IQBAL MAHMOOD BANDAY Versus MUHAMMAD SADIQ

AJMAL MIAN, J.---This is a direct appeal filed under Article 185(2)(d) of the Constitution of the Islamic Republic of Pakistan, 1973, against the judgment dated 9.12-1992 of a Division Bench of the Lahore High Court passed in R.F.A. No.36 of 1984 filed by the respondent against the judgment/decree dated 12-9-1984 of the learned Civil Judge, 1st Class, Rawalpindi, for recovery of Rs.8,64,240 as damages, allowing the same by setting aside the above judgment/decree of the trial Court and dismissing the appellant's suit.

2. The brief facts are that the appellant was allotted an evacuee flour mill named Lakshmi Flour Mill. It seems that originally the appellant and the respondent entered into a partnership. However, eventually the respondent became tenant of the above flour mill at a monthly rental of Rs.580 under a tenancy agreement dated 19-3-1954, hereinafter referred to as the tenancy agreement (Exh.P/1). It is the case of the appellant that the respondent attempted to get the aforesaid flour mill allotted in his favour and then to get it transferred under the scheme framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, without any success. Be that as it may, the respondent, in order to run the above flour mill, installed roller machines in place of stone rollers etc. Clause (7) of the- tenancy agreement reads as follows:--

It appears that on the night intervening 4/5-7-1979, fire occurred in the mill causing damage to the structure and some machinery. The appellant lodged F.I.R. on 7-7-1979 at 9-15 p.m. against the respondent (Exh.P/3).

3. The appellant filed the aforesaid suit for the recovery of Rs.8,64,240 as damages in respect of various items mentioned in para. 7 of the plaint. In the plaint it was averred that the respondent had maliciously caused fire in order to harm the appellant as there was a money decree as well as a decree of ejectment against him.

4. .The above suit was resisted inasmuch ac a written statement was filed, in which inter alia it was pleaded that the fire was an act of God and that the respondent had absolutely no hand in it. The damages claimed by the appellant were denied. The learned trial Court, on the basis of pleadings of the parties, framed the following four Issues:--

"(1) - Whether the plaintiff has no cause of action to file the present suit?

(2) Whether any proceedings confronting the subject-matter of this suit are pending in the Supreme Court, if so, with what effect?

(3) Whether the plaintiff is entitled to decree for damages costing Rs.8,64,240?

(4) Relief.

After recording evidence and hearing the parties, the learned Civil Judge returned finding on Issue No.l in favour of the appellant. Whereas Issue No.2 was not pressed by the learned counsel for the respondent. As regards Issue No.3, he held that the respondent was liable to pay the suit amount and, therefore, under Issue No.4, the suit was decreed through the above judgment/decree dated 12-9-1984. The respondent filed aforementioned R.FA., which was allowed by the judgment under appeal. Thereupon, the appellant filed the present direct appeal.

5. In support of the above appeal, Mr. Muhammad Sayeed Akhtar, learned Advocate Supreme Court appearing for the appellant, has contended as follows:--

(i) That as under above clause ('7) of the tenancy agreement the respondent was obliged to restore the above subject-matter of the tenancy in running condition, he was liable to compensation for the above damages;

(ii) that the respondent had taken the plea that the fire had taken place on account of act of God, which plea he failed to prove and, therefore, the learned Judges of the Division Bench should have maintained the decree passed by the learned Civil Judge; and

(iii) that the case was covered by the maxim res ipsa loquitur and, therefore, the burden was on the respondent to have shown as to how the fire had taken place.

On the other hand, Mirza Anwar Baig, learned Advocate Supreme Court appearing for the respondent has urged as under:--

(i) That since the appellant was the plaintiff in the suit, the burden of proof that the fire had taken place on account of negligence on the part of the respondent, was on the appellant, which he failed to discharge;

(ii) that the present case is covered by clause (e) of section 108 of .the Transfer of Property Act, 1882, hereinafter referred to as the Act; and

(iii) that the maxim res ipsa loquitur has no application to the present case.

