IN THE HIGH COURT OF SINDH, KARACHI
High Court Appeal No. 149 of 2008
Mr. Justice Mushir Alam, CJ &
Mr. Justice Syed Muhammad Farooq Shah
J U D G M E N T
Date of hearing : 14.9.2012
Appellants through : Mr. Farrukh Usmani, Advocate.
Respondent No. 1 through : Mr. Abdul Wajid Wyne, Advocate
Respondent No. 2 through : Mr. Muhammad Ishaque Memon, Advocate.
SYED MUHAMMAD FAROOQ SHAH, J.:- Captioned appeal is directed against the exparte judgment pronounced in suit No.249/200, dated 09.4.2008, whereby the suit was dismissed by the learned single judge, on the facts and ground set forth in the memo of appeal.
2. Relevant facts as narrated by the appellants are that they were residing in Flat No. B-105, Rose Marie Apartment, Plot No. C-1, Block 10, F.B. Area, Karachi alongwith their family as tenant. The said project was constructed by respondent No.2 about 5-7 years ago. The respondent No.1 was builder and developer and was doing business in the name and style of ‘Rehman Associates’ having its head office at Sadiqain (ST 20) Block 5, Gulshan-e-Iqbal Karachi and respondent No. 1 was/is its Sole Proprietor/Chief Executive/ Owner. It is averred that unauthorized construction in violation of the approved plan was raised including gallery facing towards the road closed to the high tension wires, which were installed and passing through for the purpose of transmission of the electricity line by the KESC without adopting required safety precautionary measures to deal with dangerous situation. It is further narrated that on 08.3.2005 at about 7:50 p.m. the only son of the appellant Zainul Abdin aged about 18 years came into gallery of said flat and protruded his body slightly with a small curtain railing in his hand to adjust the cable wire and in that process he came into contact with the high tension wires which were dangerously erected by and in collaboration with the respondents over there in a careless manner without foreseeing the danger involved therein as the said wires, in result of which he received heavy electric shock and fell down speechless after a massive spark and died on account of electric shock. It was due to composite negligence on the part of existing respondents jointly and severally, hence appellants have claimed a sum of Rs. 1,26,90,000/- on account of compensation against the respondents, on account of pecuniary and non-pecuniary losses as mentioned in detail in the memo of appeal and also reflected from statement of claim which was pleaded in the plaint and was reiterated by the appellant in the affidavit in exparte proof.
3. From perusal of the record, it appears that the respondents/defendants No. 2 & 3 have been declared exparte, after service upon them and the appellant No. 1 filed affidavit in exparte proof on 7.11.2006, thereafter on 23.4.2006 the KESC (defendant No. 01) moved an application praying for setting aside the exparte order alongwith written statement on 24.11.2006. However, respondent No. 1 & 2 were remained exparte vide order dated 25.9.2006 and 29.5.2006 as they have failed to make appearance before the court to contest the matter. It appears that the Respondent No. 2 filed its statement on 29.5.2006 for setting aside the exparte order passed against it and thereafter failed to make appearance before the court. The application filed by KESC was allowed vide order 18.12.2006 and after framing issues the appellants and KESC (defendant No. 1) moved an application CMA No. 8542/2007 under order 23 Rule 1 CPC praying for dismissal of the suit against defendant No. 1 (KESC) as they had entered into compromise, whereby KESC had paid a sum of RS.10,00,000/- to the appellants. The said application was allowed and claim against the KESC was struck off vide order dated 24.12.2007. The appellants were again directed to file affidavit in exparte proof against the respondents, who were already declared exparte and the case was fixed on 12.3.2008 for final disposal when the affidavit in exparte proof was placed on the record alongwith all documentary evidence and by exparte judgment the suit was dismissed against the respondents with no order as to cost.
