1. The point arising in this case is a very narrow one but in my opinion extremely difficult, if not impossible, to decide upon any recognized principle. The material facts are that the plaintiff owns a godown in Ahmedabad Street, between which and Baroda Street, in which the godown belonging to defendant No. 1 and leased to defendant No. 2 stood, runs a narrow gully 3 feet wide. On the 19th of February 1915, the southern wall of the godown in the Baroda Street fell against the northern wall of the plaintiff's godown and with it fell a considerable number of bags of rice. The effect of the concussion was materially to damage the plaintiff's northern wall. In respect of that damage, not being clear which of the defendants is liable, the plaintiff sues them both. I think one or the other must be liable : the difficulty is to determine which.
2. As between the defendant No. 1 and defendant No. 2 the material facts are that the godown in Baroda Street was originally erected on land taken on lease from the Port Trust by the predecessor-in-title of defendant No. 1. The godown having been duly erected was leased in 1910 for a term of five years (the term to commence in 1911) to defendant No. 2. Thereafter the lease from the Port Trust was transferred in 1912 to the present defendant No. 1. At that time in accordance with the Port Trust Regulations the godown was inspected by the Port Trust Officials and certified to be in good order. ' So that it is certain that two years after the nominal and one year after the real, leasing of the godown to defendant No. 2, it was still in the estimation of competent authorities thoroughly sound. Nevertheless, in 1915, in the fair weather and without any apparent cause the southern wall collapsed and the godown being then full of rice bags, a great many of them fell with the wall against the plaintiff's wall doing the damage complained of.
3. The question, then, is whether the lessor or the lessee is liable to the plaintiff. The general rule laid down as dedu-cible from the English case-law is that the owner or the landlord can never be liable for injuries suffered through neglect to keep the demised property in order, except upon the grounds (1) of misfeasance and (2) of breach of contract: that is to say, that unless it can be shown that at the time of the original leasing, or, if the term is short, on the renewal of each of1 such terms, the building was let in a ruinous or unsafe condition, he can never be liable for the consequences of such condition unless he has undertaken by special contract to repair. If we accept the rule thus compendiously stated in Halsbury and often to be found almost in the same words in the judgments of the English Courts, then one thing at least would be certain and that is that defendant No. 1 is not liable; for the statement of the facts I have given shows that he could not be fixed with liability on the ground of misfeasance at the time of letting and the only contract made between himself and the tenant cast upon him no more than the duty of making minor repairs to windows, doors and interior fixings. And the conclusion might be reached by a short cut by saying that one of the two, the landlord or the tenant, must be liable; and as on this principle of the English law the landlord cannot be, the tenant must be.
4. I have spent a great deal of time over the case-law in. England upon this subject and I confess I find it extremely hard to deduce anything like the hard and fast principle which I have stated from a critical analysis of the cases themselves. These cases, commencing in 1791 with Cheetham v. Hampson (1791) 4 T. R. 318, right down to the case of Cavalier v. Pope  A.C. 428 in 1900, appear to me to fall into different classes. The earliest case of all is of the simplest, founded upon the well understood and universally accepted law that a tenant-in-occupa-tion was bound to repair fences. On that ground Kenyon C.J. held that it would be too great a hardship if every landlord was made responsible for injuries caused to other persona by the tenant's neglect to maintain fences. In the absence of any contract whatever I presume that decision would have been the same. The next two cases, those of Payne v. Rogers (1794) 2 H. Bl. 350 and Russell v. Shenton (1842) 3 Q. B. 449 are again confined to facts very different from those with which I have to deal. In Payne v. Rogers, the injury was suffered by slipping through a hole in the foot pavement into a vault or cellar and it was found that the tenant was bound to keep the pavement in repair and the landlord was not liable. The third case was a case of drains and is unimportant. When we come to deal with the later cases, they may be distinguished into groups in which the decision in favour of the landlord was avowedly founded upon the tenant having contracted to do all repairs (of which examples are Pretty v. Bickmore (1873) L.R. 8 C. P. 401 and Gwinnell v. Earner (1875) L.R. 10 C. P. 658 and cases in which the injury was suffered on the premises and not by passers-by