would be necessary party relating to claim against employees of‑‑corporation, in their official capacity, after dissolution thereof.

The Sheriff of Bombay v. Hakmaj Moaji 8 Co. A I R 1927 Bom. 521; Manahem S. Yeshoov v. Union of India and others A I R 1960 Bom. 196 and P.B. Shah a Co. and others v. Chief Executive Officer and others AIR 1962 Cal. 283 ref.

‑‑‑0. I, R. 9‑‑Party to suit‑‑Nomenclature given in suit defective‑ Effect‑‑Where in plaint instead of writing 'Government of Baluchistan through ,Secretary‑cum‑Chief Engineer'. name of Secretary appeared first, same, held, would not be a fatal defect to invalidate plaint‑‑When a defendant cold be easily and effectively identified by nomenclature given to him in plaint, such plaint would not suffer from any defect on such score.

‑‑‑Art. 36‑‑Suit for damages‑‑Limitation‑‑Suit for damages brought within two years of accrual thereof, held, would be within limitation.

‑‑‑Damages‑‑Proof‑‑In absence of proof of carelessness or negligence against defendant, plaintiff, held, would have no cause of action against such defendant.

‑‑‑S.38‑‑Crop inspection‑‑Commencement of‑‑Crop inspection of Kharif, held, would commence from 1st October and Rabi from 1st March.

‑‑‑Damages for compensation‑‑Claim of‑‑Proof‑‑Plaintiff, held, would be duty bound to prove quantum of loss with detail thereof, sustained by him‑‑Such plaintiff would be further required to prove that damage suffered by him was direct result of negligence or carelessness on part of defendant‑‑Burden to prove negligence or carelessness of defendant as result whereof, plaintiff suffered ‑loss, and tentative compensation for such loss was always on plaintiff.

Muhammad Sharif v. Nawab Din and another P L D 1957 (W.P.) Lah. 283; Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. P L D 1959 (W.P.) Kar. 550 and Mst. Sharifan and 5 others v. Karachi Electric Supply Corporation Ltd. P L D 1981 Kar. 701 ref.

‑‑‑S. 96‑‑Appellate jurisdiction, exercise of‑‑Where plaintiff failed to prove misfeasance or malfeasance on part of defendant and tentative quantum of loss as result thereof, High Court in exercise of appellate jurisdiction, while accepting appeal, set aside finding of trial Court and dismissed suit of plaintiff for damages.

Muhammad Maquim Ansari for Appellants.

Muhammad Dawood Baluch for Respondents.

Date of hearing: 29th June, 1986.

This Regular First Appeal, filed by Secretary‑cum‑Chief Engineer Irrigation Department, Government of Baluchistan and two other appellants herein, challenges the decree for recovery of Rs.60,000 with costs granted by the District Judge, Sibi vide his judgment dated 6‑8‑1980 in favour of Ghulam Muhammad Khan and Mst. Irshad Bibi, respondents herein.

