BIJAYESH MUKHERJI, J. ( 1 ) THIS is an appeal by the plaintiff, whose suit for recovery of damages against the defendant Municipality to the extent of Rs. 1,000 or more, succeeds in part (for Rs. 842. 62 paise only) in the Court of first instance, but fails wholly in the court of appeal below. ( 2 ) THE facts which have led to this litigation need not be referred to further than as follows: 10 Abhayananda Lane, situate within the jurisdiction of the defendant Municipality, is the plaintiff's. He had a coal depot there, as also two monthly tenants. On May 15, 1953, the defendant Municipality served an order of demolition of the said premises. The plaintiff stalled that order, by having obtained an injunction on May 26, 1953, from the local civil court, (Title Suit No. 141 of 1953), - an injunction which was made absolute on terms on July 31,1953, but only on the foot of an undertaking to court that he himself would do the demolition, he did what he had undertaken to do, but only in part. In part, because he could not lay his hands on the portion the tenants were in occupation of. Result : the injunction was lifted, and the Municipality, as ordered by the Court, did the demolition, left unfinished by the plaintiff. In the process of having done so, the Municipality, it is said acted in haste, and, worse still, with grudge and malice against the plaintiff, not even allowing his modest prayer to remove 2128 maunds of coal then stocked in his depot. That rendered the coal unfit for sale, got mixed up as it had with debris. Hence the suit for damages laid at a minimal sum of Rs. 1,000, after the usual, legal notice. ( 3 ) A suit as this was resisted by the Municipality on two pleas, leaving aside those no longer insisted upon. One, in having carried out the work of demolition, the Municipality did no more than act under the order of the Court, without any trace of negligence anywhere. Two, the plaintiff, in reality, suffered no damages. ( 4 ) THE Judge in the Court of first instance, and, on appeal, the Judge in the Court of appeal below find negligence on the part of the Municipality. But the learned Judges differ on the question of damages suffered. Two, the plaintiff, in reality, suffered no damages. ( 4 ) THE Judge in the Court of first instance, and, on appeal, the Judge in the Court of appeal below find negligence on the part of the Municipality. But the learned Judges differ on the question of damages suffered. The trial Judge finds that the plaintiff did suffer damages which he assesses at Rs. 842 odd. The appellate Judge finds just the opposite : no damages did the plaintiff suffer. In view of such findings, naturally, the suit succeeds in part in the court of first instance and fails wholly in the Court of appeal below. Hence this appeal by the plaintiff. ( 5 ) THE points on which I have been addressed are just the two points listed above : (i) negligence, and (ii) damages suffered. Indeed, on negligence, the defendant has filed, in this appeal by the plaintiff, a cross-objection as well. But where (as here) only the particular issue on negligence is found against the defendant Municipality, and at the same time the decree dismissing the whole of the suit is completely in its favour, a cross-objection, as I find on record, is hardly called for. The defendant Municipality, now the respondent, can support the decree on the ground that the issue on negligence should have been decided in its favour. That is what Order 41, Rule 22, sub-rule (1) of the Procedure Code (5 of 1908) provides for. That is what the Judicial Committee of the Privy Council lays down as law : (1) Lala Gouri Shankar Lal v. Janki Pershad, (1890) ILR 17 Calcutta 809 PC, a case under Section 561 of the 1882 Code, more or less corresponding to Order 41, Rule 22 of the present Code. So, the cross-objection, a wholly unnecessary one, may be left alone. But the point it raises : absence of negligence, must be faced. And to face that, I now proceed. ( 6 ) THE concurrent conclusion come to by both the courts on the existence of negligence on the part of the respondent Municipality is rested on the following facts concurrently found too in a manner :a. The plaintiff had a stock of coal in his depot on the ground-floor of the premises, at the time demolition was on, by the Municipality. B. The plaintiff's prayer for a postponement of the demolition work, so that he could move the Civil Supplies Department (under whose order the sale of coal, a controlled commodity, was held up) for removal of his stock, was peremptorily turned down by the chairman and a Commissioner of the respondent Municipality, with the remark : 'when you have gone to Court, the Court will decide the matter'. C. Allowing the plaintiff to remove the stock could have prevented the injury occasioned by the fall of bricks and heavy materials upon the coal which got mixed up with debris and dust. D. The work of demolition was entrusted to a contractor, Gour Mohan Kar by name, the first defendant in the earlier suit by the