P L D 1961 Dacca 703 (PLP)

This finding of the learned District Judge, as I have already stated, is based on the application filed by the petitioner in Title Suit No. 144 of 1957 on 7‑11‑

57. Mr. Fazlul Karim, the learned Advocate for the petitioner appearing before me, has contended that the mere knowledge of the sale is not sufficient in a case where the party aggrieved seeks remedy under section 18 of the Limitation Act. He must be shown to have the knowledge of the fraud itself and the starting point of the period of limitation shall be counted from the date of his coming to know of the fraud. Secondly, he has argued that, whenever fraud is alleged by the aggrieved party, the Court has a duty to enquire into the 'allegation and come to a clear finding. He has sought support to his' argument from several decisions, the first of which is a decision of the Judicial Committee of the Privy Council in the case of Rahimbhoy Hubibhoy.v. Turner (20 I A 1). In that case, the assignee of one Alladinbhoy brought the suit against the appellant before the Judicial Committee to recover assets alleged to belong to the said Alladinbhoy's estate of which the appellant had become wrongfully possessed. In that case also the plaintiff invoked the aid of section 18 of the Limitation Act. 1t was held by their \Lordships of the Privy Council in that case :‑ " .. when a man has committed a fraud and has got property thereby, it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which cons titute the fraud, at a time which is too remote to allow him to bring the suit, That is attempted in the present case. But their Lordships consider, and in this they agree with both the Courts below, that all that the appellant Rahimbhoy has done is to spew that some clues and hints reached the assignee in the year 1881, which perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of the fraud, but that there was no disclosure made which informed the mind of the assignee that the insolvent's estate had been defrauded by Rahimbhoy of these assets in the year 1867." It is, therefore, clearly laid down in this decision of the Privy Council that when the injured party alleges fraud the onus initially is on him to prove the fraud. Once he has discharged that onus, it is, then upon the party injuring to show with precision that the party injured had on particular date come to know of the facts which constitute the fraud and that date is too remote from the ‑ date of the filing of the application, i.e., beyond the period of limitation as provided in the Statute, and therefore is out of time. This decision of the Privy Council has been consistently followed by most of the High Courts in India. In the case Bhusan Mani Das v. Profulla Kristo Deb (I L R 48 Cal. 119), the aforementioned judgment of the Privy Council was followed. In that case the facts were similar to the facts under con sideration before me. In that case the petitioner a lady‑.who wanted to set aside a sale had in her deposition stated that she had hearsay knowledge of the sale some 2 or 3 months before the application was preferred. The Courts below from that statement made by the lady in her deposition held that her application was out of time. Their Lordships of the High Court reversed that decision of the Lower Court following the decision of Rahimbhoy‑Hubibbhoy v. Turner. The next case is a Full Bench decision of the Calcutta High Court of the year 1922 in the case of Biman Chandra Dutta v. Promoth Nath Ghose (I L R 49 Cal. 886) Following the decision of the Privy Council referred to above, the Full Bench of the Calcutta High Court observed as follows : "Section 18, in so far as it applies to the case before us, provides that where any person having a right to institute a suit, has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, the time limited for instituting a suit, against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person injuriously affected thereby. It may be observed that this is not precisely identical with the provisions of section 26 of the Real Property Limitation Act, 1833, which makes time run from the date when the fraud is, or with reasonable deligence might have been first known or discovered. This distinction was possibly not brought to the notice of the Court in Bibi Soloman v. Abdul Aziz (1881) 8 C L R

