034-SLLR-1984-V1-SUDALAIMUTHY-CHETTIAR-v.-PERIYASAMY-AND-OTHERS.pdf
CA
Sudalaimuthy Chettiar v. Periyasamy
235
SUDALAIMUTHY CHETTIARv.
PERIYASAMY AND OTHERSCOURT OF APPEAL.
ATUKORALE, J. (PRESIDENT) AND T. 0. G. DE ALWIS. J.
C. A. (S.C.) NO. 643/75 (F) -D. C. COLOMBO 78039/M.
JANUARY 10. 1984, '
Landlord and tenant-Destruction of tenanted premises by fire-Presumption ofnegligence-Na ture of onus on tenant-How discharged.
The appellant let out a portion of his premises on a monthly rental to.the respondentswho used it for storing copra. A few months later a fire broke out originating in the partlet out and destroying the entire building and everything therein. The appellant filedaction claiming damages on several counts. The learned District Judge found as a factthat the cause of the fire had not been established and held that the onus was on thedefendants to prove that they had exercised due diligence. On a consideration of theevidence he concluded that the defendants had not been negligent and dismissed theplaintiff's action.
Held-
Where premises which have been let on rent are destroyed or damaged by fire whilstbeing in the exclusive possession and control of the tenant there is a presumption thatthe destruction or damage was due to his negligence or wrongful act. To avoid liability itis not enough for the tenant to prove that the cause of the destruction was obscure ormore probably due to some cause for which he was not responsible: The tenant mustsatisfy Court affirmatively of the cause of the fire and that the fire was due to (1) vismajor or casus fortuitus, or (2) a latent defect in the property, or (3) the act of somethird person. iThe respondents had failed to show that the fire was caused by any one ofthese three causes. They had failed to show how the fire was caused. They hadtherefore failed to rebut the presumption that the destruction or damage was due totheir negligence. Hence they are liable in damages.
Cases referred to
Bastian Pillai v. Gabriel. (1892) 1 SCR 264.
Kulatungam v, Sabapathi Pillai, (1908) 11 NLR350.
APPEAL from the District Court. Colombo.
H. VJ. Jayewardene, 0. C., with R. Manickavasagar and Ronald Perera forplaintiff-appellant.
Defendants-respondents absent and unrepresented.
Cur. adv. vult.
Sri Lanka Law Reports
[1984] 1 SriLR.
236
*
March 29, 1984
ATUKORALE. J. (President)
The plaintiff, who is the appellant, is the owner of premises No. 88,Negombo Road, Wattala. On or about 6.8.1971 he let a portion ofthe same at a monthly rental of Rs, 1,176 to the defendants who arethe partners of a business called the Central Commercial Company. Itis common ground that the letting was for the purpose of storing ofcopra by the defendants. On 10.12.1971 a fire broke out destroyingthe entire building and everything therein. It was conceded that the fireoriginated in the portion let to the defendants which remained in theirexclusive possession and control. The plaintiff filed this action claimingas damages several sums of money, namely,
a sum of Rs. 154,000 for the destruction of the entirepremises;
a sum of Rs. 12,000 for the destruction of certain machinerybelonging to him and alleged to have been installed in theportion let to the defendant. The finding of the learned Judge isthat no such machinery was delivered to the defendant at thetime of letting ;
a sum of Rs. 39,500 for the destruction of the machinery,building material and sanitaryware belonging to the plaintiff andlying in another portion which was also damaged by the fire ;and
a sum of Rs. 2,000 per month from 1 1 1972 to date ofdecree as continuing damages.
In paragraph 4 (d) of the plaint the plaintiff averred that it was anexpress term of the tenancy agreement C‘ that at the termination ofthe tenancy the premises leased out were to be handed over by the ’defendants in the same condition as when taken by them and that anydamage will be made good by the defendants. In paragraph 12 of theplaint the plaintiff pleaded that the fire originated and spread due tothe negligence of the defendants, their lack of due diligence andproDer care.