2. The respondents herein are owners of agricultural land in villages Jan Pur, Manjhipur and Ghazi, Tehsil Jhatpat. In the year 1966 the respondents had cultivated Paddy crop in Kharif, 1966 on their lands in village Manjhipur and had also raised Rabi crop for the year 1966‑67. On the mid‑night between 26th and 27th December, 1966 a breach occurred in the Pat Feeder Canal in between RD‑312 and RD‑313 due to which the water washed away the entire produce of Kharif 1966 lying in the Deras and completely destroyed the Rabi crop standing in the fields of the respondents. As the breach had occurred unexpectedly and at odd hours, the respondents could hardly save their lives and were not able to do anything to save their produce or crops. The breach in the Pat Feeder Canal occurred due to the utter negligence and carelessness of the predecessors of the appellants. The respondents brought a suit on 9‑7‑1968 for recovery of compensation for damages to the extent of Rs.60,000 in the Court of District Judge, Jacobabad claiming that the water in the canal was allowed on 21‑12‑1966 and was gradually increased to a great extent without looking to the capacity of the bund and without realising that it was the first blow of water in the canal, that the place where the breach was caused was so weak that even a prudent man could expect breach at that point any moment but despite of this the appellants made no arrangement whatsoever to protect such a breach and it was time and gain brought to the notice of the authorities but without any action on their part, that no speedy and emergent steps were taken to head up the discharge of water from the mouth of Pat Feeder canal, as a result of which the water continued to flow and caused damage to the surrounding area, that the breach was detected during the day on 27‑12‑1966 and then steps were taken to stop the water, that the respondents and other Zamindars had approached the authorities to decrease the discharge of water as they apprehended breach at any moment but no steps whatsoever were taken that due to the carelessness and negligence of the authorities the respondents were entitled to receive compensation from the authorities for which purpose they moved many applications but without any action. Subsequently a notice was served on 27‑2‑1966 but to no avail. The respondents claimed that they had suffered a loss of Rs.60,000 due to the aforesaid negligence and carelessness on the part of the authorities and so they were compelled to institute the suit.

3. Originally the suit was filed against the following defendants:‑

"(1) The Chairman, Agricultural Development Corporation, West Pakistan, Lahore.

(2) The Chief Engineer Guddu Barrage Project, A.D.C. Sukkur.

(3) The Project Director Guddu Barrage Project, A.D.C. Sukkur.

(4) The Deputy Chief Engineer, Guddu Barrage Project, A.D.C. Sukkur.

(5) The Superintending Engineer, Guddu Barrage Project, A.D.C..

(6) The Executive Engineer, Jhatpat Division, Jacobabad."

However the Agricultural Development Corporation was dissolved by the West Pakistan Agricultural Development Corporation (Dissolution) Order, 1972 (P.O. 5 of 1972) and under Article 7 thereof the rights, liabilities, obligations etc. were inherited by the new Provinces which came into existence after the dissolution of the Province of West Pakistan, RD‑125 to RD‑558 of the Pat‑Feeder Canal came within the limits of the Province of Baluchistan after dissolution of the Province of West Pakistan and as the breach had taken place betwen RD‑312 and RD‑313, hence this suit, which was originally being heard by the District Judge, Jacobabad of Province of Sind, was transferred to Senior Civil Judge, Quetta in the Province of Baluchistan, but was ultimately transferred to the Court of District Judge, Sibi where it was finally disposed of. Upon the dissolution of Agricultural Development Corporation, the respondents submitted an application in the Court of District Judge, Sibi for amendment of the plaint to substitute the present appellants instead of the aforesaid defendants party to the suit. The Government Pleader did not object to the said application and an amended plaint was filed in the Court on 23‑5‑1972. However, in the amended plaint the words "valued at Rs.60,000" were inserted after the words "plaintiffs' occurring for the second time in paragraph 3. It is noteworthy that these words did not exist in the original plaint.

4. The suit was contested by the original defendants and a written statement was submitted on 12‑4‑1969 on behalf of defendant No.6 wherein it was inter alia pleaded that the canal was designed to a discharge of 6261 cusecs, that water in the canal was admitted on 21‑12‑1966 at 500 cusecs which was gradually increased upto 1,600 cusecs till 25‑12‑1966, that it was not an alarming position, that it was the third flow of water in the canal as during August and September, 1966 the canal had run at a discharge of 2300 cusecs, that the point where breach occurred was not so weak as to carry the admitted discharge of water, that all efforts were made to meet any event, that after the breach occurred the concerned S.D.O. completely got closed Pat Feeder Canal at the head, that best efforts were taken by the authorities and on 27‑12‑1966 at about 1‑00 a.m. all of a sudden a heavy slipping occurred which caused‑the breach and the S.D.O. at once went to Kashmore on Jeep to close the canal from the head, that the breach occurred suddenly due to natural slips, that it was not due to negligence or carelessness of the appellants and that the respondents were not entitled to any damages. No new written statement was submitted after the submission of the amended plaint. From the pleading of the parties the learned trial Judge framed the following issues:‑

