Gulzar Khan vs Vijay Laxmi
2013 Latest Caselaw 397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 314 of 2013
 

 
Petitioner :- Gulzar Khan
 
Respondent :- Smt. Vijay Laxmi
 
Petitioner Counsel :- P.K. Jain,B.K. Mishra
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Amit Kumar Singh, Advocate, holding brief of Sri P.K.Jain, Advocate, appearing for the appellant.

2. This is plaintiff's appeal. He instituted original suit no.316 of 1991 for refund of Rs.50,000/-, pursuant to an agreement for sale, dated 15.11.1979. The suit was decreed by Trial Court vide judgment and decree dated 23.2.1995 but the same has  been reversed by lower Appellate Court while allowing defendant-respondent's Civil Appeal No.73 of 1995.

3. The case set up by plaintiff-appellant is that in respect to house no.183 (new no.73) an agreement for sale, for a consideration of Rs.1,80,000/-, was executed with plaintiff on 15.11.1979 and part consideration of Rs.50,000/- was paid to the defendant vendor. It was also mentioned in the agreement for sale that plaintiff-appellant had been given possession of one room in the house. Subsequently plaintiff submitted that he gave certain notices to the defendant that possession of room was not handed over and it should be given. These notices are dated 29th January, 1990 and 3rd July, 1990. In the later notice dated 3rd July, 1990, plaintiff-appellant also called upon defendant to take steps for execution of sale deed and present herself before Sub--Registrar, Meerut for registration thereof. Since defendant respondent still failed, a third notice was given on 13.8.1990 revoking agreement, as a result whereof, plaintiff is now entitled for refund of Rs.50,000/-.

4. The suit was contested by defendant alleging that possession of room was already handed over to the plaintiff and this fact was duly mentioned in the agreement for sale  dated 15.11.1979. She also stated that there was a condition mentioned in the agreement for sale that sale deed shall be executed after obtaining necessary permission from competent authority and since that permission could not be obtained therefore sale deed was not executed. The permission was ultimately obtained on 9.5.1991 whereafter defendant requested the plaintiff to come forward for execution of sale deed but he failed, therefore, is not entitled to refund of any amount. 

5. The Trial Court formulated various issues but relevant thereof, issues no.1, 4 and 5 are as under:

 ^^1& D;k izfroknuh us vuqcU/k dh 'krksZ ds vuqlkj oknh dks dejs dk vkf/kiR; ugh fn;k\

4& D;k izfroknuh us fookfnr dejs dk dCtk oknh dks fodz; vuqcU/k ls iwoZ ns fn;k gS\

5& D;k iz'uxr dejs dk dCtk fn;s tkuk lafonk dk eeZ Fkk\

"1. Whether defendant had not handed over possession of room to the plaintiff according to conditions of the agreement?

4. Whether defendant had handed over possession of disputed room to the plaintiff prior to agreement for sale?

5. Whether handing over of possession of disputed room was essential part part of contract?"

(English Translation by the Court)

6. These three issues were decided together. The Trial Court disbelieved the fact that possession was handed over to the plaintiff, mentioned in the agreement for sale dated 15.11.1979, on four aspects:

i. The defendant-owner did not reply various notices of plaintiff.

ii. It is not believable that on the payment of Rs.1,000/- possession of one room could have been handed over.

iii. There is no entry of plaintiff's name in Municipal records inasmuch as, if he would have been given possession of one room, his name would have been recorded in Municipal records.

iv. Defendant could not adduce any evidence to show that possession was handed over.

7. The lower Appellate Court reversed findings of Trial Court on these issues observing that in view of Section 92 of Evidence Act, 1872 (hereinafter referred to as "Act, 1872") oral evidence in respect to the facts stated in written agreement shall not be admissible.

8. It is evidently clear that Trial Court has not at all adverted to Section 91 or 92 of Act, 1872. It is also not disputed that agreement clearly mentioned the fact that plaintiff has got possession of one room in the house. He, however, subsequently deny aforesaid possession and stated that despite notice given to defendant, she neither cared to reply the same nor handed over possession and this conduct justify view taken by Trial Court but without reversing the same, lower Appellate Court simply relying on Section 92 of Act, 1972 has passed a decree of reversal, which is patently erroneous and this has given rise to a substantial question of law.

9. I find it difficult to accept the above submission. In my view the issue raised is already covered by statutory provision as also various authorities considering statutory provisions and therefore applying the same to the facts of this case, the view taken by lower Appellant Court cannot be said to be faulty, legally or otherwise.

