Holding

The agreement was a licence, not a lease; sub‑tenancy without landlord consent is illegal; the High Court correctly exercised its powers to enhance damages and to hear the appeal, and the appellant’s plea of no concession was untenable.

Summary

The father of the plaintiff entered into an agency‑cum‑licence deed with the defendant for the use of a shop as a showroom, with commission payable on tailoring and material sales. Possession of the shop remained with the plaintiffs, but the defendant later occupied it, stopped paying commission and destroyed evidence of possession. The trial court awarded possession, commission and damages, which the High Court affirmed, increasing the monthly damages from Rs.500 to Rs.1,200 and holding the agreement to be a licence, not a lease or sub‑tenancy. On appeal, the defendant argued that the High Court had no jurisdiction, that no concession was given, that the agreement was a sham and that Sections 91 and 92 of the Evidence Act barred the findings. The Supreme Court held that the parties had consented to the High Court hearing the matter, that the agreement was a licence, that sub‑tenancy without landlord consent was unlawful, and that the High Court was empowered to enhance damages under Order 41 CPC. Consequently, the appeal was dismissed with costs.

Issues considered

The nature of the agreement: licence versus lease/sub‑tenancy under the Delhi Rent Control Act, 1958.
Whether the defendant could be deemed a sub‑tenant without the original landlord's consent.
Whether the High Court could enhance the damages awarded by the trial court.
Whether the defendant could claim that no concession was given and that the High Court acted as a trial court.
The applicability and interpretation of Sections 91 and 92 of the Indian Evidence Act, 1872 to the agreement.
Whether the agreement was a sham document and could be disregarded.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rules 30, 32, 33
Code of Criminal Procedure, 1973s. 145
Delhi Rent Control Act, 1958s. 16(2), s. 16(8)
Indian Evidence Act, 1872s. 91, s. 92

Subjects

licence agreementleasesub‑tenancyrent controldamages enhancementIndian Evidence Actbest evidence rulecivil appealevictioncommissionpossession

Judgment

!
../

A ROOP KUMAR
V.

MOHAN THEDANI

APRIL 2, 2003

B [SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ.]

Rent r.md Eviction:

Delhi Rrnt Cumrol .1ct, 1958; Section 16(8):
c
Com111<!l'cial pre111ises-Agcncy-cu111-Licence agree111ent between tenant
and another/appellant for a fixed periur.1--Possession a11d rights of tenanl)'
not ported with--Poyment of commission-Agree111e11t-Nature of-Held:
Agreeme/1/ dues not specifj• any amount payable 111onthly by the appellant to
D tenant as rent-Regular pay111ent ofcommission i11 execution of an agreement-
Abse11ce of consent of the landlord to creaJe sub-te11ancy-He11ce, High Court
has right~)' heir.I that the agree111ent was one of licence and not of lease-Code
of Cri111i11al Procedure, 1973; Section 1./5.

Ei'idence Act. 1872: Ss. 91 & 92:
E Co111rac1-lf' r ii te11/orol-Tcrms--P arl ies-E vident iary value of-
Discusser.I

Civil Procedure Car.le, 1908-0../I, Rules 30, 32 & 33: Quantu111 of
da111age-E11ha11ce111e11t of-High Court-Jurisdiction of-Held: High Court
F possess p01rer under the relcrnnt prorisio11s of lair to enha11ce the da111ages
awarded by Courts belo11'.

Practice and Procr:dure:

App<!al-Plea of no concession-Held, whe11 parties conse111ed before
G High Court 10 render verdict 011 the basis of material a\'Gilahle, it is nol open
for the111 to tok<.' .rnch plea i11 appeal.

Word1· & Phrases:

'Creatio11 of 011 act', 'integration of w1 act' and 'best evidence rule'_
H Afeaning of
292
ROOP KUMAR v. MOHAN THE DANI 293
Father of the respondent-tenant had entered into an agency-cum- A
deed of licence with the appellant for a fixed period to run business of
tailors and drapers by using the ~hop /showroom of respondent on
payment of certain amount of commission. However, possession of the shop
and tenancy rights continued with the respondent. The agreement was
acted upon by the parties but after some time, appellant had trespassed B
in the suit premises by destroying all evidence of possession of the
respondent and did not make payment of due commission for certain
period. Under such circumstances, respondent initiated proceedings under
Section 145 Cr.P.C. after serving notices to appellant for rendition of
accounts, payment of balance amount of commission for certain period,
grant of damages and also for recovery of possession of the suit premises. C

