Madras High Court
M. Kuppusamy vs Viswanathan And Ors. on 19 March, 1998
Equivalent citations: (1998)2MLJ768, 1998 A I H C 2856, (1998) 2 MAD LJ 768, (1998) 2 MAD LW 479, (1998) 3 CURCC 198
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. The plaintiff is the appellant herein. He filed the suit against the respondents-defendants for recovery of Rs. 5,000 towards damages.
2. The case of the plaintiff is this: The suit premises originally belonged to the father of the plaintiff. The defendants took the same on lease from him from 1.8.1975 for running a shop in drugs and pharmaceuticals. In 1972, the plaintiff, the appellant herein, purchased the suit premises from his father, since then, the plaintiff became the landlord of the suit premises. On 16.3.1976, fire broke out in the suit premises due to the fact that huge combustible garbage such as straw, waste paper, big wooden boxes, etc., which had become decomposed and abandoned and due to reckless negligence and throwing of cigarette and beedi butts therein. The fire was so serious that it could be brought under control by the fire fighting service only alters strenuous efforts. As a result of the fire, the suit premises suffered serious damages, which is only because of the negligence of the tenants, the respondents herein, who failed to keep the premises in good order. Under the terms of the lease, the tenants are liable to deliver vacant possession of the premises at the expiry of the lease in the same condition as it was at the beginning of the tenancy. The estimation of the damage is about Rs. 5,000.
3. The case of the defendants is this:
The defendants did not store huge combustible garbage in the suit premises. The fire accident which took place on 16.3.1976 was not due to the negligence of the defendants. The damages claimed for Rs. 5,000 is exaggerated. At any rate, it was not due to the negligence of the defendants.
4. On the basis of these pleadings, issues were framed. The trial court, on consideration of the evidence recorded during the course of the trial, held that the appellant, the plaintiff, is not entitled to the reliefs sought for, as he has failed to prove that the fire was due to the carelessness or negligence of the defendants. Aggrieved over this judgment and decree, the plaintiff filed an appeal before the lower appellate court. On consideration of the submissions and the records, the first appellate court also dismissed the appeal by concurring with the views expressed by the trial court. Hence, this second appeal.
5. At the time of admission, the following substantial questions of law were formulated for consideration in this second appeal:
(1) Whether the courts below are correct in throwing the burden of proof of negligence on the plaintiff?
(2) Whether the maxim 'res ipsa loquitur' applicable to the facts of this case?
(3) Whether the courts below are correct in dismissing the suit when the plaintiff has established that the defendants have stored combustible materials which have caused the fire and for which the plaintiff is not responsible?
(4) Whether the courts below are correct in dismissing the suit without making difference between the fire caused by 'accident' and 'negligence'?
6. In elaboration of the above substantial questions of law, Mr. S.D. Balaji, learned Counsel appearing for the appellant, would strenuously submit that once the plea of res ipsa loquitur has been put forward by the plaintiff, as held by this Court and other High Courts as well as the Apex Court, the burden shifts on the defendants to prove that they were not negligent; this important substantial question of law has been miserably overlooked by both the courts below; both courts below dismissed the suit under misconception that the plaintiff alone has to prove that the fire broke out only due to the negligence of the defendants, regardless of the fact of plea of res ipsa loquitur.
7. On the other hand, Mr. V. Natarajan, learned Counsel appearing for the respondents would submit that both the courts below have considered the aspect of bereft of materials in the form of the evidence available on record and concluded that it could not be contended that the defendants were responsible for the accident or the accident was due to their negligence. It is also further contended by learned Counsel for the respondents that the findings of fact arrived at on the appreciation of evidence, adduced by both the parties, could not normally be disturbed in the Second Appeal by this Court, unless serious error of law is committed by both the courts below.
8. I have heard and given my anxious consideration to the respective submissions made on either side. The scope of this Court in Second Appeal under Section 100, C.P.C. is very limited, as laid down time and again by this Court as well as the Apex Court, But, as rightly agreed by learned Counsel for the respondents, if substantial question of law arises and if there is serious error of law, committed by both the courts below.