10. Here I may refer to Section 91 and 92 of Indian Evidence Act, 1872 (hereinafter referred to as the "Act, 1972").

11. Section 91 says, when the terms of a contract, or of a grant, or any other disposition of property, have been reduced to the form of document, no evidence shall be given in proof of terms of such contract, grant or other disposition of property except the document itself.

12. Section 92 says when the terms of any contract, grant or other disposition of property have been proved according to Section 91, no evidence of any oral agreement of statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from, its term.

13. Section 91 is based on principle, i.e., best evidence rule. The best evidence about contents of a document would be the document itself and it is this production of document, required by Section 91 in proof of its contents. It excludes admission of oral evidence for proving contents of documents except in cases where secondary evidence is allowed to be led under relevant provisions of Act, 1872.

14. In The Chief Controlling Revenue Authority, Madras v. Pioneer Spinners Private Ltd., AIR 1968 Madras 223 the Court observed that oral proof cannot be substituted for written agreement. If the writing evidences the agreement, it must be taken that the parties themselves have tacitly considered the writing as the repository and appropriate evidence of the agreement. One of general and most inflexible rule is wherever written instruments are created, may be as required by law or by contracts of parties to be memorials of truth of terms of contract, any other evidence is excluded from being led, either as a substitute for such instrument or to contradict it. There is a matter both of principle and of policy; of principle because such instruments are in their own nature entitled to a much higher degree of credit than oral evidence; of policy, because it would be attended with great mischief if those instruments upon which man's right depended were liable to be impeached by loose and uncertain oral evidence. It is this principle of policy which has been recognised in Sections 91 and 92 of Act, 1872 and, therefore, the document itself constituting the best evidence of terms should be produced in the court and for contradicting the terms no oral evidence is admissible once the document is proved except of a case where it is alleged that document has been obtained by fraud or misrepresentation etc.. Then for such fact only evidence can be led and not otherwise. This view has been taken by various courts in numerous cases but I may refer some of such authorities i.e. U. Sin Vs. U tun Si, AIR 1935 Rang 473; Nain Sukh Das Vs. Gowardhan Das, AIR 1948 Mag 110; Dalmia Jain and Co. Vs. K.L. Work, AIR 1952 Pat 393; Phuljhari Devi Vs. Mithai Lal, AIR 1971 All 494; and, Belapur Co. Vs. Maharashtra S.F. Corporation, AIR 1969 Bom 231.

15. The occasion came before Bombay High Court as to what is the meaning of "terms" and referring to dictionary meaning in B.P. Bhatt Vs. V.R. Thakkar, AIR 1972 Bom 365 the Court said that expression "terms" has been defined as "limiting condition". Further the word "terms" is defined to mean conditions or stipulations limiting what is proposed to be granted or done. Expression "terms" connotes both conditions as well as warranties and that contract are normally made up of number of terms, some of which are regarded as major or essential terms and are, therefore, called conditions and others are regarded of minor importance and, therefore, called warranties. The expression "terms" in Sections 91 and 92 must relate to statements, assertions or representations contained in the written contract which relate to the subject matter of the contract and to something to be done or not to be done under the contract.

16. The terms and conditions of a written document cannot be explained or controverted by oral evidence and such oral evidence is inadmissible.

17. One of the exception where oral evidence is admissible is when a party claims that the document itself is a sham document or has been obtained by fraud or misrepresentation.

18. In Gangabai Vs. Chhabubai, AIR 1982 SC 20, it was held that it is permissible for a party to a deed to contend that deed was not intended to be acted upon but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. The Court said:

"the bar imposed by Section 92(1) applies only when a party seeks to rely upon the document embodying the terms of the transaction and not when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose, oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties."

19. This decision has been reiterated and followed in Ishwar Dass Jain (Dead) thr. Lrs. Vs. Sohan Lal (Dead) By Lrs., AIR 2000 SC 426.

20. In the present case, document itself has not been challenged but attempt was made to contradict a statement of fact, recorded in the document, and, that is how Section 92 comes into play as held by Apex Court. No oral evident to contradict such terms/fact stated in the document is admissible. The lower Appellate Court, therefore, has rightly applied the law to the facts of the case in reversing the decision of Trial Court, which has completely failed to look into the statutory provisions by ignoring the contents of a document based on oral evidence.

21. Since the issue raised is already covered by statutory provisions and precedents interpreting the same and it is only the question of application thereupon to the facts of the case, I do not find that any substantial question of law has arisen in the matter so as to warrant adjudication by this Court.

22. The appeal is accordingly dismissed.

Order Date :- 5.4.2013

KA