plaintiff (Title Suit No. 141 of 1953) and a rival claimant to the premises No. 10 Abhayananda Lane. E. Scamping is writ large upon the work of the respondent Municipality in the maintenance of its records, there being no written record of the operation demolition. F. The overseer of the Municipality in charge of such work admits not to have seen what was in the "ghar" and upon what the dismantled roof fell. All he took precaution about was to see that nobody was hurt on the road. ( 7 ) NOT that the appellate Judge has tabulated the findings of fact as I have done. He has dealt with the issue on negligence in a general way and recorded his conclusion agreeing with the conclusion come to by the Judge in the Court of first instance. Hence I treat them as concurrent findings of fact, taking thereby the most favourable view for the appellant. ( 8 ) SITTING on second appeal, I cannot question the findings of fact come to by the two courts of facts, circumscribed as the Court's jurisdiction is by Sections 100 and 101 of the Procedure Code, 5 of 1908. I do not either. But "in law negligence means failure in a duty to take care" : A Man of Law's Tale by Lord Macmillan (1953), page 150, and the majority decision of the House of Lords in (2) Donoghue v. Stevenson, (1932) AC 562, better known and, indeed, now famous as the case of the 'snail in the Ginger Beer Bottle'. Or, as put by Lord Wright in (3) Lochegelly Iron and Coal Co. Or, as put by Lord Wright in (3) Lochegelly Iron and Coal Co. v. M'mullan, (1934) AC 1 :"in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission : it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing. "thus, what is negligence, at common parlance, may fall short of negligence at law. That is so, because, at law, negligence and duty go together; one is correlated to the offer. If I am to be made liable for negligence in relation to you, I must have, in the facts of the case, a legal duty to take care of you. No such legal duty, no negligence, in the legal sense, and no legal consequence too, negligence though it may be, in the popular sense : (4) Jeet Kumari Poddar v. Chittagong Engineering and Electric Supply Co. Ltd. (1946) ILR 2 Calcutta 433. ( 9 ) SUCH then is negligence at law. And the proper legal effect of proved facts is essentially a question of law, even though questions of law and of fact are sometimes difficult to disentangle : (5) Nafar Chandra Pal Chowdhury v. Shukur Sheikh, (1919) ILR 46 Calcutta 189. I am, therefore, within my jurisdiction, though seized of a second appeal with the fetters of Sections 100 and 101 of the Procedure Code on, to question the soundness of the inference of law touching negligence, in the legal sense, if it appears to me (as indeed it does) that such inference is not a just one from the facts which the two courts of facts hold to be proved. This principle I am governing myself by has been laid down in another Privy Council decision : (6) Ramgopal v. Shamskhaton, (1893) ILR 20 Calcutta. ( 10 ) NOW to the facts found by the two Courts of facts just in the order in which they have been tabulated in paragraph 6 ante, with a view to testing whether or no the inference of negligence at law follows from them - from the facts so found. ( 11 ) A. That a coal depot would have a stock of coal has little to be surprised at. But, without more, no negligence is to be seen in it. ( 11 ) A. That a coal depot would have a stock of coal has little to be surprised at. But, without more, no negligence is to be seen in it. With a little more, it may serve as the foundation of an actionable negligence. That little more, however, is wanting here, as will presently be seen. ( 12 ) B. Refusal to postpone demolition is the next finding of fact which, in my judgment, is not sufficient to justify the inference of law finding actionable negligence. ( 13 ) WHY and how the respondent Municipality had to apply itself to operation demolition needs looking into a little closely. Faced with two notices served on the appellant by the respondent Municipality - one under Section 364, sub-section 1, of the Bengal Municipal Act, 15 of 1932, requiring him to demolish the building, in a dangerous state, and another under sub-section 2 thereof, calling upon him to vacate it - he instituted the earlier suit he did (Title Suit No. 141 of 1953) and prayed for a temporary injunction, restraining the Municipality from giving effect to the notices until disposal of the aforesaid suit. Under the order of the Court, a qualified engineer held a local inspection in presence of the parties and their pleaders. So he did on July 21, 1953, with a view to ascertaining first-hand the condition of the building. An inspection, as is well-known, is a substitution of the eye for the ear. Such inspection over; he reported to the Court :"the building is in a dilapidated and ruinous condition, and many fall down at any moment during the rains. . . . the existence of the building in its present condition is dangerous to the safety of the passers by and