6. Adverting to the above first submission, it may be observed that Mr. Muhammad Sayeed Akhtar, learned Advocate Supreme Court appearing for the appellant, has referred to the case of Mrs. Saida Arshid v. Messrs International Import & Expert Co., Karachi (PLD 1977 Karachi 221), to the case of Aziz Fatima Begum v. Oils & Gas Development Corporation, Karachi (PLD 1978 Karachi 316), and to the case of Mulchand Nemi Chand v. Basdeo Ram Sarup (AIR 1926 Allahabad 695).

On the other hand, Mirza Anwer Baig, learned counsel for the respondent, has referred to the case of Mathura Das and another v. Mohan Lal (8 IC (1910) 716), to the case of Collingwood v. Home and Colonial Store's Ltd. (1936 (1) AER 74), to the case of Collingwood v. Home and Colonial Stores, Ltd. (1936 (3) AER 200), to the case of Solomons v. R. Gertzenstein LD. and others (1954 (1) QB 565), to the case of East India Distilleries and Factories Ltd. v. P.F. Mathias (AIR 1928 Madras 1140), to the case of Muhammad Habib v. Ram Narain Lal and others (AIR 1959 Patna 348) and to the case of Maneyapanda Madappa v. Kuttanda Kariappa (AIR 1964 Mysore 80).

7. Before taking up the above case-law, it may be pertinent to refer to the opening portion of section 108 and clauses (e) and (m) of section 108 of the Act, which read as follows:--

"108. Riahts and liabilities ,Qf lessor and lessee. --In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one and another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased--

(a) ..

(b) .

(c) ............................................ ........................................................................ .

(d) ............................................

(e) if by fire, tempest or flood, or violence of an army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:

Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision;

(f) .......................................

(g) .......................... .

(h)

(i) ......................................

(k) ......................................

(1) ........................................

(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;

(n) ......................................... ...................................

(o) ......................................... ...................................

(p) ......................................... .................................

(q) ......................................... ...................................

A perusal of the above-quoted section 108 of the Act indicates that it provides for rights and liabilities of the lessors and the lessees by laying down i that in the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one and another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased. It may be pertinent to point out that clauses (a) to (q) contain various rules relating to the rights and liabilities of the lessors and the lessees.

It may further be noticed that above quoted clause (e) lays down that if by fire, tempest or flood, or violence of an army or of a mob or other irresistible ford;, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let out, the lease shall, at the option of the lessee, be void. However, proviso to the above clause provides a rider by envisaging that if the injury be occasioned by a wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of the above provision.

It may also be pointed out that clause (m) of section 108 of the Act imposes an obligation on the part of a lessee to keep, and on the termination of the lease to restore, the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force. It further obliges the lessee to allow the lessor and his agents, at all reasonable times during the term of the lease, to enter upon property and inspect the condition thereof and give or leave notice of any defect in such condition; and when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left.

8. In our view, the above clauses are to be read together in order to understand the implications thereof. It may again be pointed out that under above clause (e), a lessee has been given the option to treat a lease void if the subject-matter of the lease is materially or wholly destroyed, but this option cannot be exercised by the lessee if the above destruction has been caused on account of wrongful act or default on his part. It may further be noticed that a lessee, upon termination of a lease, is liable to restore the property in as good condition as it was when he was put in possession subject to reasonable wear and tear or irresistible force. In the present case, there is no express provision which may negate above clause (e) of section 108 of the Act. If the respondent would have expressly undertaken to restore the subject-matter of the lease in its original condition in case of fire, the above clause (e) would have stood negated in view of the opening portion of above section 108 of the Act.

9. We may now revert to the case-law cited by the learned counsel for the appellant.

In the above first case, a learned Single Judge of the High Court of Sindh, with reference to clause (m) of section 108 of the Act, observed that the lessee shall be bound to restore the property to the lessor on the termination of the lease in as good condition as it was at the time when he was put in possession subject to any reasonable wear and tear or irresistible force.

