IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1512 of 1980 Date of Decision: 25.11.2008 Sham Singh and another .... Appellants vs. Satguru Jagjit Singh .... Respondent Coram: Hon'ble Mr. Justice Rajive Bhalla. Present: Mr. I.S. Vimal, Advocate for the appellants. Mr. Amit Jhanji, Advocate for the respondents. **** Rajive Bhalla, J, (Oral) The appellants lay challenge to the judgment and decree dated 18.03.1980, passed by the Additional District Judge, Ludhiana, accepting the appeal filed by the respondent, reversing the judgment and decree dated 29.04.1978, passed by the Sub Judge III Class, Ludhiana, and as a result, dismissing the suit filed by the appellants. The plaintiffs-appellants filed a suit for specific performance of an agreement reflected in a receipt dated 19th July, 1974 (Ex.P-1), whereby the respondent agreed to sell a plot measuring 200 square yards. The respondent filed a written statement denying any agreement with the appellants but in the same breath averred that a sum of Rs.3000/- was received on behalf of Kuldip Kaur, daughter of appellant No.2 as these plots were to be allotted to widows. On the basis of the pleadings, the learned trial court framed the following issues:- "1. Whether the defendant received a sum of Rs.3000/- as the price of the plot measuring 200 square yards and agreed to transfer the ownership of the same within one month? OPP. RSA No.1512 of 1980 -2- 2. Whether the plaintiff is already in possession of the plot in dispute? OPP. 3. Whether the plaintiffs have always been willing and ready to perform their part of contract? If so, its effects? OPP. 4. Whether there is plot as described in the heading of the plaint? OPP. 5. Relief." Vide judgment dated 29th April, 1978, the trial court decreed the suit by holding that the appellants had successfully established the execution of the agreement reflected in a receipt (Ex.P-1). It was also held that the respondent has failed to establish that the agreement was executed in favour of or for the benefit of Kuldip Kaur. Aggrieved by the aforementioned judgment and decree, the respondent filed an appeal. The first appellate court set aside the judgment and decree, passed by the trial court and dismissed the suit by holding that as the agreement was executed by Surinder Singh, it did not bind the respondent. It was also held that as the bargain was struck with Kuldip Kaur, the suit could not be decreed in favour of the appellants. Counsel for the appellants submits that though the respondent denies that the agreement, Ex.P-1 was executed with the appellant, his stand that the agreement/receipt was executed with Kuldip Kaur, after receipt of Rs.3000/- from her, remains unsubstantiated. The receipt Ex.P-1 clearly states that Rs.3000/- has been received from the appellants, who are in possession of a plot measuring 200 square yards for the last two years. PW-2, Surinder Singh, the author of the receipt, admits that he executed the receipt Ex.P-1 as attorney of the respondent. Despite these admissions, the first appellate court proceeded to hold that the respondent is not bound by the receipt/agreement. The respondent, however, has not led any evidence, to rebut the contents of Ex.P-1 or to establish that the agreement was executed for Kuldip Kaur or that it was not executed on his RSA No.1512 of 1980 -3- behalf. Despite these lapses on the part of the respondent, the first appellate court proceeded to discard recitals in the document Ex.P-1 by relying upon a part of PW-2's oral statement to hold that the bargain was struck with Kuldip Kaur. The first appellate court disregarded the principle that oral evidence cannot be pressed into service to discredit or discard recitals in a written document. It is, therefore, prayed that the appeal be accepted and the judgment and decree passed by the first appellate court be set aside. Counsel for the respondent, on the other hand, submits that the appellants have failed to establish that any binding agreement to sell was executed, in their favour. The deposition by PW-2 was rightly rejected as Surinder Singh failed to produce any power of attorney authorising him to execute Ex.P-1 for and on behalf of the respondent. His statement that he is the respondent's attorney does not bind the respondent. It is, therefore, submitted that as the first appellate court did not commit any error in accepting the appeal and dismissing the suit, the appeal be dismissed. I have heard counsel for the parties and perused the impugned judgment. Following substantial questions of law arise for adjudication:- 1. Whether oral evidence can be pressed into service to reject recitals in the written agreement ? 