MADHAVI Vs. KORAN

JUDGEMENT

(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.

(2.) 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 inlaw, examined in the case as Pw 1, 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.

(3.) 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,