ROOP KUMAR versus MOHAN THEDANI

Citation: [2003] 3 S.C.R. 292 · Decided: 02-04-2003 · Supreme Court of India · Bench: SHIVARAJ V. PATIL · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
c 
ROOP KUMAR 
V. 
MOHAN THEDANI 
APRIL 2, 2003 
[SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ.] 
Rent r.md Eviction: 
Delhi Rrnt Cumrol .1ct, 1958; Section 16(8): 
Com111<!l'cial pre111ises-Agcncy-cu111-Licence agree111ent between tenant 
and another/appellant for a fixed periur.1--Possession a11d rights of tenanl)' 
not ported with--Poyment of commission-Agree111e11t-Nature of-Held: 
Agreeme/1/ dues not specifj• any amount payable 111onthly by the appellant to 
D tenant as rent-Regular pay111ent of commission i11 execution of an agreement-
Abse11ce of consent of the landlord to creaJe sub-te11ancy-He11ce, High Court 
has right~)' heir.I that the agree111ent was one of licence and not of lease-Code 
of Cri111i11al Procedure, 197 3; Section 1./5. 
E 
Ei'idence Act. 1872: Ss. 91 & 92: 
Co111rac1-lf' r ii te11/orol-Tcrms--P arl ies-E vident iary value of-
Discusser.I 
Civil Procedure Car.le, 1908-0../I, Rules 30, 32 & 33: Quantu111 of 
da111age-E11ha11ce111e11t of-High Court-Jurisdiction of-Held: High Court 
F possess p01rer under the relcrnnt prorisio11s of lair to enha11ce the da111ages 
awarded by Courts belo11'. 
Practice and Procr:dure: 
App<!al-Plea of no concession-Held, whe11 parties conse111ed before 
G High Court 10 render verdict 011 the basis of material a\'Gilahle, it is nol open 
for the111 to tok<.' .rnch plea i11 appeal. 
Word1· & Phrases: 
'Creatio11 of 011 act', 'integration of w1 act' and 'best evidence rule'_ 
H Afeaning of 
292 
! 
../ 
ROOP KUMAR v. MOHAN THE DANI 
293 
Father of the respondent-tenant had entered into an agency-cum- A 
deed of licence with the appellant for a fixed period to run business of 
tailors and drapers by using the ~hop /showroom of respondent on 
payment of certain amount of commission. However, possession of the shop 
and tenancy rights continued with the respondent. The agreement was 
acted upon by the parties but after some time, appellant had trespassed B 
in the suit premises by destroying all evidence of possession of the 
respondent and did not make payment of due commission for certain 
period. Under such circumstances, respondent initiated proceedings under 
Section 145 Cr.P.C. after serving notices to appellant for rendition of 
accounts, payment of balance amount of commission for certain period, 
grant of damages and also for recovery of possession of the suit premises. C 
Trial Court decreed the suit in favour of the respondent and the 
judgment was affirmed by the High Court with some modifications by 
enhancing the damages from Rs. 500 p.m. to Rs. 1,200 p.m. for certain 
period. Accordingly a decree was passed. Hence the present appeal. 
D 
It was contended for the appellant that the High Court was not 
justified in hearing the appeal since it was the trial Court which proceeded 
on the wrong premises to arri\'e at its findings; that the agreement was 
never acted upon; that the High Court erroneously proceeded as if some 
of the issues were not pressed but it was not so; that the basic issues in 
the matter had neither been adjudicated by the Trial Court nor by the E 
High Court; that since these issues have important bearing, evidence need 
to be considered pertaining to these issues in proper perspective; that the 
High Court did not consider the implication of Ss. 91 and 92 of Indian 
Evidence Act in its true perspective; and that the High Court could not 
suo 1110111 increase the damages. 
F 
On behalf of the respondent, it was submitted that when High Court 
had already recorded consent by the appellant, it is not open to him to 
take plea of no concession; that the pica of appellant as sub-tenant was 
untenable in \'iew of cognizance of relevant documentary evidences by the 
High Court; and that the High Court possess power under the rele\'ant G 
prorisions of law to increase damages. 
Dismissing the appeal, the Court 
HELD: I.I. In the instant case, the parties agreed before the High 
Court that instead of remanding the matter to trial Court, it should H 
294 
SUPREME COURT REPORTS 
[2003) 3 S.C.R. 
A 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. [302-AI 
State of Maharashtra v. Ramdas Shrinivas Nayak and Anr., 119821 2 
SCC 463 and Bharnagar University v. Pa!itana Sugar Mill Pvt. ltd and Ors., 
B (2002) AIR sew 4939, referred to. 
c 
1.2. Section 91 of the Evidence Act merely forbids proving the 
contents of a writing otherwise
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