IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No._184 of 1999. Judgment reserved on: 1.7.2008 Date of decision: 16.7.2008 Bhanu Partap Chowfla …….Appellant Vs. Secretary Ministry of Communication & Ors.…. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ramesh Sharma, vice Mr. N.K. Thakur, Advocate. For the Respondents : Mr. Janesh Mahajan Central Govt. Counsel. Kuldip Singh, Judge. The plaintiff has filed this appeal against judgment, decree dated 6.9.1999 passed by learned District Judge, Chamba in Civil Suit No.3 of 1997, dismissing the suit of the plaintiff for recovery of damages amounting to Rs.3,93,200/-. 2. The brief facts, as per pleaded case of the appellant, are that he is owner of building built on 864 Square yards and 8 square feet which he had inherited from his father Shri Kanth Chowfla. This building (for short premises) was let out by his father on lease to respondents for running telephone exchange. After the death of his father, the appellant is the exclusive owner of the premises. It has Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… been alleged that the premises was let out to respondents for running a telephone exchange but respondents started using it as a store. On 27.8.1996, the premises was gutted in fire due to the negligence on the part of the respondents. The appellant got assessed the loss suffered from an expert, who assessed the loss to the tune of Rs.3,93,200/-. The appellant after serving notice to the respondents to pay the damages, filed the suit for recovery of Rs.3,93,200/- . 3. The suit was contested by respondents by filings written statement, in which it has been pleaded that suit filed by the appellant is not maintainable in as much as there are other co-owners of the premises also. The premises was not gutted in fire due to any fault of the respondents. On the contrary, it has been pleaded that premises was in dilapidated condition and no repairs were carried out by the owners despite notices. The assessment made by the expert of the appellant regarding the premises was denied. It has been submitted that suit is bad for want of necessary parties. The respondents prayed for dismissal of the suit. 4. The appellant filed replication wherein he reasserted his case. On the pleadings of the parties the following issues were framed :- 1. Whether the building of the plaintiff which was on rent with defendant No.3 S.D.O. (Telephones) had gutted in fire due to the negligence of the officials of defendant No.3, as alleged? OPP 2. If issue No.1 supra is proved, to what amount of damages the plaintiff is entitled and from which of the defendants? OPP …3… 3. Whether the suit is bad for want of necessary parties. If so, who are the necessary parties? OPD 4. Relief. The learned District Judge decided all the issues against the appellant and dismissed the suit. 5. I have heard Mr. Ramesh Sharma, learned counsel appearing for the appellant and Mr. Janesh Mahajan, learned Central Govt. Counsel for the respondents and gone through the record. On behalf of the appellant, it has been submitted that the learned District Judge has erred in deciding all the issues against the appellant. The respondents were in occupations of the premises when it gutted in fire. It was for the occupants to explain the cause of fire. The burden of issue No.1 was very light on the appellant, he has discharged the burden. The suit is not bad for necessary parties, the appellant is entitled to suit amount. The learned counsel on behalf of the respondents has supported the impugned judgment, decree. He has submitted that learned District Judge has rightly appreciated the material on record and no fault can be found with the impugned judgment, decree. 6. The appellant has given the description of the suit property in para-1 of the plaint. He has pleaded that he and his brother Kuldeep Chand Chowfla were the owners of the suit property and his brother relinquished his share in his favour and now the appellant is exclusive owner of the suit property and was receiving rent of the building. In written statement para-1 of the plaint has been …4… admitted. It has been denied that the brother of the appellant has relinquished his share in the suit property and appellant became exclusive owner of the premises, but it has not been denied that appellant had been receiving the rent of the building from the respondents. Ex.PC is the jamabandi for the year 1990-91 of the suit property, in the column of ownership Kuldeep Chowfla and appellant have been shown owners. In the remarks column, it has been stated that vide mutation No.576, Kuldeep Chowfla has relinquished his half share in favour of Bhanu Partap . It is thus, clear that on the basis of Ex.PC appellant is the sole owner of the suit property. The respondents have not pleaded in their written statement that appellant is not their landlord nor they have pleaded that rent was not paid to appellant. The respondents being the lessee of appellant cannot deny his title. The learned District Judge has not taken into consideration Ex.PC and other connected legal aspect while deciding issue No.3. In these circumstances, learned District Judge has erred in deciding issue No.3 against the appellant. The findings returned by learned District Judge on issue No.3 are not sustainable and accordingly set aside. 