"(1) Whether the suit is not maintainable in law

(2) Whether the suit is bad for non‑joinder of Government of West Pakistan. If yes, what is the effect

(3) Whether the suit is time‑barred

(4) Whether the breach had washed away entire produce of the plaintiffs lying in Deras and had completely destroyed their Rabi crops

(5) Whether the breach had occurred due to negligence and carelessness of the defendants for the reasons given in para. 4 of the plaint

(6) Are the plaintiffs entitled to claims of Rs. 60,000 as damages from the defendants

(7) What should the decree be

The learned trial Judge recorded the evidence of seven witnesses on behalf of the respondents and one defence witness on behalf of the appellants. The learned trial Judge decided issues Nos.l, 3, 4, 5 and 6 against the appellants while issue No.2 had become redundant due to the dissolution of the Province of West Pakistan and granted a decree in favour of the respondents as prayed for by them. Hence the present appeal.

5. This issue was framed on the pleadings of the appellants in their written statement but it was not clarified during the trial as to why the suit was not legally maintainable. However, during appeal it was urged by Mr. Muhammad Moquim Ansari, learned counsel for the appellants, that the Agricultural Development Corporation and subsequently the Government of Baluchistan could not be sued as the action could be brought against the officials, who were at the relevant time posted incharge of the canal, in their personal capacity. It was urged by Mr. Ansari that if it was a misfeasance, malfeasance and negligence of employees then the suit was competent only against the concerned employees of the Agricultural Development Corporation and the suit should have continued against those officials and the present appellants should not have been sued, nor any decree could be passed against them. This contention of the learned counsel is untenable for the simple reason that on account of the aforesaid P.O. No.5 of 1972 the Agricultural Development Corporation had been dissolved and all its debts, obligations, liabilities and rights etc., were inherited by the respective Provinces. Moreover the suit was being defended by the Government Pleader on behalf of the Corporation and all its employees, who were original defendants and subsequently on behalf of all the present appellants in their official capacity. Even otherwise the officials were responsible towards the respondents in their officials, and not personal capacity. As such the Corporation and its officials and after the dissolution of the Corporation the present appellants were necessary party in the suit. In this respect we rely upon the cases of The Shariff of Bombay v. Hakmaj Motaji t Co. A I R 1927 Bom. 521, Manahem S. Yeshoov v. Union of India and others A I R 1960 Bom. 196 and P.B. Shah t Co. and others v. Chief Executive Officer and others A I R 1962 Cal. 283.

6. In the same context it was urged by Mr. Ansari that in the amended plaint the Government of Baluchistan was not a party and instead Secretary‑cum‑Chief Engineer had been impleaded as party and the suit was defective for non‑joinder of necessary parties. We have very minutely considered this aspect of the case as well but we are constrained to say that we cannot agree with Mr. Ansari for the simple reason that it appears to be a clerical mistake. Instead of writing Government of Baluchistan through Secretary‑cum‑Chief Engineer Irrigation, the name of the Secretary appears first. This is not a fatal defect so as to invalidate the plaint. The defendant No.l and now the appellant No.l could be easily and effectively identified by the nomenclature given to him in the plaint. The plaint does not suffer from any defect on this score as well. For the aforesaid reasons we would uphold the finding of the learned trial Judge on this issue.

7. The alleged loss occurred in between the night of 26th and 27th December, 1966. The suit for damages was originally brought on 9‑7‑1968 within two years as provided by Article 36 of the Ist Schedule to the Limitation Act. The suit was, therefore, well within time. We would uphold the finding of the learned trial judge on this issue as well.

