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PETITIONER:

Roop Kumar

RESPONDENT:

Mohan Thedani

DATE OF JUDGMENT: 02/04/2003

BENCH:

SHIVARAJ V. PATIL & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P. (C) No. 5835/2001)

ARIJIT PASAYAT,J.

Leave granted.

This case is a classic example of a just cause getting

defeated by setting up dubious pleas and depriving a party

of what is legally due to him. It is one of those

innumerable cases where course of justice has been attempted

to be deflected by factual and legal red herrings.

Appellant is the defendant in a suit filed by

respondent-plaintiff No.1 for recovery of consolidated and

expected commission/rendition of accounts and possession of

Premises No.15A/16-I, Ajmal Khan Road, Karol Bagh, New

Delhi.

As per suit averments respondent-plaintiff No.1 was a

tenant in respect of the aforesaid premises on a monthly

rent 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. Later on, the

name of the concern was changed to M/s Purshotams. For all

intents 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;

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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. Legal notice was served through registered

post for payment of commission, and a demand was made for

true and faithful rendition of accounts. After 14.5.1980,

defendant was asked to vacate the premises, but he forcibly

continued to occupy the premises. This led to initiation of

proceedings under Section 145 of the Code of Criminal

Procedure, 1973 (in short the 'Cr.P.C.'). Defendant to

frustrate the legal demands of the plaintiffs filed a suit

for injunction. Though, the period of the agency-cum-licence

deed expired on 15.5.1975, the defendant continued to remain

in possession. On the ground of limitation, the plaintiffs

claimed what is due from 1.10.1977 to 31.3.1978 which came

to be Rs.7,000/- and from 1.4.1978 to 14.5.1980 the

commission was estimated to be about Rs.70,000/-. Claim of

damages at Rs.6,000/- from 14.5.1980 to 14.10.1980 was made

for a period of five months. Plaintiffs also claimed a

decree for possession of the shop along with a decree for

damages and for payment of the commission and rendition of

accounts.

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. There was no relationship of principal and

agent as claimed. A suit for injunction had been filed and

the same is pending adjudication. Additional plea was taken

that as per averments in the plaint, defendant is alleged to

have committed act of criminal trespass on 2.5.1980 after

surrendering possession to the plaintiffs, so the suit on

the basis of agreement dated 15.5.1975 or on the basis of

termination of agency-cum-licence deed is not maintainable.

Initially 11 issues were framed on 17.2.1981.

Subsequently, an additional issue was framed on 6.4.1993.

Nine witnesses were examined to further the plaintiffs'

case, while defendant examined seven witnesses. Several

documents were exhibited and proved. Some other documents

were marked, but were not proved.

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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.

Before the High Court the parties agreed that 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 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 and particularly issues Nos. 1, 6, 7 and 10

cannot be sustained. The High Court with consent of parties

exercised powers conferred by Order 41 Rules 30, 32 and 33

of the Code of Civil Procedure, 1908 (in short the 'Code').

Arguments were heard on the merit of the issues framed in

the suit. On consideration of the rival stands, the High

Court came to hold that the conclusions arrived at by the

Trial Court were correct, though the reasonings in support

of the conclusions were different. 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 appellant-

defendant 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

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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.

In appeal, learned counsel for the appellant has taken

various pleas. Essentially they are as follows: The High

Court was not justified in hearing the appeal as if it was

the Trial Court having come to the conclusion that the

premises on which the Trial Court proceeded were erroneous.

