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2024 DIGILAW 643 (RAJ)

Sohan Singh S/o. Shri Kishore Singh Sankhla v. Sardar Joginder Singh S/o. Shri Jaswant Singh Saluja

2024-04-22

BIRENDRA KUMAR

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JUDGMENT : Birendra Kumar, J. 1. The plaintiff-appellants had brought Civil Original Suit No.82/95 claiming compensation, for damages caused by fire, against the respondents no.1 & 2. The suit was dismissed by the impugned judgment and decree dated 14.04.1995. 2. Undisputed facts of this case is that one Kishore Singh Sankhla was owner of the house in-question. He let out two shops on the ground floor to respondent no.1 Sardar Joginder Singh and one flat at upper floor for residential purpose in the year 1971. In the year 1979 Kishore Singh Sankhla died and the tenant Joginder Singh shifted his residence from upper floor and started using the same for keeping his business goods i.e. shoes made of different material. The respondent had business of shoes in the shops on the ground floor. 3. On 23.2.1981 in the night at about 1-2 pm fire broke out in the upper portion of the rented premise, which caused damage not only to the goods, rather to the building as well. The rented premise as well as other portion in occupation of the plaintiffs also got damaged due to the fire. 4. The appellants and respondents no.3 & 4, who are descendants of Kishore Singh Sankhla filed suit claiming Rs.50,00/- as compensation for the loss to their property due to negligence of the tenant-respondent. The plaintiff further asserted in the plaint that the plaintiff had to re-construct the house, therefore, he asked the tenants including the defendant-respondent to vacate the premise but the tenant moved the civil court and got injunction from ejectment. 5. The defendant in his written statement denied the assertion of plaintiffs and specifically stated that he was taking all precaution and the fire was not the result of his negligence. The defendant asserted that he reliably learnt that the landlord had put the fire just to pressurize forceful eviction, however, no evidence was led in support of this defence, therefore, the trial court disbelieved that the plaintiffs had put fire in the rented premise. Since there is lack of evidence in this regard, the finding of the trial Judge stands hereby affirmed. 6. Mr. Since there is lack of evidence in this regard, the finding of the trial Judge stands hereby affirmed. 6. Mr. Alkesh Nagori, learned counsel for the appellant, contends that when the defendant came up with a particular defence and fail to prove that defence, the onus shifted on the defendant to establish that the fire was not the result of negligence of the defendant, which the defendant has failed to do and the learned trial court committed error while dismissing the suit of the plaintiffs. Learned counsel next contends that it is not disputed that the defendant was the tenant. He was keeping business goods (shoes) in the premise, which was let out for residential purpose, as such, there was violation of the terms of tenancy. The goods included plastic made shoes and rubber shoes, which are susceptible to catch fire easily and the defendant had taken no special precaution to prevent fire, thus, the negligence of the defendant is well established. Learned counsel for the appellant submits that the principle of res ipsa loquitur would apply in the facts and circumstances of the case. 7. Mr. CS Kotwani, learned counsel for the respondents no.1 & 2 contends that the initial burden to prove negligence was on the plaintiff. The plaintiff neither pleaded nor proved as to how the fire had taken place. Shoes are not inflammable items like stove and other hazardous thing. There is no evidence that any inflammable item was put inside godown on the first floor or was left negligently unattended. The defendants specifically pleaded and asserted in the evidence that they had taken precaution to prevent any untoward incident. In the circumstance it was the duty of the plaintiff to prove negligence on the part of defendant. Each and every inadvertent act would not establish the requirement that the defendant failed to exercise duty casted upon him towards the plaintiff to prevent damage. 8. Thus, the point for consideration is (1) whether the incident in-question took place due to the negligence of the defendant ? and (2) whether the principles of res ipsa loquitur would be attracted in the facts and circumstances of this case ? 9. Point No.1:- The plaintiff examined altogether four witnesses. PW-1 Dr. Mohan Singh is the plaintiff. He has admitted that at the time of incident, the defendant was residing at Mohalla Mohanpura. and (2) whether the principles of res ipsa loquitur would be attracted in the facts and circumstances of this case ? 