# U.P. Rajya Vidyut Parishad & others v. Chandra Pal & others

- **Citation:** (2000) 3 ILRA 64
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-03-14
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-rajya-vidyut-parishad-others-v-chandra-pal-others-39553
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
64
was not only served by registered post at
correct address but also by affixation of
the notice on the conspicuous part of the
house of the petitioners.

10. So far as the question of default
is concerned, clause (a) of sub-section (2)
of Section 20 of the Act reads as under:-

20. Bar of suit for eviction of tenant
except on specified grounds -(1)........
(2) A suit for the eviction of a tenant from
the building after the determination of his
tenancy may be instituted on one or more
of the following grounds, namely:
(a) that the tenant is in arrears of rent for
not less than four months, and has failed to
pay the same to the landlord within one
month from the date of service upon him
of a notice of demand."

11. The necessary conditions for
declaring a tenant as a defaulter within the
meaning of the term used under clause (a)
of sub-section (2) of Section 20 of the Act,
are that the tenant should be in arrears of
rent for not less than four months and from
the date of notice of demand is served
upon him the tenant should have failed to
pay the arrears of rent within one month.
In the present case, the notice of demand
was served on 14.03.1997, whereby rent
for the period 23.02.1987 to 01.04.1997.
The petitioners, even after receipt of the
said notice, did not pay the arrears of rent
within statutory period of 30 days. The
amount in question alleged to have been
tendered by means of a cheque, in law is
not a valid tender. Further, the cheque in
question was dishonoured by the bank for
shortage of money in the account of the
petitioners. Petitioners also cannot take
advantage of money deposited under
Section 30 of the Act as such deposit was
made on 13.06.1997, i.e., after 30 days of
the receipt of notice. Cheque was for an
amount of Rs.4,920/- while in the bank
account of the petitioners, there were a
balance of Rs.2511.87 only. Even the
money order which is alleged to have been
sent in the month of May,1997, by which
an amount of Rs.40/- only is alleged to
have been sent, was of no consequence.
The Courts below did not commit any
error of law in holding that the petitioners
were defaulters and on the said ground,
they were liable to be ejected from the
building in question. The petitioners
having committed default in payment of
rent were, therefore, legally liable to be
ejected from the building in question. The
trial Court rightly decreed the suit and the
revisional Court rightly dismissed the
revision and the review application filed
by the petitioners.

12. In view of the aforesaid
discussion, no case for interference under
Article 226 of the Constitution of India is
made out. The writ petition has got no
merits.

The
writ
petition
fails
and
is
dismissed with cost.
Petition dismissed.

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By the Court

1. The main question that arises in
this defendants appeal is whether the lower
appellate court committed any error of law
in decreeing the suit by applying the
principle of res ipsa loquitur

2. Shri S. P. Mehrotra the earned
counsel for the appellant assailed the
approach of the appellate court and urged
that the principle of res-ipsa-loquitur was
erroneously applied without setting aside
the finding recorded by the trial court that
the deceased was negligent in collecting
'kanda' (fuel ) from beneath a place where
high voltage wire was running and in any
case the amount of compensation awarded
was excessive. Shri Ashok Gupta the
learned counsel who had filed caveat
defended the order and urged that the
appellate court was not only correct in law
but it acted leniently in awarding merger
amount as compensation.

3. Before discussing the principle of
res ipsa loquitur and whether it was
correctly applied by the appellate court, to
the facts of this case, I am constrained to
say that the court below having awarded
only Rs.60,000/- for the death of plaintiff
no.1's wife and mother of plaintiffs no.2
to 6, due to coming into contact with high
voltage live wire of 11,000 volts
maintained by U.P. State Electricity
Board, Lucknow (in brief Board), the
Board would have been well advised to let
the matter rest.