Trial Court decreed the suit in favour of the respondent and the
judgment was affirmed by the High Court with some modifications by
enhancing the damages from Rs. 500 p.m. to Rs. 1,200 p.m. for certain
period. Accordingly a decree was passed. Hence the present appeal.
D
It was contended for the appellant that the High Court was not
justified in hearing the appeal since it was the trial Court which proceeded
on the wrong premises to arri\'e at its findings; that the agreement was
never acted upon; that the High Court erroneously proceeded as if some
of the issues were not pressed but it was not so; that the basic issues in
the matter had neither been adjudicated by the Trial Court nor by the E
High Court; that since these issues have important bearing, evidence need
to be considered pertaining to these issues in proper perspective; that the
High Court did not consider the implication of Ss. 91 and 92 of Indian
Evidence Act in its true perspective; and that the High Court could not
suo 1110111 increase the damages. F
On behalf of the respondent, it was submitted that when High Court
had already recorded consent by the appellant, it is not open to him to
take plea of no concession; that the pica of appellant as sub-tenant was
untenable in \'iew of cognizance of relevant documentary evidences by the
High Court; and that the High Court possess power under the rele\'ant G
prorisions of law to increase damages.

Dismissing the appeal, the Court

HELD: I.I. In the instant case, the parties agreed before the High
Court that instead of remanding the matter to trial Court, it should H
294 SUPREME COURT REPORTS [2003) 3 S.C.R.

A consider materials on record and render a verdict. After having done so,
it is not open to the appellant to turn round or take a plea that no
concession was given. [302-AI

B
State of Maharashtra v. Ramdas Shrinivas Nayak and Anr., 119821 2
SCC 463 and Bharnagar University v. Pa!itana Sugar Mill Pvt. ltd and Ors.,
(2002) AIR sew 4939, referred to.

1.2. Section 91 of the Evidence Act merely forbids proving the
-
contents of a writing otherwise than by writing itself; it is covered by the
ordinary rule of law of evidence, applicable not merely to solemn writings
of the sort named but to others known some times as the "best evidence
c rule". It is in reality declaring a doctrine of the substantive law, namely,
in the case of a written contract, that all proceedings and contemporaneous
oral expressions of the thing are merged in the writing or displaced by it.
1302-E, Fl

D Prelimi1w1}' Law on Evidence by T/wver, P.397 and P.398; Evidence
by Phipson, 7th Edn. P. 546; and Evidence by Wig more P.2406, referred to.

1.3. The enaction or creation of an act is concerned with the question
whether any jural act of the alleged tenor has been consummated; or, if
consumated, whether the circumstances attending its creation authorise
E its avoidance or annulment. The integration of the act consists in
embodying it in a single utterance or memorial - commonly, of course, a
written one. This process of integration may be required by law, or it may
be adopted voluntarily by the actor or actors and in the latter case, either
wholly or partially. Thus, the question in its usual form is whether the
particular document was intended by the parties to cover certain subjects
F of transaction between them and, therefore, to deprive of legal effect all
other utterances. The practical consequence of integration is that its
scattered parts, in their former and incohate shape, have no longer any
jural effect; that are replaced by a single embodiment of the act. This rule
is based upon an assumed intention on the part of the contracting parties,
G evidenced by the existence of the written contract, to place themselves
above the uncertainties of oral evidence and on a disinclination of the
Courts to defeat this object, when persons express their agreements in
writing, it is for the express purpose of getting rid of any indefiniteness
and to put thdr ideas in such shape that there can be no misunderstanding,
which so often occurs when reliance is placed upon oral statements.
H Written contracts presume deliberation on the part of the contracting
ROOP KUMAR v. MOHAN THEDANJ 295
parties and it is natural they should be treated with careful consideration A
by the Courts 11nd with a disinclination t'l disturb the conditions of matters
as embodied in them by the act of the 1,arties. 1303-F, G, H; 304-A, B)

Starkie on Evidence, P. 698, referred to.

1.4. Legislature has prevented oral evidence being adduced for the B
purpose of varying the contract as between the parties to the contract
under Section 92 of Evidence Act; but, no such limitations are imposed
under Section 91. Having regard to the jural position of Sections 91 and
92 and the deliberate omission from Section 91 of such words of limitation,
it must be taken note of that even a third party if he wants to establish a C
particular contract between certain others, either when such contract has
been reduced to in a document or where under the law such contract has
to be in writing, can only prove such contract by the production of such
writing. [304-F, G, HJ

1.5. Sections 91 and 92 apply only when the document on the face D
of it contains or appears to contain all the terms of the contract. Section
91 is concerned solely with the mode of proof of a document with limitation
imposed by Section 92 relates only to the parties to the document. If after
the document has been produced to prov~'·its terms under Section 91,
provisions of Section 92 come into operation for the purpose of excluding
evidence of any oral agreement or statement for the purpose of E
contradicting, varying, adding or subtracting from its terms. Sections 91
and 92 in effect supplement each other. The two Sections, however, differ
in some material particulars. (305-A-B; CJ

Bai Hira Devi and Ors. v. Official Assignee of Bombay, AIR (1958) SC
448; Smt. Gangabai v. Smt. Chhabubai, AIR (1982) SC 20 and Ishwar Dass F
Jain (dead) through LRs. v. Sohan Lal (dead) by Lrs., AIR (2000) SC 426,
referred to.