4. In para 9 of the instant appeal, the relevant paragraphs of the judgment pronounced by the learned single judge have been reproduced in verbatim. The concluding part of the impugned judgment reveals that since there was no evidence that defendants 2 and 3 (respondent Nos.1 & 2) to show that they were responsible for the cause of death of the deceased son of the plaintiff/ appellants nor there is anything on record which can show that they were inclusion with the defendant No. 1 for having erected wires in front of project and as such plaintiffs are not entitled for any compensation for damages against the defendants No. 2 & 3and the suit was dismissed against them. The grounds agitated in argumentative shape are summarized hereinbelow:-
5. It is averred by the appellants that the judgment delivered by the leaned single Judge is not tenable in law, based on surmises, conjectures and on presumptions. Moreso, it is evident from the record that the respondent No. 1 after when proceeded exparte, filed written statement alongwith application for setting aside exparte order, therefore, no legal sanctity is attached to the written statement available on the record. On the other side, by unchallenged, unshaken convincing evidence and material brought by the plaintiff on the record was sufficient to decree the suit. Even otherwise, the written statement if found placed on the record without recalling the ex parte order cannot be considered and relied upon. It is further submitted that the appellants have not been cross examined by the respondents nor brought any evidence to rebut the averments made by them and as such the contents of plaint in respect of negligence remains without any denial, deeming to be admitted and the affidavit in exparte proof being on oath remained unrebutted. In case of composite negligence all the concerned persons causing the accident are considered to be jointly and severally liable and the claimants can proceed against them to be joint tort feasors or against all of them as they are jointly and severally responsible.
6. It is further submitted that extending galleries of the project without approved plan by the respondents amounts to hamper such illegal extension. It is no doubt that the same requires approval from different civil agencies like KESC, PTCL, SSGC and the people also do not feel any hesitation in getting booking of such flats and living in such type of accommodation where the distance in between the lines and building is very narrow and the present case is the reflection of such type of negligence on respondents side. However, the learned Single Judge of this Court observed that the builder has deliberately extended the gallery, contrary to the approved plan of KBCA and reduced the KESC lines clearance. Rest of the grounds raised in the appeal are that the learned Single Judge did not proceed to record the evidence under Order VIII Rule 10 CPC for non-filing of written statement, as the written statement available on the record may not be considered after when the Respondents were declared exparte and the exparte order was remained intact, merely availability of the written statement on the record is having no legal value. It is submitted that learned Trial Court did not appreciate that the respondent No. 1 had also been guilty of omission and commissions as he had acted in contumacious and reckless way disregard of safety of the proposed and intended inhabitants in his project by not adequately keeping the distance between the project galleries and high tension supply lines and thus, failed to foresee the consequences owing to his wrongful act obviously in connivance with the existing respondent No. 2. That the respondent No. 1 being builder also should have made proper arrangement and should have taken adequate steps before allowing the residents to take over the possession or making it inhabitable to move the KESC for keeping sufficient distance from the galleries or should have called on the KESC to properly insulate the high tension wires in such a manner that it may not offer menace to the residents including the deceased in question. That the project was constructed in an unauthorized manner contrary to building control rules and town planning, regulation and other prevailing law in this regard, applicable in that area without seeking proper approval and the respondent No. 2 projected its galleries in such a manner that it appeared closer to the high tension wires passed by the KESC over there and post danger which culminated into taking the life of the son of appellant but the learned Trial Court has seriously erred to the fact that the respondent No. 1 in contravention of building rules and regulations ought to have taken immediate action by demolishing or objecting to the unauthorized construction. More-so, at the time of issuing NOC to the respondent No. 1, the respondent No. 2 failed in performance of its public duties and remain inactive and omitted to take the required steps in order to curtail the risk and danger involved for the inhabitants of the flats, therefore, the respondent No.2 is the guilty of committing misfeasance in the public office which has consciously done wrong in contumacious disregard of rights of the inhabitant of the said project including the deceased and this deliberate and outrageous disregard of rights is sufficient to fasten liability upon the said respondent. The appellants have prayed for decree the suit against the respondent jointly and severally with costs and set aside the impugned judgment.
7. We have considered worthy arguments advanced from both sides and have also carefully perused the material and law available on the subject, in light of the relevant citations.
8. Learned Counsel for the appellant has reiterated the grounds of the appeal and argued at length. It is contended that with sufficient cogent and plausible factual and legal grounds, the appellants have adduced their evidence which was remained without any rebuttal, therefore, the defendants were termed to be joined tort feasors, incident itself prima facie indicates and spoke of negligence, lack of adequate care, non-feasons, misfeasons, malfeasons and want of necessary vigilance on the part of respondents as the occurrence would not have happened without the negligence. To support the contributory negligence, learned counsel placed reliance on the case of Shah Bashir Alim reported as 1997 MLD 2308 Karachi and argued that the said building has been erected in an area where the high tension wires were already available and the galleries of the flat are at the distance of few feet. According to learned Counsel, Respondent No. 02 is responsible of constructing such premises under the patronage of Respondent No. 02 in which there was live electricity of high tension wires near to the gallery and one innocent can touch it with his hand, which was certainly a danger of life, the respondents were required to take every possible care that injury is not caused to any person and in case of fatal accident in such premises, the responsibility of carelessness and negligence rest upon the Respondents. It is contended that the citation mentioned above, is applicable in all fours. Learned counsel for appellant urged that this court to allow the appeal, set aside the finding of learned single Judge, contained in the judgment/decree and decree the suit of appellant as prayed for against the respondents jointly and severally with cost and interest as claimed, in the interest of justice.
