JUDGMENT Dar, J.
1. This is an appeal against the judgment and decree dated 26th November 1938, of the Additional District Judge of Aligarh by which he affirmed a judgment and decree dated 20th May 1938, of the Additional Munsif of Aligarh in a suit for damages for loss caused to a building by fire. The plaintiff, Deputy Lal , is the owner of a house in the city of Aligarh which, prior to the suit, for about eight years had been leased to the defendant Reoti Prasad Gupta and was in occupation of the defendant. The house is double-storeyed. In the ground floor the defendant carried on his business which is of manufacturing locks and the first floor is used for residential purposes. In the first floor there are three rooms on the southern side which in the plan exhibited in the case have been marked X, T, Z. The room marked Y is the central room and the room marked Z is at one end on the sourthern-eastern corner and the room marked X is at the other end on the southwestern corner. In the night of 5th and 6th December 1937, fire started in one of the rooms mentioned above and as a result a substantial portion of the two rooms Y and z was damaged and damage was also caused to another room which lies by the side of the room marked Z in the east. On 17th February 1938, the plaintiff raised an action in the Court of the Munsif of Aligarh for a direction to the defendant to restore the damaged building to its original condition and in the alternative for a sum of Rs. 300 as damages. The plaintiff alleged that the defendant was in the habit of boiling his milk in a firepot in room marked Y in the plan mentioned above in which room were also stored account books and lot of paper and in the neighbouring room marked X there were stored fuel and cow dung cakes and as a result of the negligence of the defendant the fire was transferred from the firepot to paper and to the fuel and burnt the building. The defendant denied that any fire was used by him or by his dependants in the first floor of the house on that night and the fire was the result of incendiarism or of act of God.
2. The trial Court found that the night on the date of the occurrence was calm and that the fire was not the act of God or an act of an incendiary and that the fire started from inside the room marked Y mention, ed above where the defendant was in the habit of boiling his milk in a firepot and that the fire which burnt the house was transferred in some way from the earthen firepot to the combustible material which was stored in the rooms and thus burnt the building, but the cause as to how the fire was transferred from the firepot to other combustible material is not known and in the circumstances of the case the burden of proof was on the plaintiff to explain the cause of fire and further to connect the cause of fire with the defendant's negligence which he had failed to do. Accordingly it dismissed the claim. In appeal the District Judge has partly agreed and partly dissented from the findings of the trial Court. The Court of appeal has held in concurrence with the trial Court that the night on the date of occurrence was calm, and that the fire started from inside one of the rooms and that it was not an act of God or an act of an incendiary and that in the circumstances of the case the burden was upon the plaintiff to explain the cause of the fire and to establish a connexion between the cause of fire and the defendant's negligence. But it has differed in two matters from the trial Court. In the view of the Court of appeal, the fire started from room z marked in the plan and not from the room Y and further in the opinion of the Court of appeal it was not established that either in the room Y or in the room z there was a firepot in which the fire was kept for boiling the milk. The net result of the finding of the two Courts is that both Courts are at one that the fire started from inside the room, one or the other, that the fire was not an act of God or of an incendiary and that the night was calm and there were paper and account books and cow dung cakes and fuel, in other words combustible material was stored in one or other of these rooms but the cause of fire is unknown and in the circumstances of the case the burden of proof was upon the plaintiff to establish negligence of the defendant which he had failed to discharge.
3. The liability of a lessee, when the premises are destroyed or damaged by fire in his occupation in India, is to be determined with reference to Section 108, T.P. Act, Clauses. (m) and (o). Under the statiate the lessee has to use the property leased as a person of ordinary prudence would use it if it was his own and he is bound to restore the property on the termination of the lease in as good a condition as it was in at the time when he was put in possession subject only to changes caused by reasonable wear and tear or irresistible force. It may therefore be taken as correct that a lessee is not liable for a damage caused to the leased property by fire while the property was in the lessee's occupation unless negligence of the lessee was proved : see East India Distilleries and Factories Ltd. v. P.F. Matias ('28) 15 A.I.R. 1928 Mad. 1140 and Girdharidas Radhakrishendoss v. Ponnu Pillai ('20) 7 A.I.R. 1920 Mad. 493. It is also well settled that in an action for damages caused to a building by fire as a result of negligence of the defendant the burden of proof is on the plaintiff to establish negligence of the defendant. Up to this stage there is no dispute between the parties. The contention of the plaintiff is that the burden of proof in a case shifts from stage to stage and on the facts which have been found and ascertained in the case the burden of proof had shifted and rested on the defendant to explain the cause of fire and to prove that there was no negligence on the part of the defendant in the matter and whether this contention is sound or not is-the sole matter for consideration in the present appeal. In the well-known case, Abrath v. N.E. Ry. Co. (1883) 11 Q.B.D 440 at pp. 456-457 Bowen L.J. has Lal d down the canons of this subject as follows:
Whenever litigation exists, somebody must go on with it; the plaintiff is the first to begin; if he does nothing he fails; if he makes a prima facie case, and nothing is done to answer it, the defendant fails. The test therefore as to the burden of proof or onus of proof, whichever term is used, is simply this; to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that, as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that, if the case stops there, it must be decided in a particular manner. The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls over until again there is evidence which once more turns the scale. That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to win, rests.
