Judgment D.L. Mehta, J.-This appeal is directed against the judgment and decree passed by the learned Addl. District Judge No. 1 in Civil Suit No. 47/73, dated 31st March 1975. The plaintiff instituted a suit for the recovery of Rs. 12,337 on account of arrears of rent and damages for the wrongful act of the defendants plaintiff (respondent?), the property was leased to the State of Rajasthan through the Commissioner, Commercial Taxes Department at the rate of Rs. 700/-per month w.e.f 27-6-1964. 2. Consequently, a part of the property, namely, the Swimming Pool was taken back by the landlord and the rent was reduced to Rs. 667/-. The plaintiff in para 5 of the plaint has stated that the Commercial Taxes Department was most reckless in installing two ceiling fans in a double storey house in the first floor in the month of May/June, 1969. It has been further stated that installation of two ceiling fans affixed on the roof of the hall fell down. It was further alleged that the fixation of the ceiling fans was improperly and insufficiently done and the southern half of the roof of the hall fell down and has also caused cracks in three walls of the hall. There is further allegation that 21 Jodhpuri Pattis also cracked. The plaintiff claimed Rs. 5,000/-on account of damages to the property. 3. TheDy. Commissioner vide his letter dated 30th December, 1969 intimated the plaintiff that the department will vacate the building on 31st December; 1969. It was alleged that the building was not vacated even up to the date of the filing of the suit and, as such, the plaintiff has claimed the rent for the period from 1st January, 1970 and onwards. The plaintiff has filed a suit for Rs. 7,337/-, the rent for the month of January to November, 1970. Thus, the plaintiff claimed Rs. 12,337/-. Defendants submitted the written statement and denied the allegations made against them. It was further contended by the defendants that the property was vacated and the plaintiff was intimated to take over the possession of the vacant property. It was also stated in the written statement that the plaintiffs were intimated that the peaceful vacant possession of the plot was handed over to the plaintiff . It was further contended by the defendants that the property was vacated and the plaintiff was intimated to take over the possession of the vacant property. It was also stated in the written statement that the plaintiffs were intimated that the peaceful vacant possession of the plot was handed over to the plaintiff . It was further mentioned that even on 17th March, 1970 the plaintiff was informed that the disputed building has been vacated in the evening of 31st December, 1969. It was also alleged that the plaintiff vide letter No. 28th November, 1969 intimated the State that the vacant possession of the premises would be taken provided two months’ notice, electric charges for the current month and inter alia many other conditions referred to in the said letter are fulfilled. Learned Addl. District Judge framed the following issues: 1. Whether the disputed premises are owned and possessed by the plaintiffs joint Hindu family, of which he is the Karta and as such competent to file the suit? 2. Whether by the reckless use of the demised premises, the Commercial Taxes Department of the Govt. in installing two ceiling fans in the double storeyed hail on the first floor, the roof of the hail fell down and caused damages to the building? 3. Whether the plaintiff is entitled to a sum of Rs. 5,000/-from the Department on account of the damages, suffered in the demised building? 4. Whether the Department had factually handed over the possession of the demised premises on 31-12-69 and as such the plaintiff is not entitled to any rent thereafter? 5. Whether the suit is not maintainable under Article 299 of the Constitution of India? 6. Whether the notice under Section 80, CPC is not in accordance with law? 7. Whether the plaintiff is entitled to any mandatory direction? If so, on what terms and conditions? 8. Relief ? 4. Learned Addl. District Judge decided issue No. in favour of the plaintiff and held that the suit is maintainable. Similarly, issue No. 6 relating to the notice under Section 80 was decided in favour of the plaintiff Issue No. 7 was struck off Learned Addl. District Judge held that there was no negligence on the part of the defendants in the matter of installation of electric fans. Similarly, issue No. 6 relating to the notice under Section 80 was decided in favour of the plaintiff Issue No. 7 was struck off Learned Addl. District Judge held that there was no negligence on the part of the defendants in the matter of installation of electric fans. It was also held that the plaintiff could not make out any case of negligence, omissions or commissions against the defendant which has resulted in the falling of the southern wall of the hall. The suit of the plaintiff for the damages for a sum of Rs. 5,000/-was dismissed summarily. Learned Addl. District Judge found that the vacant possession has already been delivered on 31st December, 1969 and, as such, it is not necessary to grant any relief on account of the retention of the property for the subsequent period. Thus, the whole suit of the plaintiff was dismissed. Being aggrieved with the judgment and decree passed by the learned Addl. District Judge, the plaintiff has preferred this appeal. 