7. It is admitted case of the parties that the premises was being used by the respondents as store and it was gutted in fire on 27.8.1996. The question is whether the premises was gutted in fire and destroyed due to the negligence of the respondents. The connected question is the quantum of damages. PW-1 Bhanu Partap Singh has stated that earlier there had been small fire incidents in the building on 22.8.1996 and 24.8.1996. Thereafter, the …5… building was gutted in fire during the night on 26.8.1996. The department handed over possession of the building to him about 10 days after the fire incident. The electricity fittings in the building were in order. He did not receive any complaint of the department regarding defect in the supply of electricity in the building. The department did not take his permission for converting the building into a store. He got the loss assessed from K.K. Mahajan retired Chief Engineer who assessed the loss to the tune of Rs.3,93,200/- The police as well as fire brigade, Chamba were informed. In cross- examination he has stated that there was saw mill on the adjoining portion of the building which was not rented out to the telephone department. Chanan Singh had been running the saw mill and even now he is running the said saw mill. He took K.K. Mahajan on the spot 13 days after the incident. At that time only two side walls of the building were standing. He has also stated that except walls and sheets, everything was destroyed in fire. There were 134 CGI seats which were taken by him. He has denied that the building was not pucca. He denied that fire incident took place due to electric short circuit. In re-examination he has stated that he had made rooms of the big hall of his building according to the requirement of the telephone department. 8. PW-2 K.K. Mahajan retired Chief Engineer, HP.PWD has stated that he carried out the assessment of the building of plaintiff on 4.11.1996 and prepared report Ex.PE , details of estimate Ex.PE/1 and certificate of valuation is Ex.PW/2. According to him on the date of loss the total cost of the building was Rs.3,93,200/- …6… excluding the cost of land and developmental charges. The loss value assessed by him is the deprecated value. In cross-examination he has stated that earlier there was saw mill inside the building and before the same was let out, cabins were made by way of partition which are shown in the site plan Ex.PE/3. He visited the spot once. 9. PW-3 Dharam Chand has stated that he had been working in the saw mill of Chanan Singh for the last 20 years. The building caught fire on 22.8.1996 and again on 24.8.1996. The building was lying locked from outside. The fire broke out in the building in the night of 26.8.1996 and the entire building was destroyed in the fire. PW-5 Tilak Kumar, Station Fire Officer has stated that in the intervening night of 26/27.8.1996 a telephonic information was received about the fire incident. On receipt of the information, the fire brigade was sent immediately to the place of incident and he also visited the place of incident. He also submitted report regarding the fire incident, a copy of said report is Ex.PW-5/A. 10. DW-1 V.K. Bhalla, SDO Telephone, Kangra has stated that he remained posted as SDO Telephone, Chamba from July 1995 to October, 1997. The premises in dispute was in his charge during those days. The premises was being used as a store. Earlier the premises was being used as a telephone exchange. A chowkidar was appointed to look after the premises. He has stated that he could not say how the fire had started in the premises. The store lineman was incharge of the store. Manoj Kumar was the chowkidar at the relevant time but he was not present in the building when fire took place. No consent of the plaintiff was obtained for converting …7… the building into store. Ashok Kuamr was the lineman in the store. The department has not made any efforts for finding out the cause of fire. No efforts were made to find out the cause of fire from technical expert from the electricity board. DW-2 Manoj Kumar has stated that he was chowkidar of the telephone department from 1994 to 1997 at Chamba. On the date of fire he was on duty at Parel. Ashok Kumar lineman on that date had gone to Delhi. The key of the lock put on the store was with him and one with SDO incharge. There were three rooms inside the said building. DW-3 Ashok Kumar has stated that store was consisting of one hall and four rooms and he was on training at Rajpura on the date of incident. 11. The respondents in the written statement have pleaded that the building was in dilapidated condition and no repair was done by the owner inspite of notices and reminders. They have pleaded that matter was reported and the inquiry report is still awaited. In Ex.PB reply dated 18.10.1996 which was given on behalf of respondent No.3 to the notice of advocate of the appellant, it has been stated that building required intensive repairs and the electrical wiring had become fault prone, but respondents have led no evidence that fire took place due to defective electrical wiring . The respondents have completely washed off their hands regarding the cause of fire. DW-2 Manoj Kumar chowkidar and DW-1 V.K. Bhalla have clearly stated that Manoj Kumar chowkidar was not present in the premises at the time of incident as he was on duty in other store. Ashok Kumar lineman was also not on duty on the relevant date in the premises as according to Ashok Kumar he was under training at …8… Rajpura at the relevant time. The premises was in possession of the respondents at the time of incident. The appellant has attributed negligence to the respondents for the fire which destroyed the premises. It was for the respondents to show that the fire did not take place in the premises due to their negligence rather the cause of fire is something else which is not at all attributable them. In Deputy Lal vs. Reoti Prasad Gupta, A.I.R. 1941 Allahabad 327, the plaintiff was the owner of the house and the defendant was lessee in possession of the house. In the fire substantial portion of two rooms was damaged along with some damage to 3rd room. On those facts it was held as follows:- “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 has been further held that; “ 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”. In Sri Gurupada Haldar vs. Sri Haripada Mukherjee and others, AIR 1962 Calcutta 263, it has been held that the tenant would prima facie be liable for damages caused to the premises, and the onus would clearly be on him to show that there was no negligence in the matter either on his part or on the part of the sub- …9… tenants for whose negligence, also be would in the context, be liable, or answerable in law. 12. Ex.PW-5/A is the report prepared by PW-5 and as per Ex.PW-5/A the department had stored highly inflammable material in the store. It appears the respondents had not taken due care while storing inflammable material in the store and such material was not protected from possible fire. The respondents have miserably failed to discharge their burden by leading cogent evidence that fire in the premises did not take place due to their negligence. In these circumstances, it is reasonable to infer from the material on record that the fire took place in the premises due to the negligence of the respondents and as a result of fire the premises was destroyed. 