JUDGMENT P.V. Dixit, C.J. This Letters Patent Appeal from a decision of Tare J., arises out of a suit brought by the appellant against his tenant (respondent) for compensation for damages caused to the demised premises by fire, which, it was alleged was the result of the negligence or default of the defend ant-firm's servants The learned single Judge upheld the judgment and decree of the Additional District Judge, Drug, by which the decision of the original Court was reversed and the plaintiff's suit was dismissed. The facts, as found by all the Courts below, are that some seven months before the institution of the suit, the appellant had let out to the respondent a house situated in village Arjundah for the business of manufacturing bidie. The house was double-strayed. On the ground-floor the defendant-firm carried on its business of manufacturing bidis. The first floor was used by the servants of the defendant-firm for residential purposes. The process of manufacturing bidis involves roasting of bidis. on trays in a hot-case commonly known as Tandur. It is in evidence that the Tandur used by the defendant firm was in the shape of an almirah of about 6 1/2 ft. height and having six trays. The framework of the Tandur was covered with tin-sheets. The Tandur is heated by charcoal fire placed in a compartment at the bottom. The rolled bidis are placed in the trays above the compartment. The position of the trays is changed from time to time. During rainy season the Tandur used to be lit up and kept in a room adjoining a covered verandah ( ) on the ground floor. On the night of 25th August 1956 the Tandur was lit up and worked in the room at 8 O'clock by Lalaram, a servant of the defendant-firm having thirty years' experience in the working of Tandurs. The room was kept open until 9 P. M. Thereafter Lalaram locked the room and went to sleep in the verandah. At about 1-30 a. m. in the night, Lalaram's sleep was disturbed by smoke coming out of the room. He woke up and found that fire had started in the room. Chaturbhuj, another servant of the respondent-firm, who was also sleeping in the verandah, got up. Both Lalaram and Chaturbhuj then raised a hue and cry. The neighbors collected and all got engaged in extinguishing the fire. He woke up and found that fire had started in the room. Chaturbhuj, another servant of the respondent-firm, who was also sleeping in the verandah, got up. Both Lalaram and Chaturbhuj then raised a hue and cry. The neighbors collected and all got engaged in extinguishing the fire. Lalaram swore that according to his usual practice he lit the Tandur in the room and allowed it to work for about an hour till 9 P.M. and then locked the room; and that in doing so, he exercised all care and precaution that was needed. The witness said- He was not questioned by the appellant as regards the particulars of the care and canteen that he exercised. It is also in evidence that three or four bags of bidi leaves were in the room on the night of the fire and that the defendant-firm used to store the bidi leaves in a neighboring house. There is no evidence to show the size of the room, the distance from the hot-case where the bags of bidi leaves were kept in the room, the ventilation arrangement in the room, and whether on the night of the fire there was any breeze. No evidence was tendered by the parties about the time during which the hot-case works itself when once it is lit up and about the intensity of the fire from time to time during that period. On these facts, the learned Civil Judge, Drug, who tried the suit, held that it was negligence on the part of the defendant to leave a lit-up Tandur unattended in a closed room after 9 P. M. He, therefore, held that the fire was due to negligence of the defendant and awarded to the plaintiff-appellant Rs. 1,000 as damages besides costs. In appeal, the learned Additional District Judge came to the conclusion that there was no negligence on the part of the defendant-firm; that the plaintiff had let out the premises for bidi manufacturing and the defendant-firm had used them for the purposes for which it had taken the premises on hire; that the Tandur was worked on the night of the fire with the usual precautious; and that the mere existence of the Tandur inside the room was not sufficient by itself to lead to the conclusion that "the fire was caused on account of the Tandur". Accordingly he dismissed the plaintiff's suit. Accordingly he dismissed the plaintiff's suit. The learned single Judge found that on the facts stated above the fire could not be attributed to any negligence of the defendant. He referred to various decisions and concluded by saying that this was a case which the "equitable principle" laid down in Sochacki v. Sas and Another (1941) 1 All ELR 344 should be applied and that as the respondent had done everything in the normal way it could not be held that the fire was caused through any default or negligence of the respondent's servants. The learned single Judge summed up his conclusion thus- The fire that broke out in the present case was certainly due to spark a that might have come from the oven and probably 5 bags of bidi leaves must have caught fire, which alone could explain the spreading of this fire. Bat, as the respondent followed the normal routine and did not do anything out of the usual routine and took the normal and usual precautions, it cannot be held guilty of a negligence and, therefore, I am of opinion that the learned appellate Judge did not act erroneously in absolving the respondent of any liability for damage on the premises that the fire was accidental. Shri Dharmadhikari, learned counsel appearing for the appellant, argued that on the finding that the defendant had lit up the hot-case in the room where some bags of inflammable material, to wit, the bidi leaves, were also placed, the rule laid down in Relands v. Fletcher (1868) LR 3 HL 330 and the maxim res is a ligature should have been applied and a presumption of negligence should have been drawn against the defendant. It was said that the evidence produced by the defendant far from rebutting the presumption only strengthened it. We are unable to accede to the contention that the plaintiff-appellant has been able to establish in this case that the fire to the house was due to the defendant's negligence. It cannot be disputed that the burden of proving negligence on the part of the defendant was on the appellant. We are unable to accede to the contention that the plaintiff-appellant has been able to establish in this case that the fire to the house was due to the defendant's negligence. It cannot be disputed that the burden of proving negligence on the part of the defendant was on the appellant. This principle is also embodied in section 108 (m) of the Transfer of Property Act which inter alia says that if the defect in the leased out property is caused by "any act or default on the part of the lessee, his servants or agents" then the lessee is bound to make it good within three months after such a notice has been given or left. Under this clause, the lessee is liable for damage due to fire caused intentionally or by negligence. This proposition is not disputed. The contention of the appellant is that the burden