5. Mr. Kasliwal appearing on behalf of the appellants has raised the following points for the determination of this Court in this appeal. First of all, he submitted that it is the duty of the defendant to prove the cause of accident and the doctrine of res ipsa loquitur applies with frill force in such cases. He has submitted that the Courts should draw the inference, the permissible inference within the frame-work of the doctrine of res ipsa loquitur he submits that the defendants could not show the cause of the accident particularly the cause of the fall of the roof damaging other part of the property as such, the plaintiff is entitled as of right of get the damages. 6. Mr. Kasliwalhas also submitted that the tenancy has not been determined in accordance with the provisions of Section 106 read with Section 111 of the Transfer of Property Act and, as such, the plaintiff is entitled for the rent/damages of the period during which the property remained out of the possession of the plaintiff He has submitted that under the law it is the duty of the tenant to restore/redeliver the vacant possession of the premises to the landlord and, in this case, the property has not been redelivered as such, he is also entitled to claim rent/damages. 7. Mr. 7. Mr. Rafiqappearing on behalf of the State has submitted that it is not a case in which the doctrine of res ipsa loquitur will apply. He has further submitted that whenever the claim is based on tort there must be either direct or proximate cause for the damage to the property let out. He submits that the plaintiff has not shown any direct or proximate cause showing the negligence of the defendant, as such, the defendant is not liable to pay the damages to the appellant. Mr. Rafiq has further submitted that there is a difference between determination of tenancy and the surrender of the tenancy rights. Mr. Rafiq submits that Section 106 does not apply in the facts and circumstances of the case as it is not a case of determination of tenancy but it is a case of surrender of the right of tenancy. He submits that this case falls under Section 111(i) of the Transfer of Property Act. He further submits that it is not a case of implied surrender but it is a case of express surrender as the notice was served to the landlord that the tenant will vacate the premises and he can take the possession. 8. I have heard the rival contentions of both the parties and perused the record. 9. Mr. Kasliwal appearing on behalf of the appellant has cited before me the case of Mul Chand Nemi Chand vs. Basdeo Ram Sarup, AIR 1926 All 695, Deputy Lal vs. Reoti Prasad Gupta, AIR 1941 All 327 and Sri Gurupada Haldar vs. Sri Haripada Mukherjee, AIR 1962 Cal 263. All these cases relate to the fire accident and the property was damaged on account of the fire. In the case of fire, the landlord cannot be expected to show the cause of the fire as he is not available on the spot and the property is managed and controlled by the tenant In such case, the doctrine of res ipsa loquitur will apply and the inference can be drawn unless otherwise proved by the tenant The duty is on the person who manages and controls the premises to show the cause of the damage. Thus, the law laid down by their Lordships in the cases cited above, is not at all in controversy but the citations cited by Mr. Thus, the law laid down by their Lordships in the cases cited above, is not at all in controversy but the citations cited by Mr. Kasliwal do not apply to the facts and circumstances of this case as the case does not relate to accident and particularly the fire accident. One should understand the difference between two that what is ‘accident-and ‘incident’. The accident generally takes place on account of the omissions or commission of the act which the party is bound to do or not to do. The act takes the shape of negligence and sometimes it takes the shape of carelessness. Any negligent act or omission may not lead to the criminal liability also, but every act or omission which has resulted on account of carelessness may lead to the criminal liability. In the cases of accident, may be on account of negligence or otherwise, the liability may be fastened on the defendants against whom the allegations of commission or omission are made by the plaintiff in the instant case, in para. 5 of the plaint, the plaintiff has alleged that the Commercial Taxes Department was most reckless in using the plaintiffs premises in installing two ceiling fans in the double storeyed building south facing hall on the first floor in the month of May/June 1969. It was aso submitted that by the installation of the two ceiling fans the southern half of the roof of the hall fell down. The plaintiff thus alleges that the act of installing the ceiling fans was negligent and was not carried out properly and effectively and as a result of that negligent act half part of the south roof of the hall of the first floor fell down some time on or about 30th October, 1969. Mr. Kasliwal has submitted before me the case of Babu Singh vs. Champa Devi, 1974 ACJ 168 ( AIR 1974 All 90 ). Their Lordships in the said judgment has considered the doctrine of res ipsa loquitur and remarked as under:-“If the precise cause of occurrence be fully revealed by evidence which is accepted, the occurrence ceases to speak for itself the question then comes whether having regard to the known cause the defendant was negligent. It matters not in such a case whether the cause be established by evidence led by the plaintiff or the defendant.” 