to the owners of the neighbouring premises,. . . . . the building cannot be made safe for habitation as well as for passers-by and owners of neighbouring premises by ordinary repairs. * * * * it is desirable that the building should be rebuilt after dismantling. "the Court, seized of the appellant's suit (Title Suit No. 141 of 1953) and his prayer for a temporary injunction, quotes the above findings of the engineer-Commissioner, observes that a report as this "is not challenged by either party", accepts the findings come to by the Commissioner, and concludes :". . . . . "the Court, seized of the appellant's suit (Title Suit No. 141 of 1953) and his prayer for a temporary injunction, quotes the above findings of the engineer-Commissioner, observes that a report as this "is not challenged by either party", accepts the findings come to by the Commissioner, and concludes :". . . . . in the interests of safety of all concerned the building standing on the suit property should be demolished forthwith. The plaintiff (the appellant here) has also filed a petition stating that he is ready to dismantle the building if demolition is necessary in the interests of public safety. Hence, ordered that the plaintiff do demolish the building now standing on the suit land at his own cost within 7 days from this day (July 31, 1953) failing which the defendant no. 2 Municipality shall be entitled to proceed legally for demolishing the building. "such then is the order of the Court dated July 31, 1953, exhibit 9, which is rounded off with appropriate directives for inventories for materials dismantled. ( 14 ) IN the circumstances, it is impossible to say, as a matter of law, that the respondent Municipality owed any duty to the appellant to postpone demolition, as rightly contended on behalf of the respondent. The Municipality was doing no more and no less than carrying out the order of the Court upon the failure of the appellant to complete demolition within seven days. And if the chairman and a Commissioner did say : "it is a matter for the Court', as the appellant says they did, they uttered a truism. So, negligence at law is hardly to be seen, on the foot of the finding of fact under discussion now. ( 15 ) "postponement of operation demolition would have enabled the appellant to remove his stock of coal and thereby prevented the damage thereto' - is another finding of fact, from which, by parity of reasoning, negligence at law cannot be spelt out. It was not for the Municipality to usurp to functions of the Court and to stay its hands, in spite of the clear and peremptory order of the Court reviewed above: the order dated July 31, 1953. It was for the appellant to move the Court for a postponement. The appellant did move the Court by two petitions - one dated August 13, 1953 (exhibit 4/a ). It was for the appellant to move the Court for a postponement. The appellant did move the Court by two petitions - one dated August 13, 1953 (exhibit 4/a ). Before it is noticed what these petitions are like, it is better to have a list of dates, which is appoint to assist one's convenience : 1. May 15, 1953. . . . . . The appellant had the notice of demolition served on him: vide paragraph 3 of the plaint, out of which this appeal arises. 2. May 26, 1953. . . . . . . Interim injunction issued by the Court : ibid. 3. July 20, 1953. . . . . . . The appellant's licence to deal with coal, a controlled commodity, was cancelled : vide the appellant's evidence in chief. 4. July 31, 1953. . . . . . . . Interim injunction made absolute on terms : vide exhibit 9 and paragraph 13 ante. 5. Aus 1 to August 6 or thereabouts. . . . . (i) The appellant demolished the upper floor only : vide the appellant's cross-examination, where he says : "i took 6 days to demolish the upper floor. " (ii) During this period, the appellant tried to remove the coal. But he could not, as the coal was then a controlled commodity, and Government had stopped sale by him, his licence having been no more. He wrote to the Civil Supplies Department for removal of the coal, for which he was accountable : vide the appellant's cross-examination, where he admits, he has not brought even the copy of the letter he had written to the Civil Supplies Department. 6. August 12, 1953. . . . . . . . The building was demolished by the Municipality : vide the appellant's evidence in chief. " ( 16 ) THE last date is not correct and needs explanation. The appellant says on cross-examination that about 15 or 20 days were taken by the Municipality to complete the demolition. So demolition could not have been completed on August 12, 1953 after the appellant had done that job in part for six days following the Court's order dated July 31, 1953. What is more, the evidence of the Municipality's overseer is that demolition was started on August 12, 1953 and continued for 15 to 20 days. So demolition could not have been completed on August 12, 1953 after the appellant had done that job in part for six days following the Court's order dated July 