4. The contention of the appellant is that it being admitted that the house was in occupation of the defendant and that it having been found that the night was calm and that the fire started from inside the room in occupation of the defendant and the fire was not made inside the room as an act of God or as an act of an incendiary it was for the defendant to explain how the fire got into the room and burnt the house and it was for the defendant to establish that in the fire having got into his room and in burning the house the defendant acted with due care and was free from negligence. The plaintiff contends that a domestic fire kept in a proper place may not be per se a dangerous substance, but if fire starts from inside one of the rooms in the defendant's occupation it is for the defendant to explain how the fire came to be there and he has further to prove that in fire being there and in causing damage the defendant was not culpably negligent. The law is well settled that in certain circumstances and on proof of certain facts a presumption of negligence may be raised against the defendant. In Pollock's Law of Torts, Edn. 13, p. 463 the law is stated as follows:
Again there is a presumption of negligence when the cause of the mischief was apparently under the control of the defendant or his servants. The rule was declared by the Exchequer Chamber in Scott v. London Dock Co. (1865) 3 H & G 596 in these terms; There must be reasonable evidence of negligence. But 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.
5. In Salmond on the Law of Torts, Edn. 9, at p. 470 the law is stated as follows:
The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff; because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the rule of res ipsa loquitur. There are many oases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the ease submitted to the jury, and it is for the defendant, if he can, to persuade the jury that the accident arose through no negligence of his.
The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused. 'There must be reasonable evidence of negligence', it is said in Scott v. London Dock Co. (1865) 3 H & C 596, 'but 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 defendant, that the accident arose from want of care.
On the other hand, if the defendant produces a reasonable explanation, equally consistent with negligence and no negligence the burden of proving the affirmative, that the defendant was negligent and that his negligence caused the accident, still remains with the plaintiff.
There is not, indeed, even where res ipsa loquitur applies, any legal presumption of negligence, so that the legal burden of disproving it lies on the defendant. But the plaintiff by proving the accident has adduced reasonable evidence, on which the jurors may, if they think fit, find a verdict for him.
5. In Bevan on Negligence, Edn. 4, Vol. 1 at p. 126 the law on the subject is summarised as follows:
There must be reasonable evidence of negligence; and the mere occurrence of an injury is sufficient to raise a prima facie case : (a) When the injurious agency is under the management of the defendant; (b) when the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care. Over inanimate things this duty of care is absolute; over animate beings it only goes to guard against injury from their customary habits.
6. Both the Courts below appreciated the hardship which is caused to the plaintiff in laying the burden of proof upon him in this case. The Court of appeal in its judgment remarks:
I can see that it is difficult for the plaintiff to prove negligence in such cases as the defendant is in possession of the premises. But the plaintiff must discharge the burden of proof whatever his difficulties may be.
7. I am not aware whether the attention of the Court below was drawn to the law as I have stated above, but in my opinion on the facts which have been proved and found in the case, a stage had been reached where the presumption of negligence arose against the defendant and it was for the defendant to explain how the fire got into the rooms and that he was free from any negligence in the fire having got into the rooms and in burning the house and this burden the defendant had failed to discharge. It may be that a domestic fire is not a dangerous article, still it has got to be kept at a proper place and used with due care and if the fire starts from a room in the first floor (a pucca room) and it is definitely proved that the night was calm and the fire was not an act of God or an act of an incendiary, then, in my opinion, it is for the tenant to establish how the fire got into the room and how it burnt the house, and in the absence of an explanation on the defendant's part it should be presumed that there must have been some negligence on his part.
8. For the reasons given above, I hold that in the events that have happened defendant was liable for the loss caused to the building by fire. But as the issue as to the amount of damages has been left undetermined by the trial Court it is necessary, before I can finally dispose of this case, that there should be a finding as to the amount of damages. I accordingly remit the following issue for the determination by the lower appellate Court : "What is the amount of damages which the plaintiff is entitled to recover from the defendant in the circumstances of the case?" The lower appellate Court will send its finding within three months and on receipt of the finding the usual ten days will be allowed to the parties for objection.