Whereas in the second case, another learned Single Judge of the High Court of Sindh, while dilating upon above clause (m), reiterated the above principle.

In the third case, a Division Bench of the Allahabad High Court has held that where on account of the negligence of the defendant in leaving cotton on the ground floor of a residential house unwashed for months and in an unventilated room, caught fire and destroyed plaintiff's house, the defendant as a lessee was liable to pay damages. The decree of the trial Court for a sum of Rs.12,800, being the amount of damages on account of the destruction by fire by a major portion of the house, was maintained.

10. We may now revert to the cases referred to by the learned counsel for the, respondent. '

In the above first case, a Division Bench of the Allahabad High Court, set aside a decree for a sum of Rs.2,200 awarded as compensation to the landlord on account of loss suffered by him because of fire which occurred in the grass stored by the tenant contrary to his undertaking not to store grass in the demised house. The reason found favour with the learned Judges was that the landlord failed to establish that the fire had taken place on account of any act on the part of tenant/defendant.

In the second case, Greaves Lord, J. declined the claim for damages lodged by the owner of the adjoining premises which were damaged on account of water used for extinguishing fire originated owing to some unknown defects in the electrical wiring at the defendant's premises.

The third case is a judgment of Court of Appeal, whereby the above judgment of Greaves Lord, J., was affirmed and the appeal against the same was dismissed.

In the fourth case, the fire had taken place on account of short-circuit. The question before Lord Goddard, C.J. was, whether the defendant was liable to pay damages to the employee of a tenant injured in escaping from fire by virtue of London Buildings Acts (Amendment) Act, 1939, on account of breach of statutory duty. It was held that since the fire had taken place on account of short-circuit, the defendant was not liable to pay damages.

In the fifth case, a Division Bench of the Madras High Court, while interpreting clause (e) of section 108 of the Act, held that the above clause clearly contemplates that a lessee will not be responsible for the consequences of fire unless he has definitely taken the burden upon his shoulders by his covenants or unless negligence is proved against him.

In the sixth case, a Division Bench of the Patna High Court set aside a decree for damages awarded by the first appellate Court to a landlord against the tenant on account of loss suffered by him because of destruction of the house by fire. It was held that the doctrine res ipsa loquitur did not apply to such a case and the normal rule of evidence must prevail. It was further held that onus of proving negligence on the part of the defendant/tenant was on the plaintiff/landlord, which he failed to discharge.

In the last case, the plaintiff filed a suit against the defendant for damages in respect of the destruction said to have been caused to his orange garden on account of the fire started by the defendant in his garden which was adjacent to the plaintiff's garden. A Division Bench of the Mysore High Court, while maintaining a decree of Rs.700 being the amount of damages awarded to the plaintiff, observed as under as to the burden of proof of negligence:--

"6. The burden of proving negligence on the basis of which a claim for damages is made lies upon the party who alleges it and to establish a case, he should prove the negligence affirmatively by adducing credit worthy evidence of it. Mere proof that an accident has occurred, the cause of which is unknown, is not invariably proof of negligence: The respondent has, therefore, to establish that it is the fire that the appellant started on his land without taking necessary precaution to prevent the same from spreading into the neighbouring lands, that spread into his garden and caused the destruction of the orange trees, to succeed in this case."

11. In our view, the above cases relied upon by the learned counsel for the appellant have no direct bearing to the controversy in issue. On the other hand, the case-law referred to by the learned counsel for the respondent has direct i relevance. In the present case the appellant was the plaintiff in the suit and, therefore, the burden of proof of negligence on the part of the respondent/defendant was on him. The case pleaded in the plaint was that the respondent maliciously caused above fire for causing loss to the mill, which allegation the appellant failed to prove. Even if we were to ignore the above plea of the appellant, the fact remains that if he wanted to recover any damages from the respondent, he was to prove that there was breach of the tenancy agreement on the part of the respondent and that, in any case, he was negligent in not taking the steps which a reasonable prudent man would have taken in the circumstances of the case. It may again be pointed out that by virtue of above clause (e) of section 108 of the Act in the absence of an express contrary provision in the tenancy agreement, a lessee is not liable for damages on account of fire unless the fire had taken place on account of his negligence. It is true that under clause (m), a lessee is to restore the property to the lessor in the same condition in which it was given to him subject to reasonable wear and tear or irresistible force. This obligation is to be read with above clause (e). In other words, in the absence of any negligence on the part of the lessee, he is not liable to pay damages on account of fire which might have occurred on account of short-circuit as was held by Lord Goddard, C.J. in the above English case while construing the aforesaid provision of the English Act in relation to the lessor.