Admittedly the fire originated in the portion let to the defendants.The learned District Judge found as a fact that the cause of the firehad not been established and as such he held that the onus was onthe defendants to prove that they had exercised due diligence. Heaccepted the evidence of the defendants' witness Periyasamy that the
CASudalaimuttty Chettiar v. Periyasamy (Atokorale. J.). 237
stacking of copra had been done with a view to avoiding contact withelectric wires. He also accepted the position that the stores had beenclosed up for a month immediately prior to the occurrence of the firethereby preventing any outsiders from entering the portion with anyinflammable substance. He took the view that the manner in which thecopra was stacked and the closing of the premises preventing anyoutsider, from entering the same were two acts which revealed theexercise of due diligence on the defendant's part. He concluded thatthe defendants were not negligent and dismissed the plaintiff's action.
Learned Queen's Counsel submitted to us that the learned DistrictJudge misdirected himself in law on the nature of the onus cast on thedefendants in a case of this nature. He maintained that the onus onthe defendants was to establish positively that the occurrence of thefire (which originated in the portion rented out to them) was due tounavoidable accident or an Act of God. He urged that the defendantscould .not succeed in discharging the burden cast on them if the causeof the fire was left unascertained. To avoid liability they must, it wascontended, establish affirmatively that the fire originated as a result ofan unavoidable accident or an Act of God. I
I am inclined to agree with this submission of learned Queen'sCounsel. In Bastian Pillai v. Gabriel (1) the plaintiff claimed, inter alia,the return of a jar which he had given to the defendant for qse on amonthly rental or its value. The defence was that the jar had beendestroyed by a fire.through no fault of the defendant. Withers, J.whilst holding that the Commissioner of Requests was wrong incoming to the conclusion that the defence was on the face of it a badone observed that the onus was on the defendant to prove that the firewhich destroyed the jar was occasioned by unavoidable accident.This decision was followed in Kulatungam v. Sabapathi Pillai (2). In thelatter case the plaintiff sought to recover damages for the destructionby fire of a house rented out by him to the defendants. The plaintiffdistinctly averred that the fire was caused as a result of the negligenceand carelessness of the 2nd defendant. The evidence was such thatthe origin of the fire was obscure. Wendt, J. following the earlierdecision in Bastian Pillai v. Gabriel {supra) held that the onus lay uptonthe defendants of exculpating themselves by proving that the fire wasdue to an unavoidable accident. Grenier, J. whilst expressing theopinion that there is no hard or fast rule determining the question ofonus but that it should be determined according to the circumstances
238
Sri Lanka Law Reports
11984] 1 SriLR.
of each particular case held that the onus in that case lay on thedefendants to account for the fire and the consequent damage in sucha way that no legal liability should attach to them. He held that the firehaving occurred the onus was on the defendants to account for it,whether it was accidental or the work of an incendiary,' if they desiredto exculpate themselves. Wide in his book Landlord and Tenant inSouth Africa (4th Edition} at p. 241 referring to the nature and extentof the burden cast on a tenant of premises which has been destroyedor damaged by fire whilst being in his exclusive possession and controlstates as follows:
“The onus cast on the tenant can only be discharged by proof byhim that the destruction was not due to his negligence or wrongfulact; consequently he must prove affirmatively that it was due tosome cause for which he is not responsible, namely. (1) vis major orcasus fortuitus, or (2) a latent defect in the property, or (3) the actof some third person. Moreover, the tenant can only discharge theonus by actual proof of the cause of the loss, and a mere probabilitythat the loss was due to some cause for which he was notresponsible, is not sufficient to relieve him of liability.'
In the instant case it was thus incumbent on the defendants toestablish how the destruction took place for which purpose they hadto prove how the fire was caused. To avoid liability they had to satisfyCourt that the fire was due to one of the three causes enumeratedabove by Wille in the passage quoted by me aforesaid. They havefailed to do so. They have thus not rebutted the presumption that thedestruction or the damage was due to thqjr negligence. The appeal isthus entitled to succeed. The judgment of the learned District Judge isset aside and judgment is entered in favour of the plaintiff in the sumsspecified in paragraphs (i) and (iii) of the commencement of thisjudgment together with continuing damages at Rs. 1,176 per monthfrom 1.1.1972 for a period of twelve months during which the plaintiffcould reasonably have re-erected the building. In the result judgment isentered for the plaintiff in an aggregate sum of Rs. 207,612 togetherwith costs in both courts.
T. D. G. DE ALWIS, J.-l agree.
Appeal allowed.