That amounts to denial of a forum of appeal which was

statutorily provided and in essence amounted to deprivation

of such a right. Reliance was placed on a decision of this

Court in A.R. Antulay v. R.S. Nayak and Ors. (AIR 1988 SC

1531). The High Court has not considered the true import of

Sections 91 and 92 of the Indian Evidence Act, 1872 (in

short the 'Evidence Act') in its proper perspective. It is

not as if a party is not entitled to lead oral evidence to

show that the agreement was not intended to be acted upon

and the terms were really not reflective of intention of the

parties. In fact, the agreement was not acted upon. The High

Court proceeded on an erroneous basis as if some of the

issues were not pressed before the Trial Court and the High

Court. The clauses of the agreement on which the Trial

Court and the High Court placed reliance do not prove the

essence of the transactions and/or intention and should not

have been given undue importance. Some of the basic issues

like Issue No.12 were not adjudicated by the Trial Court and

the High Court. Though reference was placed on the

objections filed to the application under Section 145 of the

Cr.P.C., stand of the appellant was not taken note of. In

fact, an application had been filed for taking note of the

objections which unfortunately the High Court treated to

have become infructuous as it was listed on the day the

judgment was delivered. While considering a plea that the

agreement was not intended to be acted upon, veil has to be

lifted by considering the evidence and the surrounding

circumstances in their proper perspective. Though the Trial

Court had granted Rs.500/- p.m. as damages, the High court

suo motu without even any challenge thereto by the

respondent raised the same to Rs.1200/-p.m. The specific

stand of the appellant was that the agreement was executed

as a devise to protect the plaintiffs in the suit for

ejectment or/and that relating to fixation of standard rent

in the dispute between the plaintiffs and their landlords.

The High Court erroneously came to hold that payments were

made as commissions for various periods. As the Trial Court

proceeded on the basis as if the appellant was a party in

proceedings earlier, the foundation of its conclusions was

shaken. The High Court should have remitted the matter back

to it for fresh adjudication after having found that the

conclusions were contrary to records and materials; instead

it adjudicated the matter acting as a Trial Court which is

not permissible. The High Court erroneously proceeded to do

so as if the appellant had conceded to such a course being

adopted while in reality there was no concession.

Per contra, learned counsel for the respondent

submitted that after having agreed before the High Court

that it may take up the whole matter for adjudication on

merits, on consideration of the evidence on record, it is

not open to the appellant to take a stand that there was no

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such concession when in fact the High Court has specifically

recorded about such concession in detail. The stand that the

appellant was a sub-tenant, being a tenant under the

plaintiffs is clearly untenable in view of the documentary

evidence to which the High Court has referred in detail.

The scope and ambit of Sections 91 and 92 of the Evidence

Act have been rightly considered by the High Court. The

stand that the agreement was intended to be a protection of

the plaintiffs in proceedings between plaintiffs and their

landlords is falsified because of the fact that the suit for

eviction was filed after about 7 months of execution of the

agreement. There is no dispute that the agreement was

executed. Therefore, the appellant was bound by it. In any

event, there is no question of sub-tenancy in view of the

clear bar provided under Section 16 of the Delhi Rent

Control Act, 1958 (in short the 'Rent Control Act') which

prohibits sub-tenancy without a consent of the original

landlord. It has not been shown that the original landlord

had consented to the sub-tenancy. The High Court has rightly

therefore discarded the plea. Not only issue No.12 but also

several other issues were given up before the Trial Court

and the High Court and it is not open to the appellant to

make a grievance that these issues were not considered. So

far as enhancement of the damages is concerned, the High

Court had exercised powers under Order 41 Rule 33 with the

consent of the parties and when the claim was for damages,

it was open for the High Court to accept the claim as made

by the respondent-plaintiff No. 1 in the Trial Court by

fixing damages at Rs.1200/-p.m.

It would be logical to first deal with the plea

relating to absence of forum of appeal. It is to be noted

that the parties agreed before the High Court that instead

of remanding the matter to trial Court, it should consider

materials on record and render a verdict. After having done

so, it is not open to the appellant to turn round or take a

plea that no concession was given. This is clearly a case of

sitting on the fence, and is not to be encouraged. If

really there was no concession, the only course open to the

appellant was to move the High Court in line with what has

been said in State of Maharashtra v. Ramdas Shrinivas Nayak

and Anr. (1982 (2) SCC 463). In a recent decision Bhavnagar

University v. Palitana Sugar Mill Pvt. Ltd. and Ors. (2002

AIR SCW 4939) the view in the said case was reiterated by

observing that statements of fact as to what transpired at

the hearing, recorded in the judgment of the Court, are

conclusive of the facts so stated and no one can contradict

such statements by affidavit or other evidence. If a party

thinks that the happenings in Court have been wrongly

recorded in a judgment, it is incumbent upon the party,

while the matter is still fresh in the minds of the Judges,

to call the attention of the very Judges who have made the

record. That is the only way to have the record corrected.

