SARKAR - (1.) THE following Judgments of the court were delivered by :
(2.) I agree with the orders proposed by my brother Hidayatullah. These appeals arise out of a suit brought by a firm called the Modern Cultivators against the State of Punjab to recover damages for loss suffered by flooding of its lands as a result of a breach in a canal belonging to the State of Punjab. Both the courts below have held in favour of the plaintiff but the High court reduced the amount of the damages awarded by the trial court. Both parties have appealed to this court. The Modern Cultivators contend that the High court is in error in reducing the amount of the damages. The State of Punjab contends that it had no liability for the loss caused by the flooding. The breach and the flooding of the plaintiff's lands are not now denied. In regard to the appeal by the Modern Cultivators I have nothing to add to what has been said by Hidayatullah J. For the reasons mentioned by him I agree that the damages had been correctly assessed by the trial court. In its appeal the State of Punjab first contended that the plaintiff could not succeed as it had failed to prove that the breach had been caused by the defendant's negligence. I am unable to accept this contention. The trial court inferred negligence against the defendant as it had failed to produce the relevant documents and with this view agree. The defendant had produced no documents to show how the breach was caused. It had been asked by the trial court to do so by an order made on 12/05/1949 but failed to produce them. The defendant bad a large number of canal officers and according to Mr. Malhotra, the, Executive Engineer in charge of the canal at the relevant time, there was a regular office and various reports concerning the breach had been made. None of these was produced at the hearing. It is obvious that in an Organisation like the canal office, reports and other documents must have been kept to show how the breach occurred and what was done to stop it. If such documents are not produced, an inference can be legitimately made that if produced, they would have gone against the case of the defendant, that is, they would have proved that the defendant had been negligent: Murugesan Pillai v. Manickavasaka Pandara(1). It was suggested in this court. that the documents had been destroyed. It may be that they are now destroyed. One of the defendant's officers called by the High court in view of the unsatisfactory nature of the documentary evidence said that documents Were destroyed after three to seven years. The breach occurred in August 1947, the suit was filed in October 1948 and the trial was held about August 1949. So it would appear that at the time ,of the trial the relevant documents had not been destroyed. Nor was it said that they had then been destroyed. Furthermore, in view of the pendency of the suit the documents must have be-en preserved. It is, clear that they bad not been produced deliberately. An inference that the defendant was negligent in the management of the canal arises from the non production of the documents. There is therefore, evidence that the defendant was negligent. Furthermore it seems to me that the rule of res ipsa loquitur applies to this case. The canal was admittedly in the management of the defendant and canal banks are not breached if those in management take proper care. In such ,cases the rule would apply and the breach itself would be prima facie proof of negligence: see Scott v. London Dock Co.(1). No doubt the defendant can show that the breach was due to act of God or to act of a third party or any ,other thing which would show that it had not been negligent, but it did not do so. It may be that the rule of res ipsa loquitur may not apply where it is known how the thing which caused the damage happened as was held in Bankway v. South Wales Transport Co., Ltd.(1). But that is not the case here. No reason has been advanced why the rule should not apply. Therefore I think that the first contention of the defendant that there is no evidence of negligence must be rejected.
(3.) I do not think it necessary in the present case to consider whether the rule in Rylands v. Fletcher(1) applies to make the defendant liable for I have already held that it is liable as negligence has been proved. The second point raised by the defendant was one of limitation. It was contended on behalf of the defendant that the case was governed by art. 2 of the first schedule of the Limitation Act. It is not in dispute that if that article applies, the suit would be out of time. That article relates to a suit 'for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment'. It was said that the Northern India Canal and Drainage Act, 1873 imposed a duty on the defendant to take care of the canal banks and its failure to do so was the omission to do an act in pursuance of an enactment within the article. I have very grave doubt if this interpretation of art. 2 is correct. There is authority against it: see Mohammad Saadat Ali Khan v. The Administrator, Corporation of City of Lahore(1). But apart from that I find nothing in the Canal Act imposing any duty on the defendant to take care of the banks. We were referred to ss. 6 and 51 of that Act. Both are enabling S. giving power to the State government to do certain acts. Under s. 6 it has power to enter on any land and remove any obstruction and close any channels or do any other thing necessary for the application or use of the water to be taken into the canal. This obviously does not impose any duty in connection with the canal bank. Section 15. gives the power to the canal authorities in case of accident happening or being apprehended to a canal to enter upon lands of others and to do all things necessary to repair the accident or prevent it. This section again has nothing to do with taking care of the canal banks. Therefore, even assuming that the defendant's interpretation of art. 2 is correct, this is not a case to which it may apply. I wish however to make it clear that nothing that I have said here is to be read as in any way approving the defendant's interpretation of art. 2. Therefore the defendant'and contention that the suit was barred by limitation also fails. The defendant's appeal must, therefore, be dismissed and the plaintiff's appeal allowed. Costs will naturally follow the result. HIDAYATULLAH, ;