Judgment :- Plaintiff in a suit for damages, is the appellant. The first defendant is an Insurance Company and defendants 2 to 6 are the legal representatives of one Joseph. 2. Plaintiff Firm was occupying the ground floor of a building and it was dealing in mirrors, plywood etc. Joseph was in the upstairs, running a photo studio in the name and style "Durbar Photo Studio". When the Managing Partner of the plaintiff went to the shop on 21-11-1984, he found that the shop room was flooded with water, escaped from the defendants' studio room and the articles kept in the plaintiff's shop were damaged. He sent for the proprietor of the Studio and PW 4 and some others entered the studio when it was opened by DW1- the son of Joseph. It was found that water was flowing through the water lap and the outlet of the sump/ tank was closed, and water tank was overflowing, and that caused the mischief. 3. The plaintiff alleges that himself and Joseph were not in good terms, that Joseph wanted to spite him and on 20-11-1984 when the studio was closed in the night, the water tap was deliberately left open to cause mischief and the entire incident was the result of the intentional acts of Joseph. 4. The articles kept in the plaintiff's shop had insurance coverage with the first defendant, United India Insurance Company. A claim was preferred with them by the plaintiff, but that was turned down for the reason that the insurance covers only riot, strike, malicious damages etc., and not damages due to negligence of any third party. It was thereupon that the suit was instituted against the Insurance Company, as well as the legal heirs of Joseph who died in the meanwhile. The total claim made in the plaint is Rs. 30,025/-, constituted by the claim of damages Rs. 25,025/- and interest thereon Rs. 5,000/-. 5. It was thereupon that the suit was instituted against the Insurance Company, as well as the legal heirs of Joseph who died in the meanwhile. The total claim made in the plaint is Rs. 30,025/-, constituted by the claim of damages Rs. 25,025/- and interest thereon Rs. 5,000/-. 5. The contentions of the first defendant are that Joseph did not leave the water tap open, that Joseph had no intention to cause any water to flow into the shop of the plaintiff, that the damages if at all any, was not due to malicious acts of Joseph, that it could only be due to negligence or an accident, that the claim for damages is excessive, that the Surveyor deputed by the first defendant has assessed the actual loss at Rs. 12,093.11, and that since the claim is not covered by the insurance, first defendant has no liability. 6. Defendants 2 to 7 filed a joint written statement, pleading ignorance of the allegation that Joseph and the plaintiff had enmity between them. To their knowledge, on 20-11-1984 when Joseph left the shop, he did not leave the tap open, that water in the tap used to be collected in a tank on the studio floor, that the intention and knowledge attributed to Shri Joseph, to their knowledge is baseless, that no damage was caused to the goods stored in the plaintiff's shop, that the quantum of damages was assessed arbitrarily, that there was no malicious act, nor any negligence on the part of Joseph and so, defendants 2 to 6 have no liability as regards the plaint claim. 7. The trial court raised the issues arising out of the pleadings. Evidence consists of Exts. A1 to A10, B1 to B2 and PWs.1 to 4 and DW1. Issue Nos. 1, 2 & 5, namely. (1) whether the damages incurred by the plaintiff is the result of the malicious act of late Sri. Joseph? (2) whether the investigation conducted by the 1st defendant was proper and legal and (3) whether the 1st defendant is liable for damages? If so, to what extent? were considered together and the trial court reached the conclusion that the plaintiff has failed to prove that he sustained loss on account of the malicious acts of deceased Joseph. It was further held that in the light of Ext. If so, to what extent? were considered together and the trial court reached the conclusion that the plaintiff has failed to prove that he sustained loss on account of the malicious acts of deceased Joseph. It was further held that in the light of Ext. B1, the actual loss occasioned by the plaintiff was only to the tune of Rs. 12,000/- and odd, and the plaintiff is not entitled to recover it from the first defendant, since the insurance policy does not cover the claim. 8. In answer to issue No. 4, namely whether defendants 2 to 6 are liable forthe damages, the court held that the plaintiff has failed to prove malicious acts attributed to Joseph and since there is no claim of damages for negligence, the plaintiff is not entitled to any relief against defendants 2 to 6 also. The suit was consequently dismissed. It is against that, the Appeal has been preferred. 