8. These issues are inter‑connected, hence taken together. The admitted facts of the case are that the Pat‑Feeder Canal was designed to carry a maximum load of water of 6261 cusecs. The first discharge of water in the canal was allowed in August, 1966 at the rate of 2,300 cusecs followed by a second discharge of the same capacity in September, 1966. The third discharge of water was allowed in the canal on 21‑12‑1986 first at 500 cusecs which was gradually increased to 1,600 cusecs upto 25‑12‑1966. The breach occurred at about 2300 hours in the night between 26th and 27th December, 1966 when the discharge of water was at 1,600 cusecs. It shall thus, be seen that the discharge of water at the fateful time was 1/4th of the total capacity of the canal and the water was running in the canal peacefully and without any danger for 5 days. It could not, therefore, be said that there was any negligence, carelessness, misfeasance or malfeasance at the part of any of the officials. It suddenly came to light that some weaker point had occurred between RD‑312 and RD‑313. It has come in the report dated 28‑12‑1966 of P. W.4 Niaz Ahmad, Naib‑Tehsildar, which has been admitted in evidence, that the S.D.O. Irrigation Mr. Nazeer Khosa was well aware of the dangerous situation because he had left his headquarters on 26‑12‑1966 at 5.00 p.m. to make necessary arrangements for closing the water from Guddu Barrage Regulator knowing that there was a likelihood of breach at that weak point. It shall thus, be seen that then weak point had already come to the notice of the official concerned who had proceeded to the head works to stop the flow of water six hours before the actual breach took place. This fact, which has not been, denied by the, respondents, would clearly show that there was neither any carelessness nor any negligence on the part of the appellants before or at the actual time of the occurrence of the breach. Although the breach occurring in the canal but the respondents have failed to show any negligence on the part of the appellants. The respondents also failed o produce any evidence in this respect.

9. The record of rights, Exhs.P‑7/1, P‑7/2, P‑6/2, for the year 1966‑67 produced in evidence, shows that the respondents had cultivated paddy crop of Kharif 1966 in their lands of village Manjhipur only. It is alleged by them that they had harvested that crop and it was still lying in the fields when it was destroyed by the water coming from the breach. We have been informed that it is a general practice in this part of the country .that paddy crop is usually allowed to lie in the fields for sometime after it is harvested as the land‑owners immediately start preparing the land for Rabi crop. The aforesaid record of rights shows that about 800 Acres of lands of the respondents had got paddy crop and it might have been harvested and lying in the fields at the relevant time.

10. The same revenue record shows that the respondents had cultivated about 500 Acres of land in the same village for Rabi 1966‑67. However, the record does not show that which particular crop was sown in the Rabi crop. This crop is generally by the end of October or early November. It can, therefore, be presumed that during the last week of December the Rabi crop would be about five to six inches in height. It can also be presumed that two successive crops of cereals cannot be sown in the same fields. If paddy was grown in Kharif 1966 then wheat could not be sown in the same field in Rabi 1966‑67. At the most some area could be brought under seed crop for Rabi of the said year.

11. It is also interesting to note that copy of the aforesaid revenue record was obtained on 4‑2‑1972 and it showed the area of the land of the plaintiff's in village Manjhipur under cultivation in Kharif and Rabi of 1966‑67. This record must have been prepared from the entries made in the crop inspection register prepared by the Patwaris. Such inspection of crops is made by the Patwari under rule 38 of the Wesi Pakistan Land Revenue Rules. 1968. Under the provisions of this rule the crop inspection of Kharif commences from 1st October and Rabi from 1st March. The provisions of this rule will show that the fields under the paddy crop of the respondents were inspected before the land was inundated by the water. This would also prove that Revenue record existed to show as how much area was brought under paddy cultivation and how much yield was gathered and what could be its price. The entries of cultivated area of Rabi 1966‑67, copy of which was given in the year 1972, would also show that crop inspection of Rabi 1966‑67 was made by the Patwari on some date after 1st March, 1967 and some crop was growing thereon. This circumstance would also show that some crop in the lands of the respondents was in existence even after the mishap had taken place. It is noteworthy that crop inspection is made by the Patwari of the standing crops.

