The admissibility of evidence to vary the terms of a contract and the interpretation of the terms of the contract in question under Section 92 of the Indian Evidence Act.

Madhavan Nair, J.

1. Plaintiff is the appellant. The plaintiffs suit was to recover Rs. 3,307 and odd made up of the amount advanced by the plaintiff to the defendant and also damages on account of breach of contract committed by the defendant in the following circumstances. The defendants kariasthan contracted with the agent of the plaintiff on the 5 to of August 1917 to supply 500 bags of rice at Rs. 11-11-0 per bag within three weeks and he got an advance of Rs. 1,500 as per varthamanam executed on that date. On the 26th of August 1917 he received a further sum of Rs. 2,500 from the plaintiffs agent towards the value of the rice bags to be supplied. The defendant supplied only 130 bags of rice as par contract. He did not supply the balance. The defendant pleaded amongst other things, that there was an understanding between the parties that rice was to be supplied only after the price of the whole rice was paid to the defendant and since this was not done he did not commit a breach of contract in not supplying the full number of the stipulated bags of rice. The Subordinate Judge did not, allow the defendant to adduce evidence with regard to the condition alleged by him as, in his opinion the defendant was precluded from doing so by Section 92 of the Indian Evidence Act. He held that there was a breach of contract and gave a decree for the plaintiff. On appeal the District Judge overruled the objection under Section 92 of the Indian Evidence Act and called for a fresh finding on the question, namely, "Whether it was the understanding between the parties that rice was to be supplied only after the whole price of the rice was paid to the defendant." The fresh finding sent by the Subordinate Judge was in favour of the defendant and upholding this finding, the learned District Judge held that there was no breach of contract.

2. The main question argued in this second appeal is whether the learned Judge was right in allowing the defendant to adduce evidence as regards the understanding alleged by him; for it is admitted that, if-this evidence is inadmissible, the plaintiff, is entitled to a decree as in that case there will be a clear breach of contract. This would depend upon the question whether Ex. A constituted an unconditional undertaking by the defendant to deliver 500 bags of rice within three weeks as contended for by the plaintiff. Exhibit A is in following terms: the Varthamanam in respect of bags of rice 5th August 1917 executed to...by...Agreeing to deliver into your Negapatam depot 500 bags of white Sirumaniyam and red Sirumaniyam at, Rs. 11-11-0 per bag. I have received from you an advance of Rs. 1,500. I shall deliver the said bags within three weeks time." It is called a varthamanam. It expresses only the obligation of one of the parties, viz., of the defendant. It does not refer to the corresponding obligation on the part of the plaintiff. Further it expresses only what may he called the varying terms of the contract such as the number of bags, the amount of money and the time within, which the bags are to be delivered. It is signed only by one of the parties. It seems to me that the document is only a voucher or acknowledgment of the money rather than a detailed record of the contract. In my opinion Ex. A is a very informal document and evidence as regards the special agreement alleged by the defendant was rightly allowed by the learned Judge under Section 92, proviso (2) of the Indian Evidence Act. In this connection, various decisions were brought to my notice by the learned vakil for the appellant, but a detailed examination of these cases is uncalled for as, in my opinion, the decision of each case would depend upon the construction of the terms of the particular contract in question. The strongest case that was relied upon on behalf of the appellant is the one that is reported as Spartah v. Benecke (1850) 10 C.B. 212. In that case the contract was for the sale of 30 bales of goats wool at a certain pri