9. Arguments advanced by the learned Counsel for the KBCA on legal grounds, at this appellate stage are not attracting, particularly such legal grounds have not earlier been made or agitated before the learned trial Court by filing the admissible written statement/evidence. Learned Advocate for the respondents, however, supported the impugned judgment.
10. Perusal of the record transpires that learned trial Court in impugned judgment has specifically observed that “the defendant No. 3 filed written statement on 29. 05.2006 without moving proper application for setting aside exparte order passed against him and also thereafter failed to make appearance before the Court”. This part of the judgment is sufficient to prove that after placing the written statement on the record, the defendant No. 3 did not turn up, therefore, the said written statement is having no legal sanctity, particularly, the exparte order passed against him has not been set aside. It also appears that the KESC (defendant No. 1) compensated the appellants hence the appellants withdrew the suit against them and the suit was ordered to be proceeded against remaining two defendants in the words that “The application is allowed, the suit is dismissed as withdrawn against defendant No. 01. As against the remaining defendants, the suit will proceed in accordance with law”. Learned trial Court has also observed that as per written statement filed by the KBCA, the project was approved within prescribed rules and regulation of KBCA and there was no violation nor any body has made any complaint to them. It is not clear that how written statement of KBCA has been brought on the record when no application to recall exparte order filed neither order to recall the exparte order has been passed. Therefore learned trial court has seriously been erred to consider and entertain such written statement in the words “Apart from the above the Defendant No. 3 i.e. KBCA have also filed their written statement which is on the record wherein they also stated that the suit plot is a commercial in category whereupon proposed building plan was approved for basement+ground+lifts_04 upper floors on 08.01.1998. The regularization/completion plan was also approved by the competent authority KBCA Defendant No.3 on 06.7.2005 and the allegations were denied particularly the clauses H, I, J and K of para five of the plaint and it is stated that the project was regularized by KBCA as per Karachi building and town planning Regulations, 2004. There is no any complaint received in the authority about such project.” Second paragraph of impugned judgment at page 71 of the file further reads that “ Admittedly, the project where the flat is situated and the incident took place is not the only flat but the whole project is consisting of four floors having number of the flats on each floor with the same projected gallery and none have come forward or made any complaint to any authorities that those galleries were constructed under the violations of the KBCA Rules and in this matter even KBCA has specifically denied in their written statement that the project is accordingly approved within the prescribed rules and regulations of KBCA and there is no violation nor anybody has made any complaint to them.” (Underlining is ours)
Under the existing law a person cannot be excused himself on the ground that he has placed written statement on the record without setting aside exparte order.
11. There is nothing in rebuttal to discard the exparte evidence adduced by the appellants, which was remained without any cross-examination. The facts gathered from the record transpire that Hafiz Zain-ul-Abdeen was attempting, the connection of dish Antenna wire through iron rod from gallery, touched the H.T. Wire which causes his death. In front of the said flat situated in Rose Marry Apartment, the H.T. and L.T. electricity lines were running, the Builder (Respondent No. 01) extended gallery of the project without taking approval from the KBCA (Respondent No. 02), who are responsible to hamper such illegal extension. Extension of galleries were also required approval from other departments like SSBC, KESC, PTCL etc, particularly the distance in between Electric H.T. wires and the building was very narrow. The Builder (Respondent No. 01) with patronage of Respondent No. 02 deliberately extended the gallery. H.T./L.T. electricity lines were already existing, much before the construction of said building. Perusal of the record reveals that the Plaintiff has filed affidavit in ex-parte evidence in detail wherein contents of the plaint have fully been corroborated, the same were remained unrebutted and there was no reason or plausible cause to discard the ex-parte evidence adduced before the learned trial Court. By concluding the impugned judgment the learned trial Court observed that, “so far as the defendant No. 2 & 3 are concerned, there is no evidence to show that they are responsible for the cause of death of deceased son”. Such conclusion of the trial Court appears to be not correct as affidavit-in-exparte-proof has filed by the appellants.
