(1) This revision proceedings involves a very interesting question, upon which there would appear to be no direct authority of the Indian Courts, concerning the liability of the owner of certain premises for loss or damage caused to the property of a neighbour by fire which, according to the evidence, spread from the premises of that owner to the neighbour's property. The case is a little difficult, even apart from the paucity of Indian authorities, since the facts themselves have not been very clearly established. However, the first Court did find that the defendants (respondents) who are the landlords or proprietors, erected a thatched shed on their terrace a an undue height above the terrace wall, that this thatched shed took fire, and that the fire spread to the property of the neighbours revision petitioners) and caused damages. Actually, a buffalow belonging to the revision petitioners was destroyed by the fire, and the claim for Rs. 400, as damages was decreed by the trial Court.
(2) The new Trial Bench reversed this decree, holding that the defendants (landlords) were not liable for the negligence of the tenants. This, as I shall presently show, is not a correct statement of the law. The new Trial Bench also held, on the facts, that the damage was 'too remote to fasten any liability on the defendants'. This conclusion would appear to be unwarranted. But the New Trial Bench had some justification for pointing out that the learned trial Judge relied on Ex. P-1, a true copy of the fire report recorded by the Madras Fire Service, which piece of evidence had not been properly proved.
(3) The common Law of this interesting subject is to be found in several decisions of the English Courts, of which Spicer v. Smee, (1946) 175 LT 163, is a good instance. It is not necessary to discuss the facts of this decision, but it is important to note the principle of law that where the proprietor, who is not the occupier, lets the property in a certain state which might amount to a private nuisance, the proprietor would be responsible to the third party who suffers injury by a fire accident. The matter has received a very full treatment in Balfour v. Barty King, 1957 1 All ER 156, a judgment of Lord Goddard C. J. The learned Chief Justice has dealt with the previous history of this liability, which the law has always recognised, and he approbates the dictum that
'a man shall answer to his neighbour for each person who enters his house at his leave or knowledge.......if he does any act................whereby his neighbour's house is burnt'.
(4) In other words, there is a liability on the part of a proprietor of property,, for damage caused to the property of the neighbour by a fire accident resulting from negligence, even though the proprietor is not in actual occupation, but a tenant under the proprietor. Lord Goddard C. J. said:--
'At the present day, it can safety be said that a person in whose house a fire is caused by negligence is liable, if it spreads to that of his neighbour, and this is true whether the negligence is his own or that of his servant, or guest'.
(5) With regard to the conclusion of the New Trial Bench that the negligence is too remote I am indeed unable to gather what precisely the learned Judges implied by this. The properties are adjacent, the thatched shed was built at some height over the parapet wall on open terrace, which might thus amount to a private nuisance, because of the great risk of a fire accident thereby involved, and the fire appears to have spread directly from this blazing shed to the adjacent property, and destroyed a valuable animal of the revision-petitioner, a buffalow, capable of yielding milk. The proposition that the tenant whose negligence probably led to the outbreak of the fire is directly answerable tot he neighbour to whom injury was caused, is not legally correct. The vicarious liability is that of the owner of the property under whom the occupier at the time might, no doubt, have been guilty of the negligence which resulted in the fire.
(6) However, it appears to me that, since neither the trial Court nor the new Trial Bench has referred to any authority or any legal principle, and since, admittedly, proof of Ex. P-1, which the trial Court relied upon, must be considered questionable, the fairest course would be to set aside the decree, and to direct a complete retrial of the suit in the light of these principles that I have just now enunciated, and if Ex. P-1 is to be relied upon, by the revision petitioners proving it in the proper manner. If the parties so desire they may also adduce additional evidence on the matters which are really in issue. The trial should be conducted as expeditiously as possible. no order as to costs.