Judgment :- 1. The plaintiff is the revision petitioner. He sued the defendant for damages for the loss of a building that he had let out to him. The building was destroyed by fire on 6-1-61 in the early hours of the morning. The plaintiff's case is that the building was lost on account of the defendants negligence. It is urged on behalf of the plaintiff that the principle of "res ipsa loquitur" would apply and that the burden was on the defendant to show that the destruction was not due to his negligence. Both the courts below have held against the plaintiff and hence this revision. There is no evidence as to how the building caught fire. The defendant was staying in the house on the date of incident with his family. On the same night the defendant's wife had given birth to a child. That was at about 9 in the night. The fire was seen at about 5 a. m. The defendant's sister was also residing with them at the time. All the inmates were asleep when the fire broke out. The defendant's wife was the first person to wake up and it was her outcry that alerted the other members. The plaintiff's son-in-law, examined in the case as Pwl, stated that at about 5 a. m. the defendant's sister lighted a chimney (a naked country lamp), and in the process of lighting the chimney, a cloth piece which was hanging from the frame-work of the cot caught fire and in a few seconds the fire raged and gutted the entire house. Negligence was thus sought to be attributed to the defendant. This case was put forward only at the stage of evidence; the plaintiff could not substantiate it. It is on these materials that the applicability of the principle of res ipsa loquitur has to be considered. The maxim is not a principle of liability but a rule of evidence. As observed by Winfield, "it possesses no magic qualities: nor has it any added virtue other than that of brevity, merely because it is expressed in Latin. It is on these materials that the applicability of the principle of res ipsa loquitur has to be considered. The maxim is not a principle of liability but a rule of evidence. As observed by Winfield, "it possesses no magic qualities: nor has it any added virtue other than that of brevity, merely because it is expressed in Latin. When used on behalf of a plaintiff it is generally a short way of saying: I submit that the facts and circumstances which I have proved establish a prima facie case of negligence against the defendant.' There are certain happenings that do not normally occur in the absence of negligence, and upon proof of these a court will probably hold that there is a case to answer. Where it applies, there fore, the maxim entitles the plaintiff to rely as evidence of negligence upon the mere happenings of the accident." (vide Winfield on Tort, 8th Edn. p. 68) It is in the above background that we have to approach the facts of the present case. The defendant was admittedly in occupation of the building on the date of occurrence and in that sense it must be said that, "the thing causing the damage was under his control". The other question, therefore, that has to be answered on the materials before court, is that the accident was such as would not in the ordinary course of things have happened without the negligence. Here, all the relevant circumstances must be considered in the light of common experience and knowledge. The destruction of an object by fire has to be viewed from an angle different from the object falling from the upstairs window of a building on a passer-by as in the case of Byrne v. Boadle (1863-2 H & C 722), or the collision of two trains belonging to the same company without negligence on the part of the company or its servants, as in the case of Skinner v. L. B & S. C. Ry. (1850-5 Ex.787), or the striking of a vehicle against a person on the pavement, as in the case of Ellor v. Selfridge (1930-46 TLR.236). These are instances of prima facie case of negligence; but, on the other hand, in the case of the fire breaking out, the element of accident cannot be ruled out. (1850-5 Ex.787), or the striking of a vehicle against a person on the pavement, as in the case of Ellor v. Selfridge (1930-46 TLR.236). These are instances of prima facie case of negligence; but, on the other hand, in the case of the fire breaking out, the element of accident cannot be ruled out. The learned author (Winfield) on this aspect would observe: "On the other hand, the mere fact that a fire spread from an ordinary domestic grate is not sufficient, for everyone knows fires occur through accidents which happen without negligence on anybody's part (vide Winfield on Tort, 8th Edn. p. 71.) This point is well brought out by Lord Goddard, C. J., in Sochacki v. Sas and another (1947-1 A. E.L. R.344). In that case the plaintiff occupied a be a sitting-room on the second floor of the house. He paid no rent, but in return for the board and lodging which he got, he kept the books and acted as a business adviser to the defendants. His position in law as a lodger was that of a licensee. One afternoon he went out leaving a fire burning in his room. There is no suggestion that he made his fire in any unusual way or built up any enormous fire. While he was out, a fire took place in the room, the most probable cause of which was that a spark jumped from the fire and set fire to the floor boards... The fire spread to the room next to the plaintiff's room in which there was stored a lot of furniture, which was for use in the school, and caused a considerable amount, of damage. The court held: "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 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 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. 