169. The principle is, perhaps, best stated in the Words of Westbury, L. C. in Rofte v. Gregory 1864 DEG J. R S. 576, 579 "when the remedy is given on the ground of fraud it is governed by this important principle, that the right of the party defrauded is not affected by lapse of time, or generally speaking, by anything done or omitted to be done so long as he remains, without any fault of his own, in ignorance of the fraud that has been committed." This was quoted with approval by Lord James in delivering the opinion of the Judicial Committee in Bull! Coal Mining Company v. Osborn 1899 App. Cas. 351, 363 where he added : " the contention on behalf of the appellants that the statute is a bar unless the wrongdoer is proved to have taken active measures in order to prevent detection, is opposed to common‑sense as well as to the principles of equity." To this must be added further the valuable statement by Lord Hobhouse in Rahimboy v. Turner 1892 I L R 17 Born. 341 ; L P R 20 I A 1 "when a man has committed a fraud and has got property thereby, i6 is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to bring the suit." The true position then is that where a snit is on the face of it barred, it is for the plaintiff to prove in the first instance the circumstances which would prevent the statute from having its ordinary effect. A person who, in such circumstances, desires to invoke the aid of section 18, must establish that there has been fraud and that by means of such fraud he has been kept from the knowledge, of his right to sue or of the title whereon it is founded. Once this is established, the burden is shifted on to the other side to show that the plaintiff had knowledge of the transaction beyond the period of limitation. Such knowledge must be clear and definite knowledge of the facts constituting the particular fraud : as Lord Hobhouse points out, it is not sufficient for the defendant to show that the plaintiff had some clues and hints which perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of the fraud." Next is the case of the Patna High Court in Sridhar Prasad Parhi and another v. Haraprasad Parhi and another (A I R 1943 Pat. 377). In this case also the facts were similar to the facts under con sideration before me and the decision was in line with the decisions referred to above. The last of the cases that Mr. Karim referred me to is a decision of a single Bench of this Court in the case of Srish Lal Roy Chowdhury v. Brinda Rani Chowdhurani and others (6 D L R 89). Facts in that case 'are similar to the facts in the present case. There also the learned Judge, Ibrahim, J. follow ing the decisions quoted above came to the finding that the mere knowledge of sale is not sufficient in a case under section 18 of the Limitation Act. The other side must establish that the party injuring lied knowledge of the fraud at a point of time from which if calculated his application is barred according, to the provisions of the Statute under which the application is made. I may profitably quote a portion of the aforesaid judgment "The section casts an initial onus on the person‑ seeking extension. He must show that he was kept from the knowledge of his right to apply by reason of fraud committed by the anti‑party or to which the anti‑party was privy. Once this is established, the onus then shifted on to the person guilty of the fraud to show that the victim had come to know of the fraud at a time to remote to allow him to file the application. The learned Additional District Judge has found that the initial onus that lay on the petitioner was discharged, and he was entitled to extension up to Kartick 1356. In this view he was quite right. But his further decision, that he was not entitled to extension after Kartick, 1356 cannot be supported. The initial onus having been discharged, the burden lay on the opposite‑party to show that the petitioner had knowledge of the fraud at a time from which the petition was too remote. This burden could not be discharged showing merely that he had ceased to practise fraud at the relevant time. What stops the running of time is not fraud but ignorance resulting from fraud and what sets it in motion again is not the cessation of the fraud but the knowledge of it. The principle is this the person affected by the fraud cannot apply for his remedy owing to the ignorance of the real facts. That is why time does not run against him. He is not in a position to make the application until he had had definite knowledge of those facts. What the person guilty of the fraud has to prove is such definite knowledge at a time from which the applica tion is too remote. This cannot be proved merely by showing that fraud was discontinued. What is necessary to show is that the effect of the fraud already committed, namely, ignorance, was removed. The principle was summarised by Mokherjee, J. in Biman Chandra Dutta v. Promotha Nath Ghose. He observed : "The true position then is that where a suit is on the face of it barred, it is for the plaintiff to prove in the fist instance the circumstances which would prevent the statute from having its ordinary effect. A person whom in such circumstances, desires to invoke the aid of section 18, must establish that there has been fraud and that by means of such fraud he has been kept from the knowledge of his right to sue or of the title whereon it is founded. Once this is established, the burden is shifted on to the other side to show that the plaintiff had knowledge of the transac tion beyond the period of limitation. Such knowledge must be clear and definite, knowledge of the facts constituting the particular fraud ; as Lord Hobhouse points out, it is not sufficient for the defendant to show that the plaintiff had some clues and hints which perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of the fraud." The reference is to the judgment of Lord Hobhouse in Rahimbhoy v. Turner." It is, therefore, found from the decisions of the cases referred to above, which is consistent for a period of more than 70 years, that when a party alleges fraud and invokes the aid of section 18 of the Limitation Act, he must first establish the fraud committed by the other side, and once he has done so, it will be for the other side to prove that the party injured had the knowledge of fraud at a point of time beyond the period of limitation calculated from the time the application is filed. It has also been held that the mere knowledge of the sale will not be sufficient to put the petitioner out of Court on grounds of limitation. In the present case, the Courts below have not only failed to consider the allegation made by the petitioner of fraud committed on him but have also come to a wrong finding in law by holding that the application which the petitioner filed on 7‑11‑60 in Title Suit No. 144 of 1957 constituted his knowledge and therefore he is out of time by 23 days on 20‑6‑

58. The knowledge of the sale and the knowledge of the fraud are two different things. The knowledge of the facts constituting the fraud may include the knowledge of the sale but the mere knowledge of the sale does not include the knowledge of the facts of the fraud. The distinction no doubt, is subtle, but it is clear and understandable. I, therefore, hold that the mere knowledge of the sale which may be ascribed to the petitioner which may relate back to 7‑11‑57 does not constitute his knowledge of the facts of the fraud committed upon him by the decree‑holder‑auction‑purchaser in the present case and therefore he was not out of time on 20‑6‑58 in view of the fact that he invoked the aid of section 18 of the Limitation Act. The Courts below definitely fell into an error on this point. Whatever may have been the legal position, I fail to understand why did the two Courts below shirk their respon sibility from going into .the allegations of fraud made by the petitioner. It was their duty to go into the allegations of fraud as alleged by the petitioner, to assess the evidence on the point, and to come to a definite finding. Having done so they would have got the basis on which to proceed to give a decision on the point as to whether the petitioner was out of time or not. The Courts below having not done so, fell into error in computing the period of limitation. Mr. Amin Azhar, the learned Advocate for the opposite -party, could not, with vigour, resist the legal proposition as enunciated by the Privy Council and followed by the different High Courts in India. He pointed out a decision of the Division Bench of the Allahabad High Court in the case of Sarvi Begum v. Ram Chandra Sarup (I L R 47 All. 850). Having carefully gone through the report, I find that the Bench presided over by Sir Shah Muhammad Sulaiman followed the similar line as indicated by the Privy Council in 20 I A

1. I, therefore, do not see how this case helps Mr. Amin Azhar rather it goes against him. , However, since I have come to the conclusion that the judgments of the two Courts below are wrong. I make this Rule absolute and set aside the judgments of the two Courts below and remit the case to the trial Court for a thorough investigation of the allegations of fraud made by the petitioner and thereupon to come to a clear finding as to the date of the knowledge of the petitioner of the facts of fraud and the period intervening between the said date and the 20th of June 1958 on which will depend the maintainability of the application. In view of the facts and' circumstances of the case, I make no order as to costs. A. H Rule made absolute.