JUDGMENT AND ORDER : Heard Mr. Dilip Mozumdar, learned Senior Counsel, assisted by Ms. J. Kakati, the learned counsel appearing for the appellant as well as Ms. B. Choudhury and Mr. S. Sahu, the learned counsels appearing for the respondent. 2. This appeal under section 96 CPC is directed against the judgment and decree dated 08.05.2009 passed by the learned Civil Judge, Sonitpur, Tezpur in T.S. No.22/2004. 3. The respondent is the plaintiff in the said Title Suit No.22/2004 which was filed against the appellant- defendant for specific performance of contract and for recovery of possession of the suit land. 4. The case of the respondent-plaintiff in brief is that the appellant-defendant was the sole and absolute owner of the suit land, which consists of a shop house. The appellant had derived his title through a registered Sale Deed dated 06.09.1988. The parties hereto entered into an agreement on 21.03.2002, by which the appellant agreed to sell the said suit property to the respondent at a total consideration of Rs.5,50,000/-. Out of the said agreed amount of sale consideration, the appellant received a sum of Rs.1,00,000/- as part consideration. The agreement provided that on obtaining of the necessary sale permission for sale of the suit property from Tezpur Development Authority and the Deputy Commissioner, Sonitpur, the appellant would execute and register the sale deed in respect of the suit property in favor of the respondent on receipt of the balance consideration. 5. In the plaint it was claimed that on acceptance of the advance amount, the agreement dated 21.03.2002 was a concluded contract for sale. It was stated that despite request on several occasions, the appellant did not execute and register the sale deed in respect of the suit property in favor of the respondent by accepting the balance consideration, but every time the appellant assured the respondent that he would execute and register the sale deed after accepting the balance consideration as soon as the sale permissions are obtained. On 18.02.2004, the respondent had last met the appellant along with his friend and requested him to register the sale deed and on the said occasion also the appellant told the respondent in the presence of his friend that on obtaining permission from the concerned authority he would execute and register the sale deed and requested the respondent to wait for some time. As per the plaint, the appellant by his letter dated 10.03.2004, took a false plea that the respondent had agreed to make all arrangements for obtaining the required permission from the concerned authorities for the sale of the suit property and that he would complete the said sale within one month. It was further stated that actually the appellant had taken the responsibility to obtain necessary sale permission and the respondent never took such responsibilities at any point of time and that after the concluded contract for sale dated 21.03.2002, there was nothing to be finalized. As per plaint, it was stated that in the said notice dated 10.03.2004, the respondent was falsely blamed for making delay and that the respondent was asked to finalize the deal within 15 days from the date of receipt of notice, otherwise the agreement of sale would be treated as canceled and the advance amount of Rs.1,00,000/- (Rupees One lakh only), which was paid by the respondent would be adjusted either in interest cost of the balance amount or his against the rental value of the property. The respondent gave a reply notice dated 25.03.2004 to the appellant by registered post, informing that the appellant had agreed in writing to execute and register the sale deed in favor of the respondent by accepting the balance consideration or obtaining the necessary permissions for sale and that the respondent had never made any arrangement to obtain such permission from the concerned authority and there was that the appellant was estopped from reopening the matter of finalization of sale after the concluded contract for sale of suit property to the respondent and that false plea were taken in his notice dated 10.03.2004 in order to misappropriate the advance of Rs.1,00,000/-, and the respondent requested the appellant to execute and register the sale deed for the suit property in favor of the respondent by accepting the balance consideration after obtaining necessary permission from the concerned authority within 20 days from the receipt of the notice. It was claimed that the plaintiff was always and is still ready and willing to purchase the suit property from the appellant as per the terms of the said concluded contract dated 21.03.2002. It was claimed that the plaintiff was always and is still ready and willing to purchase the suit property from the appellant as per the terms of the said concluded contract dated 21.03.2002. The respondent prayed for specific performance of contract in the alternative prayed for a decree of compensation to the extent of Rs.5,50,000/- (Rupees Five lakh fifty thousand only) in addition to the compensation under section 73 of the Contract Act. 6. The appellant contested the suit by filing his written statement wherein apart from taking usual pleas of lack of cause of action, suit is not maintainable, failure on part of the respondent to perform his part of the contract, etc., it was stated that though it was not specifically written in agreement dated 21.03.2002 that who will take the initiative and steps to obtain necessary permission for sale and purchase for the suit land from the Development Authority and Deputy Commissioner office, at the time of entering into an agreement