on the public roads. But with perhaps the exception of Chauntler v. Robinson (1849) 4. Ex. 163, where damage was caused by the fall of the adjacent building or wall and where all the other facts were different and the judgment apparently rested upon the point of pleading that the landlord was not designated and charged as occupier and the case of Reg. v. Watts (1795) 1 Salk. 356, which was an indictment for public nuisance, there is no case in the English books which I have been able to discover bearing the least resemblance to this case. In Pollock's Law of Torts a reference is made to the case of Mullen v. St. John (1874) 57 N. Y. 567 where it appears that a house did fall down and caused some injury. Unfortunately the facts of the case are not discoverable from the commentary and it is not clear whether the point there decided distinguished between the liability in such circumstances of the owner and the tenant, respectively. The contract in Gwinnell v. Eamerr upon which the landlord was held absolved, cast upon the tenant the duty of doing all necessary repairs, saving and excepting roofs, main walls and main timbers; and the injury of which the plaintiff complained was not due to defects in any parts of the main structure of the buildings. Where, however, a contract of that kind is made between the landlord and tenant, I should have thought that by implication the duty of maintaining roofs, main walls and main timbers would still have lain upon the landlord; but in the case of Nelson v. Liverpool Brewery Co. (1877) 2 C. P. D. 311 where the tenant had contracted to repair subject to those exceptions, the landlord was still absolved from liability to the plaintiff. The plaintiff was a barman in the employ of the tenant. The headnote says that owing to a defect in one of the main walls a chimney-pot fell upon the plaintiff causing him serious injury. From the judgment it appears that the plaintiff was crossing the yard and therefore presumably still on the demised premises. It appears that the unsafe condition of the chimney-pot had been noticed and the landlord's attention drawn to it. It is described as leaning over the road. The landlord had promised to put it in order. This he did not do and the accident occurred. Nevertheless, the Court, laying down the principle I have stated, held that as there was no contract between the landlord and the tenant, by which the former was bound to repair any part of the demised premises and since it was conceded that at the time of letting there was no misfeasance on his part, he could not be answerable and the plaintiff was non-suited. If we turn to a much later case, that of Cavalier v. Pope  A.C. 428 the real ground of the decision against the plaintiff appears to me to have been the maxim volenti non fit injuria. The plaintiff could not have been suing on a contract but the decision of the House of Lords was that as she was not a party to the contract with the defendant she had no cause of action against him. As she was the wife of the defendant's tenant, they occupied the demised premises fully aware of their dilapidated and unsafe condition, but the defendant had promised the plaintiff's husband that he would repair them. This he did not do. The plaintiff' fell through the flooring and suffered injuries for which she claimed compensation. Nevertheless, she was non-suited after obtaining a verdict in the trial Court, because she was not a party to the contract between her husband and the defendant. It is clear, I think, from Lord Atkinson's judgment in the House of Lords that had she been a stranger and ignorant of the condition of the premises and so entering them had suffered these injuries, she would certainly have succeeded.
5. Cases relied upon by the plaintiff here, who has throughout tried to fix liability upon defendant No. 1, such as Kearney v. London and Brighton Railway Co. (1871) L.R. 6 Q. B. 759, The Great Western Railway Company of Canada v. Braid (1863) 1 M.P. C. N. S. 101. and Lane v. Cox  1 Q. B. 415 would have no bearing whatever upon what I feel to be the difficult question I am to answer, but for some dicta of Lord Esher in the judgment he delivered in the last mentioned case. There dealing with the doctrine of negligence he points out that no one can be liable for negligence unless he owes a duty to the person complaining of it; and he goes on to say-that the landlord is under no such duty in the absence of special contract towards persons coming of their own accord upon the premises. He distinguishes between the case of a private house and a shop into which the public are invited to enter. And he goes on to point out that in certain circumstances duties are cast upon persons by their proximity to each other in public places and instances the duty of an owner of house property to keep it in such good repair that it will not injure other property adjoining it. But in those general statements I cannot find any indication that the learned Judge meant to distinguish between the liability of the owner and the occupier.