9. In the light of the above guidelines, let us now discuss about the plea of the plaintiff put forward before the trial court through the suit notice, plaint and evidence. The specific case of the plaintiff is that the premises has been handed over to the defendants under a tenancy agreement. Admittedly, on the date of fire, the defendants were in possession of the said premises, as tenants. It is the case of the plaintiff that combustible materials had been stored in the premises and that the plaintiff frequently met the defendants and asked them to remove the same or else there might be the likelihood of fire accident. In fact, in the suit notice sent by the plaintiff, calling upon the defendants to pay damages of Rs. 5,000 since they were negligent, due to which fire broke out, the plaintiff specifically mentioned that he warned the defendants several times and requested them to remove those combustible materials. It is to be noted that though the 1st defendant had sent a reply, stating that he ceased to be a partner and as such, he was not responsible for the conduct and affairs of the shop in the suit premises, he never refuted the allegations that both the defendants had been sufficiently intimated and warned by the plaintiff with reference to the storage of combustible materials in the suit premises. It is also to be noted that the 2nd defendant, for the reasons best known to him, thought it fit not to reply the suit notice, even though the said notice was admittedly received by him. Apart from this, the plaintiff, as P.W.1, would specifically state in his evidence that even before the fire accident, he warned the defendants several times about the storage of combustible materials and requested them to remove the same. With reference to this aspect, there is no challenge in the cross-examination. Of course, D.W.1, in the box, said that they never used to keep combustible materials in the premises. But, in the absence of cross-examination of the plaintiff on the said aspect and also in the absence of any reply to the suit notice issued by the plaintiff, I am at a loss to understand as to how D.W.1 could say that combustible materials were not used to be stored in the premises. Moreover, the finding by both the courts below is that there is no evidence adduced by the plaintiff to the effect that combustible materials were stored in the suit premises. This is factually incorrect. So, in my view, the important material placed by the plaintiff has been totally ignored and overlooked and consequently a perverse finding has been given.
10. Now, let us go to the substantial questions of law. One thing to say is that there is no evidence to show that there was negligence on the part of the defendants and another thing to say is that mere plea of res ipsa loquitur was raised in the absence of any evidence regarding negligence on the part of the defendants. But, 1 pointed out earlier that there is evidence to show that sufficient warning had been given to the defendants and the defendants did not need to the request made by the plaintiff to remove the combustible materials.
11. Even assuming, though not conceding, that there is only a plea of res ipsa loquitur, then the question arises whether it would be enough to hold that the burden on the plaintiff is discharged and immediately thereafter, the burden shifts on the defendants, The answer for this question is given in the affirmative in the following decisions, cited by learned Counsel for the appellant: (1) State of Punjab v. Modern Cultivators (1964)2 M.L.J. 185, (2) National Small Industries v. Bishambhar Nath , (3) M.P.S.R.T. Corporation v. Sudhakar and (4) Chinnaswami Chettiar v. P. Sundarammal .
12. In State of Punjab v. Modern Cultivators (1964)2 M.L.J. 185, when damages were claimed by the plaintiff against the defendant, the State of Punjab, for following of lands, as a result of breach of canal belonging to the State, by raising the plea of res ipsa loquitur, it is held that the failure of the State to produce the documents which would have shown how the breach occurred, would raise the inference that the breach was caused by reason of the negligence on the part of the State. In Chinnaswami Chettiar v. P. Sundarammal , it is held that when once it is established that the defendant had stored in the meter room and near about the switch board several bags containing oil seeds and also large number of tins of oil and when there is no evidence available to show that the defendant did anything to prevent the spread of fire even in his own premises, much less to that of his neighbours', the plaintiffs, the defendant would be liable for damages. In M.P.S.R.T. Corporation v. Sudhakar , it is held that in a case where plea of res ipsa loquitur is raised, the burden is on the defendant without any fault on his part. In National Small Industries v. Bishambhar Nath , it is held in the light of the evidence that the defendant-tenant carried on business in shoes and stored in the store room combustible material, the defendant was responsible for the fire that had been caused and hence was liable for damages.
13. In this context, Section 106 of the Evidence Act is relevant, which reads thus:
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Therefore, when it is clear in the light of the material placed by the plaintiff before court, apart from raising the plea of res ipsa loquitur, that combustible materials had been stored in the premises admittedly in the possession of the defendants and sufficient warning has been given by the plaintiff to the defendants, there is no difficulty to hold that the burden shifts on the defendants to prove that they were not negligent, nor were they responsible for the fire, causing damages.
14. Both the courts below have not only failed to consider the relevant evidence relating to the warning , but also applied wrong law by saying that it is for the plaintiff to prove about the negligence of the defendants. It is also to be pointed out that it is clear from the evidence of D.W.1 that at the time of the fire accident, no steps had been taken by the defendants to prevent the fire by reporting to the authorities concerned. The conduct on the part of the defendants in not replying to the suit notice also would make it clear that there was negligence on the part of the defendants, with the result, the damage was caused due to fire. Therefore, I am of the view that both the Courts below have failed to consider the important material available on record and committed a serious error of law by holding that the plaintiff had not proved his case. Hence, the findings given by both the Courts below which are perverse, are liable to be set aside.
15. In the result, the Second Appeal is allowed, the judgments and decrees of both the courts below are set aside and the suit is decreed as prayed for. However, in the circumstances, there will be no order as to costs throughout.