it was verbally agreed at the time of the agreement in presence of witnesses present the respondent will make all arrangements and shall take necessary steps for obtaining permission within one month and shall get the sale registered in favor of the respondent by paying the balance consideration amount immediately after obtaining permission for sale as the appellant was in urgent need of money and was not in a position to wait for longtime to get the consideration amount. It was stated that the respondent had made a false, fabricated and blatant lies that the appellant and assured the respondent that he would obtain the sale permission. It was also stated that after expiry of one month from the date of agreement dated 21.03.2002, as the appellant was in urgent need of money, he had requested the respondent for obtaining sale permission as early as possible and that the respondent assured that he was trying his best, but due to non-fulfillment of some official formalities he had failed to obtain the said permission, which would be procured soon. The appellant denied that the respondent had met the appellant with his friends on 18.02.2004 and requested the appellant to register the sale deed after taking the balance consideration. The appellant denied that the respondent had met the appellant with his friends on 18.02.2004 and requested the appellant to register the sale deed after taking the balance consideration. It was also stated that after entering into the agreement with the respondent, the appellant had kept the suit room under lock and key without letting out to anybody and that as the room was situated in a commercial area and therefore, sustained heavy financial loss. It was stated that the appellant could have easily got a rental of Rs.3,500/- per month for the said room. Hence, by his letter dated 10.03.2004, the appellant had informed the respondent to adjust the balance amount of Rs.1,00,000/- (Rupees One lakh only) by stating that as the respondent had failed to perform his part of the contract, the appellant was not bound to sale the suit property to the respondent nor he was legally liable to refund the amount of Rs.1,00,000/- (Rupees One lakh only) and, as such, the appellant prayed for dismissal of the suit. 7. On the basis of pleading of parties the following issues were framed for trial:- (1) Whether there is any cause of action for the suit? (2) Whether on 21.03.2002 the plaintiff has undertook the responsibility to obtain permission for sale of the suit properties from the competent authorities entering into a written agreement in present of the witnesses? (3). Whether the plaintiff or defendant has failed to perform his part of the contract as was verbally agreed by them? (4). Whether the plaintiff is entitled for a decree as prayed for? (5). To what other relief/s the parties are entitled to? 8. In support of their respective cases, the respondent- plaintiff and the appellant/defendant both examined two witnesses each. While the appellant did not prove any documents, the respondent had exhibited 6 documents, viz., (i) Registered sale deed No. 1747/1988 (Ext.1), (ii) Agreement dated 21.03.2002 (Ext.2), (iii) Defendant’s letter dated 10.03.2004 (Ext.3), (iv) Registered letter dated 25.03.2004 (Ext-4), (v) Postal receipt (Ext.5), (vi) Postal certificate (Ext.6). 9. Upon hearing the learned counsel for both sides in respect of issue No.1, the learned Trial Court had held that there was cause of action of the suit and the said issue was decided in favor of the respondent. In respect of issue Nos. 9. Upon hearing the learned counsel for both sides in respect of issue No.1, the learned Trial Court had held that there was cause of action of the suit and the said issue was decided in favor of the respondent. In respect of issue Nos. 2 and 3, the learned Trial Court had held that it was seen from the contents of Exhibit-2 that the responsibility for obtaining necessary permission for sale of the suit land was on the seller, i.e. on the defendant and not on the buyer, i.e. the plaintiff. By relying on the case of Upendra Kumar Mazumdar Vs. Tapan Mazumdar, 2004 (1) GLT 298, it was held that it was the appellant and not the respondent who had taken the responsibility to obtain the necessary permission for sale of the suit land and the appellant had not performed his part of the contract to obtain necessary sale permission for the suit property from the concerned authority and to execute the registered sale deed. Relying on the provision of section 91 and 92 of the Evidence Act, 1872 the evidence as to existence of oral agreement between the parties was rejected and therefore, both the issues No.2 and 3 were decided in favor of the respondent. In respect of issue No.4, the learned Trial Court had held that the cases cited by the respondent i.e. (i) Thota Lakshmi Venkata Bala Vs. Muttamsetti Seethamma, (2008) 11 SCC 218 , (ii) Md. Tamarul Hoque Chuodhury Vs. Md. Monia Laskar, 2006 Supp. GLT 381, (iii) Ramakrishna Pillai Vs. Muhammed Kunju, AIR 2008 SC 1608, were applicable in the present case and it was held that under Ext.2, the appellant had concluded the contract and so the appellant was bound to perform his part of the contract i.e. to execute the registered sale deed in respect of the suit property in favor of the respondent, further holding that the decree of specific performance be passed against the appellant and the issue was decided in favor of the plaintiff. Consequently, the respondent was held to be entitled to a decree for specific performance of contract and the suit was decreed without cost. 10. Consequently, the respondent