9. The first argument advanced by the learned counsel for the appellant is that the finding of the trial court absolving defendants 2 to 6 of the liability cannot be sustained since it is a case of strict liability and no plea or proof of negligence is necessary in such a case. To support this argument, learned counsel relied on the principle enunciated in Rylands v. Fletcher that in a case where it is the strict liability of the defendant, there is no need to prove or plead negligence. The rule formulated in Rylands v. Fletcher is: "The occupier of land who brings and keeps upon it anything likely to do damage if it escapes, is bound at his peril to prevent its escape, and is liable for all the direct consequences of its escape, even if he has been guilty of no negligence." (Salmond and Houston on the LAW OF TORTS -18th Edition,. Page 297) At page 298 of the same book, principle is further elucidated. "We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it. in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default or perhaps, that the escape was the consequence of vis major' or the act of God; but as nothing of the sort exists here, it is unnecessary to inquire what excuse would be sufficient." 10. According to learned counsel, Joseph collected water in his studio and that escaped by over-flowing from the sump and flowed into the shop room of the plaintiff, causing damage to the goods and so, Joseph had a strict liability in damages and it was not necessary to plead or prove negligence. 11. Learned counsel has referred to the decision reported in Western Engraving Co. v. Film Laboratories Ltd. (1936) 1 Alt.E.R.106) to give further support to the argument. That was a case where defendants - the occupiers of a factory premises on the second floor of the building, on several occasions allowed water to escape into the factory premises of the plaintiffs on the floor below, whereby damage was caused to the plaintiffs' property. Defendant's business included washing of cinematograph film, for which purpose an extraordinary large quantity of circulating water was necessary and also a boiler, sink and carboys for storing water. There, it was held, as the water was brought by the defendants to their premises for their own special purposes, and not for the common benefit of the defendants and the plaintiffs, and the defendants' user was not a normal user for the purpose for which both the plaintiffs and the defendants were occupying the premises, the principle laid down in Rylands v. Fletcher applied, and the defendants were liable to the plaintiffs in damages and need not prove specific acts of negligence by the plaintiffs on each occasion. 12. For the reason that the facts are dissimilar, the said decision cannot be applied to the present case. There, water was brought by the defendants for their own special purposes and not for the common benefit of the defendants and plaintiffs. The defendants' user was not a normal user for the purposes for which both the plaintiffs and defendants were occupying the premises. There, water was brought by the defendants for their own special purposes and not for the common benefit of the defendants and plaintiffs. The defendants' user was not a normal user for the purposes for which both the plaintiffs and defendants were occupying the premises. In the case at hand, Joseph was not storing unusual quantity of water and he was getting only the water supply provided in the city. It was only normal user that he was having and it was not a case of the defendant bringing large quantities of water into his premises. 13. The rule in Rylands v. Fletcher underwent a sea change by efflux of time and subsequent judicial pronouncements. Though stated as a rule of absolute liability, there "are so many exceptions to it that it is doubtful whether there is much of the rule left" (SiAnne '.v Well Brewery Co, k Roberts - (1928) 140 L.T.I. 6 (C.A.)). In Rylands v. Fletcher two exceptions or two defences alone were noticed - plaintiff's default and vis major. The subsequent decisions on the point have categorised many more defences than what was mentioned in Rylands v. Fletcher viz. consent of plaintiff, common benefit, act of stranger etc. The case at hand is one falling under the exception "consent of plaintiff. "The main application of the principle of implied consent is found in cases where different floors in the same building are occupied by different persons and the tenant of a lower floor suffers damage as the result of water escaping from an upper floor. In a block of premises each tenant can normally be regarded as consenting to the presence of water on the premises if the supply is of the usual character, but not if it is of quite an unusual kind, or defective or dangerous, unless he actually knows of that. The defendant is liable if the escape was due to his negligence." (Pages 438 & 439 Winfield and Jolowicz on TORT, Twelfth Edition). 