S SYEDA MAHOMED ROWTHER Vs. ASHANMUGASUNDARAM CHETTIAR

JUDGEMENT

(1.) The appellant leased a house from the respondent, and at any rate for a part of each year he used the house as a place of business for the storage and sale of fire works. The house was completely destroyed by fire following on an explosion, and on a suit brought for the recovery of damages by the lessor the lower Courts have awarded him damages to the amount of Rs. 1,000.

(2.) The principal argument advanced in appeal is that the lower Courts wrongly placed the burden of proof on the appellant. It may be conceded that as a general rule the burden of proof in an action for damages for negligence rests primarily upon the plaintiff. But there are exceptions to this rule; such as cases to which the maxim res ipsa loquitur applies, cases in which the fact of an accident is itself prima facie evidence of negligence, and in which there is a duty cast on the defendant to take special care. A duty to take a special care is cast on the defendant when the things which he keeps are particularly dangerous, such as fire works. It is argued for the appellant that the maxim " res ipsa loquitur " will not apply to this case because it was not proved that the fire broke out in the house rented by the appellant. If that was so, no doubt different considerations would apply. It is clear, however, from the pleadings, the evidence, and the judgments of the lower Courts that the fact that the fire broke out in the appellant's premises was not in dispute. That being so, in my judgment it was in the circumstances of the case for the appellant to show that the fire was not due to his negligence.

(3.) There was, however, in this case evidence for the plaintiff which, if the burden of proof had been on him, would have been sufficient to shift the burden on to the appellant. The evidence and the report of the Inspector of Explosives given in other proceedings by the consent of parties was taken as evidence in the suit. The Inspector gave it as his opinion that the articles stored by the appellant were highly dangerous, that in all probability tartary was stored in the shop, and that from the force of the explosion and the distance to which an iron girder had been thrown it must be inferred that at least 5,000 lbs. of fire works had been stored, whereas the appellant's license was only for the storage of 1,000 lbs. In face of this evidence, apart from any other reason, it was clearly for the defendant to show that he had complied with the terms of his license and that he had not in any way been negligent. He did not show this at all. He merely said that he had locked up his shop that night; and he did not produce his accounts which would have shown the amount of explosives which on the night of the fire he had in the shop, although it would appear from his deposition in other proceedings and the extent of his business that he must have kept accounts. There can therefore be no doubt that the decision of the lower Court that the defendant was liable to pay damages to the appellant for the loss occasioned by the fire was correct.