10-11. It matters not in such a case whether the cause be established by evidence led by the plaintiff or the defendant.” 10-11. the proposition laid down by their Lordships is still good. The question which needs determination by this Court is whether in the instant case, the precise cause of occurrence is fully revealed or not. If the cause is revealed, then the question of applicability of the doctrine of res ipsa loquitur comes into play and the inference can be drawn about the negligent role of the party. It will not be out of place here to mention that this case of Allahabad High Court relates to the accident caused by the rash and negligent driving by a driver of a truck. Principles laid down in this case apply but it will have to be weighed in the facts and circumstances of the case, taking into consideration that the premises which were let out were constructed long back. Mr. Kasliwal has referred before me the case of K. vs. Narasappa vs. Kamalama, 1969 ACJ 127: (AIR 1968 Mys 345). This case also deals with the doctrine of res ipsa loquitur and the principles laid down by his Lordship are not in dispute. In this case of the Mysore High Court, the facts were altogether different. Under an agreement the contractor was constructing new receiving station. This construction involved the casting of the reinforced cement concrete been and for this purpose two stone pillars were erected on each end of the casting of the bens commenced. During the casting process the pillars fell down and two persons lost their lives. In the case of this nature their Lordships applied the doctrine of res ipsa loquitur and rightly did so as it was the duty of the contractor while construcing the building or any part of it to give proper support. If the pillars so constructed could not stand the weight on the bens even at the stage of construction what will be the fate afterwards can well be inferred and this shows that there was something wrong in the construction of the pillars which could not stand on the weight of the bens and fell down before the recasting of the bens. This fact is so evident that the inference can be drawn and the doctrine of res ipsa loquitur can be applied. This fact is so evident that the inference can be drawn and the doctrine of res ipsa loquitur can be applied. But, in the instant case the facts are altogether different and the case cited by Mr. Kasliwal does not apply to the facts of this case. 12. Mr. Kasliwal has also cited before me the case of Collector, Ganjam vs. Chandrama Das, 1975 ACJ 249: (AIR 1975 Orissa 205). In this case portico of Medical College collapsed and as a result, two persons died on the spot. Their Lordships held that there was inherent defect in the construction of portico and which was recently constructed. Their Lordships applied the doctrine of res ipsa loquitur on the ground that exclusively the defect in the construction will be in the knowledge of the person who has constructed it and the persons who got it constructed, could not explain how the portico fell down. In such circumstances, their Lordships applied the doctrine of res ipsa loquitur and held that the defendants could not discharge the burden which was cast on them to show cause of the collapse of the portico and, as such the inference should be drawn against them that the portico so constructed was defectively constructed which resulted in its collapse within a short space of time just after the construction. 13. Mr. Kasliwal has also cited before me the case of Baliaramgii Ramchandragii Inamdar vs. Vasudev Moreshvar Niphadkar (1898) ILR 22 Bom 348. 14. Mr. Rafiq, Dy. Government Advocate appearing on behalf of the State has cited before me the case of Doongeresey vs. Keshavji, AIR 1917 Bom 34. His Lordship was considering the case under Section 108(m) and (o) of the Transfer of Property Act. Under Section 108(m), it is the duty of the lessee to keep the property in good condition and to restore the properly in as good condition as it was at the time when it was put in possession subject only to the changes caused by reasonable wear and tear or irresistible force. Clause (o) deals with the proposition of the law that the lessee should use the property as a person of ordinary prudence would use them as if they were his own. He should not also use the property in a way which is destructive and permanently injurious thereto. In the case cited by Mr. Clause (o) deals with the proposition of the law that the lessee should use the property as a person of ordinary prudence would use them as if they were his own. He should not also use the property in a way which is destructive and permanently injurious thereto. In the case cited by Mr. Rafiq the doctrine of permissive waste was considered and his Lordship held that the case does not fall within the purview of voluntary waste. This case has been discussed by the Hon’ble Supreme Court in a case. Their Lordships were dealing with the case under Bombay Rents, Hotel and Lodging House Rates Control Act. Their Lordship were considering whether under the relevant clause duty to carry out repairs was that of the tenant or the landlord. First of all, in the instant case, what was the agreement between the parties is not on record, Even in the evidence it has not been said specifically what were the terms and conditions of the lease. Their Lordships were