Richard Garth, C.J.

1. This suit was brought by the plaintiff to recover damages from the defendants for injuries which he sustained in consequence of an excavation having been dug in Chowringhee Road in the execution of certain works, and left after dark in a dangerous condition.

2. The plaintiff and a friend were driving a horse and gig along the road, and there being no sufficient lights or fences to prevent the accident the plaintiff was thrown from the gig into the excavation and sustained very serious injury.

3. The suit was originally brought against the Commissioners of the town of Calcutta, and the defendant Nolit Mohun Chatterjee who was the contractor employed to execute the work. But upon the Commissioners' submitting to the Court in their written statement that if any one was liable for the accident it was the Secretary of State for India or the contractor, the plaint was amended, and the Secretary of State was made a defendant.

4. At the trial, however, the learned Judge dismissed the suit against the Secretary of State, and gave a decree against the other defendants for Es, 6,500 damages, from which the appellants (the Commissioners) have appealed to this Court.

5. Their counsel here have confined their argument entirely to the question of legal liability. They contend that under the circumstances the Commissioners had nothing to do with the work that was in progress, and that, whatever negligence might have been committed by others, they were in no way answerable for it.

6. In order to understand their view of the matter, it is necessary to explain how the works came to be executed, and why the Secretary of State was made a party.

7. The tanks on the maidan, as well as the maidan itself, on the east of Chowringhee Road, are the property of the Government and in charge of the Public Works Department.

8. One of these tanks opposite Mr. Gubboy's house, called 'Monohur Dass' tank,' was frequently overflowed in the rainy season, by which the maidan and footpaths became flooded. An application had therefore been made by the Government to the Commissioners to allow a pipe from the tank to be connected with the main sewer under Chowringhee Road, for the purpose of carrying off the surplus water from the tank.

9. This application was granted; but upon the usual condition that one of the contractors, who are licensed by the Commissioners to carry out such works, should be employed by the Government; and accordingly the defendant Nolit Mohun, who is one of such contractors, was so employed; and it was upon his application on behalf of the Government that the leave was granted by the Corporation to open up the road.

10. The work was commenced on the morning of the 23rd of March 1882; a large excavation was made from the east side to the centre of the road during the day, which was left open during the night with a mound of earth three or four feet in height thrown up alongside of the excavation. The accident occurred after dark, a little after 7 P.M. No lights were there at the time to warn passengers of the danger, although two or three lanterns (unlighted) appear to have been placed near the eastern end of the excavation and nothing like a proper fence had been erected to prevent accidents.

11. The learned Counsel for the appellants very prudently abstained from reopening before us the question which was raised in the Court below, as to the sufficiency of the fencing and lighting; but I think it right to say, by way of warning for the future, that, in my opinion, very different precautions ought to be taken on such occasions to secure the safety of the public, from those which were taken in this instance. A rough but strong bamboo fence of five or six feet high could easily be put up on both sides of the excavation at little or no expense, whenever such works are executed in a public street; and I consider it to be culpable negligence to allow an excavation of this nature to remain open at night in such a street (however useful or laudable its purpose may be) without sufficient protection being provided against accidents.

12. We have now to decide whether the lower Court was right in holding the appellants liable to the plaintiff.

13. The Commissioners of the town of Calcutta are incorporated by Beng. Act IV of 1876. By Section 189 of that Act all the public streets in the town (of which Chowringhee Road, the street in question, is one) are vested in them; and Section 191 provides that 'the Commissioners shall, so far as the Municipal Fund permits, from time to time, cause the public streets to be maintained and repaired, and for such purpose may do all things necessary for the public safety and convenience.'

14. There is no question here as to sufficiency of funds. The Com missioners have ample funds for maintaining and repairing the streets, and for doing all that is generally necessary to secure the public safety and convenience.

15. It seems to me, therefore, that they were bound to maintain this street, and for that purpose to do what was necessary for the safety of the public. The last clause of the section only expresses what the law would imply without it, namely, that for the purpose of maintaining the street the Commissioners should have power to do all that was necessary for the public safety; and I think that in allowing an excavation to be made in the street, without taking proper steps, or seeing that proper steps were taken to protect the public from accident, they were guilty of breach of duty, for which they are liable to the plaintiff.

16. This seems to be entirely in accordance with the law upon this subject, as laid down in The Borough of Bathurst v. Macpherson L.R. 4 App. Cas. 256; Gibbs v. The Trustees of the Liverpool Docks 3 H.N. 164 and other cases cited in Addison on Torts, 4th edition, 740.