12. It is true that the respondent in his written statement has pleaded that the fire had taken place on account of act of God. If we were to accept the observation contained in Halsbury's Laws of England, Fourth Edition, Volume V, para. 458, wherein it has been observed that fire can be attributed on account of act of God, if it has been caused by lightening, in that event, the defendant has failed to prove the above act of God. However, this does not, in our view, relieve the appellant as a plaintiff from the initial burden of proof, namely, to prove the factums that the fire had taken place on account of breach of the agreement on. the part of the respondent or because of his negligence. A plaintiff is to succeed on the strength of his own case and not because of the E weakness of the defendant's plea.

13. As regards the learned counsel for the appellant's plea that the present case is covered 19y the maxim res ipsa loquitur, it may be observed that in furtherance of his above submission, he has referred to a passage from the Treatise on Evidence by Sir Rupert Cross, Fifth Edition at page 149, which reads as follows:--

"Where the plaintiff suffers damage in consequence of one or more things which were under the exclusive control of the defendant or his servants getting out of control, reliance may be placed on the maxim res ipsa loquitur in lieu of further evidence of negligence. To quote from the leading judgment of Erle, C.J. in Scott v. The London Dock Co. (1865) 3 I.L. & C. 596 at page 601):

`Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' Typical examples are provided by cases in which a barrel has fallen out of the window of premises occupied by the defendant, a car has mounted the payment, a swab has been left in a patient's body after an operation and two trains belonging to the same company have been in collision. Many decisions turn on the question whether there was sufficient control by the defendant to bring the doctrine into play, but, so far at any rate as the actual words used by the Judges are concerned, the principal differences of opinion appear to turn on the incidence of the burden of proof in cases to which the maxim is applicable. The three views are (i) that nothing more than a provisional burden is cast upon the defendant, in other words such presumption as is involved is merely a presumption of fact (or a provisional presumption), (ii) that an evidential burden is cast upon the defendant as a matter of law, so that he will lose on the issue of negligence unless he adduces some evidence (on this view there is a presumption of law of the evidential variety), and (iii) that a legal burden of disproving negligence is cast upon the defendant, in which case res ipsa loquitur refers to the basic rule of a persuasive presumption of law'."

He has also referred to the case of M/s. Hayat Services (Pakistan) Ltd. v. Kandan (1989 CLC 2153), to the case of Ursulina D'Lima and others v. Orient Airways Limited and another (PLD 1960 (W.P.) Kar. 173), to the case of Bhurmal and Mitra Motor Association and another v. Raghunath Bansilal Kasat and others (AIR 1963 Bombay 144) and paras. 57 and 61 of Halsbury's Laws of England, Fourth Edition, Vol.34.

14. The above maxim has no application to the present case which is covered by the provisions of the Act as the aforesaid clauses (e) and (m) of section 108 of the Act' deal with the rights and liabilities of a lessee and a lessor in respect of fire. The fire had taken place at night when the respondent was not present at the premises and, therefore, it cannot be urged by the appellant that the respondent had exclusive/special knowledge of the facts which had caused fire, nor he has been able to prove any negligence on the part of the respondent nor the factum that if he would have acted in a manner in which a prudent or a reasonable man would have acted, the loss would not have occurred.

15. The upshot of the above discussion is that the above appeal has no merits. 'It is, accordingly, dismissed. However, there will be no order as to costs.

M.BA./I-224/S Appeal dismissed.