1.6. As to the plea of the appellant claiming the agreement as sham
document, the respondent had proved on record that the appellant had G
acted upon the agreement by himself. (306-B, CJ

1.7. The agreement does not specify any monthly amount to be paid
by the appellant to respondent. Therefore, the question of any fixed
monthly rent does not arise. The High Court has also taken note of several
other instances to conclude that the agreement was one of licence and not H

j
296 SUPREME COURT REPORTS [2003] 3 S.C.R.
'
A of lease.

1.8. There was no consent of the original landlord to create sub-
tenancy in terms of Section 16(2) of the Rent Control Act. Therefore,
something which is forbidden by law could not be pleaded. High Court
was justified in rejecting the plea of sub-tenancy. 1306-G, HI
B
Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., AIR (1959) SC
689 and Delta International Ltd v. Shyam Sundar Ganeriwal/a and Anr., AIR
(1999) SC 2607, relied on.

2. High Court had exercised powers under Order 41, Rules 30, 32
C and 33 CPC. It took note of the ground realities which were not disputed.
It recorded a positive finding that in the normal course the appellant would
have paid at least Rs. 1,200 p.m., though the amount payable was more
than, even for the period for which accounts were rendered or were to be
rendered. Besides, the rentals in the area have increased by leaps and
D bounds after 1980. So, the specious plea that there was no scope for
enhancement of the quantum of damages fixed by the trial Court is
indefensible. [307-G, H; 308-A)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2631 of2003.

E From the Judgment and Order dated 19.1.2001 of the Delhi High Court
in R.F.A. No. 77 of 1997.

Yogeshwar Prasad, Anuvrat Sharma and Mrs. Rachna Gupta for the
Appellant.

F K.R. Nagaraja and A.P. Jain for the Respondent.

The Judgment of the Court was delivered.by

ARIJIT PASAYAT, J. Leave granted.
-.
This case is a classic example of a just cause getting defeated by
G setting up dubious pleas and depriving a party of what is legally due to him.
It is one of those innumerable cases where course of justice has been attempted
to be defle1:ted by factual and leg~! red herrings.

Appellant is the defendant in a suit filed by respondent-plaintiff No. I
H for recovery of consolidated and expected commission/rendition of accounts
i
'r
ROOP KUMAR v. MOHAN THEDANI (PASA YAT, J.] 297

and possession of Premises No.15AII6-l, Ajmal Khan Road, Karol Bagh, A
New Delhi.

As per suit averments respondent-plaintiff No. I was a tenant in respect
of the aforesaid premises on a monthly rent w.e.f. 15.3.1962. The shop was
registered under the Shops and Commercial Establishments Act, (in short the
'Establishment Act') in the name of Mis Esquire, of which respondent-plaintiff B
No. I was the proprietor. Later on, the name of the concern was changed to.
Mis Purshotams. For all intents and purposes there was no change of
proprietorship. Plaintiff No.2, Tahil Ram is the father of respondent-plaintiff
No. I and his power of attorney holder. Tahil Ram entered into an agency-
cum-deed of licence with the appellant-defendant on 15.5.1975 and the terms C
of such agency-cum-li~ence agreement was incorporated in an agreement
dated 15.5.1975. Earlier, the appellant-defendant was having his business as
·tailors and drapers at A- 7, Prahlad Market. Deshbandhu Gupta Road. New
Delhi. He had approached respondent-plaintiff No. I for use of his premises
in question under his tenancy as a show room on licence-cum- agency basis.
As per the agreement, plaintiffs were to receive their commission @ 12% on D
tailoring business and @ 3% commission on the sale of materials of all kinds
as conducted by the appellant-defendant. Possession of the shop continued
with the plaintiffs along with the tenancy rights. The agreement was initially
for a period of five years, with option of extension by mutual consent. The
agreement expired on 14.5.1980 and was never renewed thereafter. In terms E
of clause 5 of the agreement, the appellant-defendant was to keep separate
accounts of the tailoring and cloth materials; and therefore, he was an
accounting party. The agreement wa.s duly acted upon and at no point of time
possession was delivered to the defendant and as noted above, remained with
the plaintiffs. Later on, for his own convenience, defendant brought his tailors
for tailoring business. Defendant has trespassed by destroying all traces of F
evidence of possession and has started displaying the signboards and other
advertisement materials, as if Mis Roop Tailors and Drapers are conducting
business in the suit premises. Accounts were rendered up to 30.6.1976.
Payments were made by cheques and by other modes. Accounts were also
rendered up to 31.3.1978 by the defendant under his own hand and signatures. G
After that date, defendant neither rendered accounts nor made any payment
in spite of repeated rem in de rs and requests. Legal notice was served through
registered post for payment of commission, and a demand was made for true
and fa:thful rendition of accounts. After 14.5.1980, defendant was asked to
vacate the premises, but he forcibly continued to occupy the premises. This
led to initiation of proceedings under Section 145 of the Code of Criminal H
298 SUPREME COURT REPORTS (2003] 3 S.C.R.