6. When we come to consider the actual facts before me, it becomes, I think, more than ever difficult to say upon a ground of solid principle that the tenant or occupier is and the landlord or owner in not, liable for the damage caused to the public by the sudden and unexpected collapse of property belonging to the one and demised to the other. The ground upon which Watts was held answerable to the indictment in Key. v. Watts was that knowing the house to be in a ruinous and dangerous state and so a nuisance, he entered and lived therein as a tenant at will perpetuating the nuisance by his act. I confess I find this very difficult to reconcile with the often repeated legal doctrine that the landlord who at the time of the demise is guilty of misfeasance is himself answerable. Perhaps the distinction arose in England between a criminal indictment and a civil remedy. I apprehend that had the house fallen and injured a passer-by, upon any rigorous application of the law generally accepted and stated in the cases I have instanced, he would have his action against the landlord and the latter could not have escaped liability. But where there is no misfeasnce at the time of letting and there are no contracts on either side imposing any duty upon the landlord or the tenant to maintain the entire building, I seek in vain for any principle upon which consistently to apportion liability. If we transfer the ground of decision in Reg.v. Watts to the civil law then it might be a process of easy inference to say that if a tenant beginning his tenancy under conditions which would certainly fix the landlord with liability because of his misfeasance is nevertheless himself liable for acquiescing in and continuing what is already a nuisance, then a fortiori if at the time the tenant's tenancy begins there is no nuisance and it originates and increases while the premises are demised to him, it is he and not the landlord who is answerable. That I say is a very easy process of inference, but it gives the go-bye to the foundation of the whole legal doctrine of the respective liability of landlord and tenant for injuries caused to others by defects in the up-keep and control of the property during the currency of the lease. Lord Esher's general statements in Lane v. Cox  1 Q. B. 415 seem to me to be no more than an echo of the rule established by Rylands v. Fletcher (1868) L.R. 3 H. L. 330. While in a case like Nelson v. Liverpool Brewery Co. (1877)2 C. P. D. 311 the plaintiff was held to have no cause of action against the landlord, no hint was given in the judgment that he would have a cause of action against the tenant. And while where the judgment is concerned with the drawings of the pleadings and great stress is laid upon the use of the word 'occupier' rather than 'owner', it might be thought that the law entertained no doubt in the absence of special pleas and circumstances that the occupier was always prima facie liable, it is certainly curious that in all the cases I have mentioned the action was brought against the landlord.
7. In this country cases might be put which would surely give rise to practical considerations of very great difficulty if the law really is that the occupants or tenants are always liable, in the absence of a contract by the landlord fixing responsibility of maintaining repairs upon him, to outsiders who may be injured by defects in the istructure of the demised premises. If we look at a case like that of Bowen v. Anderson  1 Q. B. 164, it becomes apparent that the ground of decision there was that in tenancies for short terms at the expiration of each term and before the commencement of the next, the landlord is always exposed to liability on the ground of misfeasance. The tenancy there was weekly and the case was sent back, I think, for the jury to find whether at the commencement of the week during which the accident occurred the state of the cellar flap was such as to fix the landlord with liability on the ground of misfeasance in letting his premises in such a state. Let us take the case, a very common case in this city, of a great edifice like the native chawl. It would probably not be an exaggeration to say that many such chawls housed 1000 poor tenants, but I will be on the safe side and put the number at no more than 100 tenants. Most of these are probably weekly or at any rate short term tenants), Suppose that the whole chawl is thus occupied and to enhance the difficulty of the resulting problem let me assume that which very seldom happens-that the 100 tenants are all in for a year. At the commencement of the year the premises are in good condition and therefore the landlord is guilty of no misfeasance in letting them. He makes no contract with any one of his numerous tenants for repairs or at any rate for more than small necessary internal repairs. Then some unexpected defect in the construction of the whole great building begins to make itself felt and in the monsoon under pressure of wind and weather it falls, causing serious injury to adjacent property. Strictly applying the English doctrine, it is perfectly clear, if the cases are really meant to go that length, that the tenants collectively would be liable, although the defect may have broken out in a portion of the building affecting per-haps not more than one or two rooms. How the remainder can be supposed to have known of it, or be answerable for it in any way, or be under the responsibility of repairing it and so saving the building, I cannot imagine. And it would be hopeless to attempt to recover damages from this class of people. Some one, I suppose, must always be answerable for a wrong, but here the landlord will certainly escape if he can show that at the time he filled his chawl with tenants the chawl was as far as could be ascertained in good condition. Yet the landlord is the only solvent person, if any extensive injury was caused, to whom the sufferer could look for redress. That may appear to be an extreme case, but it is a case of frequent occurrence in this city, although I have never heard of the fall of these chawls giving rise to litigation on account of injuries inflicted on passers-by or adjoining property. Indeed the case before me is a case as far as I know of first impression.
