DEPUTY LAL Vs. REOTI PRASAD GUPTA

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 26 November 1938, of the Additional District Judge of Aligarh by which he affirmed a judgment and decree dated 20 May 1938, of the Additional Munsif of Aligarh in a suit for damages for loss caused to a building by fire. The plaintiff, Deputy Lal , is the owner of a house in the city of Aligarh which, prior to the suit, for about eight years had been leased to the defendant Reoti Prasad Gupta and was in occupation of the defendant. The house is double-storeyed. In the ground floor the defendant carried on his business which is of manufacturing locks and the first floor is used for residential purposes. In the first floor there are three rooms on the southern side which in the plan exhibited in the case have been marked X, T, Z. The room marked Y is the central room and the room marked Z is at one end on the sourthern-eastern corner and the room marked X is at the other end on the southwestern corner. In the night of 5 and 6 December 1937, fire started in one of the rooms mentioned above and as a result a substantial portion of the two rooms Y and z was damaged and damage was also caused to another room which lies by the side of the room marked Z in the east. On 17 February 1938, the plaintiff raised an action in the Court of the Munsif of Aligarh for a direction to the defendant to restore the damaged building to its original condition and inthe alternative for a sum of Rs. 300 as damages. The plaintiff alleged that the defendant was in the habit of boiling his milk in a firepot in room marked Y in the plan mentioned above in which room were also stored account books and lot of paper and in the neighbouring room marked X there were stored fuel and cow dung cakes and as a result of the negligence of the defendant the fire was transferred from the firepot to paper and to the fuel and burnt the building. The defendant denied that any fire was used by him or by his dependants in the first floor of the house on that night and the fire was the result of incendiarism or of act of God.

(2.) The trial Court found that the night on the date of the occurrence was calm and that the fire was not the act of God or an act of an incendiary and that the fire started from inside the room marked Y mention, ed above where the defendant was in the habit of boiling his milk in a firepot and that the fire which burnt the house was transferred in some way from the earthen firepot to the combustible material which was stored in the rooms and thus burnt the building, but the cause as to how the fire was transferred from the firepot to other combustible material is not known and in the circumstances of the case the burden of proof was on the plaintiff to explain the cause of fire and further to connect the cause of fire with the defendant's negligence which he had failed to do. Accordingly it dismissed the claim. In appeal the District Judge has partly agreed and partly dissented from the findings of the trial Court. The Court of appeal has held in concurrence with the trial Court that the night on the date of occurrence was calm, and that the fire started from inside one of the rooms and that it was not an act of God or an act of an incendiary and that in the circumstances of the case the burden was upon the plaintiff to explain the cause of the fire and to establish a connexion between the cause of fire and the defendant's negligence. But it has differed in two matters from the trial Court. In the view of the Court of appeal, the fire started from room z marked in the plan and not from the room Y and further in the opinion of the Court of appeal it was not established that either in the room Y or in the room z there was a firepot in which the fire was kept for boiling the milk. The net result of the finding of the two Courts is that both Courts are at one that the fire started from inside the room, one or the other, that the fire was not an act of God or of an incendiary and that the night was calm and there were paper and account books and cow dung cakes and fuel, in other words combustible material was stored in one or other of these rooms but the cause of fire is unknown and in the circumstances of the case the burden of proof was upon the plaintiff to establish negligence of the defendant which he had failed to discharge.

(3.) The liability of a lessee, when the premises are destroyed or damaged by fire in his occupation in India, is to be determined with reference to Section 108, T.P. Act, Clauses. (m) and (o). Under the statiate the lessee has to use the property leased as a person of ordinary prudence would use it if it was his own and he is bound to restore the property on the termination of the lease in as good a condition as it was in at the time when he was put in possession subject only to changes caused by reasonable wear and tear or irresistible force. It may therefore be taken as correct that a lessee is not liable for a damage caused to the leased property by fire while the property was in the lessee's occupation unless negligence of the lessee was proved : see East India Distilleries and Factories Ltd. V/s. P.F. Matias ( 28) 15 A.I.R. 1928 Mad. 1140 and Girdharidas Radhakrishendoss V/s. Ponnu Pillai ( 20) 7 A.I.R. 1920 Mad. 493. It is also well settled that in an action for damages caused to a building by fire as a result of negligence of the defendant the burden of proof is on the plaintiff to establish negligence of the defendant. Up to this stage there is no dispute between the parties. The contention of the plaintiff is that the burden of proof in a case shifts from stage to stage and on the facts which have been found and ascertained in the case the burden of proof had shifted and rested on the defendant to explain the cause of fire and to prove that there was no negligence on the part of the defendant in the matter and whether this contention is sound or not is-the sole matter for consideration in the present appeal. In the well-known case, Abrath V/s. N.E. Ry. Co. (1883) 11 Q.B.D 440 at pp. 456-457 Bowen L.J. has Lal d down the canons of this subject as follows: Whenever litigation exists, somebody must go on with it; the plaintiff is the first to begin; if he does nothing he fails; if he makes a prima facie case, and nothing is done to answer it, the defendant fails. The test therefore as to the burden of proof or onus of proof, whichever term is used, is simply this; to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that, as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that, if the case stops there, it must be decided in a particular manner. The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls over until again there is evidence which once more turns the scale. That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to win, rests.