SRI KISHAN PANDEY Vs. GHANA NAND JOSHI

JUDGEMENT

(1.) This is a reference under Rule 17 of the Rules and Orders relating to the Kumaun Division, of 1894, under the following circumstances:

(2.) The plaintiff alleged that he had entrusted two bearer drafts to the defendant for the latter to hand over on behalf of the plaintiff to the brother of the plaintiff, and that the defendant had cashed one of the draft himself and appropriated the money. Art. 48, Lim. Act, has been applied by the Commissioner of Kumaun. The date stated by the plaintiff as that on which the defendant cashed the draft was prior to three years before the date of suit. But the plaintiff further alleged in his plaint that he did not obtain definite knowledge that the defendant had misappropriated the money until a date within the three years on which the defendant told him that he had cashed one of the drafts but refused to pay the money.

(3.) In his written statement the defendant admitted that the plaintiff had come to the place where the defendant was on the date of the interview with him alleged by the plaintiff, but as to that part of paragraph in the plaint in which the plaintiff set out what had happened at that interview, the defendant contented himself with saying that it was "not admitted." In his further pleas the defendant said nothing about the alleged interview, but in one further plea said "the plaintiff's claim is beyond time." In support of his plea as to the date of acquisition of knowledge the plaintiff led no evidence. The defendant referred to certain incidents, but the Commissioner has held that those did not establish knowledge on the part of the plaintiff. The Commissioner holding that the burden of proof of the date of acquisition of knowledge by the plaintiff was on the defendant rejected the plea of limitation, and having found the fraud proved decreed the suit. The defendant in a lengthy memorandum asked the Local Government to refer questions concerning the correctness of the decree to this Court for its opinion. The Local Government has only referred to us the question of the correctness of the view of the Commissioner as to on whom the burden of proof lay, remarking that the decree of the Commissioner seems to be open to the objection that the Commissioner has taken a wrong view of the burden of proof, and has therefore come to a wrong decision on the question of limitation.