DEVASIA Vs. MATHEW

JUDGEMENT

(1.) This second appeal is filed by the second defendant in a suit for damages. Plaintiff's case was that Defendant 1 had set fire to the dry jungle wood in the property in their possession for preparing the land for lemon grass cultivation and that on account of their negligence the fire spread to his property and destroyed the cultivation, kayalas and other improvements in it and caused him loss to the extent of Rs. 300. Defendants denied that they set fire to the jungle wood and also contended that the damages claimed were remote and excessive. The courts below repelled their contentions and Trial Court awarded a sum of Rs. 175 to the plaintiff as damages. This award was confirmed on appeal by the District Judge of Parur. Hence this second appeal.

(2.) It was contended by the appellant's counsel that the lower courts have wrongly acted in this case on the rule of absolute liability laid down in Rylands v. Fletcher (1866 L.R. 3 H.L. 330) and that the defendants are not liable in damages unless they are shown to have been guilty of negligence. He contended that there was no evidence of negligence in this case and that the suit should therefore have been dismissed. I am satisfied that the courts below have not acted on any wrong principle of law or incorrect appreciation of evidence. The argument that the courts below have acted on the principle of absolute liability is groundless. It was held in Darrah Smail and Co. v. Nanoo Menon (7 Cochin L.R. 109) that there is no rule of absolute liability in the case of fire and that the plaintiff could not recover damages unless he proved negligence on the part of the defendant. The two other decisions relied upon by the appellant's counsel for the proposition of law that in the absence of negligence, damages on account of fire could not be claimed, a proposition, the correctness of which was not disputed by the respondent's counsel were Pigneguy v. Yeomen Ltd. (AIR 1943 Privy Council 108) and Sochaki v. Sas (197 All. England Law Reports, Volume I, Page 344). On the evidence in the case the Trial Court came to the clear and definite finding that the defendants were rash and negligent and that knowing that the fire would cause damage to the plaintiff's compound, they acted without reasonable and due care. Although there were observations in the lower appellate court's judgment to the effect that the defendants were bound to answer for all damages caused by the fire unless they could prove that it was caused by vis major, the learned District Judge also has arrived at the same finding on the question of fact. He has carefully considered the evidence in the case and has also taken note of the circumstance that, whereas the defendants had taken precaution to protect their own property and trees, they did nothing to prevent the fire from escaping and spreading to the plaintiff's property although they had foreseen and knew that it would escape and cause damage to it. I too have gone through the evidence and see no reason to differ from the definite and clear finding recorded by the Trial Court on the question of negligence. Although the learned District Judge's findings are not so definite and clear as that of the learned District Munsiff, it is clear from his judgment that he too considered that the defendants were negligent and that it was on account of their negligence that the fire spread to the plaintiff's compound and caused damage to him. In view of these findings, as regards negligence, the appellant's contention that the act of setting fire to the jungle wood for preparing the land for lemon grass cultivation was a legitimate act of husbandry, is of no help to them. I, therefore, confirm the decrees of the courts below and dismiss this second appeal with costs.