8. Cases such as those of Kearney v. London and Brighton Railway Co. (1871) L.R. 6 Q. B. 759 and The Great Western Railway Company of Canada v. Braid (1863) 1 M. P. C. N. S. 101 are of course entirely beside the point. The latter was only cited, I think, to show that the company could not absolve itself from liability because a particular culvert or bridge had been Hound some years before. But that consideration does not apply to the case of a landlord who demises property which is in perfectly good order at the time of the demise.
9. If we turn to the Statute law of this country, we find the respective rights of landlord and tenant summarised in the rules annexed to Section 108 of the Transfer of Property Act. Those rules are very condensed and I do not think contemplate so startling a case as this. It is, however, clear that Rule (n) throws upon a tenant, in the absence of any contract to the contrary, the duty of keeping; the demised premises in decent repair and restoring them to the landlord at the close of the term in as good a condition as that in which he received them, subject only to good tenant-like use and irresistible force.
10. Now, if we take another extreme case and suppose that a tenant goes into occupation of what to all appearances are premises in good and reasonable repair for a term of five years and the very next day they fall down causing extensive damage, is the tenant or his landlord liable The answer in such a case as that would, I think, depend upon the general concensus of common sense that however secure in external appearance a building, which fell down within twenty-four hours, might have been, it really must have been ruinous and rotten somewhere. The landlord, therefore, would probably be answerable and not the tenant on the ground of misfeasance in letting the building in such a dangerous condition. But the more we extend the time the more difficult does it become to keep distinct on clear and solid ground the liabilities of landlord and tenant in circumstances so unusual. Up to a week it might be said with confidence that the same reasoning would apply. Up to a month, we might begin to doubt and so on. There must come a point somewhere when it can safely be said that the fall of the building was attributable to something which had come into being after the letting. Where that could be shown to be so in fact, the landlord's liability on the ground of misfeasance would of course be extinguished. The rule itself as appears here is of great simplicity but in its. application it will, I think, be found. to give rise to very great difficulties.
11. Returning to Section 108, Clause (n), it certainly never could have been the intention of the Legislature in the case I have just supposed that the unfortunate tenant should re-build the house which had fallen down twenty-four hours after his tenancy began. Nor do I think that the words of that Sub-section wero ever intended to carry the tenant's liability to restore in the full and literal sense that Jength, that is to say, to re-build a building which had entirely collapsed. I take the words to mean no more than that the tenant is to use the premises in a good tenant-like manner and to effect all repairs which are necessary to be effected in order to prevent the building from falling into ruin or at any rate to give the landlord notice of the detection of any serious danger of that kind. But reverting to the question I am considering, suppose the building to be to all outward appearances sound, solid and in order at the beginning of the five years' tenancy, a gradual weakening of the structure may become apparent to the tenant and if the beginnings are really small, due to leakage and slight cracking of the outward wall, it might be, in the absence of any contract to the contrary, his duty and I think it would be his duty, either to prevent the spread of the injury or to insist upon the landlord keeping the main structure safe on the alternative of foregoing the rest of the lease.