4. The finding of fact recorded by the
trial court was that Smt. Sakhia died on 56-1993 at distance of one kilometre from
her house by coming in contact with high
voltage wire maintained by the appellant
and its servants. But the suit was dismissed
as the plaintiffs could not prove the
occasion and reason for the deceased, and
her husband going away from their village
to collect 'kanda'. The court further found
that PWI Chandra Pal having admitted that
he or any other resident of the village
having not intimated the employees of the
board on the pillar in red notifying danger,
the deceased was neither justified nor she
had any right to go and collect 'Kanda'
from beneath the wire, therefore was no
negligence of the appellants and the
respondents were not entitled for any
compensation. The trial court further
assumed that in absence of any direct
evidence about the manner in which Smt.
Sakhia died the claim of the appellants that
the might have gone to pluck the wire or
she of her won accord touched the wire
could not be denied. Therefore, the suit
was dismissed.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
66
5. In appeal the lower appellate court
on the finding recorded by the trial court
that the death had taken palace due to
coming
in
contact
of
electric
wire
maintained by res ipsa loquitur applied
and if so whether the trial court was
justified in dismissing the suit. The court
relied on various decisions given by the
apex court., including AIR 1979 SC 1848
and other High Courts and held that once
the incident was proved the principle of
res ipsa loquitur applied and the appellants
having failed to prove that the accident
did not occur due to any negligence on
their part the suit was liable to be decreed.

6. The principle of res ipsa loquitur is
an exception to the rule that it is for the
plaintiff to prove negligence. It was
evolved to relive the plaintiff form
discharging the burden where the true
cause of accident was in the knowledge of
the defendant due to whose due to whose
negligence the accident took place. It is
based on principal that the plaintiff can
prove accident but he may not be able to
prove that it could have been avoided but
for the negligence of the defendant. In the
leading English case Scott. V. London and
St. Katherine Docks Co. (1865) H. & C.
596 the law was succinctly stated thus,

"There must be reasonable evidence of
negligence but where the thing is shown to
be under the management of the defendant
or his servants, and the accident is such as
in ordinary course of things does not
happen if those who have the management
use proper care, it affords reasonable
evidence, in the absence of explanation by
the defendant, that the accident arose form
want of care".

7. The tow principles which are
necessary for the application of the
principle res ipsa loquitur are one that the
thing or object by which the accudebt
took place must have been in the
management or control of the defendants
or his servants and second that the accident
in ordinary course would not have
happened
if
those
who
were
in
management and control had taken proper
care. In Syed Akbar v State of Karnataka
AIR 1979 SC 1848 the apex court after
reviewing Indian and English authorities
on the subject held that there were two
lines of approach, one taken by English
courts that the maxim of res ipsa loquitur
operates as an exception to the general
rule that the burden to prove negligence
is on the plaintiff. The Hon'ble Court
observed, " that if the nature of an accident
is such that the mere happening of it is
evidence of negligence ...or where there is
a duty on the defendant to exercise care,
and the circumstances in which the injury
complained of happened are such that
with the exercise of requisite care no risk
would in the ordinary course ensue the
burden shifts or on the defendant to
disprove it". And the other that when it
applies appropriately it allows drawing of
a
permissive
inference
of
fact
as
distinguished
from
mandatory
presumption. Our courts have followed the
line of approach adopted by English
courts. In this case since the electric wire
which ran up to tube well was of high
voltage and it was under the management
and control of the appellants or its
servants,
its
proper
maintenance
in
ordinary course was their duty to avoid
any accident. The putting up of sign board
in red indicating danger did not absolve
the appellants from ensuring that the wire
was at proper height and there was no risk
of it coming in contact to anyone. I may
refer to rule 77(3) of the Indian Electricity
Rules 1956 which clearly provides that
3All] U.P. Rajya Vidyut Parishad & others V. Chandra Pal & others
67
high voltage wire shall be maintained at
height of not less than 12 feet (4.0 meters).
It was, therefore, the duty of the Board to
ensure that the wire did not come down as
it was hazardous and any contact with it
could cause death. If the wire became
loose it was the duty of appellants to set it
right. It was not necessary at all that
somebody form the village should have
gone to intimate the appellants servants.
The fact that it came in contact of Smt.
Sakhia is proof that it was loose and was
not at prescribed height. The appellate
court after appreciation of evidence of
PWI and PW4 found it as a fact that the
wire was loose and it was due to this
reason that Smt. Sakhia came in contact
with it and was severely burnt. The failure
to maintain proper height by the board was
negligence per se. No further evidence was
necessary to prove negligence. It was for
the Board to prove that the wire did not
come down and its maintenance by it in
ordinary course was such that no accident
could have taken place. The putting up of
the sign board was of no consequence as
the appellants were bound both under the
general law and the rules framed to place it
at safe height. If by putting sign board the
appellant is absolved of its responsibility
then movement on the roads would come
to standstill.

