(1.) The question raised by this rule is one of considerable importance. This rule was obtained on behalf of the Secretary of State for India, who is the defendant in the action, and was issued on the plaintiff opposite party to show cause why the decree of the Small Cause Court Judge of Jangipur in his favour should not be set aside. The rule relates to an action commenced by the plaintiff opposite party for recovery of a certain sum as damages on the allegation that on the 18 February 1927 his house and of her properties were destroyed by fire caused by sparks coming out of the engine attached to Sahebgunge Howrah passenger train (Down train No. 56) and that the said damage was caused by the neglect of the E.I. Ry. Co. and its agents or servants for which the defendant Company is liable. To this action the Agent of the E.I. Ry. and the Secretary of State for India in Council were made parties. The Agent s., defence was that as the administration of the E.I. Ry. had been taken over by the Government he was not a necessary party. The Secretary of State rested his defence on several grounds, viz., (i) the fire was not caused by spark emitting out of the engine; (ii) damage, was not caused by any act on the part of the Railway Administration or its servants; (iii) the engine attached to the passenger train was an A class engine and was fitted with fire arrester and perforated damper and it was not possible for sparks to remain alive and set fire to a house situated at a distance of 115 feet from the railway line where the fire is said to have originated; (iv) the plaint was vague as it did not disclose particulars of the negligence of the Railway Administration or its servants, which. had resulted in the fire. The plaintiff was asked by the Court to furnish particulars of acts of negligence on the part of the Railway Administration or its servants. No such particulars of negligence or carelessness were furnished. On the day of hearing when witnesses were being examined on plaintiff's side a new case was made out to the effect-that the engine fire was poked by the driver and sparks were emitted.
(2.) On these pleadings, the Munsif, after taking evidence, found in favour of the plaintiff and reached the following conclusions: (i) I believe the evidence of plaintiff and, his witnesses to be true and hold that the fire : to Hari Maji's house was caused by the spark of the engine due to poking by the driver or the fireman who has not been examined to give, a denial and that the fire spread to the huts of the plaintiff; (ii) In this case plaintiff has proved that though there was dry wind blowing and though, there were straw huts lying near the railway line the driver or the fireman poked the fire of the engine against rules and was guilty of negligence or carelessness. It was due to this act of carelessness that he fire spread from Hari Maji's house to plaintiff's house. (iii) The engine of 56 down train was a C class engine fitted with spark arrester and perforated damper. (iv) It is admitted that even in a 0 class engine it is possible for sparks to come out if the fire is poked by a driver or fireman, but that spark is not potent to cause the damage and to run at some distance.
(3.) The second finding above referred to is challenged on behalf of the Secretary of State and it is said that there was no rule which forbade the driver from poking the fire of the engine, and this finding that the driver poked the fire against rules is based on no evidence. No rule to that effect was produced before me. It was also not produced before the Munsif. This finding, therefore, must be set aside. The question which therefore arises is whether a Railway Company which had been, authorized to run locomotive engines on its line of railway, under the statutory powers given to it, is liable for damages caused by fire which had escaped from its engine although the Company took all reasonable care to provide against such fire by the use of engine of the best construction fitted with fire arrester and perforated damper. The argument of the learned Standing Counsel, who appears for the Secretary of State is that as the E.I. Ry. Co., have got statutory powers to use locomotive for hauling their trains, the necessary use of fire in them, and the occasional escape of sparks from them, must have been anticipated, and therefore if every reasonable precaution is taken against such escapes the Railway Companies are relieved of the consequence of any fires resulting from sparks accidentally escaping. It is argued that the lower Court was wrong in holding that the poking was against rules and that on the other hand the lower Court should have held that poking was necessary for maintaining the necessary steam for running the train. If, as it has been shown in this case that the Railway Company ran an engine provided with fire arrester, etc, the defendant is relieved of liability if notwithstanding these precautions fire escaped.