14. In the case at hand, the ground floor was occupied by the plaintiff and the first floor by Joseph. There is implied consent by the plaintiff for the bringing in of water and use of water by Joseph on the first floor. In such case, for making Joseph liable for escape of water from his premises to the shop of the plaintiff, proof of negligence is a must. There is implied consent by the plaintiff for the bringing in of water and use of water by Joseph on the first floor. In such case, for making Joseph liable for escape of water from his premises to the shop of the plaintiff, proof of negligence is a must. So, the contention that when it is shown that from the premises of Joseph, water escaped into the premises of the plaintiff, the liability of Joseph was strict or absolute, cannot be accepted. 15. In another case (Rickards v. Lothian - PC (1913) A.C. 263), "A leak occured in the cistern at the top of the house which without any negligence on the part-of the defendant caused the plaintiffs premises to be flooded. In giving judgment for the defendant, Wright J. says: The general rule as laid down in Rylands v. Fletcher is that prima facie a person occupying land has an absolute right not to have his premises invaded by injurious matter, such as large quantities of water which his neighbour keeps upon his land. That general rule is, however, qualified by some exceptions, one of which is that, where a person is using his land in the ordinary way and damage happens to the adjoining property without any default or negligence on his part, no liability attaches to him. The bringing of water on to such premises as these and the maintaining a cistern in the usual way seems to me to be an ordinary and reasonable user of such premises as these were; and, therefore, if the water escapes without any negligence or default on! he part of the person bringing the water in and owning the cistern. I do not think that he is liable for any damage that may ensue." (emphasis supplied) (Tony Weir in A Casebook on Tort', Fourth Edition - pages 370 & 371) "A reason commonly given for the inability of a lower occupier to sue an upper occupier for the escape without his negligence of a domestic water supply is that he shares the system or has consented to its use. The latter is more applicable where the parties are landlord and tenant, the former where they are adjoining tenants. The latter is more applicable where the parties are landlord and tenant, the former where they are adjoining tenants. One in extend both rationales, and say that since everyone uses water from a tap, he shares the whole system and consents to the risk of escape from it in the absence of negligence. The last argument can be extended so as to exclude the liability under Rylands r. Fletcher of the non-commercial providers of such services, even where the escape is from a bulk container. (Page 372 or A Casebook on Tort') So, the law on the point could be staled as: that the rule laid down in Rykinds v. Fletcher is subject to many exceptions and one of such exceptions is consent implied. When water is used by the tenant occupying the upper floor and that water during the course of normal user escapes into the lower floor, causing damage to the articles kept in the lower floor by the plaintiff-another tenant, there is no strict liability or absolute liability and the plaintiff has to prove negligence. 16. The proof of negligence is to be followed by a plea to that effect, atleast as an alternative case. Without a plea and proof, negligence now sought to be attributed to Joseph, cannot be countenanced and a decree for damages cannot be given against defendants 2 to 6 for negligence. (See Trojan & ors. v. Nagappan Chettiar - AIR 1953 SC 235 and Govind Prasad Chalurvedi v. Hari Dutt Shastri - AIR 1977 SC 1005). In the plaint, there is no allegation at all that the incident occurred due to the negligence of Joseph. On the other hand, the specific allegation is that the plaintiff suffered loss due to malicious acts of deceased Joseph. In para.5 of the plaint it is pleaded: "Deceased Joseph was not in good terms with the plaintiff and its partners. Me was waiting for some opportunity to cause damages to the plaintiff or in any way cause loss and difficulties to them On 20-11-1984 at night Joseph left the studio by keeping the water tap opened. There was a gap in the floor of the studio near the tap. If some how or other water is collected in the studio floor, it will definitely drop down to the ground floor room. There was a gap in the floor of the studio near the tap. If some how or other water is collected in the studio floor, it will definitely drop down to the ground floor room. It was with this full knowledge and intention that Joseph left the studio keeping the water tap opened " There is not even an alternative plea that Joseph was negligent, even assuming that his acts were not intentional and malicious. Thus, the trial court was right when it held that there is no plea of negligence and so, the plaintiff cannot be heard to contend that defendants 2 to 6 are liable in damages for the negligent act of Joseph. 