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. I come to the conclusion here that there is no evidence of negligence against the plaintiff in this case, and without evidence of negligence there is no liability on the plaintiff for the fire." In the case before me also, there is no evidence that the defendant raised any unusual fire in the house or that the building was put to any unusual or non-natural use. On the other hand, the evidence goes to show that all the inmates of the house were asleep. Hence the conclusion must be drawn that fire arose not as a result of any positive act on the part of the inmates of the house. In such a case how exactly the onus would swing is the question for consideration. In a similar case a Division Bench of the Patna High Court in Mohammad Habib v. Ram Narain (AIR. 1959 Pat. 348) held: "Where the house leased out to the defendant was destroyed by fire, the onus of proving negligence on the part of the defendant is on the plaintiff landlord. The doctrine of res ipsa loquitur does not apply to such a case and the normal rule of evidence must prevail. In the absence of any evidence that the fire was due to the defendant's negligence no decree for damages can be granted to the plaintiff in tort." Reliance was placed by the counsel for the petitioner in Deputy Lal v. Reoti Prasad Gupta (AIR. 1941 All. 327). There, the plaintiff, Deputy Lal, was the owner of a house in the city of Aligarh which was leased to the defendant Reoti Prasad Gupta. The house was double-storeyed. In the ground floor the defendant carried on his business which is of manufacturing locks and the first floor is used for residential purposes. In the first floor there are three rooms on the southern side. In the night of 5th and 6th December, 1937, fire started in one of the rooms and as a result, a substantial portion of the two rooms was damaged and damage was also caused to another room which lay by the side of the other rooms. In the first floor there are three rooms on the southern side. In the night of 5th and 6th December, 1937, fire started in one of the rooms and as a result, a substantial portion of the two rooms was damaged and damage was also caused to another room which lay by the side of the other rooms. The plaintiff sued for a sum of Rs.300/- by way of damages. The plaintiff alleged that the defendant was in the habit of boiling his milk in a firepot in one of the rooms where account books and a lot of paper were also stored. In the adjoining room fuel and cow dung-cakes were stored. The plaintiff's case was that as a result of the negligence of the defendant, fire was transferred from the firepot to paper and to the fuel and finally burnt the building. The defendant denied that any fire was used by him or by his dependants in the first floor of the house on that night and the fire was the result of incendiarism or of act of God. The trial court found that the night on the date of the occurrence was calm and that the fire was not the act of God or an act of . an incendiary and that the fire started from inside the room, where the defendant was in the habit of boiling his milk in a fire pot and that the fire which burnt the house was transferred in some way from the earthen fire pot to the combustible material which was storted in the rooms and thus burnt the building, but the cause as to how the fire was transferred from the fire pot to other combustible material is not known and in the circumstances of the case the burden of proof was on the plaintiff to explain the cause of fire and further to connect the cause of fire with the defendant's negligence which he had failed to do Accordingly it dismissed the claim. In appeal the District Judge partly agreed and partly dissented from the findings of the trial court. In appeal the District Judge partly agreed and partly dissented from the findings of the trial court. It concurred with the trial court that the night on the date of occurrence was calm and that the fire started from inside one of the rooms and that it was not an act of God or an act of an incendiary and that in the circumstances of the case the burden was upon the plaintiff to explain the cause of the fire and to establish a connection between the cause of fire and the defendant's negligence. But the trial court differed in respect of the finding that there was a fire pot in the room in which the fire was kept for boiling the milk. The High Court observed that: 'On the facts proved, a stage had been reached where the presumption of negligence arose against the defendant and it was for the defendant to explain how the fire got into the rooms and that he was free from any negligence in the fire having got into the rooms and in burning the house and this burden the defendant had failed to discharge. It may be that a domestic fire is not a dangerous article, still it has got to be kept at a proper place and used with due 'care and if the fire starts from a room in