12. Now, in the present case, as I began by saying, the building was certainly in the opinion of experts fit and proper to be let out for all the purposes of a rice godown as late as 1912. In a suit which I decided last April (Suit No. 1413 of 19.7.5), between the defendants Nos. 1 and 2 here, defendant No. 1 then being the plaintiff and defendant No. 2 the defendant, the one claiming and the other counter-claiming in respect of the fall of this godown, I held that defendant No. 2 was not answerable to his lessor on the ground of voluntary waste and I held that the lessor was certainly not answerable to the lessee for injuries done to his rice bags through the collapse of the building, unless at the time of the demise the premises were not in good and sound condition and the landlord had contracted to maintain, at any rate, roofs, main walls and main. timbers. There never is any implied warranty in leasing. So within the limit of their contentions there I had no difficulty in coming to the conclusion that neither was answerable to the other. The complications introduced into their relations by the present claim make me doubt, however, whether it is possible to give a judgment in this case which will be logically reconcilable throughout with my findings in the former. It certainly does seem a strange doctrine that a man owning a building and letting it out for a short term should cease to be answerable for its substantial structure should that structure fall during the tenancy and do damage to others Yet the answer may be that that is the tenant's look-out and if the building really was in a sound condition at the beginning of the tenancy and is allowed to become dangerous and finally to fall while the tenant is in occupation, he and not the landlord must take the consequences. Again, I think, it does seem, on a first view, an extraordinary proposition that if he is to save himself from such consequences the tenant must abandon his lease or very likely rebuild half of the premises at his own expense. True, he might recover later from the landlord if such rebuilding is shown to be necessary. But in law I think his position would be extremely precarious in view of the language used in Section 108, Clause (n). On the other hand many valid reasons can be suggested why the landlord should not be-answerable for the deterioration of even the main structure of the building demised for a long term, and, therefore, during that term, in the absence of any special contract, taken completely out of his control and removed from his observation.
13. In this case the correspondence following the suit (I refer particularly to the letter of the 22nd of February 1915) shows that defendant No. 2 was well aware of the serious deterioration of the building and the dangerous condition into which it was falling. He claims to have brought all this to the notice of the lessor but prior to the actual collapse, which was a few days before the writing of that letter, the evidence is that he only drew the lessor's attention to the fact that the roof was leaking. Now, the roof of a building of this kind might very well leak during the monsoon without suggesting that the building itself was in a dangerous state. And it is pretty certain upon the evidence recorded in the other suit that no one either knew or cared what the state of the southern wait of the building really was. The manner in which the rice bags were stacked inside must have made it virtually impossible for any one to examine these walls from within and I think it most unlikely that any of the defendant No. 2's men took the trouble to walk up the gully and examine them from without. Thus from year to year the southern wall of this building may have been steadily weakening until at last it unexpectedly came down on the 19th of February 1915. During the whole of that time it is quite true the lessor was in a position, had he cared to do so, to make sure for himself what the state of his premises really was. But was he under any legal obligation to concern himself with the matter Under his contract certainly not. And unless some different rule of law applies to the collapse of an entire building and to injuries caused by defects in any of its parts, although in some instances those injuries may be caused to the public and not to persons invited upon the premises, I can find no ground upon which the defendant No. 1 can be made liable to the plaintiff for the fall of this godown. I think that defendant No. 2 as tenant-inoccupation is prima facie liable and that liability continues until he succeeds in displacing it by some of the modes recognized by the English Courts as sufficient. I cannot say that anything of this kind has even been attempted. All that the defendant No. 2 has done is to rely upon my finding in the former suit that as between himself and the lessor, the latter failed to prove that he had made an untenant-like use of the premises. But different principles may govern the respective rights and liabilities of lessor and lessee inter se from those which govern their respective liabilities towards the public in the conduct of their respective relations as lessor and lessee. It is with the application of principles of the latter class that I am alone concerned in deciding this suit.