2. Whether in the absence of any evidence to discredit or contradict its correctness, the first appellate court could have held that the respondent is not bound by the agreement/receipt Ex.P-1? It is an established principle that a contract, reduced into writing, proved in accordance with the provisions of Section 91 of the Evidence Act, shall not be contradicted, varied, added to or subtracted by RSA No.1512 of 1980 -4- reference to oral evidence. Chapter VI of the Indian Evidence Act, 1872, titled as “OF THE EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE” contains Sections 91 and 92. Section 91 provides that when the terms of a contract have been reduced to the form of a document no evidence shall be given in proof of the terms of the contract except the document itself, or secondary evidence of its contents. Section 92 postulates that where a contract, reduced to the form of a document has been proved according to Section 91, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to, or subtracting from its terms. The position in law being clear, it would be appropriate to appraise the findings recorded by the first appellate court so as to ascertain whether oral evidence has been admitted for the purpose of contradicting the recitals in Ex.P-1. The appellants filed a suit for specific performance of an agreement reflected in the receipt Ex.P-1 dated 19th July, 1974. The receipt Ex.P-1, is signed by Surinder Singh for and on behalf of the organisation headed by the respondent. It contains a recital that a sum of Rs.3000/- has been received from the appellants for transfer of a plot, measuring 200 square yards, situated in Khasra No.868, as they are in possession for the last two years. The agreement was proved by summoning and examining Surinder Singh PW-2, who admitted his signature on the agreement Ex.P-1. Surinder Singh also deposed that he had executed the agreement as he was the respondent's attorney. The agreement Ex.P-1, stood proved in accordance with Section 91 of the Evidence Act. The first appellate court however, rejected the receipt Ex.P- 1 by holding that as Surinder Singh deposed that the agreement was executed for Kuldip Kaur, a suit for specific performance could not be decreed in favour of the appellants. The first appellate court made a fundamental error as it disregarded the provisions of Sections 91 and 92 of RSA No.1512 of 1980 -5- the Evidence Act and proceeded to place reliance upon the oral deposition of PW-2 to discard recitals in the written agreement. As noticed hereinbefore, recitals in a written contract cannot be contradicted, varied, added to or subtracted from, on the basis of an oral statement. The first appellate court, therefore, committed an error by relying upon, a part of PW-2's oral deposition to discard recitals in the written agreement/receipt Ex. P-1. The respondent's defence is that the agreement was executed for Kuldip Kaur daughter of appellant No.2. The onus, therefore, to establish this fact lay upon the respondent. The respondent admittedly did not step into the witness box and has not adduced any evidence to discharge this onus. The averments in the written statement that Rs.3000/- was received from Kuldip Kaur and an agreement to sell was executed in her favour as the plot is to be transferred to widows, therefore, remains unsubstantiated. As a result, the recitals in the agreement, duly proved by the deposition of Surinder Singh could not have been discarded by the first appellate court by relying upon the deposition of PW-2 Surinder Singh. The first appellate court, therefore, committed an error in disregarding the provisions of Sections 91 and 92 of the Evidence Act. The first question of law is answered accordingly. The first appellate court also held that the agreement executed by Surinder Singh does not bind the respondent. The first appellate court failed to peruse the agreement, did not give due credit to the admissions made by PW-2 and failed to appreciate that the respondent has not led any evidence. The receipt clearly states that an amount of Rs.3000/- has been received from the appellants for transfer of a plot measuring 200 square yards as they were in possession of the plot for the last two years. The receipt clearly bears the name of the organisation headed by the respondent. The respondent, on the other hand, failed to step into the RSA No.1512 of 1980 -6- witness box or to lead any evidence to rebut the correctness of the recitals in the agreement. The deposition by Surinder Singh that he is the attorney of the respondent remains unrebutted. The onus to rebut this fact lay upon the respondent but as noticed hereinabove, the respondent failed to lead any evidence to rebut this fact. It was no part of the first appellate court's duty to fill in blanks and provide explanations on behalf of the respondent. This apart, the assertion that the plots were to be allotted to widows remains unsubstantiated and was, therefore, wrongly accepted by the first appellate court. The second substantial question of law is, therefore, answered by holding that in the absence of any evidence the first appellate court committed an error of law in discarding the written agreement and holding that the respondent is not bound by the agreement. In view of what has been stated hereinabove, the appeal is allowed and the judgment and decree passed by the Additional District Judge, Ludhiana is set aside and the judgment and decree passed by the Sub Judge III Class, Ludhiana, is restored. No order as to costs. 25.11.2008 (Rajive Bhalla) sk Judge