Case Law

1. NAME : AAYUSH BHARDWAJ
COURSE : BA LLB (HONS)
SEMESTER : 5TH
ENROLLMENT NO : 190060401001
ADMISSION NO : 19200349
CASE NAME : ROOP KUMAR VS MOHAN
THEDANI
CASE CITATION : AIR 2003 SC 2418
BENCH:
SHIVARAJ V. PATIL, ARIJIT PASAYAT
SUBMITTED TO : DR. DAKSHITA SANGWAN

2. ISSUES
1. The basic question which required consideration was whether
relationship between the respondent and the appellant was that of
licensor and licensee or it was that of lessor or lessee?
2. Whether the contract was a sham document or not?
3. Was there any specific notice which made the appellant to pay
monthly amount to the respondent?

3. RULE
1. SECTION 91 OF THE INDIAN EVIDENCE ACT, 1872
2. SECTION 92 OF THE INDIAN EVIDENCE ACT, 1872
3. SECTION 145 OF Cr.PC, 1973

4. APPLICATION
• The case revolves around section 91 and section 92 of the Indian Evidence Act 1872
• Section 91 of Indian Evidence Act 1872 deals : Evidence of terms of contracts, grants and other dispositions of
property reduced to form of documents.—When the terms of a contract, or of a grant, or of any other disposition
of property, have been reduced to the form of a document, and in all cases in which any matter is required by
law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract,
grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
• Section 92 of Indian Evidence Act 1872 deals : Exclusion of evidence of oral agreement.—When the terms of
any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form
of a document, have been proved according to the last section, no evidence of any oral agreement or 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 terms

5. APPLICATION
• The facts of the case deals are that plaintiff was a renter in respect of the No.15A/16-I, Ajmal Khan Road, Karol Bagh, New Delhi on a monthly w.e.f.
15.8.1962. The shop was registered under the Shops and Commercial Establishments Act, (in short the 'Establishment Act') in the name of M/s Esquire, of
which respondent-plaintiff No.1 was the proprietor.
• Far ahead on, the name of the concern was changed to M/s Purshotams. For all targets and purposes there was no change of proprietorship. Plaintiff No.2,
Tahil Ram is the father of respondent- plaintiff No.1 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 of such agency-cum-licence 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.1 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 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 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 was 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 evidence of possession and has started displaying the signboards and other advertisement materials,
as if M/s 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. After that date, defendant
neither rendered accounts nor made any payment in spite of repeated reminders and requests.

6. APPLICATION
• Primary stand of the defendant in reply was that he was in lawful occupation 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 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.1 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 been maliciously relied upon to his disadvantage.

7. APPLICATION
• 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. 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 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 cannot be sustained.
• “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 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.”
• 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 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 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 14.10.1977 to 31.3.1978 fixed at Rs.7,000/- was affirmed
• 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 for the period from 1.4.1978 to 14.5.1980 and
subject to payment of court fees by the plaintiffs. As the defendent 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 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.1 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 from 15.5.1980 to 14.10.1980 subject to payment of court fees by the respondent-plaintiff No.1. Decree for possession was passed. The respondent-
plaintiff No.1 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.

8. CONCLUSION
• The conclusion of the case is around the distinction made by the court in the case of Roop kumar v mohan Thedani (2003) revolves around the scope and ambit of Sections 91,
and 92 of the Indian Evidence Act, 1872 that has been explained by the Supreme Court of India as have been laid down in the following points;
• Section 91, as observed by the Apex Court, deals with evidence of terms of contract, grants, and other disposition of properties reduced to the form of a document thereby
forbidding the proving of written contents otherwise than by means of writing only. In reality, Section 91 declares the doctrine of substantive law which holds immense
importance to documentary evidence over oral ones. Thus applicable to the best evidence rule as well. As Section 91 sets limitations, it is to be noted that if a third party wants to
establish a contract existing between two parties when the concerned contract has been documented, the third party can prove the same only by producing such a contract in
writing. Section 92 follows Section 91 by preventing identification of oral evidence for varying a contract and therefore acting supplementary to each other, but the former differs
from the latter on grounds of limitation that Section 92 imposes which in the case of Section 91 is absent completely.
• While Section 91 of the Act of 1872 with the mood of proof for the document presented before the Court, Section 92 is the provision related solely to the parties to the document.
• While Section 91 is applicable to both bilateral as well as unilateral documents, Section 92 applies only to bilateral documents.
• Now we’ll see the raised issues addressed the first issue which was addressed is :
• The basic question which required consideration was whether relationship between the respondent and the appellant was that of licensor and licensee or it was that of lessor or
lessee?
• The answer to the raised issue is that they the relationship among themselves The Trial Judge had held that the transaction between the respondent and appellant evidenced by an
agreement dated 15.5.1975 amounts to licence. Later on The High Court said that the reasoning given by the trial court was factually wrong but the conclusion was correct.
• Whether the contract was a sham document or not?
• The answer to this issue was that , it held that the agreement dated 15.5.1975 was entered into between them 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.

9. CONCLUSION
• Was there any specific notice which made the appellant to pay monthly amount to the
respondent?
• 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 conclusions of the
High Court are in order and do not warrant interference.
• As per my view the judgement given by the court was acceptable on the all points yet the
decision given by the trial court contained factually wrong reasoning but it was corrected by the
high court which was sufficient enough as serving of justice to the deserved one.

10. THANK YOU