17. But the Commissioners contend that this rule does not apply to them, because they were guilty of no negligence. They say that they did not make the excavation, and were not aware that it was insufficiently fenced or lighted; and that although it was made by their permission, it was only right and proper that the peunission should have been granted, because the object of it was a reasonable one, and for the public benefit.

18. They say, moreover, that the negligence complained of did not consist in making the excavation (which was a proper thing to do, and was done in a proper way), but on the omission to light and fence it, which was a duty imposed by the Act upon the Government.

19. Section 213 of the Act provides that when permission is given by the Commissioners to make a hole in a street, the person to whom such permission is given shall fence and enclose it at his own expense, and Section 522 makes it the duty of the Commissioners to fence and light, whenever they open up the road. They say, therefore, that the Government is answerable for not properly fencing and lighting the excavation in this instance.

20. This contention directly raises, what appears to me to be the only arguable point in the case, namely, whether the fact of the Commissioners giving permission to other persons to open up the streets, although for a perfectly proper purpose, relieves the Commissioners themselves from their statutory duty under Section 191.

21. Mr. Evans went so far as to contend that the Commissioners were bound to give permission to the Government as they are bound under Section 220 to give permission to persons, who wish to connect their drainage system with the common sewer. But this, I think, was not so. It was undoubtedly right and reasonable under the circumstances for the Commissioners to give the permission; but, at the same time, it was optional for them to give it or not.

22. This, however, does not, in my opinion, affect the question whether the fact of permission being given, coupled with the other provisions of the Act, has the effect of relieving the Commissioners from their obligations under Section 191.

23. I think that it does not; and that if it did, the public would often be placed in a position of considerable peril. It constantly happens that the persons to whom permission is thus given are householders and others of very slender means;, and the so-called contractors, who are licensed by the Commissioners to do the work, are generally in small way of business; so that if the Commissioners could relieve themselves of liability by thus shifting it upon irresponsible persons, the public, in the event of accidents, would be wholly without redress.

24. It was argued that it might make a difference in the liability of the Commissioners whether they gave permission to open the roads to responsible or to irresponsible persons; but I think we have no right to construe the law in that way. It cannot be that the duty of the Commissioners under Section 191 is different in the one class of cases from what it is in the other.

25. I consider that under that section the Commissioners are bound, so far as the streets are concerned, to protect the rights of the public; and they ought to be especially careful, when those rights are interfered with by their permission, for collateral purposes, to see that what they have allowed to be done does not cause any greater danger or inconvenience than is absolutely necessary.

26. I, therefore, consider that the Court below was right in holding the Commissioners liable.

27. I am bound to say that I feel more difficulty with regard to the order which has been made as to the Secretary of State's costs. The learned Judge considered that as the Secretary of State was not a defendant, in the first instance, and as he was made a defendant, only because the. Commissioners in their written statement suggested that the Government was liable, these costs ought to be paid by the Commissioners.

28. He, therefore, ordered that the plaintiff should pay the costs of the Secretary of State in the first instance, and that the Commissioners should repay those costs to the plaintiff.

29. Mr. Pugh has referred us to a case of Child v. Stenning L.R. 11 Ch. D. 82 upon this subject which he contends is an authority in favour of the learned Judge's order.

30. It seems to me, however, that the circumstances of that are different from those with which we are now dealing; and I feel bound to say that I have great doubt as to the propriety of the order in question; but as my learned brother is prepared to confirm it, and as the order itself, assuming the Secretary of State to have been rightly relieved from liability, is substantially a just one, I shall not express any dissent from the judgment.

31. This appeal will, therefore, be dismissed with costs on scale 2.

32. It only remains now that we should decide the rule which has been obtained against the Secretary of State.

33. Mr. Pugh, when this appeal was first called on, applied to us on the part of the plaintiff for a rule, calling upon the Secretary of State to show cause, why, notwithstanding the delay which has occurred, the plaintiff should not be allowed to prefer an appeal against the Government.

34. He explained to us, with good reason, that so long as his client was sure of obtaining his damages and costs from the Commissioners, he was quite content to leave matters as they were, and incur no further expense in appealing against the Secretary of State; but that as an appeal to this Court had been made by the Commissioners, it might be that the Commissioners would be relieved from liability, and that in that case the plaintiff would be without remedy; seeing that the other defendant, Nolit Mohun Chatterjee, was a man of no means.

35. We thought, however, that the delay, which had occurred, presented a great difficulty in the way of our granting this rule; so we determined to postpone Mr. Pugh's application until we had heard the present appeal.