If no such step is taken, the matter must necessarily end

there. It is not open to the appellant to contend before

this Court to the contrary.

Before we deal with the factual aspects, it would be

proper to deal with the plea relating to scope and ambit of

Sections 91 and 92 of the Evidence Act.

Section 91 relates to evidence of terms of contract,

grants and other disposition of properties reduced to form

of document. This section merely forbids proving the

contents of a writing otherwise than by writing itself; it

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is covered by the ordinary rule of law of evidence,

applicable not merely to solemn writings of the sort named

but to others known some times as the "best evidence

rule". It is in reality declaring a doctrine of the

substantive law, namely, in the case of a written contract,

that of all proceedings and contemporaneous oral expressions

of the thing are merged in the writing or displaced by it.

(See Thayer's Preliminary Law on Evidence p.397 and p.398;

Phipson Evidence 7th Edn. P.546; Wigmore's Evidence

p.2406.) It has been best described by Wigmore stating that

the rule is in no sense a rule of evidence but a rule of

substantive law. It does not exclude certain data because

they are for one or another reason untrustworthy or

undesirable means of evidencing some fact to be proved. It

does not concern a probative mental process - the process of

believing one fact on the faith of another. What the rule

does is to declare that certain kinds of facts are legally

ineffective in the substantive law; and this of course (like

any other ruling of substantive law) results in forbidding

the fact to be proved at all. But this prohibition of

proving it is merely that dramatic aspect of the process of

applying the rule of substantive law. When a thing is not to

be proved at all the rule of prohibition does not become a

rule of evidence merely because it comes into play when the

counsel offers to "prove" it or "give evidence" of it;

otherwise, any rule of law whatever might reduced to a rule

of evidence. It would become the legitimate progeny of the

law of evidence. For the purpose of specific varieties of

jural effects - sale, contract etc. there are specific

requirements varying according to the subject. On contrary

there are also certain fundamental elements common to all

and capable of being generalised. Every jural act may have

the following four elements:

(a) the enaction or creation of the act.

(b) its integration or embodiment in a single memorial when

desired;

(c) its solemnization or fulfillment of the prescribed

forms, if any; and

(d) the interpretation or application of the act to the

external objects affected by it.

The first and fourth are necessarily involved in every

jural act, and second and third may or may not become

practically important, but are always possible elements.

The enaction or creation of an act is concerned with

the question whether any jural act of the alleged tenor has

been consummated; or, if consummated, whether the

circumstances attending its creation authorise its avoidance

or annulment. The integration of the act consists in

embodying it in a single utterance or memorial commonly,

of course, a written one. This process of integration may be

required by law, or it may be adopted voluntarily by the

actor or actors and in the latter case, either wholly or

partially. Thus, the question in its usual form is whether

the particular document was intended by the parties to cover

certain subjects of transaction between them and, therefore,

to deprive of legal effect all other utterances.

The practical consequence of integration is that its

scattered parts, in their former and incohate shape, have no

longer any jural effect; they are replaced by a single

embodiment of the act. In other words, when a jural act is

embodied in a single memorial all other utterances of the

parties on the topic are legally immaterial for the purpose

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of determining what are the terms of their act. This rule is

based upon an assumed intention on the part of the

contracting parties, evidenced by the existence of the

written contract, to place themselves above the

uncertainties of oral evidence and on a disinclination of

the Courts to defeat this object. When persons express their

agreements in writing, it is for the express purpose of

getting rid of any indefiniteness and to put their ideas in

such shape that there can be no misunderstanding, which so

often occurs when reliance is placed upon oral statements.