was held to be entitled to a decree for specific performance of contract and the suit was decreed without cost. 10. In support of the appeal, by referring to the agreement for sale dated 21.03.2002 (exhibit-2), the learned Senior Counsel for the appellant has submitted that even in the agreement for sale it was projected that the offer for selling the suit land was made to the respondent because the appellant was in urgent need of money. Hence, by virtue of the notice dated 10.03.2004 (Ext.3), it was stated that the appellant could not wait further and as a result of having failed to receive the money on time, the purpose for which money was required was defeated. It is submitted that the stand of the appellant in the said notice was that he had waited for two years and in spite of such waiting the respondent could not finalize the matter, hence, the appellant had called upon the respondent, and the appellant was assured that the matter would be finalised soon, but that the respondent had failed to do so. It is further stated that the appellant could neither dispose of his property elsewhere nor he could let out to anybody as the matter was kept hanging over by the respondent, which in turn had caused huge financial losses to the appellant. By strongly relying on the contents of notice dated 10.03.2004 (Ext.3), it was submitted that in the said notice, it was clearly stated that in course of their talks about the deal, the respondent had verbally agreed to make all arrangements for obtaining necessary permission from the concerned authorities within a period of one month and would also complete all formalities within a period of one month or so and accordingly, the respondent had taken all the required papers from him for doing the same. It was also stated therein that it appeared that the respondent was no longer interested in the deal and intentionally kept the matter hanging for the last two years. It was also stated therein that it appeared that the respondent was no longer interested in the deal and intentionally kept the matter hanging for the last two years. The respondent was informed that the appellant could not wait any longer and if he was still interested in the deal and agreeable to finalize it by compensating the losses suffered by him for the last two years, then the respondent could call on him to finalize the matter within 15 days from the date of receipt of the letter failing which the agreement for sale would be treated as cancelled thereafter and that in such event the advance of Rs.1,00,000/- which was paid would be adjusted either against the interest cost of the balance amount or against the rental value of the property. The respondent was also informed that the final settlement should be made before the expiry of 15 days after which no request from the respondent would be entertained. It is further submitted that in the reply letter dated 25.03.2004, the respondent had not denied that the respondent had taken all the required papers from the appellant for obtaining consent from the authorities. 11. It is further submitted that the Agreement for Sale (Ext.2), it could be seen that it contained no clause indicating that who would be obtaining the said permission, therefore, such matter which was not covered by the agreement. Hence, the parties had entered into a separate oral agreement by virtue of which the respondent took the responsibility of obtaining sale permission from the competent authorities. In the said context it is submitted that the learned trial court had erroneously applied the provisions of Section 91 and 92 of the Evidence Act, 1872 to reject the evidence of the appellant where he had stated that it was agreed that the respondent would obtain sale permission. It was submitted that this was not a case where the appellant was giving any evidence for the purpose of contradicting, varying, adding to, or subtracting from terms and conditions of the Agreement (Ext.2). It was submitted that this was not a case where the appellant was giving any evidence for the purpose of contradicting, varying, adding to, or subtracting from terms and conditions of the Agreement (Ext.2). It is submitting that the act of obtaining sale permission was a statutory requirement and it is not unnatural for the respondent to take the responsibility of obtaining such sale permission in his own interest as he had paid a sum of Rs.1,00,000/- as advance so as to conclude the deal at the earliest, and that in the said regard, the agreement dated 21.03.2002 (Ext.2) was totally silent. Therefore, according to the learned Senior Counsel for the appellant, this was a case where the Proviso (6) of Section 92 of the Evidence Act, 1872 was attracted and therefore, evidence to prove that the onus of obtaining sale permission was on the respondent was admissible and the exclusion of such evidence by the learned trial court was erroneous and such finding was liable to be interfered with. 12. It was also submitted that the learned Trial Court had misread the contents of the Agreement for Sale (Ext.2) and had arrived at an unsustainable finding that the said agreement contained the clause that it was the responsibility of the appellant to obtain the necessary sale permission and in this regard, the learned Senior Counsel for the appellant had heavily relied on that part of the cross-examination of the PW-1, i.e. the respondent, wherein he had admitted that in the agreement it was not specifically written as to who would obtain the sale permission. 