considering a case where the lease covenant was that under the terms of the lease that he will keep premises in as good condition as the same were then in and deliver them up at the determination of the tenancy in the same condition. Their Lordships held that this clause imposes upon the tenant two obligations (a) to keep the property in repair from time to time during the term, (b) to restore it in repair i.e. in the same good condition as he received it at the end of the term. A covenant of this type does not find place in the instant case. Ordinarily, the tenant is expected to keep the property in good conditions and should be careful and should use the property in such a way as a prudent man would use the property to which he belongs. Parenthetical clause suggests in the case of Mermanji that the deterioration or damage directly attributable to a reasonable wear and tear, fair right etc. will be the responsibility of the lessor. So, we will have to consider the doctrine of permissive waste, the doctrine of voluntary waste and will have to apply them to the facts and circumstances of this case. will be the responsibility of the lessor. So, we will have to consider the doctrine of permissive waste, the doctrine of voluntary waste and will have to apply them to the facts and circumstances of this case. The fall of the root” may be attributive to a reasonable wear and tear and if it is so attributable then the lessor shall be responsible and the lessee shall not be responsible for the loss and damage caused to the property. In the case of voluntary waste the lessee is generally held to be responsible for the waste of the premises which has been caused by him not on account of use and occupation as a prudent man but on account of his voluntary act or omission which falls within the purview of voluntary waste. Permissive waste is a waste which is permissible under the custom, usage and the law to a tenant which has occurred on account of wear and tear during use and occupation. The Courts have for a long time admitted and struggled, to invent working test to solve the problems of casual relations which arise before them. Every problem differs in the facts and circumstances and are so valid or infinite that no single test or formula will suffice. Courts have split up the issue of responsibility of negligence into three different issues, duty, breach and casual relation and have tried to perform tests and rules for each issue. The duty of the Court is to do justice in actual cases by facing squarely the question of responsibility in the matter of awarding compensation for damage. It will not be out of place here to mention that a person can be held liable in the following circumstances .(i) a person becomes liable for the harm complained of if his conduct is the proximate cause of it. .(ii) a person becomes liable if his conduct is the direct cause of the harm or the harm is the direct consequence of his conduct. (iii) similarly, a person becomes liable if he could have as a reasonable man ever seen such harm or considered it as probable. In other words, the tests are proximate, directness and probability. .(ii) a person becomes liable if his conduct is the direct cause of the harm or the harm is the direct consequence of his conduct. (iii) similarly, a person becomes liable if he could have as a reasonable man ever seen such harm or considered it as probable. In other words, the tests are proximate, directness and probability. A person is always not liable for all consequences of his wrongful act or default Liability must be founded on an act which is the direct cause of the harm or injury which is complained of The proximate unforeseen ability, probability can in some circumstances be also considered in the case and a person may be held liable for the payment of compensation in some cases. A remote, distant cause or default will not make the person liable for the payment of compensation. Thus, it is necessary for me to apply the law as referred above in the facts and circumstances of the case and to find out whether it is a case of permissive waste or it is a case of voluntary waste. If the case falls within the permissive waste then the defendant will not be liable to pay damages but in case the Court comes to the conclusion that it is a case of voluntary waste together with a case of proximate, direct, unforeseen ability, probability, then the Court may take a different view in the facts and circumstances of the case. It is an admitted case of the plaintiff that the building is a very old building which he has inherited from his fore-fathers. It was let out to the college hostel and the school. It was also used sometimes as a dancing hall and for this purpose one will have to apply the permissive test (waste?) in a way which may be reasonable. Mr. Rafiq, on behalf of the State has referred to some law relating to the valuation of the property. In a building one per cent depreciation is allowed every year under the permissive test (waste?). So the longevity of a building is considered as 100 years. Mr. Rafiq submits that the life of the building which was let out has expired as it was more than 100 years old and naturally the permissive test (waste?) should be applied specially when a roof falls. Applying the doctrine of permissive test Mr. So the longevity of a building is considered as 100 years. Mr. Rafiq submits that the life of the building which was