A Procedure, 1973 (in short the 'Cr.P.C.'). Defendant to frustrate the legal
demands of the plaintiffs filed a suit for injunction. Though, the period of the
agency-cum-licence deed expired on 15.5.1975, the defendant continued to
remain in possession. On the ground of limitation, the plaintiffs claimed what
is due from 1.10.1977 to 31.3.1978 which came to be Rs. 7,000 and from
B 1.4.1978 to 14.5.1980 the commission was estimated to be about Rs. 70,000.
Claim of damages at Rs. 6,000 from 14.5.1980 to 14.10.1980 was made for
a period of five months. Plaintiffs also claimed a decree for possession of the
shop along with a decree for damages and for payment of the commission
and rendition of accounts.

c occupation
Primary stand of the defendant in reply was that he was in lawful
and possession as tenant under the plaintiffs. Some documents on
false representation had been obtained from him giving the wrong impression
that they were to be produced for fixing of standard rent in a case of eviction,
and these documents were never intended to be acted upon otherwise. The
purported agreement was not acted upon, and was a sham document and
D there was no agreement relating to commission and. therefore, the question
of rendition of any accounts did not arise. It was further stated that due to
litigation between plaintiff No. I and his landlords. the defendant was made
a victim though with a spirit of good faith and to help the plaintiffs, he had
signed some documents which were not intended to be acted upon, but have
E been maliciously relied upon to his disadvantage. There was no relationship
of principal and agent as claimed. A suit for injunction had been filed and
the same is pending adjudication. Additional plea was taken that as per
avennents in the plaint, defendant is alleged to have committed act of criminal
trespass on 2.5. l 980 after surrendering possession to the plaintiffs, so the suit
on the basis of agreement dated l 5.5. l 975 or on the basis of termination of
F agency-cum-licence deed is not maintainable.

Initially 11 issues were framed on 17.2.1981. Subsequently, an additional
issue was framed on 6.4.1993. Nine witnesses were examined to further the
plaintiffs' case, while defendant examined seven witnesses. Several documents
were exhibited and proved. Some other documents were marked, but were
G not proved.

The Trial court decreed the suit in favour of the plaintiffs and against
the appellant-defendant. The judgment and decree came to be assailed in
Regular First Appeal before the Delhi High Court.

H Before the High Court the parties agreed that the basic question which
ROOP KUMAR v. MOHAN THEDAN! [PASA Y AT, J.) 299

required consideration was whether relationship between the respondent and A
the appellant was that of licensor and licensee or it was that of lessor or
lessee. The Trial Judge had held that the transaction between the respondent
and appellant evidenced by an agreement dated 15.5.1975 amounts to licence
and not sub-letting. There was a finding recorded by the Trial Court to the
effect that the appellant was a party to earlier ejectment proceedings which B
was not factually correct. Since the Trial Court nurtured this wrong notion
which runs through the entire judgment, it was held that the reasoning given
by the Trial Court in support of its findings on various issues and particularly
issues Nos. I, 6, 7 and IO cannot be sustained. The High Court with consent
of parties exercised powers conferred by Order41Rules30, 32 and 33 of the
Code of Civil Procedure, 1908 (in short the 'Code'). Arguments were heard C
on the merit of the issues framed in the suit. On consideration of the rival
stands, the High Court came to hold that the conclusions arrived at by the
Trial Court were correct, though the reasonings in support of the conclusions
were different. That being the position, reasonings were recorded in support
of the conclusions by the High Court. On consideration of the rival stands,
it held that the agreement dated 15.5.1975 was entered into between them D
with mutual consent and the appellant-defendant signed the same voluntarily
and out of his free will; it was not a sham document; was in fact acted upon;
the appellant-defendant was an accounting party in terms of the agreement
referred to above; in terms of that agreement accounts had been rendered up
to March 1978 and payment of commission was made up to June 1976; the E
appellant-defendant did not criminally trespass in the disputed shop; he was
in unlawful possession of the shop as the licence came to end on expiry of
the period as contained in the agreement dated 15.5.1975; the appellant-
defendant was only a licensee and not the lessee and, therefore. the Civil
Court i.e. the Trial Judge had jurisdiction to entertain the suit. The commission
charges for the period from 14. I0.1977 to 3 1.3. 1978 fixed at Rs. 7,000/- was F
affinned. For the period from 1.4. 1978 and 14.5. 1980 the appellant-defendant
had not rendered accounts and, therefore, taking into account the average
monthly commission for which the accounts were rendered, a decree for Rs.
25,500 was passed in favour of the plaintiffs and against the defendant in
respect of the commission charges forthe period from 1.4.1978 to 14.5.1980 G
and subject to payment of court fees by the plaintiffs. As the appellant-
defcndant was in unauthorised occupation of the premises in question at the
rate of Rs. 1200 p.m., the Trial Court was not justified in fixing at the rate.
of Rs. 500. The commission for the period for which accounts were rendered
was more than Rs. 1200 in the normal course and, therefore, the appellant
would have paid Rs. 1200 p.m. even if he was continuing in possession in H
J