13. It is submitted that in the cross-examination, the PW.1 had admitted that the suit property (land and house) was a shop and that he sometimes saw the appellant in the shop. According to the learned Senior Counsel for the appellant, the said statement by the PW.1 is suggestive of the fact that the shop was open only sometimes. It is submitted that the PW.1 had further admitted that in his letter he had not stated that he had met the appellant with Nooruddin. According to the learned Senior Counsel for the appellant, the said statement by the PW.1 is suggestive of the fact that the shop was open only sometimes. It is submitted that the PW.1 had further admitted that in his letter he had not stated that he had met the appellant with Nooruddin. It is submitted that when it is written in the agreement itself that the appellant was selling the land for need of money, as such, it should be presumed that the appellant could not perpetually wait for the sale permission and, as such, when no attempts have been made by the respondent to obtain the requisite sale permission, it must be held that the respondent could not prove that he was ready and willing to perform his part of the contract to obtain sale permission and to pay the balance sale consideration to the appellant and, as such, the suit was liable to be dismissed. In support of his contentions, the learned Senior counsel for the appellant had referred to the following case citations:- (a) Roop Kumar Vs. Mohan Thedani, (2003) 6 SCC 595 (para 17-21); (b) Raj Kumar Rajendra Singh Vs. State of H.P., (1990) 4 SCC 320 (para 19); (c) Abdulla Ahmed Vs. Animendra Kissen Mittar, AIR 1950 SC 15 (para 23); (d) Nawab Major Sir Mohammed Akbar Khan Vs. Attar Singh and Ors., AIR 1936 PC 171 (pp 174-175); (e) Upendra Kumar Mazumdar Vs. Tapan Mazumdar and Ors., (2004) 3 GLR 116. (para 10); (f) Anonda Chandra Saikia Vs. Madhu Ram Saikia, (2009) 1 GLR 701 (para 27). 14. Per contra, the learned counsel for the respondent has submitted that as per the nomenclature of the “sale deed” as well as “sale permission”, as the name suggests, these are the documents which are required to be prepared and executed by the seller and that is why those documents are not referred to as “purchase deed” or “permission to purchase”. Hence, the obligation to obtain the requisite sale permission and to execute and register the sale deed would always lie on the seller alone and in this case in hand, the appellant was the seller. Hence, the obligation to obtain the requisite sale permission and to execute and register the sale deed would always lie on the seller alone and in this case in hand, the appellant was the seller. Referring to the language used in paragraph 2 of the Agreement for Sale (Ext.2), it is submitted that as the relevant paragraph 2 starts with ‘I’ i.e. it denoted the appellant and the reference to the three acts of (i) obtaining sale permission, (ii) receiving sale money, and (iii) executing sale deed, were all to be done by the appellant alone. The learned counsel for the respondent has heavily relied on paragraph 19 of the case of Raj Kumar Rajinder Singh (supra), and submits that it has been held by the Hon’ble Apex Court that if the terms of the documents are clear and unambiguous, extrinsic evidence to ascertain the true intention of the parties is inadmissible because Section 92 of the Evidence Act, 1872 mandates that in such a case the intention must be gathered from the language applied in the document. He also relies on paragraph 23 of the case of Abdulla Ahmed (supra), which is reproduced below: “The evidence of conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its two meaning. Evidence of the acts done under Act is a guide to the intention of the parties in such a case and particularly where acts are done after the death of the instrument.” 15. By relying on the above passage, it is submitted that in paragraph 7 of the written statement, it was stated that “… it was verbally agreed between the plaintiff and the defendant at the time of the entering into the said written agreement for sale 21.03.2002 in presence of the witnesses that the plaintiff shall make an arrangement and shall take necessary permission from the above mentioned concerned authorities within a month and shall get the sale deed registered in favour of the plaintiff paying the balance consideration amount to the defendant immediately after obtaining permission for sale as the defendant was in urgent need of money…”. But, it is submitted that the DW.2, who is the witness to the execution of the Agreement for Sale (Ext.2), had stated in paragraph 3 of his evidence on affidavit that prior to the execution of the Agreement (Ext.2), there was a verbal agreement between the respondent and the appellant that the sale permission from the Tezpur Development Authority and Deputy Commissioner was to be obtained by the respondent. By referring to the judgment of the Hon’ble Apex Court in the case of Abdulla Ahmed (supra), it is submitted that as the alleged verbal agreement was prior in point of time, evidence as to the previous contract of the parties could not be given and it is only the events taking place subsequent to the contract can proved to gather the intention of the parties. Moreover, as the pleadings made in the written statement is contrary to the evidence of the DW.2, this is a case where it ought to be held that the appellant had not been able to prove his case with any admissible evidence because the DW.2 did not support the case of the appellant, which is in contrast to the pleadings of the appellant that at the time of execution of the Agreement for Sale (Ext.2), that the verbal agreement for obtaining sale permission was made between the parties. It was submitted that the evidence which is contrary to the contents of the written document (Ext.2), shall stand excluded under Section 92 of the Evidence Act, 1872. 