let out has expired as it was more than 100 years old and naturally the permissive test (waste?) should be applied specially when a roof falls. Applying the doctrine of permissive test Mr. Rafiq submits that one should see the condition of the building even at the time when it was let out. He has invited my attention to the earlier correspondence which took place between the parties and a request was made by the defendants to the plaintiff vide ExhibitA-1, letter dated 19th September 1964. From the perusal of the letter it seems that even the staircase was not workable, latrines were out of order, there was no door along the staircase, as a result of which the building remained unsecured from the intruders. There were number of defects including the defect that inside or outside the doors or outside the windows repairs have to be carried. Mr. Rafiq submits that this was the condition of the building at the time of taking on lease and before two months of the incident. He submits that this fact itself goes to show that the premises were in a very bad shape and immediate attention was drawn. Of course, under the law the lessor is not bound to repair the properties. The lessee has a right to get them repaired and to deduct the expenses out of the rent which is to be paid. But, one should not forget that this is about the condition of the building the roof of which has fallen just after two months of letting. This building was let out to the Commercial Taxes Department for the purpose of office and this building was used for the office and generally it remained in use only during office hours and there is no allegation that it was used in such a way which may be described as the case of voluntary waste. Even not a single instance of any negligent act or omission has been given except one that just after the property was let out in the month of May or June 1969, two fans were installed. Even not a single instance of any negligent act or omission has been given except one that just after the property was let out in the month of May or June 1969, two fans were installed. Two electric fans were installed in the room and the allegation of the plaintiff is that because of improper and inefficient installation of the electric fans the roof fell down after two months. What is the improper or inefficient installation has not been said by the plaintiff or any of his witness. With the help of P. W. 4, Mr. Gehlot, the Architect the plaintiff has tried to show that Jodhpurislabs were used in the roof and the installation of two electric fans in the month of May/June 1969 may be the cause for the collapse of the part of the roof on or about 5th October, 1969. 15. Right cannot exist without a duty and duty cannot exist without a right. Both are so correlated and inter connected that one cannot exist without the other. One cannot also forget that now every one is living in the 20th Century and very shortly lucky persons shall enter in 21st Century. Offices and particularly the Government offices are kept in such a way that the persons who are employed to work can work without any difficulty. In a summer season fans, coolers and sometimes the air conditioners have become the part of the life. Installation of a tan for the use of the employees is a must, particularly in Rajasthan where the season in summer is so hot and unbearable that one cannot work without fan and particularly in noon. One must not forget that the human beings are equal and all need the same facilities and the requirements which are necessary for doing the work. 16. I am constrained to take note of the fact that where the Judges of the Court and lawyers of the Court generally talk and also apply in practice that we cannot work and we cannot sit in Court Room which is well equipped with number of tans, coolers in the month of May and June. So we have the morning Courts to show our delicacy without considering the delicacy of the others. We do not work even for six hours or five hours during the summer in the Court on the ground that it is too hot. Mr. So we have the morning Courts to show our delicacy without considering the delicacy of the others. We do not work even for six hours or five hours during the summer in the Court on the ground that it is too hot. Mr. Kasliwal, who is representing the appellant knows better than many of us about the hue and cry which is made for retaining the morning lime only up to 12 o’clock If that is the condition of the Court then how can a person who is employed in office can be expected to do work in the noon without a fan. The lessor is also well placed in the life and he knows the utility of the fan and the requirement of the life better than number of average citizens. One should not forget while arguing the case that the lessor has also the responsibility to the lessee to see that the lessee can lead a life, a reasonable life in leased premises and this casts a duty on the lessor to see that the building or the premises is maintained or is let out in such a condition by which the tenant can reasonably use it and may live like a citizen of this country. Fan is a necessity of life and it is now not a luxury. Installation of two fans cannot be said to be harniflil or dangerous for the premises. The Commissioner and other persons have inspected the building and they found one fan in the roof the remaining part of the roof which is not claimed by the tenant not disowned