12. Learned trial court reproduced the issues settled on 12.2.2007, at second page of impugned judgment but did not specifically recorded findings issuewise. It was a simple case of absence of defendants/respondents on the date of hearing and the court passed exparte order against them. It was obvious from the record and contentions raised by learned counsel for appellant that the court did not pass an order setting aside the exparte order, therefore, written statement placed on the record by respondent No. 3 has erroneously been considered by the learned trial court.
14. A person is responsible for negligence due to his own fault, who was bound to exercise all reasonable care, whether that negligence/damage was caused by inevitable accident or wrongful acts of builder as the premises in question was erected by him with the patronage of Respondent No. 2, as they have failed in foreseeing and guarding against the consequences to the illegal construction of galleries without adopting precautionary steps, created a nuisance and were also jointly and severally liable for the dangerous and negligent act in result of which son of the Petitioner electrocuted due to the electric trap, more particularly the KESC by accepting their negligence compensated the Petitioner as it was negligence to omit to use all reasonable means to keep the electricity harmless. The standard of care required is a high one owing to dangerous nature of electricity and the burden of proving that there was no negligence is shifted on the Respondents and there is no obligation on the Plaintiff to prove negligence. Under the law the onus of proving negligence is on the plaintiff but when the plaintiff has adduced evidence sufficient to call upon the defendant to reply and the defendant there upon, being under the burden of laying the material facts before the trial Court, has refrained from doing so, the onus of proving negligence is discharged by the plaintiff.
15. In the case of PLAGHAT COLMBATORE TRANSPORT COMPANY LIMITED V/S NARAYANAN (ILR 1939 MADRASS 306) it was held that:-
“Where injury is caused by the wrongful act of two parties, the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damage, the plaintiff is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover on the whole more than his whole damage. He has a right to recover the full amount of damages from any of the defendants.”
16. If the manufacturer is liable to a person injured by his negligence, so should the builder of a house be liable, in “Ann v/s Morton London Borough Lord Wilberforce with whom Lord Diplock, Lord Simon and Lord Russel agreed, observed that there is no doubt under modern authority that a builder of defective premises may be liable in negligence to persons who thereby suffer injury (1977) 2 All ER 492(HL).
17. In the case of Shah Bashir Alam and 2 others v/s M/s. Arokey Chemical Industries Limited reported as 1997 MLD 2308 in the Fatal Accident Act 1855, in suit for damages and recovery of Rs. 1,95,708/-, on account of death of Shah Jafar Alam due to electrocution in the electricity panel room of defendant’s factory, it was held that deceased having admittedly died due to electrocution while on duty in defendant’s factory, rule of Res ipsa loquitur would come into play shifting burden of proving that there was no negligence on part of defendants, the defendants having led no evidence thereby not discharging burden of proof, death of deceased would be presumed to have been caused on account of negligence on part of defendants.
18. It is settled that law leans adjudication on merits and rules of procedure are meant to advance justice and preserve rights of litigants and they are not to be interpreted in a way as to hamper the administration of justice. In the case of POLICE DEPARTMENT V/S JAVED ISRAR reported as 1992 SCMR 1009 Hon'ble Supreme Court of Pakistan has held that “Defendants who had been proceeded against exparte can take part in the subsequent proceedings as of right.”
19. Whatever mentioned above, we reached at the irresistible conclusion that findings of trial court are based on presumption and assumption while overlooking the exparte evidence which was brought on the record by the appellant above named, which act of the learned trial court amounts to misreading and non-reading of evidence and the same has resulted into gross illegality and injustice. More particularly learned trial court did not record findings on issues framed on 12.2.2007. Resultantly, the impugned judgment is not sustainable due to sufficient infirmities as mentioned above. Accordingly, appeal is allowed, the impugned judgment and decree pronounced by the learned single Judge in Suit No. 249 of 2006 is set aside, the matter is remanded back to the learned trial court for denovo proceedings in accordance with law after affording fair opportunity to both the parties from the stage of filing pleadings/written statement. There shall, however, be no order as to costs.
J U D G E
Aamir&Faisal CHIEF JUSTICE