EAST INDIA DISTILLERIES AND FACTORIES, LIMITED, THROUGH THEIR MANAGING AGENTS PARRY AND CO Vs. PFMATHIAS

JUDGEMENT

(1.) After careful consideration of this case I have come to the conclusion that the plaintiff cannot succeed unless he can bring home negligence to the defendants. It is argued that the covenant in the lease imposes an absolute obligation on the lessees to restore the building at the end of their term in the condition in which they took it without regard to the provisions of Section 108, Transfer of Property Act. That such a result might be reached in England I do not contest. English authorities were quoted and there is no doubt much to be said for the view that, if you enter into a general repairing covenant and do not provide for the contingency of fire, you will be held strictly to the words of your covenant. But in India the Section 108 of the Transfer of Property Act clearly contemplates that a lessee should not be responsible for the consequences of fire unless he has definitely taken that burden upon his shoulders by his covenant. In my opinion the material covenant of this lease did not contemplate the case of fire at all. It merely provided for the obligation that the lessee would incur in restoring premises which he had altered to suit his own purposes to their original use as a dwelling house at the termination of the lease. That covenant to my mind was founded upon the basis that at the termination of the lease the premises should exist in a state capable of conversion and never was meant to impose upon the leasees the obligation of re-building what had in the events that happened become a mere heap of burnt out ashes.

(2.) With regard to the question of negligence which of course, if established, would prove the plaintiff's case, I do not think it is established. It is quite true that there was no watchman so far as one can ascertain on this night, but I am entirely unable to gather from the evidence that that can be in any way regarded as the proximate cause of this fire. Nor can I see that the principle of Rylands V/s. Fletcher (1868) L.R. 3 H.L. 330 has any application to a case of this kind for two reasons. In the first place, there is no evidence whatever that proof alcohol is a dangerous thing which a man can reasonably be held to store at his peril owing to its dangerous nature. It is not apparently liable to spontaneous combustion in any circumstances and it seems more likely on the evidence and from what we have been told that the building fired the alcohol than that the alcohol fired the building. Moreover it was from the beginning known to the lessors for what purpose the lessees required the building and to what use they proposed to put it. The cases relied upon by the plaintiffs appear to me not to rest upon the doctrine in Rylands V/s. Fletcher (1868) L.R. 3 H.L. 330, but to be based upon negligence. I need only refer to the latest cases relied upon. The earlier are too well known to render it necessary to discuss them again. Such cases I mean as Scott V/s. The London and St. Catherine Docks Co. (1865) 3 H & C 596 : 159 E.R. 665 and Smith V/s. London and South Western Railway Co. (1870) L.R. 5 C.P. 98 and 6 C.P. I confess that the case that has given me most difficulty is that of Musgrove V/s. Pandelis (1919) 2 K.B. 43 which was put before us as being an instance of the application of the doctrine of Rylands V/s. Fletcher (1868) L.R. 3 H.L. 330. I have satisfied myself after analysing it carefully and especially having regard to the judgment of Duke, L.J., that the case ultimately resolves itself into a finding of negligence against the defendant's servant. Conditions of danger were no doubt present, but the determining factor was the failure of the defendant's servant who was an unskilled person put in charge of a car (in itself, I think, possibly a negligent employment by him) to turn off the tap and hence the petrol in the carburetter was ignited. Since writing this I have seen that Sir Frederick Pollock takes the same view of the scope of the decision in the last edition of his well-known book on Torts. The other recent case was that reported in Mulchand Nemi Chand V/s. Basdeo Ram Sarup (1926) I.L.R. 48 A. 404, which clearly contains a finding that it was negligent to leave cotton bales in the place where they were left without ventilation and without inspection.

(3.) In my opinion there is no evidence of negligence here or at any rate of negligence which had any casual connection with the fire. I think the appeal must be allowed with costs here and below. The memorandum of objection is dismissed with costs. Odgers, J.