Bindwasini Devi vs Nagar Palika, Bhind

P.R. Sharma, J.—This is an application in revision against the order dated the 15th of November, 1961 passed by the Civil Judge 2nd Class, Bhind in Civil Suit No. 80 of 61 rejecting the present Petitioner's applications dated 4-9-1961 and 27-10-1961 for adding certain persons as Defendants in the suit.

A suit was filed on 29-12-1960 by the present Petitioner against the Municipal Committee, Bhind claiming damages in the sum of Rs. 2300/-. It was alleged in, the plaint that one Gangram Panjabi constructed, a house, with a flush-latrine with the permission of the Municipal Committee Bhind. In order to connect the flush latrine with the sewer line a "galli" adjoining the Plaintiff's house was dug up. The Plaintiff alleged that it was the duty of, the Municipality to fill up the dug up, portions, of the "galli" properly, but that the Municipality did not do so, as a result of which when the rains fell the loose soil gave way causing damage to the Plaintiff's house.

The Municipality pleaded in its written-statement that permission to construct a flush latrine is not granted by the Municipal, Board, but by the Executive Engineer Public Health Department Gwalior and that the Municipality was not liable for the digging done in the "galli" by the said department or its plumber. It was also pleaded that the Municipality had no intimation of the "galli" being dug up and that the liability for the damage, if any, caused by the said act did not rest on the Municipality.

By his application dated 4-9-1961 the Plaintiff prayed that Gangaram who had constructed the flush latrine and Baldeo raj who deposited Rs. 250/- on behalf of Gangaram should both be joined as Defendants; Whereas by his application dated 27-10-1961 the Plaintiff prayed that the plumber Shri Virendra kumar should be joined in the suit as Defendant No. 4. Both of these applications were, as already stated above, rejected by the Court on the ground that the Defendant already on record and the other proposed Defendant were not joint tort-feasers.

The contention of the Plaintiff is that the trial Court ought to have allowed the amendments prayed for in view of the provisions of Order 1 Rule 3 and Order 1 Rule 7 Code of CPC In the first place it must be observed that the case for the Municipality as set out in the written statement clearly is that Gangaram had never taken any permission from the Municipality to construct a flush latrine and that in fact such a permission could not be granted by the Municipality. It was also denied by the Municipality that Baldeoraj deposited any money on behalf of Gangaram for a connecting line to be laid between the sewer pipe and the flush latrine. If Gangaram or Baldeoraj or the plumber Shri Virendrakumar acted on their own responsibility surely there would be no common question of fact or law to be determined between the Plaintiff and the Defendant already on record on the one hand and the proposed Defendants on the other. The cause of action against the Municipality, if any, would be entirely different from the cause of action against the other Defendants.

It was held in Corporation of Calcutta v. Radhakrishna Dev AIR 1952 Cat. 222, that the mere fact that similar acts would have to be proved if separate suits were filed against different Defendants, did not connote that there was any common question of law or fact involved in all the suits. If Gangaram constructed the flush latrine without any permission him the Municipality, and he either by himself or in colloboration with Baldeoraj or Virendrakumar or both, dug up the "galli" adjoining the Plaintiff's house and thereafter they were negligent in leaving the dug up portion without properly filling it, surely there could no duty cast on the Municipality to do the same. Reliance was placed by the learned Counsel for the Petitioner on the decision in Neptune Assurance Co. Ltd., v. Lakihram AIR 1951 Nag. 189. In that case the Plaintiff had sustained injuries while travelling in a bus. In a suit for damages against the driver and owner of the motor-bus, the Insurance Company with whom the bus was insured against third-party risk was impleaded as a Defendant. That was not a case where there could be any doubt as to the liability of all the Defendants either jointly or severally for the Plaintiff's claim. The insurance of the bus had merely the effect of transferring the liabiltiy of the bus owner for the injuries caused to a third party to the Insurance Company.

In the present case if the Municipality had nothing to do with the construction of the flush latrine it cannot be made liable at all for the Plaintiff's claim for damages. The Municipality and the other proposed Defendants do not stand in the category of joint tort -feasers Kondiba Gopal Vs. A. Mestrejean, , was a case in which a master had lent a servant to another for a particular employment. The owner of the car was taken by the Plaintiff to be the master of the chauffeur. The defendent pleaded that the car did not belong to him and that the chauffeur was not his servant but of the Bank, of which he was a manager. The Plaintiff thereupon applied for amendment of the plaint so as to include the Bank as another Defendant.

In that case also the cause of action consisted in the alleged negligence of the driver of the car. It was, therefore, held that the right to relief against all the Defendants arose cut of the same act or transaction. This cannot be said to be the case here. If it is was no part of the duty of the Municipality to fill up the portion of the "galli" which was dug up at the instance of either Gangaram or Baldeo-raj or both, by the plumber, surely the liability to indemnify the Plaintiff for the damage caused to her house would not rest on the Municipality. If on the other hand the Municipality had a duty cast upon it to fill up the portion of the "galli" which was dug up, the Municipality cannot escape liability merely on the ground that the proposed Defendants are responsible for the damage. Whether there was such a duty cast on the Municipality would depend on facts entirely different from those which would cast the responsibility to perform such a duty on the other Defendants. I am, therefore, of the opinion that Order t, Rule 3, Code of CPC can have no application to the facts of this case. A person employing another is not liable for his collatoral negligence unless the relation of master and servant existed between them. On the other hand a person causing to be done, the doing of which, casts on him a duty cannot escape from the responsibility attaching on him of seeing that duty performed, by delegating it to a contractor. (See - Hardaker v. Idle District Council) 1896 1 Q.B. 335 at page 342.

On applying these principles it would follow that either the Municipality alone is liable for the Plaintiff's claim or the other proposed Defendants or one or more of them alone are liable. But the Plaintiff could not entertain any doubt on the facts made known to him by the Municipality that the cause of action against each Defendant is independent of the bundle of facts giving rise to the liability of one or more of the other Defendants. No doubt Order 1, Rule 7, Code of CPC is not confined to cases in which the causes of action alleged as against the other Defendant's are identical, but extends also to cases where a common question of law or fact is involved, although the causes of action against them are different in form, but as I have already observed above no common question of low or fact between the Plaintiff and the Municipality on the one hand, and one or more of the Defendants on the other, exist in this case. In the circumstances the order passed by the trial Court cannot be interfered with in exercise of the revisional powers of this Court.

The result is that revision application has no force. It is hereby dismissed with costs.