IMPORTANT POINT
The burden of proof for establishing negligence lies with the plaintiff, and the doctrine of res ipsa loquitur requires strong circumstantial evidence to be applicable.

JUDGMENT :

Birendra Kumar, J.

1. The plaintiff-appellants had brought Civil Original Suit No.82/95 claiming compensation, for damages caused by fire, against the respondents no.1 & 2. The suit was dismissed by the impugned judgment and decree dated 14.04.1995.

2. Undisputed facts of this case is that one Kishore Singh Sankhla was owner of the house in-question. He let out two shops on the ground floor to respondent no.1 Sardar Joginder Singh and one flat at upper floor for residential purpose in the year 1971. In the year 1979 Kishore Singh Sankhla died and the tenant Joginder Singh shifted his residence from upper floor and started using the same for keeping his business goods i.e. shoes made of different material. The respondent had business of shoes in the shops on the ground floor.

3. On 23.2.1981 in the night at about 1-2 pm fire broke out in the upper portion of the rented premise, which caused damage not only to the goods, rather to the building as well. The rented premise as well as other portion in occupation of the plaintiffs also got damaged due to the fire.

4. The appellants and respondents no.3 & 4, who are descendants of Kishore Singh Sankhla filed suit claiming Rs.50,00/- as compensation for the loss to their property due to negligence of the tenant-respondent. The plaintiff further asserted in the plaint that the plaintiff had to re-construct the house, therefore, he asked the tenants including the defendant-respondent to vacate the premise but the tenant moved the civil court and got injunction from ejectment.

5. The defendant in his written statement denied the assertion of plaintiffs and specifically stated that he was taking all precaution and the fire was not the result of his negligence. The defendant asserted that he reliably learnt that the landlord had put the fire just to pressurize forceful eviction, however, no evidence was led in support of this defence, therefore, the trial court disbelieved that the plaintiffs had put fire in the rented premise. Since there is lack of evidence in this regard, the finding of the trial Judge stands hereby affirmed.

6. Mr. Alkesh Nagori, learned counsel for the appellant, contends that when the defendant came up with a particular defence and fail to prove that defence, the onus shifted on the defendant to establish that the fire was not the result of negligence of the defendant, which the defendant has failed to do and the learned trial court committed error while dismissing the suit of the plaintiffs.

Learned counsel next contends that it is not disputed that the defendant was the tenant. He was keeping business goods (shoes) in the premise, which was let out for residential purpose, as such, there was violation of the terms of tenancy. The goods included plastic made shoes and rubber shoes, which are susceptible to catch fire easily and the defendant had taken no special precaution to prevent fire, thus, the negligence of the defendant is well established. Learned counsel for the appellant submits that the principle of res ipsa loquitur would apply in the facts and circumstances of the case.

7. Mr. CS Kotwani, learned counsel for the respondents no.1 & 2 contends that the initial burden to prove negligence was on the plaintiff. The plaintiff neither pleaded nor proved as to how the fire had taken place. Shoes are not inflammable items like stove and other hazardous thing. There is no evidence that any inflammable item was put inside godown on the first floor or was left negligently unattended. The defendants specifically pleaded and asserted in the evidence that they had taken precaution to prevent any untoward incident. In the circumstance it was the duty of the plaintiff to prove negligence on the part of defendant. Each and every inadvertent act would not establish the requirement that the defendant failed to exercise duty casted upon him towards the plaintiff to prevent damage.

8. Thus, the point for consideration is (1) whether the incident in-question took place due t