9. Point No.1:- The plaintiff examined altogether four witnesses. PW-1 Dr. Mohan Singh is the plaintiff. He has admitted that at the time of incident, the defendant was residing at Mohalla Mohanpura. At the time of incident, the defendant was not there. PW-2 Naresh Sankhla is the brother of PW-1. He has also supported the incident of fire as hearsay witness. PW-3 Mohan Singh is a resident of nearby place of incident but he is also a hearsay witness on the factum of fire; rather he had reached at the place on the alarm by the people. PW-4 Arun Kumar had prepared report assessing damages. DW-1 Joginder Singh is the tenant and he deposed what he has stated in the written statement. 10. It is evident that there is no evidence of terms of tenancy between the parties in the form of document and oral evidence is to the extent that the residential portion was being used as godown after permission of late landlord and on enhancement of rent from Rs.70 to Rs.100/-. There is no evidence as to how the fire occurred. Specially there is lack of evidence regarding any conscious negligence on the part of the defendant which led the fire. The plaintiff’s case is only to the extent that there was excess shoes kept in the said premise and the fire might be result of that. In Jang Bahadur Singh Vs. Sunder Lal Mandal & Ors., reported in AIR 1962 Patna 258 “actionable negligence” was defined in para-18 as follows :- “18. Negligence as a tort is a breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. The mere fact, therefore, that a man is injured by another's act, gives in itself no cause of action. If the act involves lack of due care, again no case of actionable negligence will arise, unless duty to take care exists. There is no liability for negligence unless there is, in the particular case a legal duty to take care, and this duty must be one which is owed, to the plaintiff himself and not merely to others. If the act involves lack of due care, again no case of actionable negligence will arise, unless duty to take care exists. There is no liability for negligence unless there is, in the particular case a legal duty to take care, and this duty must be one which is owed, to the plaintiff himself and not merely to others. Thus, the ideas of negligence and duty are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which we are bound to exercise towards somebody. "The duty to take care is not in the air, but only towards particular people." The duty must be in respect of the particular conduct complained of. Where, therefore, there is no duty there can be no action for negligence.” In Mohammad Habib Vs. Ram Narain Lall & Ors., reported in AIR 1959 Patna 348; the plaintiff had let out his house to the defendant on monthly rental. The defendant was a fruit seller. In February, 1949 the rented premise was burnt by a fire and the case of plaintiff was that the fire was caused due to the negligence of the defendant. The trial court dismissed the suit on the ground that the plaintiff failed to prove negligence on the part of the defendant, however, the first appellate court reversed the finding of the trial court and the matter went before Hon’ble Patna High Court in second appeal. In Para-3 of the judgment, Hon’ble Patna High Court succinctly discussed the legal position, especially, applicability of the dictum of principle of res ipsa loquitur. Para-3 of the judgment is being reproduced below :- “3. In our opinion, the lower appellate court misdirected itself on a point of law in throwing the onus of proof upon the defendant to show that there was absence of negligence. It was argued on behalf of the respondents that the doctrine of res ipsa loquitur applies to this case and so it is sufficient for the plaintiffs to prove the accident and nothing more, and unless a satisfactory explanation is given by the defendant, the plaintiffs are entitled to a decree for damages. We do not think that this argument is correct. The doctrine of res ipsa loquitur has been explained by Erle C.J., in the leading case of Scott v. London Docks Co. We do not think that this argument is correct. The doctrine of res ipsa loquitur has been explained by Erle C.J., in the leading case of Scott v. London Docks Co. (1865) 3 H. and C. 596 (at p. 601) as follows: "There must be reasonable evidence of negligence, but 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 defendant, that the accident arose from want of care." The doctrine has been held to apply in a case where bags of flour fell from warehouse windows (Bynre v. Boadle, (1863) 2 H. & C. 722) and also in a case where stones were found in edible commodity (Chaproniere v. Mason, (1905) 21 TLR 633) and similar other situations. But in the present case it is obvious that the doctrine cannot apply and unless the plaintiffs establish negligence on the part of the defendant, no decree for damages can be granted to the plaintiffs in tort. In Sochacki v. Sas (1947-1 All E. R. 344) it was observed by lord Goddard C. J. as follows : "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 plaintiffs 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." We are, therefore, of opinion that the doctrine of res ipsa loquitur does not apply to this case and the normal rule of evidence must prevail. The onus of proving negligence lay on the plaintiffs and in the absence of any evidence