12. It has come in evidence of D.W.1 Ghulam Mustafa, Executive Engineer that village Manjhipur is 12 miles away from the place where the breach in tie canal took place. It has also come in his evidence that there was only six inches of water in the fields of village Manjhipur. No doubt this‑witness was not posted in the said area when the mishap took place but he has given evidence from the record which was prepared immediately after the mishap. It can naturally be presumed that at a distance of 12 miles the speed of flow of water would be very low as compared to the speed at the beachhead and consequently there would be little danger to life and property. It can also be presumed without any fear of contradiction that six inches deep water would not cause any appreciable loss to a harvested crop lying in the fields or a growing one.

13. It is also noteworthy that the respondents did not produce any evidence to show as how much paddy crop they had cultivated which would have ultimately fetched, how much price if it was sold in the market. It shall also be seen that the aforesaid report of P.W.4 Niaz Ahmad, who visited the site on 27‑12‑1966 and submitted his report on 28‑12‑1966, does not show any loss suffered by the respondents or other residents of village Manjhipur. The loss in this village was for the first time reported by the S.D.M. in his report which was submitted two months after the breach of the canal and this report also does not give any details of the loss but mentions round figures of Rs.30,000 for each of the respondents.

14. In a case where compensation for damages is claimed it is the duty of the plaintiff to prove as how much loss was sustained and what were its details and whether it was the direct result of any negligence or carelessness on the part of the defendants. We are mindful of the fact that actual quantum of damages is difficult to be assessed but some principles can be put forth by the person claiming compensation which might guide the Court in calculating the damages and arriving at, a reasonable amount of compensation, therefore. In the present case it was the duty of the respondents to prove as how much area was brought by them under cultivation of paddy crop, how much was the actual yield, how much crop was destroyed by water, and what price it had fetched if sold in market. However, none of these circumstances have been proved by them. In so far as the Rabi crop was concerned it was their duty to prove as how much area they had brought under cultivation in Rabi crop, what crop they had sown, how much area was damaged by the water and how much crop was destroyed by it. Broadly speaking these could be the circumstances which could help the Court in arriving at the quantum of damage,, if any, caused to the respondents. But unfortunately none of these circumstances exists on the record. It appears that the learned trial Judge has only relied upon the report of the S. D. M. which was submitted two months after the occurrence but for the aforesaid reasons we are unable to accept it as trustworthy. The burden is always on the plaintiff to prove negligence or carelessness of the defendants, and the consequential loss or damage directly caused to the plaintiff by such negligence or carelessness and what could be the tentative compenstation for such loss. In this connection we would with benefit rely on the cases of Muhammad Sharif v. Nawab Din and another P L D 1957 (W.P.) Lah. 283, Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. P L D 1959 (W.P.) Kar. 550 and Mst. Sharifan and 5 others v. Karachi Electric Supply Corporation Ltd P L D 1981 Kar. 701. Although the latter two judgments pertain to the Fatal Accidents Act, 1850, but principles for determination of liability for and quantum of damages in an action for tort are the same as enunciated therein.

15. The net result of the above discussion is that the respondents failed to prove as how much produce was lying in their Dera and how much was washed away or destroyed, whether the breach in the canal took place as a direct result of any misfeasance or malfeasance on the part of the appellants and whether they had suffered any loss and if so of how much value.

16. For the aforesaid reasons we would set aside the findings of the learned trial Judge on issues Nos.4, 5 and 6 and would decide all these issues against the respondents it Relief

17. Consequently we would accept this appeal, set aside the impugned decree of the learned District Judge and would dismiss judgment and decree the suit of the respondents/ plaintiffs with costs throughout.

A.A. Appeal accepted.

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