the first floor and it is definitely proved that the night was calm and the fire was not an act of God or an act of an incendiary, then, in my opinion, it is for the tenant to establish how the fire got into the room and how it burnt the house, and in the absence of an explanation on the defendant's part it should be presumed that there must have been some negligence on his part." In the present case, evidence did not show that there was any fire either in the kitchen or in the bed-room. The source from which the fire came is thus left in doubt. An attempt, of course, was made by the plaintiff to show that the defendant's sister had entered the room with a lighted country-lamp and a cloth piece hanging from the cot had unwittingly caught fire; but this case was practically abandoned as it could not be substantiated. The source from which the fire came is thus left in doubt. An attempt, of course, was made by the plaintiff to show that the defendant's sister had entered the room with a lighted country-lamp and a cloth piece hanging from the cot had unwittingly caught fire; but this case was practically abandoned as it could not be substantiated. I do not think, therefore, that the case cited above has anything in common with the present case. The doctrine 'res ipsa loquitur' applies in cases where it is improbable that an accident would have happened without the negligence of the defendant. Where the thing is shown to be under the management of the defendant and the accident is such as in the ordinary course of things does not happen if the defendant who is in management of the thing uses proper care, it affords reasonable evidence that the accident arose from want of care. In the instant case if the defendant is to be saddled with such an absolute liability, it must be shown that there was fire in the room and that he was in management of it. No such situation was brought in, in the present case. Therefore on the facts I should think that the above cited Allahabad case cannot apply. In East India Distilleries v. Mathias (AIR. 1928 Mad. 1140) the lessee of a building stored alcohol in it. Accidentally fire broke out and the building was burnt to ashes. The watchman was absent when the fire broke out. It was held that:-. an incendiary and that the fire started from inside the room, where the defendant was in the habit of boiling his milk in a fire pot and that the fire which burnt the house was transferred in some way from the earthen fire pot to the combustible material which was storted in the rooms and thus burnt the building, but the cause as to how the fire was transferred from the fire pot to other combustible material is not known and in the circumstances of the case the burden of proof was on the plaintiff to explain the cause of fire and further to connect the cause of fire with the defendant's negligence which he had failed to do Accordingly it dismissed the claim. In appeal the District Judge partly agreed and partly dissented from the findings of the trial court. In appeal the District Judge partly agreed and partly dissented from the findings of the trial court. It concurred with the trial court that the night on the date of occurrence was calm and that the fire started from inside one of the rooms and that it was not an act of God or an act of an incendiary and that in the circumstances of the case the burden was upon the plaintiff to explain the cause of the fire and to establish a connection between the cause of fire and the defendant's negligence. But the trial court differed in respect of the finding that there was a fire pot in the room in which the fire was kept for boiling the milk. The High Court observed that: 'On the facts proved, a stage had been reached where the presumption of negligence arose against the defendant and it was for the defendant to explain how the fire got into the rooms and that he was free from any negligence in the fire having got into the rooms and in burning the house and this burden the defendant had failed to discharge. It may be that a domestic fire is not a dangerous article, still it has got to be kept at a proper place and used with due 'care and if the fire starts from a room in the first floor and it is definitely proved that the night was calm and the fire was not an act of God or an act of an incendiary, then, in my opinion, it is for the tenant to establish how the fire got into the room and how it burnt the house, and in the absence of an explanation on the defendant's part it should be presumed that there must have been some negligence on his part." In the present case, evidence did not show that there was any fire either in the kitchen or in the bed-room. The source from which the fire came is thus left in doubt. An attempt, of course, was made by the plaintiff to show that the defendant's sister had entered the room with a lighted country-lamp and a cloth piece hanging from the cot had unwittingly caught fire; but this case was practically abandoned as it could not be substantiated. The source from which the fire came is thus left in doubt. An attempt, of course, was made by the plaintiff to show that the defendant's sister had entered the room with a lighted country-lamp and a cloth piece hanging from the cot had unwittingly caught fire; but this case was practically abandoned as it could not