ACHUTHAN Vs. GOVINDAN VALIA ACHAN

JUDGEMENT

(1.) The plaintiff, the Paliyam Estate, owned an elephant called Chandramathi. She was taken on hire by the defendant under a contract, according to which she was to be worked on alternate days for one month, the hire being Rs. 30/- per work day. Though the plaintiff was paid Rs. 450/- in advance as for 15 work days; she was returned to the plaintiff only after the 5th July, 1952. Alleging that she had worked for 35 days, the plaintiff sued for the sum of Rs. 600/- by way of damages or as hire for the excess number of work days. The defendant contended that he had custody of Chandramathi only for 30 days and she had worked only for 15 days. The Trial Court held in favour of the defendant and dismissed the suit, and on appeal the Subordinate Judge found that Chandramathi had worked for 33 days and gave a decree to the plaintiff for eighteen work days at Rs. 30/- per day. The defendant has come up in second appeal.

(2.) The Subordinate Judge has analysed the course of correspondence and drawn proper inferences, so that in this judgment in second appeal, it is not necessary to cover the ground in all details. It was undisputed that Chandramathi began working on the 21st of April, 1952 in Servani Hills, the workspot. The period of 30 days expired on the 21st May, 1952. Basing upon a report of the keeper Narayanan Nair that Chandramathi was weak, the plaintiff's manager addressed the Collector who was managing the plaintiff's estate at the time. In that letter which was dated the 4th June, 1952, he had stated that Chandramathi had already worked on 18 days. On the 6th June, 1952, the Collector wrote to the defendant demanding return of Chandramathi and payment of the hire upto date. On the 11th June, 1952, the defendant sent a letter to the Collector which goes against his case on almost every point arising for decision. In it, he admitted that Chandramathi was still working for him, that the report made by the keeper that she was in a week condition was not true, and that she was quite alright, and asked the Collector, if necessary to send some responsible persons to satisfy themselves as to her condition. Incidentally he complained that the keepers were not attentive to their duties. At the same time he reminded the Collector that he had applied for a long term lease of Chandramathi and that he was still awaiting orders. This proves conclusively that Chandramathi was being put to work even on the 11th June, 1952. The report that she was weak was therefore not true; at any rate she was not so weak as to be incapable of doing any work. This gives the lie direct to his plea, that Chandramathi had worked only for 15 days in all. On the 13th June, 1952, the plaintiff's manager demanded return of Chandramathi. As it happened, Chandramathi was on the workspot till the 28th June, 1952, and reached Mullurkara en route to her destination, only on the 5th or the 6th July, 1952.

(3.) The Munsiff made a wrong approach to the case in thinking, that the burden of proving the number of days for which Chandramathi had worked, was on the plaintiff. The defendant having had custody of the elephant, the number of days during which she had worked, and her condition at the time, were all facts peculiarly within the knowledge of the defendant, and so the burden of proof has to be borne by him. The defendant did not adduce such evidence. The account book, Ext. II series produced by him shows, that the defendant had been incurring expenses on account of Chandramathi's maintenance, even paying her mahouts up to the 23rd June, 1952. In spite of demand, the defendant returned Chandramathi not before the 28th June, 1952. It was his clear duty as bailee to surrender the elephant on the expiry of the period of bailment stipulated in the agreement. It is quite clear on the terms of the letter of the 11th June, 1952, adverted to above, that he was bargaining for a long term arrangement, retaining the elephant with him, even undertaking to pay future hire.