Written contracts presume deliberation on the part of the

contracting parties and it is natural they should be treated

with careful consideration by the Courts and with a

disinclination to disturb the conditions of matters as

embodied in them by the act of the parties. (See Mc Kelvey's

Evidence p.294). As observed in Greenleaf's Evidence page

563, one of the most common and important of the concrete

rules presumed under the general notion that the best

evidence must be produced and that one with which the phrase

"best evidence" is now exclusively associated is the rule

that when the contents of a writing are to be proved, the

writing itself must be produced before the Court or its

absence accounted for before testimony to its contents is

admitted.

It is likewise a general and most inflexible rule that

wherever written instruments are appointed, either by the

requirement of law, or by the contract of the parties, to be

the repositories and memorials of truth, any other evidence

is excluded from being used either as a substitute for such

instruments, or to contradict or alter them. This is a

matter both of principle and policy. It is of principle

because such instruments are in their own nature and origin,

entitled to a much higher degree of credit than parol

evidence. It is of policy because it would be attended with

great mischief if those instruments, upon which men's rights

depended, were liable to be impeached by loose collateral

evidence. (See Starkie on Evidence p. 648)

In Section 92 the legislature has prevented oral

evidence being adduced for the purpose of varying the

contract as between the parties to the contract; but, no

such limitations are imposed under Section 91. Having

regard to the jural position of Sections 91 and 92 and the

deliberation omission from Section 91 of such words of

limitation, it must be taken note of that even a third party

if he wants to establish a particular contract between

certain others, either when such contract has been reduced

to in a document or where under the law such contract has to

be in writing, can only prove such contract by the

production of such writing.

Sections 91 and 92 apply only when the document on the

face of it contains or appears to contain all the terms of

the contract. Section 91 is concerned solely with the mode

of proof of a document which limitation improved by Section

92 relates only to the parties to the document. If after the

document has been produced to prove its terms under Section

91, provisions of Section 92 come into operation for the

purpose of excluding evidence of any oral agreement or

statement for the purpose of contradicting, varying, adding

or subtracting from its terms. Sections 91 and 92 in effect

supplement each other. Section 91 would be inoperative

without the aid of Section 92, and similarly Section 92

would be inoperative without the aid of Section 91.

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The two sections are, however, differ in some material

particulars. Section 91 applies to all documents, whether

they purport to dispose of rights or not, whereas Section 92

applies to documents which can be described as dispositive.

Section 91 applies to documents which are both bilateral and

unilateral, unlike Section 92 the application of which is

confined to only to bilateral documents. (See: Bai Hira Devi

and Ors. vs. Official Assignee of Bombay AIR 1958 SC 448).

Both these provisions are based on "best evidence rule".

In Bacon's Maxim Regulation 23, Lord Bacon said "The law

will not couple and mingle matters of speciality, which is

of the higher account, with matter of averment which is of

inferior account in law". It would be inconvenient that

matters in writing made by advice and on consideration, and

which finally import the certain truth of the agreement of

parties should be controlled by averment of the parties to

be proved by the uncertain testimony of slippery memory.

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.

This Court in Smt. Gangabai v. Smt. Chhabubai (AIR 1982

SC 20) and Ishwar Dass Jain (dead) thr.Lrs. v. Sohan Lal

(dead) by Lrs.(AIR 2000 SC 426) with reference to Section

92(1) held that it is permissible to a party to a deed to

contend that the deed was not intended to be acted upon, but

was only a sham document. The bar arises only when the

document is relied upon and its terms are sought to be

varied and contradicted. Oral evidence is admissible to show

that document executed was never intended to operate as an

agreement but that some other agreement altogether, not

recorded in the document, was entered into between the

parties.

But the question is whether on the facts of the present

case, the reasons given by the defendant-appellant in his

evidence for claiming the agreement as sham document can be

accepted.