14. I have given the best attention I can to the difficult point and although, I am very far indeed from being satisfied with the result, it appears to me that the law does stand so and that in the events which have happened it is the defendant No. 2 and not the defendant No. 1 who is liable to the plaintiff for any damage which he may have suffered owing to the fall of this godown wall.
15. The plaintiff's suit against defendant No. 1 must, therefore, now be dismissed with all costs.
16. As between the plaintiff and defendant No. 2, if the latter accepts the plaintiff's estimate of the damages, there will be a decree for that amount with costs. I understand, however, that defendant No. 2 desires a formal reference to the Commissioner. That, I think, he is entitled to and I will, therefore, now, before passing the final decree, stating the quantum of the damages, refer this point to the Commissioner, who should report to me thereon at his earliest convenience.
17. Costs and further directions reserved, including the costs which the plaintiff has to pay to the first defendant.
18. In the event of the damages being settled without reference to the Commissioner I will hear the question of costs reserved separately.
19. The point on which I invited this review still appears to me not wholly i'ree from difficulty. I dealt with the case as lying between the defendant No. 1 and defendant No. 2 as owner and occupier, or landlord and tenant. How far their mutual rights and. obligations in that character might be affected by the terms of the head lease of 1883 by the Port Trust to the defendant No. 1 is the question which I wished to reconsider. 1 have now heard an elaborate argument and such cases as might be expected to throw light on the matter have been cited and examined, viz., South of England Dairies, Limited v. Baker  2 Ch. 631; Clare v. Dobson  1 K. B. 35; Hornby v. Cardwell (1881) 8 Q. B. D. 329; Berney v. Moore (1791) 2 RPC 310; Cavalier v. Pope  A.C. 42; Broggi v. Robins (1899) 15 T.L.R. 224 and Tredway v. Mechin (1904) 53 W. R. 136. I am, however, inclined to leave my former judgment where it stood. It appears to me that in the events that have happened it is better to do so, treating the liabilities of these parties as confined to their duties and obligations under the lease of 1910. When the lease of 1883 ' was given by the Port trust, it was really a ground lease on condition that the lessee should erect buildings and keep them in good repair, but those buildings were not in existence at the time of the lease and were, therefore, not the property of the Port Trust, or demised as such to the lessee, the defendant No. 1 here. It is not, strictly speaking, a case of head and sublease in respect of these buildings. The buildings demised were erected by the defendant No. 1 and were of his ownership. So it appears plainly enough in the sub-lease. In regard to the Port Trust no doubt the defendant No. 1 as lessee took upon himself certain obligations which, 1 believe, are always imposed by the Port Trust when it grants leases of its lands. But those obligations are imposed not so much for the benefit of the Port Trust as the public and doubtless could be enforced by the Port Trust were any claim made against it by reason of their non-fulfilment. As I say, under that lease the lessee took upon himself to do that which in the absence of any contract whatever the law ordinarily compels him to do, that is to say, he as tenant or occupier contracted to keep the premises in good repair. In the absence of any contract whatever, as I have shown in my former judgment, that duty is imposed by law upon the occupier.
20. I think, then, though I express this opinion with much hesitation, that my former judgment, founded exclusively upon the lease of 1910 and the law which upon such a lease would govern the resultant obligations of landlord and tenant inter se and towards the public, is probably right and had better not now be disturbed.
21. I, therefore, discharge this rule with costs upon the defendant No. 2.
22. Mr. Mirza, who is here for the plaintiff I suppose for this limited purpose only as he had no interest whatever in the question under review, informs me that an understanding has been come to between the plaintiff and the defendant No. 2 as to the quantum of damages. This is agreed now to be Rs. 1,100 and without any further reference to the Commissioner, the plaintiff may, therefore, now have a decree for that amount against the defendant No. 2. The defendant No. 2 must also pay to the plaintiff the costs which the plaintiff has to pay under this decree to the defendant No. 1.