be substantiated. I do not think, therefore, that the case cited above has anything in common with the present case. The doctrine 'res ipsa loquitur' applies in cases where it is improbable that an accident would have happened without the negligence of the defendant. Where the thing is shown to be under the management of the defendant and the accident is such as in the ordinary course of things does not happen if the defendant who is in management of the thing uses proper care, it affords reasonable evidence that the accident arose from want of care. In the instant case if the defendant is to be saddled with such an absolute liability, it must be shown that there was fire in the room and that he was in management of it. No such situation was brought in, in the present case. Therefore on the facts I should think that the above cited Allahabad case cannot apply. In East India Distilleries v. Mathias (AIR. 1928 Mad. 1140) the lessee of a building stored alcohol in it. Accidentally fire broke out and the building was burnt to ashes. The watchman was absent when the fire broke out. It was held that:- "negligence was not proved against the lessee as there was no causal connection between the absence of the watchman and the breaking of the fire." It, therefore, follows that to sustain an action for damages in such cases it must, in the first instance, be proved that the defendant was negligent; and secondly that there was causal connection between that negligence and the breaking of the fire. In the present case neither of these elements has been proved. It is necessary in such cases that absolute liability should be distinguished from fault liability. This has been done by the Supreme Court in State of Punjab v. Modern Cultivators (AIR. 1965 S. C: 17). That was an action for damages for inundation of plaintiff's land due to breach of a canal in the management of the defendant. It is necessary in such cases that absolute liability should be distinguished from fault liability. This has been done by the Supreme Court in State of Punjab v. Modern Cultivators (AIR. 1965 S. C: 17). That was an action for damages for inundation of plaintiff's land due to breach of a canal in the management of the defendant. The court held in that case:- "The rub laid down in Scott v. London and St. Katharins Dock Co (1865) 159 ER 665 that 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 defendants that the accident arose from want of care, has been regarded as the principle of res ipsa loquitur. But the principle if it be one, cannot always be safely applied where facts before the court are not the whole facts. The principle of res ipsa loquitur had its origin in the falling of a barrel of flour from a first floor window on a passer by but it has been extended to situations quite different. It is not very much in favour and if applied it must be correctly understood. It is not a principle which dispenses with proof of negligence. Rather it shifts onus from one party to another. It is a rule of evidence and not of liability. A too ready reliance on the maxim reinforces a fault liability and makes it into an absolute liability. If absolute liability is to give way to fault liability, some fault must be established by evidence or must be capable of being reasonably inferred from the circumstances. It is not sufficient to say res ipsa loquitur because the danger is that facts may not always tell the whole story and if there is something withheld now can the thing be said to speak for itself.', The court has also sounded the warning that the principle of 'res ipsa loquitur' should not be applied too liberally. What is said in relation to it in one case cannot indiscriminately be applied to another case. What is said in relation to it in one case cannot indiscriminately be applied to another case. No dangerous thing or animal was brought into the house or premises by the defendant so as to pin with absolute liability if such thing or animal went out of control and caused damage. If this is brought under fault liability it is essential that the fault is established by evidence or it is capable of being reasonably inferred from the circumstances. Neither of the contingency is also available in the present case. On the other hand, the evidence goes to show that the plaintiff himself was led to believe that it was an accidental fire and that when public contributions were made for the defendant to re-construct the buildings, Rs. 100/-was donated or promised by the plaintiff also. It was long thereafter that the parties fell out in the matter of surrendering the plot and that the idea of a suit like this struck the plaintiff. This is further evidenced from the fact that the suit notice itself was given more that two months after the incident (the incident was on 6-1-61; but the notice claiming damages was issued by the plaintiff only on 22-3-61). The damages claimed by the plaintiff is Rs. 1000/-.,- but it was thought as is seen from the amount raised by way of subscription and the amount agreed to be contributed by the plaintiff that only Rs. 350/-or thereabout will be required for re-constructing the structure. All these indicate want of good faith on the part of the plaintiff. In the circumstances, the suit has rightly been dismissed. The revision petition is, therefore, dismissed.