300 SUPREME COURT REPORTS (2003] 3 S.C.R.

A terms of the agreement. The rentals in the area have increased by leaps and
bounds after 1980 and the claim of Rs. 1200 p.m. was very reasonable.
Therefore, respondent-plaintiff No. I would be entitled to damages for use
and occupation of the premises by the appellant-defendant at the rate of
Rs.1200 p.m. A decree of Rs. 6,000 was accordingly passed for the period
B from 15.5. 1980 to 14.10.1980 subject to payment of court fees by the
respondent-plaintiff No. I. Decree for possession was passed. The respondent-
plaintiff No. I was entitled to damages for use and occupation of the premises
at the rate of Rs. 1200 p.m. from the date of suit till delivery of possession
subject to payment of proper court fee. Costs were awarded. The appeal was
dismissed with costs.
c In appeal, learned counsel for the appellant has taken various pleas.
Essentially they are as follows: The High Court was not justified in hearing
the appeal as if it was the Trial Court having come to the conclusion that the
premises on which the Trial Court proceeded were erroneous. That amounts
to denial of a forum of appeal which was statutorily provided and in essence
D amounted to deprivation of such a right. Reliance was placed on a decision
of this Court in A.R. Antulay v. R.S. Nayak and Ors., AIR (1988) SC 1531).
The High Court has not considered the true import of Sections 91 and 92 of
the Indian Evidence Act, 1872 (in short the 'Evidence Act') in its proper
perspective. It is not as if a party is not entitled to lead oral evidence to show
E that the agreement was not intended to be acted upon and the terms were
really not reflective of intent ion of the parties. In fact, the agreement was not
acted upon. The High Court proceeded on an erroneous basis as if some of
the issues were not pressed before the Trial Court and the High Court. The
clauses of the agreement on which the Trial Court and the High Court placed

-
reliance do not prove the essence of the transactions and/or intention and
F should not have been given undue importance. Some of the basic issues like
Issue No. l 2 were not adjudicated by the Trial Court and the High Court.
Though reference was placed on the objections filed to the application under
Section 145 of the Cr.P.C., stand of the appellant was not taken note of. In
fact. an application had been filed for taking note of the objections which
G unfortunately the High Cou11 treated to have become infructuous as it was
listed on the day the judgment was delivered. While considering a plea that
the agreement was not intended to be acted upon, veil has to be lifted by
considering the evidence and the surrounding circumstances in their proper
perspective. Though the Trial Court had granted Rs. 500 p.m. as damages,
the High court suo motu without even any challenge thereto by the respondent
I-I raised the same to Rs.1200 p.m. The specific stand of the appellant was that >
ROOP KUMAR v. MOHAN THEDANI [PASAYAT. J.] 301

-· the agreement was executed as a devise to protect the plaintiffs in the suit for A
ejectment or/and that relating to fixation of standard rent in the dispute
between the plaintiffs and their landlords. The High Court erroneously came
to hold that payments were made as commissions for various periods. As the
Trial Court proceeded on the basis as if the appellant was a party in
proceedings earlier, the foundation of its conclusions was shaken. The High B
Court should have remitted the matter back to it for fresh adjudication after
having found that the conclusions were contrary to records and materials;
instead it adjudicated the matter acting as a Trial Court which is not
permissible. The High Court erroneously proceeded to do so as ifthe appellant
had conceded to such a course being adopted while in reality there was no
concession. c
Per contra, learned counsel for the respondent submitted that after having
agreed before the High Court that it may take up tpe whole matter for
adjudication on merits, on consideration of the evidence on record, it is not
open to the appellant to take a stand that there was no such concession when
in fact the High Court has specifically recorded about such concession in D
detail. The stand that the appellant was a sub-tenant, being a tenant under the
plaintiffs is clearly untenable in view of the documentary evidence to which
the High Court has referred in detail. The scope and ambit of Sections 91
and 92 of the Evidence Act have been rightly considered by the High Court.
The stand that the agreement was intended to be a protection of the plaintiffs E
in proceedings between plaintiffs and their landlords is falsified because of
the fact that the suit for eviction was filed after about 7 months of execution
of the agreement. There is no dispute that the agreement was executed.
Therefore, the appellant was bound by it. In any event, there is no question
of sub-tenancy in view of the clear bar provided under Section 16 of the
Delhi Rent Control Act, 1958 (in short the ·Rent Control Act') which prohibits F
sub-tenancy without a consent of the original landlord. It has not been shown
that the original landlord had consented to the sub-tenancy. The High Court
has rightly therefore discarded the plea. Not only issue No.12 but also several
other issues were given up before the Trial Court and the High Court and it
is not open to the appellant to make a grievance that these issues were not G
considered. So far as enhancement of the damages is concerned, the High
Court had exercised powers under Order 41 Rule 33 with the consent of the
parties and when the claim was for damages, it was open for the High Court
to accept the claim as made by the respondent-plaintiff No. I in the Trial
Court by fixing damages at Rs. 1200 p.m.
H
302 SUPREME COURT REPORTS f2003) 3 S.C.R.