17. The next question is whether the plaintiff has suffered damage due to the malicious acts of Joseph. "Malice in law" simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts. "Malice in law" means, an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill-feeling and spite, or a desire to injure another. "Malicious act" is a wrongful act intentionally done without cause or excuse. A malicious act is one committed in a State of mind which shows a heart regardless of social duty and fatally bent on mischief - a wrongful act intentionally done, without legal justification or excuse. (pages 774 & 775 - The Law Lexicon by P. Ramanatha Aiyar,1987 issue) 18. According to the Supreme Court: "Thus "malice' in its legal sense means, malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause." (S.R. Venkataraman v. Union of India, AIR 1979 SC 49) So, the question is whether plaintiff suffered loss as a result of an act intentionally done by Joseph without just cause or excuse, or without any reasonable or probable cause. It has come out in evidence that during the night when the photo studio was closed, the water tap was left open and the outlet of the tank was closed. PW1, the plaintff and PW4 - a disinterested witness, have testified to those facts. PW4 at that relevant time, was the President of the Marchants' Association, Parur. It has come out in evidence that during the night when the photo studio was closed, the water tap was left open and the outlet of the tank was closed. PW1, the plaintff and PW4 - a disinterested witness, have testified to those facts. PW4 at that relevant time, was the President of the Marchants' Association, Parur. He was informed that the plaintiff's shop room was flooded with water that escaped from above and he went to the plaintiff's premises. Joseph was in-formed and his son DW1, came with the key of his photo studio. PWs. 4,1 and some others entered the room when it was opened. Then they saw water flowing from the tap which was left open and the tank was overflowing. The outlet to the tank was closed. Water had overflowed, escaped through the gaps in the floor of the photo studio and flooded the plaintiff's shop. It was suggested in cross-examination that the tap was left open by oversight or negligence and not due to any intentional act. The witness discards the suggestion. The evidence of PW1 also is to the same effect. The testimony of PW4 that the tap was left open, water was flowing from the tap, and the outlet of the tank was closed, have not been challenged in cross examination. As against this, the only evidence is that of DW1, the fifth defendant. He has tried to maintain in his oral evidence that it was he who closed the shop on the previous night, that he took care to see that the water tap was closed, that there was some detect in the water tap, that the washer was worn out and due to the pressure of water during night, there happened to be some leakage and that was the reason for the occurrence. But the case that he was the person who closed the shop, does not find any support in the pleadings of defendants 2 to 6. Defendants 2 to 6 filed a joint written statement and in para.3, what is pleaded is: "We have no information as to the allegation in para.5 of the plaint that during the night of 20-11-1984 the tap was left open when Shri Joseph left the studio. Water from the tap is collected in the tank on the studio floor. The intention and knowledge attributed to Shri Joseph to our knowledge, is baseless". Water from the tap is collected in the tank on the studio floor. The intention and knowledge attributed to Shri Joseph to our knowledge, is baseless". There is no whisper in the written statement that it was DW1, the fifth defendant who closed the shop the previous night, i.e. on 20-11-1984 and when he left, he left the tap closed. On the other hand, the above extracted plea in the written statement would de finitely indicate that on 20-11-1984 it was Joseph who closed the studio. So, no evidentiary value could be given to the testimony of DW t when he says that it was he who closed the studio, leaving the water tap closed. 