As noticed by the High Court, the respondent-plaintiff

No.1 had proved on record that the appellant-defendant had

acted upon the agreement by himself, submitting the

statements giving the account of tailoring and sale of

materials as well as payment of commission on the basis of

statements as per the terms of an agreement.

The High Court also referred to certain exhibited

documents to hold that the appellant was paying commission

at the rate of 12% on the tailoring business, and 3% on the

sale of materials of all kinds. Reference has been made to

Exhibits PWs 6/4, 6/5, 6/6 to 6/9. It was noted that cheque

dated 12th August, 1975 for Rs.963.43 has been paid which

corresponds to the commission for the month of July 1975

payable on the sale of cloth as well as tailoring. The

cheque is exhibited as PW 2/3.

On a reference to Exhibit PW 6/4 and Ex.PW6/5, it

appears that in respect of the sale of cloth and on

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commission of tailoring, the amounts payable for the month

of July 1975 are Rs.454.95 and Rs.513.48 respectively.

Adding up, the total comes to Rs.968.43 for which cheque

dated 12.8.1975 has been issued. Similarly, for the month of

August 1975, the amounts are Rs.401.85 and Rs.513.72, and

cheque dated 19.9.1975 is for an amount of Rs.915.57, which

tallies with the commission of Rs.401.85 and Rs.513.72

respectively. Some instances were also noticed by the High

Court. It was highlighted that in many instances amounts in

round figures have been paid. It does not help in

furthering his case. No explanation has been offered as to

why cheques for amounts tallying with commissions, upto even

paise were issued.

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.

Admittedly, there was no consent of the original

landlord to create sub-tenancy in terms of Section 16(2) of

the Rent Control Act as noted above. Since there is no

consent of the landlord, something which is forbidden by law

could not be pleaded. That being the position, the High

Court was justified in rejecting the plea of sub-tenancy.

In almost similar situation, this Court in Waman

Shriniwas Kini v. Ratilal Bhagwandas and Co. (AIR 1959 SC

689) while considering corresponding provisions of the

Bombay Rents, Hotel and Lodging House Rates Control Act,

1947 held that subletting without previous consent is

unlawful and if such plea of subletting is accepted, it

would be enforcing an illegal agreement.

In Delta International Ltd. v. Shyam Sundar Ganeriwalla

and Anr. (AIR 1999 SC 2607) several principles were culled

out by this Court in relation to disputes on the issue

whether the agreement was for one of lease or licence in a

particular case. Six conclusions were recorded in paragraph

15. Conclusion No.5 reads as follows:

"Prima facie, in absence of a

sufficient title or interest to carve out or

to create a similar tendency by the sitting

tenant, in favour of a third person, the

person in possession to whom the possession

is handed over cannot claim that the sub-

tenancy was created in his favour, because a

person having no right cannot confer any

title of tenancy or sub-tenancy. A tenant

protected under statutory provisions with

regard to occupation of the premises having

no right to sublet or transfer the premises,

cannot confer any better title. But, this

question is not required to be finally

determined in this matter."

In the background of Section 16(2) of the Rent Control

Act, the principles set out above clearly negate the

appellant's case.

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One plea which is urged with some amount of emphasis

was increase of the damages from Rs.500/-p.m. to Rs.1200/-

p.m. As noted supra, with the consent of the parties, the

High Court had exercised powers under Order 41, Rules 30, 32

and 33. It took note of the ground realities which were not

disputed before us. High Court recorded a positive finding

that in the normal course the appellant would have paid at

least Rs.1200/-p.m., though the amount payable was more

than, even for the period for which accounts were rendered

or were to be rendered. It was fairly accepted by learned

counsel for the appellant before us that the rentals in the

area have increased by leaps and bounds after 1980. That

being so, the specious plea that there was no scope for

enhancement of the quantum of damages fixed by the Trial

Court is indefensible. Judged from any angle, the appeal is

devoid of merit and deserves dismissal with costs which we

direct. In a case of this nature, waiver of costs would be

acting with leniency on a person who deserves none. Costs

fixed at Rs.25,000/-.