A It wou Id be logical to first deal with the plea relating to absence of ..._
forum of appeal. It is to be noted that the parties agreed before the High
Court that instead of remanding the matter to trial Court. it should consider
materials on record and render a verdict. After having done so, it is not open
to the appellant to turn round or take a plea that no concession was given.
B This is clearly a case of sitting on the fence, and is not to be encouraged. If
really there was no concession. the only course open to the appellant was to
move the High Court in line with what has been said in State of Maharashtra
v. Ramdas Shrinivas Nayak and Anr., [1982] 2 SCC 463. In a recent decision
Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors., (2002) AIR
sew 4939) the view in the said case was reiterated by observing that
C statements of fact as to what transpired at the hearing, recorded in the judgment
of the Court, are conclusive of the facts so stated and no one can contradict
such statements by affidavit or other evidence. If a party thinks that the
happenings in Court have been wrongly recorded in a judgment. it is incumbent
upon the party, while the matter is still fresh in the minds of the Judges, to
call the attention of the very Judges who have made the record. That is the
D only way to have the record corrected. If no such step is taken, the matter
must necessarily end there. It is not open to the appellant to contend before
this Court to the contrary.

Before we deal with the factual aspects, it would be proper to deal with
E the plea relating to scope and ambit of Sections 91 and 92 of the Evidence
Act.

Section 91 relates to evidence of terms of contract, grants and other
disposition of properties reduced to form of document. This section merely
forbids proving the contents of a writing otherwise than by writing itself; it
F is covered by the ordinary rule of law of evidence, applicable not merely to
solemn writings of the sort named but to others known some times as the
"best evidence rule". It is in reality declaring a doctrine of the substantive
Jaw. namely, in the case of a written contract. that of all proceedings and
contemporaneous oral expressions of the thing are merged in the writing or
displaced by it. (See Thayer's Preliminary Law on Evidence p.397 and p.398;
G Phipson Evidence 7th Edn. P.546; Wigmore's Evidence p.2406.) It has been
best described by Wigmore stating that the rule is in no sense a rule of
evidence but a rule of substantive law. It does not exclude certain data because
they are for one or another reason untrustworthy or undesirable means of
evidencing some fact to be proved. It does not concern a probative mental
H process • the process of believing one fact on the faith of another. What the
303
.... ROOP KUMAR v. MOHAN THEDANI [PASA YAT, J.]

rule does is to declare that certain kinds of facts are legally ineffective in the A
substantive law; and this of course (like any other ruling of substantive law)
results in forbidding the fact to be proved at all. But this prohibition of
proving it is merely that dramatic aspect of the process of applying the rule
of substantive law. When a thing is not to be proved at all the rule of
prohibition does not become a rule of evidence merely because it comes into
play when the counsel offers to "prove" it or "give evidence" of it; otherwise, B
any rule of law whatever might reduced to a rule of evidence. It would
become the legitimate progeny of the law of evidence. For the purpose of
specific varieties of jural effects - sale, contract etc. there are specific
requirements varying according to the subject. On contrary there are also
certain fundamental elements common to all and capable of being generalised. C
Every jural act may have the following four elements:

(a) the enaction or creation of the act.
(b) its integration or embodiment in a single memorial when desired;
(c) its.solemnization or fulfillment of the prescribed forms, if any; D
and
(d) the interpretation or application of the act to the external objects
affected by it.

The first and fourth are necessarily involved in every jural act, and
second and third may or may not become practically important, but are E
always possible elements.

The enaction or creation of an act is concerned with the question whether
any jural act of the alleged tenor has been consummated; or, if consummated,
whether the circumstances attending its creation authorise its avoidance or F
annulment. The integration of the act consists in embodying it in a single
utterance or memorial - commonly, of course, a written one. This process of
integration may be required by law, or it may be adopted voluntarily by the
actor or actors and in the latter case, either wholly or partially. Thus, the
question in its usual form is whether the particular document was intended
by the parties to cover certain subjects of transaction between them and, G
therefore, to deprive of legal effect all other utterances.