31, 1953. What is more, the evidence of the Municipality's overseer is that demolition was started on August 12, 1953 and continued for 15 to 20 days. ( 17 ) NOW, the appellant's two petitions dated August 12 and 13, 1953 exhibits 4 and 4/a, may be considered. The gist of the first one is :a. Without the permission of the Controller and in absence of "a new space", the stock of coal, a controlled commodity, cannot be removed. So, should the Municipality start demolishing the building under the Court's order, it is necessary to see that the coal is not put to loss. B. The material dismantled as the result of demolition of the upper floor is lying in heaps. Until I make the inventory thereof, the Municipality may be ordered not to start demolition, failing which the Municipality may be directed to make the inventory in my presence. The gist of the second petition is :a. The Municipality has engaged labourers on August 12, 1953 to do the dismantling, but has not taken steps to save the huge stock of coal, for which the Municipality will be answerable. B. The lock of my depot has been forcibly broken. (As if demolition could have been carried on without that little.) c. The dismantled materials are being taken away by the Municipality - a consideration which "restrains" me from making an inventory. D. The Municipality is threatening me with much more loss. E. Pray, direct the Municipality to do the demolition with due care and not to remove the dismantled materials. ( 18 ) THE appellant, by such petitions, is trying to lay the foundation for a future suit for damages : just the one I am seized of now. So it looks. What is missed, however, in such a move is a firm and earnest prayer for a little time, so that the coal can be removed with the permission of the Controller. So it looks. What is missed, however, in such a move is a firm and earnest prayer for a little time, so that the coal can be removed with the permission of the Controller. And the appellant had time enough from July 20, 1953, when his licence was cancelled, until August 11, 1953 by when he knew well enough that he could not complete dismantling, as the result of which the Municipality would do that, in terms of the Court's order, - a total period of 22 days, - to remove the coal. And still it will be said that the charge of negligence, in the legal sense, has been brought home to the Municipality, when apparently the court did not think much of such petitions, an affidavit, exhibit 5, dated August 22, 1953 having been there on behalf of the Municipality, and allowed the demolition to proceed. I, therefore, say, at the risk of repetition, that from this finding of fact : refusal to postpone demolition : the conclusion of negligence at law does not follow. The power of the statutory body, as the Municipality is, to which has been superadded the authority of the court, keeps the Municipality within its bounds, in having taken to the demolition work from August 12, 1953. ( 19 ) D. Work of demolition entrusted to Gour Mohan Kar, a defendant in the earlier suit and a rival claimant to 10 Abhayananda Lane. Demolition is demolition, no matter who it is carried by, whether by a friend or a foe. A finding as this, without more, cannot warrant the legal inference of actionable negligence. ( 20 ) E. Scamping on the part of the Municipality in the maintenance of its records. Condemn the Municipality by all means for such perfunctoriness, but infer no negligence at law, only for this, in operation demolition. The two are poles as under. One does not give rise to the other. Absence of written records authorizing the contractor to do the demolition work and noting the work, while it is on and completed and presence of due care in the carrying out of the work may well stand together. Indeed, the latter is a matter for oral evidence, which contemporaneous records would have strengthened. That is all. So, no negligence at law, during the operation demolition, follows from this finding of fact as well. Indeed, the latter is a matter for oral evidence, which contemporaneous records would have strengthened. That is all. So, no negligence at law, during the operation demolition, follows from this finding of fact as well. ( 21 ) F. The overseer of the respondent Municipality did not care to see what was in the "ghar" and upon what the dismantled roof fell. He did not. But what would be therein a "ghar" used as a coal depot but coal" And upon what would the dismantled roof fall except upon coal" More, coal is coal; it is not glass, fragile and brittle. What is still more, even with the best care in the world and the most qualified engineer supervising the operation demolition, the dismantled portions will fall down and down, right upon the coal beneath, and will not, sure enough, fly up, in defiance of the law of gravitation. Pulling down a tottering house, like the one that is seen here, by a statutory authority, under the command of the statute and the court, and that too for the benefit of all concerned, including