36. The case having then been argued, we considered that if there were no insuperable objection to Mr. Pugh's application, the justice of the case required that the appeal should proceed against the Secretary of State.

37. I confess I had serious doubt myself, whether, having regard to the provisions of Section 213, the case should have been dismissed against the Secretary of State; and I had also serious doubt, whether under any circumstances the Secretary of State ought to have had his costs.

38. We, therefore, thought it right to grant Mr. Pugh a rule, calling upon the Secretary of State to show cause why the plaintiff should not be at liberty to appeal against him.

39. This rule has now been argued, and we feel bound, though with great regret, to discharge it.

40. If the question had been one for our discretion we certainly should have allowed the appeal.

41. The appellant had good reason for not appealing in the first instance; and it was only reasonable that he should wish to appeal when there was a chance of the Commissioners being relieved from liability; and the justice of the case, as I said before, was in favour of the whole case against all the defendants being fully discussed.

42. We consider, however, that, having regard to the language of the Limitation Act, we have no discretion in the matter. The plaintiff was bound to appeal within twenty days from the date of the decree; and before he could relieve himself from this obligation, he was bound to satisfy us (under Section 5) that he had a sufficient cause for not prosecuting the appeal within that period.

43. We cannot say that any sufficient cause in point of law has been shown; and we must consequently discharge the rule.

44. As we ourselves, however, suggested to Mr. Pugh, that he should take his rule, in order that, if possible, complete justice might be done between the parties, we think it right to make no order as to costs.

Cunningham, J.

45. I concur in thinking that the Original Court was right in holding that the Corporation is bound, in virtue of its general powers and duties under the Act, to take the necessary steps for keeping the public roads in a safe condition, and that its duty in this respect is not impliedly abrogated, in cases in which permission to make a hole is given under Section 213 by the provisions in that section, and Section 214 which impose a duty of fencing, enclosing and lighting holes on the person who is permitted to make them; nor by the provision in Section 252 as to the duties of the Corporation when streets are broken up or drains opened by the Commissioners. It was contended in appeal that as the Act empowers the Corporation to give permission to make holes, and imposes on the person so permitted the duty of fencing and lighting them, all that the Corporation was bound to do was to use a proper discretion in granting permission, and a reasonable care in seeing that the person, permitted to make the hole was complying with the law. In both these respects the Corporation had, it was urged, fulfilled its duty; the Secretary of State was clearly a proper person to have permission, and it was shown that reasonable precautions had been taken for securing the proper lighting of the hole. This argument appears to me to admit of two answers. In the first place the power to give permission to make holes in the road, and the duty imposed on the person making them to fence and light, does not, I think, relieve the Municipality from its general liability under the Act to keep the roads in a safe condition; and in the next place I do not think that reasonable precautions were taken in this case, because, whatever may have been done as to lighting, it is clear, on the evidence, that there was no adequate fencing and enclosing, and this was an omission which might easily have been observed and guarded against by the Municipal authorities.

46. It was further contended that a mere breach of a statutory duty occasioning injury does not necessarily give rise to an action for damages; but that rule has never been held to apply in cases in which the breach has been one of a specific duty imposed in favour of the plaintiff, such as, in my opinion, there was in the present case. I think, accordingly, that there was here a negligent breach of duty on the part of the Corporation, and that the plaintiff was entitled to sue for damages occasioned by that breach.

47. I also think that there are no grounds for interfering with the order of the Original Court as to costs. The defendant Corporation in their written statement pleaded that they were in no way liable for the injuries occasioned to the plaintiff, but that, if any one was liable, it was either the Secretary of State or the contractor. Thereupon the plaintiff added the Secretary of State as a party to the suit. The Original Court having found that the Corporation is liable, and that the Secretary of State is not, it seems to me just that the Corporation, who put the Secretary of State forward as the proper defendant, should pay the costs which the improper addition has occasioned. A private person who seeks his remedy in consequence of having been injured by a gross act of neglect in maintaining the roads of the Corporation in a safe condition, may reasonably infer that such a body as the Corporation will not raise an unsustainable defence, or attempt to get rid of its liability by throwing it on a person who is not legally liable; and the plaintiff, having on the strength of the defendant Corporation's plea, added the Secretary of State, may with justice be allowed to recover from the Corporation the costs which that improper joinder occasioned. The powers, as to costs, conferred by Chapter XVIII of the Code are extremely wide, and the observations of the Master of the Rolls in Child v. Stenninq L.R. 11 Ch. Div. 82 seem to justify the principle on which the present order has been made.