RAMJOHN MEHOMOODIN Vs. YAHYABHAI ABDUL KAYUM

JUDGEMENT

(1.) This is an application for an amendment of pleadings made in rather peculiar circumstances. To his plaint, admitted on March 3, 1945, the plaintiff, who is claiming a dissolution of a partnership between himself and the defendant and consequential reliefs, annexed a document as one on which he would rely, namely, a deed of partnership dated December 18, 1943,

(2.) This deed recited that it was thereby mutually agreed and declared that the parties thereto, the present plaintiff and the present defendant, had become partners as and from October 27, 1941, "upon the following terms and conditions." Clause 9 provided that the working partner (the present plaintiff) should devote his whole time and attention to the partnership business and should not directly or indirectly engage in any other business. The defendant counter-claimed, alleging breaches of Clause 9 or of an antecedent oral agreement, both before and after December 18, 1943. To this counter-claim the plaintiff replied (inter alia) as follows: The plaintiff will rely on a proper construction by this honourable Court of Clause 9 of the said deed of partnership. The plaintiff says that it was specifically agreed between the plaintiff and the defendant that the plaintiff need not devote his whole time to the partnership business and that the plaintiff should be at liberty to engage in any other business of his own. The plaintiff says that the partnership started in October 1941 and the partnership deed was executed on December 18, 1943, During the interval the plaintiff pursuant to the said specific agreement had done separate business on his own. At the time when the said deed was executed the plaintiff objected to the said Clause 9 but the defendant assured the plaintiff-that it was a mere formality and that the plaintiff was at liberty to do business of his own. Relying on the said representation and assurance the plaintiff executed the said agreement.

(3.) The plaintiff's claim, as far as I am concerned, is now settled, and There has been an agreed reference to the learned Commissioner. Proceeding with the counter-claim, the defendant gave his evidence-in-chief, and in the course of his cross-examination was asked questions relating to the specific agreement referred to in paragraph 6 of the reply. Evidently, this specific agreement of which no particulars were given or even asked for, is supposed to have occurred in October, 1941, when the partnership in fact commenced, and there would have been no legal difficulty in the way of the plaintiff's proving it if it were not for the recital in the deed of December, 1943, to the effect that the terms of that deed had all along been the terms of the partnership. Consequently, when Mr. Banaji for the plaintiff sought to elicit from the defendant an admission that the alleged oral agreement had been a term of the partnership, objection was taken by the defendant on the ground that any such evidence would be inconsistent with Section 92 of the Indian Evidence Act which, BO far as material, provides as follows: When the terras of any such contract "...(that is to say any written contract) " have been proved according to the last section " (which has taken place here) " no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument ...for purpose of contradicting, varying, adding to or subtracting from its terras. It is quite evident to me that if you agree in writing that yon have been doing business since a previous date on particular terms, and you then want to prove orally that the terms on which you had been doing business were not those terms, you are contradicting the written document by oral evidence, and unless you come within one of the provisos to Section 92, that cannot be done. Proviso 1 allows proof of any fact which would invalidate a document or entitle any person to any decree or order relating thereto, such as "mistake in fact or law": proviso 4 allows proof of the existence of any distinct subsequent oral agreement to rescind or modify any such contract, except in certain cases, of which the present is not one. Proviso 4 cannot help the plaintiff here because the specific agreement which he has pleaded must have been antecedent and not subsequent to the written agreement, and the assurance which he has pleaded was, again, precedent and not subsequent to the written agreement. That is obvious from his own pleading. Consequently it seems to me that on the pleadings as they stand he could not come under proviso 4, but if he had pleaded differently, he might have been able to prove mistake in fact or law under proviso 1, which would entitle him to have the deed rectified, and I suppose there could be no doubt now that it is open to the Court to rectify an instrument and give effect to it as rectified in the same suit or other proceeding. Therefore, Mr. Banaji applied to me for amendment.