led by the plaintiffs to this effect the case must fail. The onus of proving negligence lay on the plaintiffs and in the absence of any evidence led by the plaintiffs to this effect the case must fail. The finding of the lower appellate court in the present case is that the plaintiffs' version of the origin of the fire must be rejected and so also the defendants' version with regard to the origin of the fire cannot be accepted. The finding, therefore, is that nobody knows as to how the fire started and in these circumstances we think that the onus which lay on the plaintiffs for proving negligence on the part of the defendant has not been discharged. In this view we are supported by the decision of the Madras High Court in the East India Distilleries and Factories Ltd. v. P.F. Mathias ILR 51 Mad 994 : (AIR 1928 Mad 1140) where the plaintiff lot his house to the defendant Company to be used as liquor warehouse, and during the period of the lease, one night in the absence of a watchman, the liquior store, room and the whole house were destroyed by fire. It was held in these circumstances that though under a general covenant lessee would under the English law be liable for all damage, including one arising from fire, yet under Section 108(e) of the Indian Transfer of Property Act, he is not liable for damage by fire in the absence of proof that the fire was due to his negligence.” In Mrs. Kalyani Rajan Vs. Indraprastha Appollo Hospital & Ors., reported in 2024(3) SCC 37 , though, a case of medical negligence and claim for damages; the Hon’ble Supreme Court in para-29 stated as follows :- “29. In so far as the applicability of principles of Res Ipsa Locutor, in the fact and circumstances of the case, it is to bear in mind that the principles get attracted where circumstances strongly suggest partaking in negligent behaviour by the person against whom an accusation of negligence is made. For applying the principles of Res Ipsa Locutor, it is necessary that a ‘Res’ is present to establish the allegation of negligence. Strong incriminating circumstantial or documentary evidence is required for application of the doctrine.” 11. For applying the principles of Res Ipsa Locutor, it is necessary that a ‘Res’ is present to establish the allegation of negligence. Strong incriminating circumstantial or documentary evidence is required for application of the doctrine.” 11. Considering legal position above and the facts of this case, it is evident that there is complete lack of evidence that the fire took place due to negligence of the defendant even to the extent expected of a prudent person to take precaution to prevent damage to his own property. Therefore the plaintiff has failed to establish the duty on the part of the defendant, failure to maintain whereof the incident took place. Point No.2 :- As noticed above, principle of res ipsa loquitur would not apply in the facts and circumstances of this case in absence of evidence on record disclosing strong incriminating circumstantial evidence. No expert opinion was taken to establish the reason of fire. 12. Learned counsel for the appellant has relied upon the judgment of Hon’ble Madhya Bharat High Court in Gwalior & Northern Indian Transport Co. Ltd & Anr. Vs. Dinkar Durga Shankar Joshi & Anr., reported in AIR 1955 Madhya Bharat 214. The judgment was delivered in quite different facts and circumstance of that case, which was a case of motor vehicle accident resulting into death and claim for damages. Even in Northern Indian Transport Co. Ltd. (supra), Hon’ble High Court said that the maxim res ipsa loquitur is merely a rule of evidence affecting onus. It does not alter the general rule that the burden of proof of the alleged negligence rests upon the plaintiff. 13. Learned counsel for the appellant has next relied upon the case of Bondar Singh & Ors. Vs. Nihal Singh & Ors., reported in (2003) 4 SCC 161 for his submission that in absence of pleading evidence cannot be looked into. Contention of learned counsel is that the trial court has accepted the evidence of defendant-respondent, though, it was not pleaded. Since the trial court judgment is not being sustained for aforesaid reason it is not necessary to delmn into that. 14. Learned counsel for the appellant has next relied upon the judgment of P.M. Vishwanathan Vs. Mandattil Geetha reported in 2017 SCC Online Kerala 30853. In Vishwanathan’s case the fire had taken place in a bakery. It was observed that undisputedly Oven was working at the time of fire. 14. Learned counsel for the appellant has next relied upon the judgment of P.M. Vishwanathan Vs. Mandattil Geetha reported in 2017 SCC Online Kerala 30853. In Vishwanathan’s case the fire had taken place in a bakery. It was observed that undisputedly Oven was working at the time of fire. Evidently the said case is distinguishable in the facts of the present case. 15. In view of the discussions made above and conclusions on points raised, this Court does not find any reason to interfere in the impugned judgment and decree, hence, this appeal is dismissed being devoid of any merit.