13. Once, it is held that the premises was destroyed due to fire which erupted in the premises due to the negligence of the respondents the other connected question is regarding quantum of damages. The appellant while appearing as PW-1 has stated that he had made rooms of a big hall as per requirement of the telephone department. PW-2 K.K. Mahajan appeared on behalf of the appellant as an expert, it is clear from the statement of PW-2 that he had not inspected the premises before it was destroyed in fire. There is no satisfactory evidence on record to show the nature of construction of the premises which was destroyed in fire. In Ex.PE valuation of the property PW-2 K.K. Mahajan has stated that total covered area of the premises was 13.6 x 19.1 = 259.76 sqms. having three side walls of stone in cement mortar and one side wall of stone in mud mortar with pointings in cement mortar. The building was a big hall. The surrounding walls were 0.65 meter stone masonry thick and were 2.4 …10… meters height on sloping sides and either two ends having gables. PW-2 has further stated that the reproduction cost of the building is Rs.5,24,732/- but the depreciated value of the premises is Rs.3,93,200/-. The perusal of Ex.PE/1 abstract of cost prepared by PW-2 would show that the abstract of cost is with respect to estimate for the construction of house of appellant. It is the case of the appellant that whole of the premises was destroyed in fire and only some walls and CGI sheets were left behind after the fire. The appellant has not proved by leading cogent evidence what was the nature/quality of construction which was destroyed in fire. The statement of appellant as PW-1 also does not show the nature of construction which was destroyed in fire. PW-2 before the fire had not inspected the premises. The appellant has filed the suit for damages. In other words the appellant must prove by leading cogent evidence what was the structure which was destroyed in fire and what loss he had suffered due to destruction of structure in the fire. PW-2 in abstract of cost Ex.PE/1 and valuation report Ex.PE has not shown the basis from where he took the details of the building which was admittedly gutted in fire. The appellant as well as PW-2 have not placed any sanctioned plan of the building or other authenticated material on record to show that the building which was destroyed in fire was constructed with particular materials. In other words there is no evidence of comparability of abstract of cost Ex.PE/1 with the nature of the building which was destroyed in fire. Therefore, abstract of cost Ex.PE-1 and valuation report Ex.PE prepared by PW-2 are not …11… sufficient to assess the damages suffered by appellant on account of destruction of structure in the fire. 14. It has already been held above that there is no authenticated material on record to assess the damages which appellant has suffered due to destruction of his building in fire. But it can not be said that the appellant has suffered no loss. Some times the compensation is to be awarded on the basis of conjectures and guess work, keeping in view the facts which have come on record, PW-2 in his valuation report has stated that covered area of the building was 259.76 sqms. This has not been specifically challenged in cross-examination of PW-2 by respondents. It has also come on record that the appellant took away 134 CGI sheets after the fire took place in the premises. In other words by approximation, it can be safely inferred that the covered area of the premises which was destroyed in the fire was not less than 2000 sq. feet. The premises was having stone masonry outer walls. The roof was of CGI sheets which must have been placed at least on wooden trusses. There were internal wooden partitions. The fire took place on 26/27.8.1996. In the year 1981, the rent of the premises was Rs.790 per month which is clear from the lease deed dated 17.1.1981. Therefore, in the facts and circumstances of the case, it is reasonable to infer that in the year 1997 the appellant must have suffered at least loss of Rs.1,00,000/- on conservative side due to complete destruction of his premises in fire. Therefore, appellant is entitled to Rs.1,00,000/- on account of compensation, damages for destruction of premises in fire due to negligence of respondents. The learned District Judge has …12… not appreciated the material on record properly, therefore, the finding recorded by learned District Judge on issues No.1 and 2 are liable to be set aside. 15. No other point was urged. 16. The result of the above discussion, the appeal is allowed, judgment, decree dated 6.9.1999 passed by learned District Judge in Civil Suit No.3 of 1997 are set aside. A decree of Rs.1,00,000/- is passed in favour of the appellant-plaintiff and against the respondents-defendants jointly and severely along with 6% interest from the date of institution of the suit till realization. The appellant-plaintiff shall also be entitled to proportionate costs of the trial court as well as of this Court. July 16, 2008 ( Kuldip Singh ) (sks) Judge …13…