KALLULAL Vs. HEMCHAND

JUDGEMENT

(1.) THIS is an appeal by the defendants from the decree and judgment dated 25-81951 of the Additional District Judge, Jabalpur, in Civil Suit No. 2-B of 1950. The appellants are owners of a house in the Lord Ganj locality of Jabalpur, the southern wall of which adjoined a highway. For several years past Thelas (cyclewheel stalls) used to be kept on this highway near the said wall. On 25-8-1947 at 5 to 5-30 p. m. , when it was raining the southern wall of the first storey of the appellants' house suddenly collapsed crushing the Thela of respondent 1 and immediately killing his son, Vijay Kumar, aged 6 1/2 years, and his daughter Suraj bai aged 10 years, whom the respondent 1 had entrusted the Thela containing hosiery goods while going home to take his meals. These children used to help their father in his business. The police prosecuted appellants Kaloolal and Chhuttanlal under Section 304 (A) of the Indian Penal Code, but they were acquitted. The respondent Hemchand and his wife Mst. Raorant, then brought this suit in forma pauperis claiming Rs. 15,950 as damages. Mst. Raorani died on 30-9-1948 during the pendency of the suit and her children Sureshchand (aged 2 years) and Haspatali (aged 1 year) were brought on record as plaintiffs. The appellants resisted the suit on the ground that the said house was not in a bad or dangerous condition so as to constitute danger to life; that the said wall or any portion of the house was not In a dilapidated condition and that the wall did not fall down for want of due care, attention and repairs by the defendants. It was contended that the house was in good condition and kept in proper repairs; that though the defendants were the owners of the house in question, it was occupied by tenants and the situation and circumstances were such that no reasonable person could say that the unfortunate deaths of persons were caused by any wrongful act, neglect or default of defendants. It was added that it ought to be taken to be an act of God.

(2.) THE trial Court came to the conclusion that the said wall was in a dilapidated and dangerous condition, that there were three cracks in it that the appellants never cared for getting it repaired and that the said wall collapsed on 25-8-1947 due to the gross carelessness and negligence of the defendants. Holding that the appellants were responsible to the persons going on or standing on the highway, the Court passed a decree for Rs. 11,400 as damages.

(3.) SHRI Bobde, learned counsel for the appellants, challenges before us the findings of facts regarding cracks in the wall and regarding the appellants' knowledge about them. He urged that the house in question being occupied by the tenants, the owners could not be held liable for the loss occasioned by the fall of the wall. He also raised several points regarding burden of proof, Vis Major, volenti non fit injuria and contributory negligence. " He also attacked the basis and the quantum of damages awarded.