8. Once the accident was found by
the trial court to have taken place it was
for the appellants to prove that it took
ordinary care under law. In absence of any
evidence the trial court indulged in
conjecturing that Smt.Sakhia might have
attempted to pluck the wire or touched it.
A party like Board should not have raised
such plea without being in possession of
any material. In any case it was a question
of fact but the appellant did not lead any
evidence.

The trial court, in the
circumstances, in assuming that the claim
of the Board could not be denied acted not
only illegally and in complete disregard of
principle of res ipsa loquitur but it
indulged in presuming facts without any
basis. The appellate court on the other
hand held that even if the maximum height
of Smt. Sakhia was assumed to be 6 feet
and the hight of basket is added to it she
could not have come in contact of the wire
unless it was much below the prescribed
height of 12 feet under rule. The inference
is reasonable. The argument of the learned
counsel for the appellant that the appellate
court in drawing the inference acted
illegally as there was no material on record
to support the finding can not be accepted.
I have referred earlier that the appellate
court believed the statement of plaintiff's
witnesses that the wire was loose, Further
a court of fact is entitled to draw inference
from circumstances. It is neither illegal nor
contrary to law. In absence of any
evidence from the appellant, the appellate
court was justified in concluding that the
wire was loose as claimed by the plaintiffs
and Smt. Sakhia died due to negligence of
the Board.

9. For these reasons I am not inclined
to admit this appeal as burden of proof is
no doubt a question of law but once I have
held that the appellate court correctly
applied the principle of res ipsa loquitur it
ceased to be a question of law much less a
substantial question of law.

The appeal is dismissed under Order
41 Rule 11 C.P.C.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
68
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By the Court

1. This is an application under
Section 12 of the Contempt of Court Act
for initiating contempt proceeding and
punishing the opposite party for the
alleged wilful and deliberate defiance of
this Court's order dated 17.2.1998 passed
in Writ petition No. 20883 of 1997 and the
order dated 24.7.1998 passed in the review
application no.20094 of 1998.

2. I have perused the aforesaid orders
of this Court contained in Annexures 1 & 2
to the contempt petition. It appears that the
petitioner had filed writ petition no. 20883
of 1997 for quashing the advertisement
and selection as well as appointment of
Sri Ashok Sonkar who was arrayed as
respondent no.4 to the writ petition, to the
post of Lecturer in Tridesh Vigyan,
Department of Basic Principles Institute
of Medical Sciences. Banaras Hindu
University, Varanasi. The Division Bench
of this Court, after hearing the learned
counsel for the parties declined to
entertain the writ petition in view of the
alternative
remedy

available
under
Section 5 (7) of the Banaras Hindu
University

Act.
However,
while
dismissing the writ the Division Bench has
observed as under.

"However, it is provided that in case the
petitioner will file a representation before
the
learned
Visitor
that
would
be
entertained and decided on merit."

3. Thereafter the petitioner filed the
review petition no. 20094 of 1998 which
was partly allowed by providing that the
learned
Visitor
should
consider
the
representation of the petitioner dated
14.5.1997 and pass appropriate order on
the representation possibly within a period