The practical consequence of integration is that its scattered parts, in
their former and incohate shape, have no longer any jural effect; they are
replaced by a single embodiment of the act. In other words, when a jural act
is embodied in a single memorial all other utterances of the parties on the H
~-
·1
304 SUPREME COURT REPORTS [2003] 3 S.C.R.

A topic are legally immaterial for the purpose of determining what are the tenns ~
of their act. This rule is based upon an assumed intention on the part of the I
contracting parties, evidenced by the existence of the written contract, to i,..
place themselves above the uncertainties of oral evidence and on a
disinclination of.the Courts to defeat this object. When persons express their
agreements in writing, it is for the express purpose of getting rid of any
B indefiniteness and to put their ideas in such shape that there can be no
misunderstanding, which so often occurs when reliance is placed upon oral
statements. Written contracts presume deliberation on the part of the contracting
parties and it is natural they should be treated with careful consideration by
the Courts and with a disinclination to disturb the conditions of matters as
C embodied in them by the act of the parties. (See Mc Kelvey's Evidence
p.294). As observed in Greenleafs Evidence page 563, one of the most
common and important of the concrete rules presumed under the general
notion that the best evidence must be produced and that one with w!J.ich the
phrase "best evidence" is now exclusively associated is the rule that when the
contents of a writing are to be proved, the writing itself must be produced
D before the Court or its absence accounted for before testimony to its contents
is admitted.

It is likewise a general and most inflexible rule that wherever written
instruments are appointed, e:ither by the requirement of law, or by the contract
E of the parties, to be the repositories and memorials of truth, any other evidence
is excluded from being used either as a substitute for such instruments, 01 to
contradict or alter them. This is a matter both of principle and policy. It is
of principle because such instruments are in their own nature and origin,
entitled to a much higher degree of credit than parol evidence. It is of policy
because it would be attended with great mischief if those instruments, upon
F which men's rights depended, were liable to be impeached by loose collateral
evidence. (See Starkie on Evidence p. 648)

In Section 92 the Legislature has prevented oral evidence being adduced
for the purpose of varying the contract as between the parties to the contract;
but, no such limitations are imposed under Section 91. Having regard to the
G jural position of Sections 91 and 92 and the deliberate omission from Section
91 of such words of limitation, it must be taken note of that even a third
party if he wants to establish a particular contract between certain others,
either when such contract has been reduced to in a document or where under
the law such contract has to be in writing, can only prove such contract by
H the production of such writing.
ROOP KUMAR v. MOHAN THEDANI [PASAYAT, J.] 305

Sections 91 and 92 apply only when the document on the face of it A
contains or appears to contain all the terms of the contract. Section 91 is
concerned solely with the mode of proof of a document with limitation imposed
by Section 92 relates only to the parties to the document. If after the document
has been produced to prove its terms under Section 91, provisions of Section
92 come into operation for the purpose of excluding evidence of any oral
';I
agreement or statement for the purpose of contradicting, varying, adding or B
subtracting from its terms. Sections 91 and 92 in effect supplement each
other. Section 91 would be inoperative without the aid of Section 92, and
similarly Section 92 would be inoperative without the aid of Section 91.

The two sections are, however, differ in some material particulars. C
Section 91 applies to all documents, whether they purport to dispose of rights
or not, whereas Section 92 applies to documents which can be described as
dispositive. Section 91 applies to documents which are both bilateral and
unilateral, unlike Section 92 the application of which is confined to only to
bilateral documents. (See: Bai Hira Devi and Ors. v. Official Assignee of
Bombay, AIR ( 1958) SC 448. Both these provisions are based on "best D
evidence rule". In Bacon's Maxim Regulation 23, Lord Bacon said "The law
will not couple. and mingle matters of speciality, which is of the higher
account, with matter of averment which is of inferior account in law". It
would be inconvenient that matters in writing made by advice and on
consideration. and which finally import the certain truth of the agreement of E
parties should be controlled by avennent of the parties to be proved by the
uncertain testimony of slippery memory.

The grounds of exclusion of extrinsic evidence are (i) to admit inferior
evidence when law requires superior would amount to nullifying the law, (ii)
when parties have deliberately put their agreement into writing, it is F
conclusively presumed, between themselves and their privies, that they
intended the writing to form a full and final statement of their intentions, and
one which should be placed beyond the reach of future controversy, bad faith
and treacherous memory.

This Court in Smr. Gangabai v. Smt. Chhabubai, AIR 1982 SC 20 and G
lshimr Dms Join. (dead! rhr. Lrs. v. Sohan Lal (dead) by Lrs. AIR (2000)
SC 426 with reference to Section 92( I) held that it is permissible to a party
to a deed to contend that the 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. Oral evidence is H
•I

306 SUPREME COURT REPORTS [2003) 3 S.C.R.

A admissible to show that 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.