of proof in this case shifted on the defendant, as on the fact which have been found and ascertained it was for the defendant to explain the cause of the fire and to prove that there was no negligence on its part and this the defendant failed to do. Learned counsel for the appellant asked us to draw the presumption of negligence from the bare fact that the Tandur was lit in the room and left unattended in proximity to some bags of bidi leaves. We are unable to do so. Even in applying the maxim res is a loquitur and the rule laid down in Relands v. Fletcher (1868) LR 3 HL 330 one must have regard to all the circumstances of time, place and practice of the mankind. This is the effect of the decisions in Sochachi v. Sas and Another (1947) 1 All ELR 344 and Balfour v. Barty-King etc. (1957) 1 All ELR 156. The learned single Judge seemed to think that the decision in Scchacki v. Sas and Another (2) laid down some equitable principle and held that the maxim res ipsa loquitur did not apply to cases of fire. We do not agree with the learned single Judge's this reading of the decision in the case of Sochacki (2). As has been pointed out by one of us in G. and N.I.T. Co. We do not agree with the learned single Judge's this reading of the decision in the case of Sochacki (2). As has been pointed out by one of us in G. and N.I.T. Co. v. Dinkar Joshi AIR 1955 MB 214 , "the maxim res ipsa loquitur when applied to an action of negligence is merely a rule of evidence affecting onus. It does not alter the general rule that the burden of proof of the alleged negligence, rests upon the plaintiff. It means that the res or the facts and circumstances of the accident proved by the plaintiff are by themselves, without any direct proof of negligence, sufficient prima facie evidence from which an inference of negligence may reasonably be drawn. The inference may be rebutted by the defendant by proving some specific cause of the accident for which he was not responsible or by proving that he was in fact not negligent, or by giving a reasonable explanation and proving it, that the happening of the accident was as consistent with the absence of negligence as it was with the presence of negligence. When the defendant has done this, the burden is shifted back to the plaintiff. If the defendant fails to give any such evidence, the plaintiff succeeds not because the burden of disproof of negligence is on the defendant, but because (1). (2). (3). (4). by reason of the res or the facts and circumstances of the accident proved he has discharged the onus of establishing his case of negligence. The sole question, therefore, is whether the facts that the house was on fire on the night of 25th August 1956 and that the Tandur was lit up in the room are by themselves sufficient to prove prima facie that the defendant's servants were negligent. Now, it is well-known that fires occur through accident and even without negligence on anybody's part. What the appellant had to show was that the fire was due to something unusual which the defendant's servants did on the night of the fire. The evidence is that the Tandur used to be lit up by an experienced person and had been lit up in the room for several days after the commencement of the tenancy without any mishap. The evidence is that the Tandur used to be lit up by an experienced person and had been lit up in the room for several days after the commencement of the tenancy without any mishap. There is nothing here to show that on this particular night the defendant left any improper fire in the Tandur or any larger fire than usual. There is also no evidence to show how proximate the four or five bags of bidi leaves were to the Tandur or even of the size of the room or of any breeze or gust of wind fanning the fire because of the failure of the defendant to take some precautions. In these circumstances and having regard to the practice of the working of the Tandur in the room, the mere facts that the Tandur was lit up in the room and left unattended after 9 p. m., cannot be regarded as facts or circumstances of the accident sufficient to prove prima facie negligence of the defendant. It was usual to keep the lit-up Tandur in the room. Therefore, the plaintiff was required to establish some other facts and circumstances showing negligence on the part of the defendant. The decision in Sochocki's case (1947) 1 All ELR 341 emphasizes this point. In that case, a winter fire was left burning in a bed-sitting room. In England it is usual and very common for the occupant to leave such fire burning in the room and close it. The fire is generally protected by grate. It was because of these circumstances that Lord Goddard C.J. refused to apply the doctrine of res ipsa loquitur and said that- Everybody knows fires occur through accidents which happen without negligence on anybody's part. There is nothing here to show that the plaintiff 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 the room. He left his room for two or three hours. So also here, having regard to the proved practice of leaving the lit-up Tandur in the room, it cannot be held that it was negligence to leave the lit-up Tandur in the room where some bags of bidi leaves were kept. There was a fire burning in the room. He left his room for two or three hours. So also here, having regard to the proved practice of leaving the lit-up Tandur in the room, it cannot be held that it was negligence to leave the lit-up Tandur in the room where some bags of bidi leaves were kept. On the evidence on record, it cannot be held that the plaintiff discharged the burden of proving negligence that rested on him. He could have done that by cross-examining properly the defendant's witnesses. But curiously enough the defendant's servant Lalaram, who deposed that he lit up the Tandur on the night of the fire and took every precaution and care, was not cross-examined so as to elicit the facts and circumstances relating to the lighting up of the Tandur, the duration of its working, the care and precaution he used to take normally etc. Lalaram's statement that there was no negligence on his part in leaving the lit-up Tandur in the room after 9 p.m. must, therefore, be given effect to. Such being the evidence on record, in our opinion the learned single Judge's conclusion that there was no evidence of negligence on the part of the defendant is correct. In fact the question whether the fire was caused due to the negligence of the defendant's servants is really a question of fact. It is an inference of fact to be drawn from certain basic facts: Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, . There is no question of the applicability of any legal principle in drawing the inference of negligence from some basic facts. This is not a casein which a decision has been reached after placing the onus wrongly. The sole question is whether the evidence is sufficient to justify the inference of negligence. This is a question of fact. The questions whether the plaintiff has discharged prima facie the burden of proof resting on him or whether the defendant has rebutted this evidence are also questions of fact. For these reasons our conclusion is that this appeal must be and is dismissed with costs. Final Result : Dismissed