16. In view of the submissions made by the learned counsel for both sides, following points of determination arise for consideration of this Court:- (a) Whether it was the duty of the respondent-plaintiff to obtain the requisite sale permission from the authorities in order to sell the suit land? (b) Whether the pleadings and the evidence of the appellant-defendant pertaining to the verbal agreement between the parties by which the respondent was to obtain the requisite sale permission as alleged by the appellant stands excluded by applying the provisions of Section 92 of the Evidence Act, 1872? (c) Whether the judgment passed by the learned Trial Court is sustainable in facts in law? 17. (c) Whether the judgment passed by the learned Trial Court is sustainable in facts in law? 17. For the purpose of answering the aforesaid three points of determination, it would be relevant to refer to the rough English translation of the relevant contents of paragraph 2 of the Land Sale Agreement (Ext.2), which is- “… immediately on obtaining the sale permission from the Tezpur Development Authority and Deputy Commissioner, the balance money would be accepted and will be bound to execute the sale deed.” From the above, it is apparent although there is a reference of obtaining the “sale permission”, there is nothing to indicate whether such permission would be obtained from the competent authority by the appellant or the respondent. 18. On a perusal of (i) the notice dated 10.03.2004 (Ext.3), (ii) Agreement for Sale (Ext.2), (iii) the written statement, and (iv) statement made in the Evidence-On-Affidavit filed by the appellant, it is the consistent stand of the appellant that he was in urgent need of money for which he was selling the land and as there was no cross-examination of the appellant (DW.1) and his witness (DW.2) on the said point, the said statement of the appellant stands proved. Under the circumstances it is very difficult to accept that the appellant would cause deliberate delay in selling the land. It is also seen that the appellant has clearly stated in his notice dated 10.03.2004 (Ext.3) and also in his written statement and evidence-on-affidavit that he had given the requisite papers for obtaining sale permission to the respondent. However, there is no pleading or evidence on part of the respondent’s side that he had handed any papers to the appellant for obtaining sale permission. One is required to submit a petition before the authorities for grant of sale permission, without which the competent authorities would not grant any permission for selling land in the State. However, there is no pleading or evidence on part of the respondent’s side that he had handed any papers to the appellant for obtaining sale permission. One is required to submit a petition before the authorities for grant of sale permission, without which the competent authorities would not grant any permission for selling land in the State. Therefore, the preponderance of evidence tilts in favour of accepting the version of the appellant to the effect that the parties had discussed that the respondent would obtain the sale permission, firstly because it is mentioned in the Agreement for Sale that the appellant was in urgent need of money and secondly, because there is no cross examination of the two DWs on the plea of the appellant that he had handed over the papers to the respondent for obtaining sale permission, as such, the said stand of the appellant also stands duly proved. As a result, the point of determination No. (a) is decided in favour of the appellant and against the respondent by holding that in the present case in hand, it was the duty of the respondent- plaintiff to obtain the requisite sale permission from the authorities in order to sell the suit land and, as such, the decision of the learned trial court on issue No.2 is not found liable to be upheld and, as such, the decision of the learned trial court on issue No.2 is hereby interfered with and is accordingly, set aside. It is further held that the issue No.1 that there was cause of action for the suit was rightly decided by the learned trial court and the same is upheld. 19. The relevant passage of the cases cited by the learned Senior Counsel for the appellant on interpretation of evidence of the appellant in light of the provisions of Section 92 of the Evidence Act, 1872 are reproduced below:- (a) Paragraphs 17 to 21 of the case of Roop Kumar (supra), are quoted below:- “17. 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. 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). 18. 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. 19. 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. 20. The two sections are, however, different 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 BaiHira Devi &Ors. vs. Official Assignee of Bombay AIR 1958 SC 448 ). 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 BaiHira Devi &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 specialty, which is of the higher account, with matter of averments 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. 21. 