BAI MONGHIBAI Vs. DOONGERSEY LAKHMIDAS

JUDGEMENT

(1.) The point arising in this case is a very narrow one but in my opinion extremely difficult, if not impossible, to decide upon any recognized principle. The material facts are that the plaintiff owns a godown in Ahmedabad Street, between which and Baroda Street, in which the godown belonging to defendant No. 1 and leased to defendant No. 2 stood, runs a narrow gully 3 feet wide. On the 19th of February 1915, the southern wall of the godown in the Baroda Street fell against the northern wall of the plaintiff s godown and with it fell a considerable number of bags of rice. The effect of the concussion was materially to damage the plaintiff s northern wall. In respect of that damage, not being clear which of the defendants is liable, the plaintiff sues them both. I think one or the other must be liable : the difficulty is to determine which.

(2.) As between the defendant No. 1 and defendant No. 2 the material facts are that the godown in Baroda Street was originally erected on land taken on lease from the Port Trust by the predecessor-in-title of defendant No. 1. The godown having been duly erected was leased in 1910 for a term of five years (the term to commence in 1911) to defendant No. 2. Thereafter the lease from the Port Trust was transferred in 1912 to the present defendant No. 1. At that time in accordance with the Port Trust Regulations the godown was inspected by the Port Trust Officials and certified to be in good order. So that it is certain that two years after the nominal and one year after the real, leasing of the godown to defendant No. 2, it was still in the estimation of competent authorities thoroughly sound. Nevertheless, in 1915, in the fair weather and without any apparent cause the southern wall collapsed and the godown being then full of rice bags, a great many of them fell with the wall against the plaintiff s wall doing the damage complained of.

(3.) The question, then, is whether the lessor or the lessee is liable to the plaintiff. The general rule laid down as dedu-cible from the English case-law is that the owner or the landlord can never be liable for injuries suffered through neglect to keep the demised property in order, except upon the grounds (1) of misfeasance and (2) of breach of contract: that is to say, that unless it can be shown that at the time of the original leasing, or, if the term is short, on the renewal of each of1 such terms, the building was let in a ruinous or unsafe condition, he can never be liable for the consequences of such condition unless he has undertaken by special contract to repair. If we accept the rule thus compendiously stated in Halsbury and often to be found almost in the same words in the judgments of the English Courts, then one thing at least would be certain and that is that defendant No. 1 is not liable; for the statement of the facts I have given shows that he could not be fixed with liability on the ground of misfeasance at the time of letting and the only contract made between himself and the tenant cast upon him no more thanthe duty of making minor repairs to windows, doors and interior fixings. Andthe conclusion might be reached by a short cut by saying that one of the two, the landlord or the tenant, must be liable; and as on this principle of the English law the landlord cannot be, the tenant must be.