19. Regarding the closure of the outlet of the tank, what DW1 has to say is: "A small tank of bricks (Thalam) is put up for placing the dish used for washing photos. For draining the water falling in that, there is an outlet. Outlet used not to be closed when not in use." (Chief examination) In cross-examination he says: "The tank below the tap used not to be closed. There is no need to close that. The water will be drained through the outlet If that be the case, why on 20-11-1984 the outlet of the tank was closed, is not explained. It must have been an overt act by Joseph and the intention could be gathered from the consequences. It was a case where not only the tap was left open, but the outlet of the tank was also closed. Those circumstances speak volumes. It could not be a negligent act or accidental omission, is clear from those circumstances. The plaintiff as PW1 has spoken to the ill-will that developed between himself and Joseph. It is categorically alleged and sworn to by PW1 that Joseph was waiting for an opportunity to spite him. It was in those circumstances that the abovesaid act was done by Joseph. The only inference in the circumstances is that the said acts were done intentionally, without any reasonable cause or excuse, which means that it was a malicious act. If due to the malicious act of Joseph the plaintiff suffered loss, necessarily plaintiff is entitled to damages. Such a claim is certainly covered by the insurance policy, Ext. B5. 20. The only inference in the circumstances is that the said acts were done intentionally, without any reasonable cause or excuse, which means that it was a malicious act. If due to the malicious act of Joseph the plaintiff suffered loss, necessarily plaintiff is entitled to damages. Such a claim is certainly covered by the insurance policy, Ext. B5. 20. It was argued that there is no convincing evidence to show that the water tap was actually left open and the drainage of the tank was closed. Learned counsel for the Insurance Company seeks support from the purported report of the police which was marked as Ext. BK. The occurrence was reported by the plaintiff to the police. It is said that the police have made an investigation into the matter. Ext. B10 copy of the enquiry report of the police was marked through the plaintiff. According to the plaintiff, he got the report from the police because, the insurance people wanted that and it was handed over to the Insurance Company to support his claim. That report was produced by the Insurance Company. When it was put to the witness and about to be marked in evidence, the counsel for the plaintiff objected to that. For the reason that the witness had admitted the document, it was marked. It is to say that the said report without proof by the author of the report, has no evidentiary value at all. So, the statement in that report that the tap was leaky due to worn out washer, cannot be accepted as against the evidence of PWs.1 & 4 already adverted to. PW4 says that the tap was fully-open when he first saw that, and water was flowing through the tap. It was not a case of the tap being closed and due to the defect in the washer, water was leaking. So, the contention that there is no proof for the allegation that the plaintiff was made to suffer by an intentional act, cannot be accepted. The intention was the state of mind of Joseph, which could be gathered only from the circumstances. DW1 says that there was no need at all to close the drain. The case that the leakage was due to worn out washer, is belied. It is proved that the tap was fully opened and the drain was closed. The intention was the state of mind of Joseph, which could be gathered only from the circumstances. DW1 says that there was no need at all to close the drain. The case that the leakage was due to worn out washer, is belied. It is proved that the tap was fully opened and the drain was closed. When that is taken in the background of the evidence of PW1 and the plea in the plaint that there was enmity between the plaintiff and Joseph, the inference irresistible, is that it was an intentional act of Joseph, which resulted in the loss suffered by the plaintiff. So, it is a case where plaintiff suffered loss due to the malicious acts of Joseph and the claim fails within the purview of malicious damages. Under the insurance policy, plaintiff is in titled to recover that from the first defendant - Insurance Company. 21. The amount of damages claimed is Rs. 25,025/-. The surveyor assessed the quantum of loss at Rs. 24,694/91. Deducting the salvage value of the goods, the net loss assessed by the surveyor is Rs. 12,093/11. In Ext. B1, the plaintiff has admitted the quantum assessed as salvage value and the plaintiff has acknowledged the same in Ext. B1 itself. At the time of arguments, learned counsel for the appellant/ plaintiff has submitted that in the light of Ext. B1, the plaintiff will be satisfied with the assessment made by the Surveyor. There is no better evidence than the Surveyor's report for assessing the actual loss sustained by the plaintiff. Accepting that, the damages arc quantified at Rs. 12,093/-. Plaintiff will be entitled to get interest at six per cent per annum from 20-11-1984, the date of loss. 22. In the result, the plaintiff is granted a decree for Rs. 12,093/- (Twelve Thousand and Ninety three) with interest at six per cent per annum from 20-11-1984 till recovery, realisable from the first defendant. The Appeal is allowed to that extent. In the circumstances of the case, the parties are directed to suffer their costs.