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.” (b) Paragraph 19 of the case of Raj Kumar Rajinder Singh (supra), is already been mentioned in the case of Hon’ble Supreme Court has stated as follows:- “19. Counsel for the defendants, however, contended that it was not open to the Court in view of the prohibition contained in Section 92 of the Evidence Act to take into account the subsequent facts and circumstances to determine the extent of the grant under the Patta of 14th Maghar 1999 Bikrami. He submitted that where a claim is based on a written document, the terms of the document must be interpreted without the aid of extrinsic evidence. It is true that ordinarily the intention of the parties to a document must be gathered from the language in which the relevant terms and conditions are couched and no oral evidence can be permitted with a view to varying or contradicting the terms of the document. It is true that ordinarily the intention of the parties to a document must be gathered from the language in which the relevant terms and conditions are couched and no oral evidence can be permitted with a view to varying or contradicting the terms of the document. To put it differently, if the terms of the document are clear and unambiguous, extrinsic evidence to ascertain the true intention of the parties is inadmissible because Section 92 mandates that in such a case the intention must be gathered from the language employed in the document. But if the language employed is ambiguous and admits of a variety of meanings, it is settled law that the 6th proviso to the section can be invoked which permits tendering of extrinsic evidence as to acts, conduct and surrounding circumstances to enable the Court to ascertain the real intention of the parties. In such a case such oral evidence may guide the Court in unravelling the true intention of the parties. The object of admissibility of such evidence in such circumstances under the 6th proviso is to assist the Court to get to the real intention of the parties and thereby overcome the difficulty caused by the ambiguity. In such a case the subsequent conduct of the parties furnishes evidence to clear the blurred area and to ascertain the true intention of the author of the document. If any authority is needed in support of this proposition reference may be made to the case to Abdulla Ahmed v. Animendra Kissen, 1950 SCR 30 . At p. 46 we find the following passage: "The evidence of conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of instrument (Vide para 343 of HailshamEdn. of Halsbury, Vol. 10, p. 274)". In the present case the patta of 14 Maghar 1999 Bikrami is admittedly lost. Reliance was, therefore, placed on Ex. P-6 which incorporates the order No. 5158 of even date. The entry in Ex. of Halsbury, Vol. 10, p. 274)". In the present case the patta of 14 Maghar 1999 Bikrami is admittedly lost. Reliance was, therefore, placed on Ex. P-6 which incorporates the order No. 5158 of even date. The entry in Ex. P-6 mentions the khatakhatauni of the 106 plots granted to the plaintiff and the area thereof is shown to be 263.4 bighas and part of the uncultivated jagir. Since a doubt arose-whether the disputed khasra numbers formed part of the uncultivated jagir referred to in Eh. P-6, the parties led oral as well as documentary evidence with a view to enabling the Court to ascertain the extent of the Jagir granted to the plaintiff. Since the words 'part of the uncultivated jagir' were ambiguous extrinsic evidence aliunde the grant became necessary to explain the coverage of those words. We, therefore, do not see any merit in the objection.” (c) The relevant passage of paragraph 23 of the case of Abdulla Ahmed Vs. Animendra Kissen Mittar, AIR 1950 SC 15 (para-23) has been quoted in the extract of the case of Roop Kumar (supra). (d) In page 174-175 of the case of Nawab Major Sir Mohammed Akbar Khan (supra), the Hon’ble Privy Council has stated as follows:- “23. The further objection to the admissibility of the document was that it recorded the terms of a contract reduced to the form of this document, and that under ss.91 and 92 of the Indian Evidence Act no oral evidence was admissible to contradict, vary, add to, or subtract from its terms. The answer is that the document does not record, or purport to record, all the terms of the contract between the parties. There is nothing in the document which explains how the money came to be received and nothing to prevent the parties from showing that it was paid by way of loan, deposit, or on account of some joint adventure. The use of the money might have been limited in various ways. The only terms which the document does express are as to the date of repayment of the money expressed to be received, and as to the rate of interest. These terms the defendants do not now seek to contradict, vary, add to, or subtract from. The use of the money might have been limited in various ways. The only terms which the document does express are as to the date of repayment of the money expressed to be received, and as to the rate of interest. These terms the defendants do not now seek to contradict, vary, add to, or subtract from. The Board can therefore proceed to examine the evidence untrammelled by the restriction imposed upon themselves unnecessarily, as now appears, by the Courts below, of having to disregard the receipt or evidence as to the actual transaction in 1917. Their Lordships see no reason for rejecting the plaintiffs evidence as to this, which seems to be supported by evidence as to a former and, as he says, similar transaction entered into by both his father and himself as to Rs.25,000/-. But it has to be remembered that the transaction in 1917, assuming it to have been a deposit, was not a deposit payable on demand. The receipt shows that it was payable after the expiration of two years. Without deciding the point, their Lordships prefer to assume that the evidence given by the plaintiff