the appellant, must, of necessity, have the consequences sought to be made so much of. And such necessity negates negligence, a liability in tort. The directive dated July 31, 1953, of the court upon the Municipality "to proceed legally" does not change the position a whit. It changes neither the law of gravitation nor the inevitability of the consequences inherent in pulling down a house. ( 22 ) TRUE it is that "the categories of negligence are never closed. " And the power of the Judges to create new torts is always there, though with certain limitations. But what new tort shall I create, when the appellant himself says on cross-examination :"they (the Municipality's contractor's coolies) hurriedly broke down the roof first. Secondly, they broke open the side-walls. They did not give me any time to remove the coal. So they did not take proper care in demolition. There was no other act of negligence and absence of care on the part of the Municipality. "would the appellant then like the labourers demolish the walls first so that the roof might come down upon them" Refusal to grant time to remove the coal cannot foster negligence at law. I have stated why : paragraphs 13-18. There was no other act of negligence and absence of care on the part of the Municipality. "would the appellant then like the labourers demolish the walls first so that the roof might come down upon them" Refusal to grant time to remove the coal cannot foster negligence at law. I have stated why : paragraphs 13-18. What remains then of the act of negligence the appellant charges the respondent Municipality with" The stimulating adverb "hurriedly" in the extract above" 15 or 20 days taken for such demolition, as spoken to by the appellant, and corroborated by the overseer, solitary witness of the Municipality and that too with a labour force of 12 or 14 strong, as is the overseer's evidence, does not manifest hurry. And the order in which demolition was carried on : the roof first and the walls next : is the only order that can be resorted to by a reasonable man. Such order evidences care; lack of it would leave evidenced lack of care. ( 23 ) IN his zeal, the appellant does go far as to say: "the brick roof and the side-walls were thrown willfully on the stock of coal by the coolies", but adding with candour: "because there was no other space. " - evidence which the Judges of facts do not touch. Now, no other space being there, where would the coolies allow the debris to fall except on the floor of the room itself" The word "willfully"" Another stimulating adverb which only stimulates negligence at law, in view of the appellant's own admission about absence of any other space. ( 24 ) IN sum, none of the findings of fact, taken singly or collectively, can justify an inference of law : that the Municipality is answerable for negligence, in the legal sense. On this consideration alone, the appeal is bound to fail. ( 25 ) NOW, to the question of damages, on which the appellate Judge has reversed the trial Judge who awarded damages for Rs. 842 odd. Everything apart, the finding I have come to on absence of negligence at law disables the appellant to get any damages whatever. On this consideration alone, the appeal is bound to fail. ( 25 ) NOW, to the question of damages, on which the appellate Judge has reversed the trial Judge who awarded damages for Rs. 842 odd. Everything apart, the finding I have come to on absence of negligence at law disables the appellant to get any damages whatever. And then what the appellate Judge, the last Court of facts finds : that depreciation in the value of the coal was not directly attributable to the act of defendant : is a question of fact which cannot be entered into in second appeal, in absence of any error of law. The learned Judge has gone by the Commissioner's report which bears inter alia :"i have found. . . . . . lump of coal in perfectly good condition. Excepting some loss or sinkage due to heavy pressure from above, very little damage is done to the existing coal. The coals are spread over the area by an uniform height of 4 ft. , the length and breadth of which are 30 ft. and 22" ft. respectively. "after this illuminating report, a report which marches with common sense, one has only to remember that "because all unjustifiable harm is tortious," it by no means follows that "all harm is tortious" Here is a case of justifiable harm, and so insignificant a harm as that. I have been addressed on big chunks reduced to splinters, coal dust, debris getting mixed up with coal pieces, and the like. Such matters are in the realm of facts, a prohibited area far me. And I have them at that, though there are good answers for each of the points so taken. Thus, the finding of the learned appellate Judge, refusing damages, stands. ( 26 ) IN the result, the appeal fails and do stand dismissed. Each party do pay and bear its costs throughout. ( 27 ) NO order is needed on the cross-objection, in view of what goes in paragraph 5 ante. Appeal fails and dismissed.