by the lessor also. Six hooks were found in the roof the hooks are the indicative of the fact that they are mean t for installation of the fan or any other articles. Mr. Kasliwal submits that they might be there for the purpose of decoration of the hall. May it be so, but the hooks were not installed afresh. The plaintiff has not come with a case that new hooks were installed or placed in the roof then the question only remains of not touching the roof but placing the load of the fan on the roof by putting the fan in the hook. This fact cannot be ignored at all. It will not be out of place here to mention that P. W. 4 Mr. This fact cannot be ignored at all. It will not be out of place here to mention that P. W. 4 Mr. Gehlot the Architect, has submitted his inspection report which was prepared by him before the filing of the suit and has also appeared in the witness box as RW. 4. No other expert other than Mr. Gehlot has appeared in the witness box and Mr. Gehlot has stated on oath that [Matter in Hindi omitted.... Ed] This part of the statement finds place in the last part of the cross-examination. In the examination in chief he has stated that the cause of falling of the stone (slabs) was the fixing of the hooks in the roof Hooks were installed in the roof long back and it has not come on record when they were fixed or installed. At least one thing is clear that the plaintiff has not come with a case that the hooks were installed by the plaintiff and, in such circumstances, it cannot be said that the installation of the two fans was the cause on account of which the roof fell down. 17. Mr. Kasliwal has submitted that the burden lies on the defendants to prove or to show the cause of the incident. In the case of permissive waste no cause is detectible. Only the cause is known only when the case falls within the purview of voluntary waste. Apart from that a tenant of ordinary prudence cannot know the kind of these slabs used for the purpose of roof Mr. Kasliwal submits that the Government officers are not the men of ordinary prudence it may be true. If the matter is handled by the Engineers of the P.W.D. but the persons who are working in the Commercial Department cannot be said to be the experts. 18. In theresult, I find that the learned Addl. District Judge has committed no error in disallowing this plea as far as this part is concerned for damages on account of fall of the roof . 19. Mr. Kasliwal has further submitted with all vehemence at his command that the tenancy has not been determined and, as such, they are entitled for the rent up to the date on which they took over the possession. Mr. 19. Mr. Kasliwal has further submitted with all vehemence at his command that the tenancy has not been determined and, as such, they are entitled for the rent up to the date on which they took over the possession. Mr. Kasliwal submits that Shri Nand Kishore Pareek inspected the building on 25th and 26th November 1971 and thereafter his client took over the possession. Mr. Kasliwal is not in a position to say that any person handed over the possession to his client. The case of Mr. Kasliwal is that the building was lying vacant and it was occupied by his client on or after 26th November 1977. 20. Mr. Kasliwal’sfirst contention is that the tenancy is determined in accordance with the provisions of Section 111 read with Section 106 of the Transfer of Property Act. Section 106 of the Transfer of Property Act provides that the tenancy can be determined by any of the parties after giving a notice in accordance with the provisions of Section 106. Mr. Kasliwal submits that no notice in accordance with the provisions of Section 106 of the Transfer of Property Act has served by the tenant on the landlord and, as such, the tenancy has not been determined at all and the tenant remained in possession as a tenant and vacating the building will not affect in any way the rights of the landlord. First of all I will have to examine the correspondence which took place between the parties on 24th November 1969. The Vice Principal addressed a letter to the landlord that on 1st December 1969 the building shall be vacated and he can take over the possession on 8th November 1969 vide Exhibit2. The plaintiff-appellant intimated that the demised premises can be taken into possession by him only if the following terms and conditions are fulfilled. .(a) Two months’ rent for the notice period is paid. .(b) Electric charges for the current month are paid, .(c) The tenant will have to get the roof , the supporting walls, doors and shutters repaired. .(d) In case the tenant cannot get it repaired he will have to pay Rs. 5,000/-. 21. Thus, the landlord intimated to the tenant that the taking of possession of the premises is dependent on doing the needful i.e. fulfilling the conditions. .(d) In case the tenant cannot get it repaired he will have to pay Rs. 5,000/-. 21. Thus, the landlord intimated to the tenant that the taking of possession of the premises is dependent on doing the needful i.e. fulfilling the conditions. Taking note of the notice served by the present appellant landlord, the building was not vacated and the petitioner was intimated on 30th December 1969 vide Annexure A-3 that the building was old one. It was also not in a good condition at the time of taking over and the defendants respondents are not prepared to pay any amount on account of damages. It was intimated to the peti