K G PONNAPPA NADAR Vs. THENAZHI PARAKKALATI

JUDGEMENT

(1.) The material facts have been set out in my learned brother's judgment and I need not re- state them. The paucity of reliable evidence in the case has compelled us to base our decision almost wholly on our view as to the burden of proof; and as the question was argued before us at some length, I have thought it right to make a few observations on that point.

(2.) The lower Court has dealt with the case on the footing that: The burden of proving that the elephant died when in the possession of the defendant, notwithstanding the exercise of that care which in law he was bound to take, is upon him.

(3.) On behalf of the appellant, the learned Advocate-General argued that an action between bailor and bailee was no exception to the general rule that the party seeking to recover compensation must make out that the party against whom he complains was in the wrong. On the other hand, Mr. T.M. Krishnaswami Iyer (the learned counsel for the respondents), maintained that as a bailee, the defendant was under an obligation to restore the thing bailed at the termination of the bailment and it is for him to excuse himself by proper reasons, if he is unable to restore the thing bailed. Stated in the above simple form, both the propositions are true enough; but in their practical application, they have to be modified in the light of other principles coming into play in varying circumstances. Even after allowing for the interaction of different principles according to circumstances, it is by no means easy to reconcile the dicta found in numerous cases on this question of burden of proof.