Patna High Court
Mohammad Habib vs Ram Narain Lall And Ors. on 20 November, 1958
Equivalent citations: AIR1959PAT348, AIR 1959 PATNA 348
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
1. In the suit which is the subject matter of this appeal the plaintiffs alleged that they had let out a house in Mahalla Darzitola in the Patna City Municipality to the defendant on monthly rental. The defendant was a fruit seller and lived! in the house leased out to him by the plaintiffs along with his family. In February, 1949 the house was burnt down by a fire, and the case of the plaintiffs is that the fire was caused due to the negligence of the deft and so the plaintiffs are entitled to compensation in tort. The defendant contested the suit on the ground that the fire broke out suddenly on the north eastern corner of the outer verandah when all the inmates of the house were a sleep and that there was no negligence on his part and that the fire was not due to his negligence. The trial court dismissed the suit on the ground that the plaintiffs failed to prove negligence on the part of the defendant. The lower appellate court has reversed the finding of the trial court and has given a decree for compensation to the plaintiffs.
2. In support of this appeal the argument advanced by the learned Counsel for the appellant is that there is no finding of the lower appellate court that the fire was caused because of negligence on the part of the defendant and it was also contended by learned Counsel that the onus of proof has been wrongly placed by the lower appellate court on the defendant to prove that there was no negligence. We think that the argument of learned Counsel is well founded and that the lower appellate court has wrongly given a decree to the plaintiffs. The case of the plaintiffs was that the fire started in the central hall of the house where the defendant had kept empty fruit baskets and packing cases and also cooking oven and that the fire occurred on account of the negligence of the defendant.
This aspect of the plaintiffs' case has been disbelieved by the lower appellate court. The case of the defendant was that the fire started in the north-eastern corner of the outer verandah where there was a rubbish heap. The evidence of the defendant on this part of the case was examined and disbelieved by the lower appellate court. But the lower appellate court has given a decree on the ground that the burden of disproving negligence was on the defendant in the circumstances of this case. The lower appellate court states as follows in the course of its judgment :
"It is evident that the fire started somewhere inside the house and this must have been on account of the negligence of the defendant or any of the inmates of the house. The night in which the fire occurred was a winter night and it is admitted that it was a calm and windless night. Therefore, it cannot be said that without any negligence on the part of anyone the fire has spread on account of wind. The learned Munsif appears to have based his decision on the assumption that the burden of proving negligence was on the plaintiffs, and on this he has come to the finding that the plaintiff had failed to prove that the fire occurred on account of the negligence of the defendant. It is admitted that the night was calm and windless.
The defendant's explanation that the fire started in the rubbish heap adjacent east of the outer verandah has not been substantiated. The fire started somewhere in the house, and the defendant alone could have given satisfactory explanation of the fire, but he has failed to do so. It is apparent, therefore, that there must have been some kind of negligence by the defendant or any member of his household which caused the fire. These facts afford reasonable evidence in the absence of explanation by the lessee that the accident arose for want of care. There must have been some negligence on his part and he is, therefore, liable for the loss caused to the buildings. The decision of the learned Munsif to the contrary cannot be supported. The defendant respondent is clearly liable for compensation."
3. In our opinion, the lower appellate court misdirected itself on a point of law in throwing the onus of proof upon the defendant to show that there was absence of negligence. It was argued on behalf of the respondents that the doctrine of res ipsa loquitur applies to this case and so it is sufficient for the plaintiffs to prove the acciden and nothing more, and unless a satisfactory explanation is given by the defendant, the plaintiffs are entitled to a decree for damages. We do not think that this argument is correct. The doctrine of res ipsa loquitur has been explained by Erle C.J., in the leading case of Scott v. London Docks Co. (1865) 3 H. and C. 596 (at p. 601) as follows:
"There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."
The doctrine has been held to apply in a case where bags of flour fell from warehouse windows (Bynre v. Boadle, (1863) 2 H. & C. 722) and also in a case where stones were found in edible commodity (Chaproniere v. Mason, (1905) 21 TLR 633) and similar other situations. But in the present case it is obvious that the doctrine cannot apply and unless the plaintiffs establish negligence on the part of the defendant, no decree for damages can be granted to the plaintiffs in tort. In Sochacki v. Sas (1947-1 All E. R. 344) it was observed by lord Goddard C. J. as follows :
"Counsel for the defendants argued that I am bound to apply the doctrine of res ipsa loquitur, but I do not think this is a case of res ipsa loquitur. Everybody knows fires occur through accidents which happen without negligence on anybody's part. There is nothing here to show that the plaintiffs left any improper fire in his room, any larger fire than usual, a fire which was too large for the grate, or anything like that. There was a fire burning in his room. He left his room for two or three hours. I do not consider that the doctrine of res ipsa loquitur could possibly apply to a case such as this."
We are, therefore, of opinion that the doctrine of res ipsa loquitur does not apply to this case and the normal rule of evidence must prevail. The onus of proving negligence lay on the plaintiffs and in the absence of any evidence led by the plaintiffs to this effect the case must fail. The finding of the lower appellate court in the present case is that the plaintiffs' version of the origin of the fire must be rejected and so also the defendants' version with regard to the origin of the fire cannot be accepted. The finding, therefore, is that nobody knows as to how the fire started and in these circumstances we think that the onus which lay on the plaintiffs for proving negligence on the part of the defendant has not been discharged.
In this view we are supported by the decision of the Madras High Court in the East India Distilleries and Factories Ltd. v. P.F. Mathias ILR 51 Mad 994 : (AIR 1928 Mad 1140) where the plaintiff lot his house to the defendant Company to be used as liquor warehouse, and during the period of the lease, one night in the absence of a watchman, the liquior store, room and the whole house were destroyed by fire. It was held in these circumstances that though under a general covenant lessee would under the English law be liable for all damage, including one arising from fire, yet under Section 108(e) of the Indian Transfer of Property Act, he is not liable for damage by fire in the absence of proof that the fire was due to his negligence.
4. For these reasons we hold that the plaintiffs have not established any case of negligence in tort against the defendants and the suit brought by the plaintiffs must fail. We accordingly allow this appeal with costs, set aside the decree of the lower appellate court and order that the suit brought by the plaintiffs must be dismissed. The defendant is entitled to costs throughout.