1. This is a Rule issued by this Court under Section 25 of the Provincial Small Cause Courts Act calling upon the opposite party to show cause why the decision of the Subordinate Judge should not be set.
2. The petitioner who was the plaintiff in the Court below, sued to recover money due on a bond executed in his favour on the 13th October 1905. The defendant admitted execution but pleaded that the bond had been satisfied by a set-off against the- consideration of the conveyance executed on the 13th February 1906.
3. The Court below has found in favour of the defendant upon whom the onus lay to prove that the bond had been discharged. The petitioner now seeks to assail the judgment of the Subordinate Judge upon two grounds of law.
4. He argues in the first place that he was not given an opportunity to produce the conveyance. There is some force in this contention. He appears to have applied to the Court below to send for the document which had been filed in another suit previously instituted to impeach its validity. The Subordinate Judge, however, apparently without assigning any reason, declined to send for the document. The learned vakil for the opposite party, on the other hand, invites our attention to the fact that the terms of the conveyance were not in dispute and that they were stated in the Court below by one of the witnesses. Under these circumstances it appears to us that the petitioner has not been prejudiced by the omission of the Subordinate Judge to send for the document. There is, therefore, no valid ground for remitting the case for re-consideration.
5. It is argued, in the second place, that the opposite party ought not to have been allowed to adduce oral evidence so as to contradict the terms of the conveyance. The conveyance recites the payment of consideration in a certain manner. Various sums are said to have been paid to different persons and it is then stated that the remainder, a sum of Rs. 200 was left with the vendors. The oral evidence which has been allowed to be given is to the effect that this last recital is not correct, and that as a matter of fact this sum of Rs. 200 was taken by the creditor of the bond now in suit. Reliance is placed upon the provisions of Section 92 of the Indian Evidence Act to show that oral evidence was not admissible to vary the terms of the deed. It is clear, however, upon the authorities that Section 62 has not the effect bought to be attributed to it. It has been repeatedly held that although Section 92 prevents the admission of oral evidence for the purpose of contradicting or varying the terms of a contract, it does not prevent one of the parties to the contract from showing either that there was no consideration or that the consideration was different from that stated in the conveyance. It is sufficient to refer to the decisions in the case of Hukumchand v. Hiralal 3 B. 159 and Vasudeva Bhallu v. Narasamma 5 M. 6 which are referred to with approval in the later decision in the case of Kumara v. Srinivasa 11 M. 213. The same view has been adopted in this Court Lala Himmat Sahai Singh v. Llewhellen 11 C. 486 as also in Allahabad, Indarjit v. Lal Chand 18 A. 168. The learned vakil for the petitioner, however, referred to the decision of the Judicial Committee in the case of Balkishen Das v. W.F. Legge 22 A. 149 (P.C.) : 27 I.A. 58 as an authority for the contrary view. But that case has obviously no application to the circumstances of the present litigation. The validity of the conveyance is not in question and no attempt has been made by either of the parties to the present litigation to affect its terms. The sole question is whether the recital as to the payment of consideration is not incorrect upon a point of detail, namely, whether a part of the consideration was retained by the vendors or whether it was applied by them in discharge of an earlier bond, we feel no doubt that upon such a matter as this, oral evidence was rightly admitted. The essence of the matter is, as, pointed by the Judicial Committee in Sah Lal Chand v. Indarjit 22 A. 370 (P.C.) : 27 I.A. 93, that the Evidence Act does not say that no statement of fact in a written instrument may be contradicted, but only that the terms of the contract may not be varied, added to, subtracted from, or contradicted. It is thus clear that whatever the merits of the controversy between the parties may be, there is no question of law upon which the judgment of the Subordinate Judge can be impeached.
6. The result, therefore, is that this Rule must be discharged. In the circumstances of the case, we make no order as to costs.