But the question is whether on the facts of the present case, the reasons
given by the defendant-appellant in his evidence for claiming the agreement
B as sham document can be accepted.

As noticed by the High Court, the respondent-plaintiff No. I had proved
on record that the appellant-defendant had acted upon the agreement by
himself, submitting the statements giving the account of tailoring and sale of
C materials as well as payment of commission on the basis of statements as per
the terms of an agreement.

The High Court also referred to certain exhibited documents to hold
that the appellant was paying commission at the rate of 12% on the tailoring
business, and 3% on the sale of materials of all kinds. Reference has been
D made to Exhibi!s PWs 6/4, 615, 616 to 6/9. It was noted that cheque dated
12th August, 1975 for Rs.963.43 has been paid which corresponds to the
commission for the month of July 1975 payable on the sale of cloth as well
as tailoring. The cheque is exhibited as PW 2/3.

On a reference to Exhibit PW 6/4 and Ex.PW6/5, it appears that in
E respect of the sale of cloth and on commission of tailoring, the amounts
payable for the month of July 1975 are Rs.454.95 and Rs.513.48 respectively.
Adding up, the total comes to Rs.968.43 for which cheque dated 12.8.1975
has been issued. Similarly, for the month of August 1975, the amounts are
Rs.401.85 and Rs.513.72, and cheque dated 19.9.1975 is for an amount of
Rs.915.57, which tallies with the commission of Rs.401.85 and Rs.513.72
F respectively. Some instances were also noticed by the. High Court. It was
highlighted that in many instances amounts in round figures have been paid.
It does not help in furthering his case. No explanation has been offered as
to why cheques for amounts tallying with commissions, upto even paise were
issued.
G
It is to be noticed that though no label attached to the agreement, it
does not specify any monthly amount to be paid by the appellant to respondent.
Therefore, the question of any fixed monthly rent does not arise. The High
Court has also taken note of several other instances to conclude that the
agreement was one of licence and not of lease. That being the position, the
H conclusions of the High Court are in order and do not warrant interference.
ROOP KUMAR v. MOHAN THEDANI [PASA YAT, J.) 307
Admittedly, 'there was no consent of the original landlord to create sub- A
tenancy in terms of Section ! 6(2) of the Rent Control Act as noted above.
Since there is no consent of the landlord, something which is forbidden by
law could not be pleaded. That being the position, the High Court was justified
in rejecting the plea of sub-tenancy.

In almost simiiar situation, this Court in Waman Shriniwas Kini v. B
Rat iial Bhagwandas and Co., AIR ( 1959) SC 689 while considering
corresponding pr~visions of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 held that subletting without previous consent is
unlawful and if such plea of subletting is accepted, it would be enforcing an
illegal agreement.
c
In Delta International ltd v. Shyam Sundar Ganeriwalla and Anr. AIR
(1999) SC 2607 several principles were culled out by this Court in relationi
to disputes on the issue whether the agreement was for one of lease or licence
in a particular case. Six conclusions were recorded in paragraph 15. Conclusion
No. 5 reads as follows: D
"Prima facie, in absence of a sufficient title or interest to carve
out or to create a similar tendency by ·the sitting tenant, in favour of
a third person, the person in possession to whom the possession is
handed over cannot claim that the sub-tenancy was created in his
favour, because a person having no right cannot confer any title of E
tenancy or sub-tenancy. A tenant protected under statutory provisions
with regard to occupation of the premises having no right to sublet
or transfer the premises, cannot confer any better title. But, this
question is not required to be finally determined in this matter."

In the background of Section 16(2) of the Rent Control Act. the F
principles set out above clearly negate the appellant's case.

One plea which is urged with some amount of emphasis was increase
of the damages from Rs. 500 p.m. to Rs.1200 p.m. As noted supra, with the
consent of the parties, the High Court had exercised powers under Order 41,
Rules 30, 32 and 33. It took note of the ground realities which were not G
disputed before us. High Court recorded a positive finding that in the normal
course the appellant would have paid at least Rs. 1200 p.m., though the
amount payable was more than, even for the period for which accounts were
rendered or were to be rendered. It was fairly accepted by learned counsel
for the appellant before us that the rentals in the area have increased by leaps H
308 SUPREME COURT REPORTS (2003] 3 S.C.R.
--
A and bounds after 1980. That being so, the specious plea that there was no
scope for enhancement of the quantum of damages fixed by the Trial Court
is indefensible. Judged from any angle, the appeal is devoid of merit and
deserves "dismissal with costs which we direct. In a case of this nature, waiver
of costs would be acting with leniency on a person who deserves none. Costs
fixed at Rs. 25,000.
B
S.K.S. Appeal dismissed.