that it was also stipulated in 1917 that if not paid in two years it was to remain payable on demand should be rejected as inconsistent with the express terms of the document and they are not prepared to find that there was an implied term that it should be so payable. The real question in the case is whether there was any agreement made in 1919, and if so, whether the plaintiff has established the agreement alleged by him. The outstanding fact is that after 1919 no interest was in fact paid, nor was any claim made to have the principal repaid until, at the earliest, 1925. Obviously some explanation is required. The defendants supplied a plain tale….” (e) In paragraph 10 of the case of Upendra Kumar Mazumdar (supra), the case of Roop Kumar (supra) was quoted. Upendra Kumar Mazumdar Vs. Tapan Mazumdar & Ors., (2004) 3 GLR 116 (para-10; refers to the case of Roop Kumar). (f) In paragraph 27 of the case of Anonda Chandra Saikia (supra), this Court has held as follows:- “27. Upendra Kumar Mazumdar Vs. Tapan Mazumdar & Ors., (2004) 3 GLR 116 (para-10; refers to the case of Roop Kumar). (f) In paragraph 27 of the case of Anonda Chandra Saikia (supra), this Court has held as follows:- “27. Keeping in view of the ratio laid down by the Apex Court as well as the different High Courts in cases discussed above, and also the Proviso (2) to Section 92 of the Indian Evidence Act, it appears that the oral evidence regarding the terms and conditions amongst the parties on one side of the written agreements/documents is not barred provided the written document is silent about the terms and conditions amongst the parties on one side and also not inconsistent with the terms and conditions between the parties in the said written document.” 20. Keeping in mind the ratio of the above referred cases, it is seen that the Agreement (Ext.2) is totally silent as to who would be obtaining the sale permission, which is a pre-condition for registering the sale of land in the State of Assam. Therefore, if there is no sale permission, there is no chance of performance of the said Agreement (Ext.2). Therefore, despite the absence of any clause in the Agreement (Ext.2) as to who would obtain the sale permission from the two statutory authorities, viz., Tezpur Development Authority and the Deputy Commissioner, Sonitpur, the preponderance of probability is that there must have been some talks between the parties as to who would take the lead to obtain such permission by visiting those office because while the appellant states that it was the responsibility of respondent, the respondent has taken a stand that he never took the responsibility and it was the appellant’s duty to obtain such permission. Thus, even if the stand of the respondent is accepted, then also there was a separate arrangement between the parties to the effect that the appellant would shoulder the responsibility of obtaining the sale permission. Under the said circumstances, this Court is of the view that as the Agreement for Sale (Ext.2) is silent as to who would obtain the requisite sale permission, both the parties, including the appellant, were entitled to lead evidence with regard to the said work. Under the said circumstances, this Court is of the view that as the Agreement for Sale (Ext.2) is silent as to who would obtain the requisite sale permission, both the parties, including the appellant, were entitled to lead evidence with regard to the said work. In the opinion of this Court, such evidence fell within the scope of Proviso (6) of Section 92 of the Evidence Act, 1872 and such evidence could not have been excluded from being considered by invoking Section 92 of the Evidence Act, 1872 as was done by the learned Trial Court. Hence, the point of determination No. (b) is decided in the negative and in favour of the appellant by holding that the pleadings and the evidence of the appellant-defendant pertaining to the verbal agreement between the parties by which the respondent was to obtain the requisite sale permission as alleged by the appellant does not stand excluded by applying the provisions of Section 92 of the Evidence Act, 1872, rather, such evidence is admissible as it falls within the scope of Proviso (6) of Section 92 of the Evidence Act, 1872. 21. In evaluating the evidence of the parties, the learned trial court seems to have missed out the admission of the respondent i.e. DW-1, who in his cross examination had clearly stated that “It has not been specifically written in the said Agreement that who will obtain sale permission.” Therefore, the finding recorded by the learned Trial Court on issue No. 2 and 3 to the effect that “from the contents of the document under Ext.2, it is seen that the responsibility for obtaining necessary permission for sale of the suit land was on the defendant and not on the buyer i.e. the plaintiff” is not sustainable. There is every possibility that both the parties, who are aware of the requirement by law to obtain land sale permission from the Tezpur Development Authority and the Deputy Commissioner’s office, must have deliberated amongst themselves as to who between them would shoulder the responsibility to obtain such permission. There is every possibility that both the parties, who are aware of the requirement by law to obtain land sale permission from the Tezpur Development Authority and the Deputy Commissioner’s office, must have deliberated amongst themselves as to who between them would shoulder the responsibility to obtain such permission. The absence of plea by the respondent in his reply notice dated 25.03.2012 that he had signed any application for obtaining