Judgment

SARKAR, J. :- I agree with the orders proposed by my brother Hidayatullah.

2. These appeals arise out of a suit brought by a firm called the Modern Cultivator against the State of Punjab to recover damages for loss suffered by flooding of its lands as a result of a branch 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.

3. 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.

4. 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 I agree. The defendant had produced no documents to show how the breach was caused. I had been asked by the trial Court to do so by an order made on May 12, 1949 but failed to produce them. The defendant had 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 negligint cp. Murugesam Pillai v. Gnansambhandha Pandara Sannadhi, 44 Ind App 98 : (AIR 1917 PC 6). 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 been preserved. It is clear that they had not been produced deliberately. An inference that the defendant was neligent in the management of the canal arises from the non-production of the documents. There is, therefore, evidence that the defendant was neligent.

5. Furthermore it seems to me that the rule of res ipsa loqitur applies to this case. The canal was admittedly in the management of the defendant and canal banks art 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.,(1865) 3 H and C 596 (601). 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 loquitor may not apply where it is known how the thing which caused the damage happened as was held in Barkway v. South Wales Transport Co. Ltd., 1950-1 All ER 392. But that is not the case here. No reason has been advanced why th