1. The facts which give rise to this second appeal are the following. The plaintiff filed suit No. 373 of 1949 in the Court of the Civil Judge, Senior Division at Dhulia for a decree for Rs. 663/- against the defendants.
It was the plaintiff's case that land bearing S. No. 52/A of the town of Dhulia belonged to the second defendant, that the second defendant divided the land into plots for conversion to building site and got prepared a plan of the land showing the plots separately and advertised them for sale through the first defendant, who held a power of attorney from the second defendant; that the plaintiff came to learn about the advertisement and approached the first defendant on 17-5-1948; that the first defendant showed Mm the plans and the plaintiff selected plots Nos. 4, 5, 11, 12 and 13 and agreed to purchase the same for Rs. 2250/-, that the first defendant accepted Rs. 565/- as earnest money and undertook to exe-cute a registered sale deed on 5-6-1948; that the first defendant handed over to the plaintiff a printed form bearing the signature of the first defendant which purported to set out the terms of the agreement that the first defendant represented to the plaintiff that the permission for conversion of the land to building sites was expected to be received shortly, that the plaintiff did not subject the contents of the printed form to any scrutiny and signed the terms; that the permission which was represented to the plaintiff would be received shortly was not received by 16-6-1948 which was the date fixed for completion of the sale; that the time to complete the sale was extended till 31-7-1948; that on 31-7-1948 the first defendant represented to the plaintiff that the permission had been received; that the plaintiff then paid Rs. 62-8-0 to the first defendant for purchasing the stamp paper required for the sale deed; that the first defendant brought a draft of the sale deed drawn up on a stamp paper; that it was found at that time that the plots had been described in the draft agreement as 'agricultural plots'.
The plaintiff objected to the draft agreement at the time of its registration; that no sale deed: was therefore executed; that the plaintiff then put an end to the contract and filed a suit for recovery of Rs. 565/- which were paid by him as earnest money and for Rs. 62-8-0 which were spent for purchasing stamp paper and for in-terest on the aggregate amount at the rate of 6 per cent per annum.
The suit was filed against the first defendant who made the representations set out earlier and took the two amounts from the plaintiff and against the second defendant who was the principal of the first defendant.
2. The suit was resisted by both the defendants. The defendants contended that the plaintiff was not entitled to set up a variation in the terms of the written agreement by leading oral evidence; that the representations alleged to haver been made by the first defendant on behalf of the second defendant were not within the scope of the agency of the first defendant, and those representations were not binding upon the second defendant; that in any event the first defendant had not made representations alleged to have been made by him to the plaintiff; and tliat the plaintiff had not been misled by any such representations; that the plaintiff was not entitled to sue because he had entered into contracts on behalf of other principals; that the time was not of the essence of the contract, and the plaintiff when he terminated the contract was himself not ready and willing to perform his part of the contract; and that the plaintiff had already, read the terms of the draft sale deed and therefore also he was not entitled to claim refund of the earnest money and the amount spent by him for stamp paper.
3. The learned trial Judge negatived the contentions raised by the defendants and passed, a decree against both the defendants for Rs. 663/-with interest at 6 per cent, per annum from the date of the suit till payment on Rs. 627-8-0 or on so much out of it that remains unpaid from time to time. Against the decree passed by the-trial Court an appeal was preferred to the District Court at Dhulia by both the defendants.
The learned appellate Judge substantially confirmed the decree passed by tne trial Court. He did not award interest to the plaintiff prior to the date of the suit. Against the decree passed by the District Court the defendants have come to this Court in Second Appeal.
4. Now the Courts below appear to have assumed that what the plaintiff was setting up wag a subsequent oral agreement with a view to vary, add to or contradict the terms of the written instrument which was produced in Court. The learned appellate Judge thought that evidence was admissible under Section 92, provisos 2 and 6, Evidence Act. He also held relying upon the evid-ence of the plaintiff that the agreement which he set up was proved.
5. The only question of law which arises Jn this appeal is, whether evidence as to oral representations alleged to have been made by the first defendant to the plaintiff at the time when the plaintiff subscribed his signature to the agreement of sale is admissible. The agreement of sale is not drawn up with any formality. Under that agreement the second defendant through the first defendant agreed to sell five plots of land for a consideration of Rs. 2250/-, and those plots were described as agricultural land.
It was recited in the agreement that Rs. 565/-were received by the first defendant as earnest money and a registered sale deed was to be executed on or before 16-6-1948. It was the plaintiff's case as set out in the plaint, which the Courts below have held proved, that at the time when he subscribed his signature to the agreement of sale, it was represented by the first defendant to the plaintiff that the requisite permission for building houses on the plots was expected to be received 'shortly' and relying upon that representation the plaintiff, without scrutiny of the contents of the agreement' subscribed his signature to the agreement.
The terms of the agreement referred to the description of the plots agreed to be sold, the amount of consideration agreed to be paid, the earnest money received, and the time fixed for completion of the sale deed. The representation, alleged to have been made by the first defendant, that the necessary permission of the revenue authorities to conversion of land to non-agricultural purposes was expected to be received shortly, cannot in my judgment be regarded as a term of the agreement, and nothing in Section 92, Evidence Act renders the oral evidence relating to the representation inadmissible.
6. Section 92, Evidence Act provides, in so far as that section is material, that
'When the terms of any 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 (Section 91) 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 or adding to, or subtracting from its terms'.
The section is followed by six provisos which; set out the circumstances in which evidence may be led for contradicting, varying, adding to, or subtracting from the terms of an instrument. It is evident that Section 92 prevented the reception of oral evidence which is intended to, add to, contradict, vary, or subtract from the terms of a written instrument which has been proved according to Section 91, Evidence Act.
If the oral evidence is not Intended to con. tradict, vary, add to, or subtract from the terms of the written instrument, there is no bar of Section 92 which prevents the reception of oral evidence for any purpose.
The representation made by the first defendant, that the sanction of the authorities was expected 'to be received shortly' cannot be regarded as a term of the contract; and if it cannot be regarded as a term of the contract, in my judgment relying upon Section 92, Evidence Act oral evidence as to the representation cannot be excluded. It is unnecessary therefore to consider whether under any of the provisos to Section 92 evidence as to oral representations made by the first defendant to the plaintiff is admissible at the instance of the plaintiff.
7. The Courts below have come to the conclusion on consideration of the evidence that the first defendant did made a representation as alleged by the plaintiff, it is also undisputed that till 31-7-1948 the first defendant had not obtained the permission which he had represented was expected to be received shortly.
Time having been extended up to 31-7-1948, and thereafter the first defendant having prepared a draft sale deed with a representation that the plots were agricultural plots and were intended to be sold to the plaintiff as such, the plaintiff was not bound to keep the agreement open so as to enable the defendants at any future-date to obtain the requisite permission. Evidently, the plots could not be utilised without the sanction of the authorities as building plots, and the plaintiff intended to purchase the land as building plots.
If at the date when the sale deed was to be executed the defendants were unable to secure the necessary permission and were thereafter unable to do so even within the extended time, in my judgment, the plaintiff was entitled to put an end to the contract and claim refund of the amount paid by him together with the amount of stamp duty which was paid by him.
8. The decree passed by the District Court is therefore confirmed and the appeal is dismissed with costs.
9. Appeal dismissed.