sale permission from the competent authorities, the preponderance of probability is found to tilt in favour of the positive evidence of the appellant that he had handed over the requisite papers to the respondent and, as such, the issue No. 2 before the learned trial Court is decided in the negative by holding that the pleadings and the evidence of the appellant-defendant pertaining to the verbal agreement between the parties by which the respondent was to obtain the requisite sale permission as alleged by the appellant cannot be excluded by applying the provisions of Section 92 of the Evidence Act, 1872. Consequently, this court is of the considered opinion that the appellant had been able to prove that at the time of entering into the Agreement for Sale, the parties had settled that the respondent-plaintiff would obtain the requisite sale permission from the authorities to enable the appellant to sell the suit land. 22. The appellant had issued the notice dated 10.03.2004 first in point of time, expressing his intention to repudiate the agreement dated 21.03.2002. But, despite receiving the same, the respondent did not agree to obtain the requisite sale consideration. The respondent had admitted that the suit premises was a shop house and, as such, this court is of the considered opinion that as the appellant is selling his shop premises and he was seen in his shop only on some occasions, he must be in genuine need of money and, as such, it is not expected that the appellant would cause delay in closing the transaction of sale. Hence, this Court is of the considered opinion that the respondent could not demonstrate that he was ready and willing to perform his part of the contract, which is a pre-condition under Section 16(c) of the Specific Relief Act, 1963 for decreeing a suit for specific performance of the contract. Hence, this Court is of the considered opinion that the respondent could not demonstrate that he was ready and willing to perform his part of the contract, which is a pre-condition under Section 16(c) of the Specific Relief Act, 1963 for decreeing a suit for specific performance of the contract. Resultantly, the decision of the learned trial court on issue No.3 is not found sustainable in view of the discussions above and the said finding is interfered with by setting the same aside. 23. From the notice dated 10.03.2004, it appears that the same was issued after waiting for two years from the date of entering into the Agreement dated 21.03.2002 (Ext.2). Consequently, the plea of the appellant that due to delay, the purpose for which the suit premises was being sold was lost is accepted as quite plausible. Therefore, on the basis of the discussions above, this court is of the opinion that this is a fit and proper case wherein the decree for specific performance of the contract is liable to be refused. As a result of the above discussions, the decision of the learned trial court on issues No.4 and 5 are not found to be sustainable and, as such, the same is set aside. 24. Therefore, as a cumulative effect of the decision on the above referred points of determination, which have been answered in favour of the appellant, the point of determination (c) as formulated by this Court is answered in the negative by holding that the impugned judgment and decree passed by the learned Trial Court is not sustainable. Therefore, the present appeal stands partly allowed and the judgment and decree dated 08.05.2009 passed by the learned Civil Judge, Sonitpur, Tezpur in T.S. No.22/2004 is set aside by partly dismissing the suit as indicated hereinafter. 25. The appellant cannot be permitted to enrich himself by forfeiting the sum of Rs.1,00,000/- (Rupees One lakh only), received by way of advance. The Appellant did not make any endeavour to prove the prevailing market rent and could not prove that he had suffered any financial loss or damages. Though the appellant had taken a stand that he had availed loan from two banks, yet the said plea was not proved. Therefore, the appellant failed to prove that he had suffered any loss or damages. Though the appellant had taken a stand that he had availed loan from two banks, yet the said plea was not proved. Therefore, the appellant failed to prove that he had suffered any loss or damages. As such, by refusing specific performance of contract, this Court is inclined to partly allow the alternative prayer made by the respondent. The respondent is held to be entitled to refund the advance money of Rs.1,00,000/- (Rupees One lakh only) from the appellant within a period of 2 (two) months from today together with interest @ 12% per annum, payable from the date of the agreement dated 21.03.2002 till realization. On the failure of the appellant to refund the entire advance amount of Rs.1,00,000/- (Rupees One lakh only) and interest within the time allowed, on expiry of said period of two months, the said sum would carry interest @ 15% per annum from after two months till realization. 26. The appeal stands partially allowed to the extent as indicated above, by dismissing the claim for specific performance of contract. On the other hand, the suit of the respondent is partly decreed, allowing the respondent- plaintiff the recovery of the advance amount of Rs.1,00,000/- (Rupees One lakh only) together with interest of 12% per annum from 21.03.2002 till two months from the date of this order, failing which the respondent- plaintiff would be entitled to recover interest @ 15% per annum the as indicated in paragraph 25 above. Let a decree be prepared accordingly. 27. There shall be no order as to cost. Send back the LCR