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2014 DIGILAW 1218 (PNJ)

NAVTEJ SINGH v. DARBARA SINGH

2014-08-22

INDERJIT SINGH

body2014
JUDGMENT : INDERJIT SINGH, J. Civil Misc. No. 17124-CII of 2014: 1. Civil miscellaneous application is allowed subject to all just exceptions. Documents annexed with the application are taken on record. Civil Revision No. 4757 of 2014: Navtej Singh-petitioner has filed this civil revision petition against respondents Darbara Singh etc. under Article 227 of the Constitution of India for setting aside the impugned order dated 27.5.2014 (Annexure-P. 5) passed by the Additional Civil Judge (Senior Division), Abohar, whereby the application filed for rectification of instrument/agreement to sell dated 4.3.2006 and for amendment of the plaint in view of Section 26 of the Specific Relief Act has been dismissed. It is mainly stated in the petition that the respondents agreed to sell their agricultural land measuring 35 Acres 3 Kanals situated in the area of Village Shere Wala for a total consideration of Rs. 1,76,66,666/- and the respondents received a sum of Rs. 20 Lacs as earnest money. When the respondents failed to execute the sale deed in terms of the agreement to sell, the suit was filed and that suit was decreed ex parte. Later on, the ex parte decree was set aside and the respondents were allowed to file written statement. In the written statement, the respondents have not denied the execution of the agreement in question and further they have also not denied the receipt of Rs. 20 Lacs as earnest money. After filing the written statement, issues were framed and the petitioner was permitted to lead his evidence. Later on the petitioner came to know that in the agreement to sell dated 4.3.2006 the correct Khasra numbers and their measurement was not mentioned. The petitioner further came to know that even some of the Khasra numbers mentioned in the agreement to sell do not belong to the respondents. When the petitioner came to know regarding the aforesaid facts, he moved an application before the learned trial Court for rectification of instrument/agreement to sell and for amendment of plaint in view of Section 26 of the Specific Relief Act. 2. Notice of motion in this petition was issued to the respondents. Mr. R.K. Singla, Advocate put in appearance on behalf of the respondents and contested this civil revision. 3. I have heard learned counsel for the parties and have gone through the record. 4. 2. Notice of motion in this petition was issued to the respondents. Mr. R.K. Singla, Advocate put in appearance on behalf of the respondents and contested this civil revision. 3. I have heard learned counsel for the parties and have gone through the record. 4. Learned Additional Civil Judge (Senior Division), Abohar vide order dated 27.5.2014 dismissed the application for rectification of instrument/agreement to sell as well as the application for amendment of the plaint filed under Order 6 Rule 17 C.P.C. 5. I have gone through the impugned order. The learned lower Court put much emphasis on the passing of the ex parte decree and the fact that there is inappropriate delay in filing the application. Secondly, it is also held that another application has been filed on the same ground and it has been withdrawn and has not mentioned the justified reasons for withdrawing of his earlier application and filing new one without permission of the Court. 6. From the record, I find that the Hon'ble Supreme Court in Puran Ram Vs. Bhaguram and Another, (2008) 4 SCC 102 held as under- "11. After closely examining the provisions made under Section 26 of the Specific Relief Act, 1963, we do not find any difficulty to hold that in a suit for specific performance of contract for sale, it is permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement. Section 26 clearly says as to when a contract or other instrument can be rectified and provides that when through fraud or a mutual mistake of the parties, the agreement in writing does not express their real intention, it is open to the parties to apply for amendment of the instrument. It provides that when such a situation arises, then- (a) either party or his representative in interest may institute a suit to have the instrument rectified, or (b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified. 12. It provides that when such a situation arises, then- (a) either party or his representative in interest may institute a suit to have the instrument rectified, or (b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified. 12. A reading of these two conditions made under Section 26 of the Act would amply show that either party may institute a suit to have the instrument rectified or a party who has already filed a suit in which any right arising under the instrument is in issue may claim in his pleading that the instrument be rectified. So far as the facts of the present case are concerned, it cannot be doubted that the main issue in the suit for specific performance of the contract for sale was relating to the agreement for sale in which a part of the description of the suit property was wrongly given by mutual mistake and therefore, needed to be amended. Section 26, of course, says that it would be open to a party to institute a suit for correcting the description of the suit property, but the proviso to Section 26 clearly permits that where a party has not claimed any such relief in his pleading, the court shall at any stage of the proceeding allow him to amend the plaint on such terms as may be just for including such claim. From a plain reading of the provisions under Section 26 of the Act, there is no reason why the prayer for amendment of the agreement to correct a part of the description of the suit property from Chak No. 3 SSM to Chak No. 3 SLM, later on converted to Chak No. 3 SWM could not be granted. In our view, it is only a correction or rectification of a part of the description of the suit property, which cannot involve either the question of limitation or the change of nature of suit. In our view, the suit shall remain a suit for specific performance of the contract for sale and a separate inde pendent suit is not needed to be filed when the proviso to Section 26 itself clearly permits either party to correct or rectify the description of the suit property not only in the plaint but also in the agreement itself. So far as the question of limitation is concerned, the agreement was entered into on 12th of April, 1991 and the suit, admittedly, was filed within the period of limitation. Therefore, even if the amendment of plaint or agreement is allowed, that will relate back to the filing of the suit which was filed within the period of limitation. So far as the submission of the learned counsel for the respondent that the rectification of the agreement cannot be permitted is concerned, we are of the view that Section 26(4) of the Act only says that no relief for rectification of instrument shall be granted unless it is specifically claimed. However, proviso to Section 26, as noted herein earlier, makes it clear that when such relief has not been claimed specifically, the court shall at any stage of the proceeding allow such party to amend the pleading as may be thought fit and proper to include such claim. Therefore, we are not in agreement with the learned counsel for the respondent that section 26 would stand in the way of allowing the application for amendment of the agreement. The views expressed by us find support in a decision of the Madras High Court in Raipur Manufacturing Co. Ltd. Vs. Joolaganti Venkatasubba Rao Veerasami and Co., AIR 1921 Mad 664, wherein it was held that where in the course of a suit for damages for breach of contract, the plaintiff contends that there is a clerical error in the document embodying the contract, it is not always necessary that a separate suit should have been brought for rectification of the document and it is open to the court in a proper case to allow the plaintiff to amend the plaint and ask for the necessary rectification. As noted herein earlier, the learned counsel for the respondent contended before us that the appellant could not get specific performance of the contract for sale unless he sued for rectification of the agreement for sale. We are unable to accept this contention of the learned counsel for the respondent for the simple reason that in this case, by filing the application for amendment in the suit for specific performance of the contract for sale, the appellant had sought the rectification of the agreement also. We are unable to accept this contention of the learned counsel for the respondent for the simple reason that in this case, by filing the application for amendment in the suit for specific performance of the contract for sale, the appellant had sought the rectification of the agreement also. It is sufficient to observe that it was not necessary for the appellant to file a separate suit for that purpose as contended by the learned counsel for the respondent. It is open to the appellant to claim the relief of rectification of the instrument in the instant suit. The amendment, in our view, in the agreement was a formal one and there was no reason why such amendment could not be allowed." 7. I have gone through the law laid down in this judgment, which fully applies in the present case. 8. Learned counsel for the petitioner also placed reliance on the decision of this Court in Civil Revision 7148 of 2009, Man Singh v. Gurinder Singh and others (decided on 30.7.2012). I have gone through the law laid down in this judgment, which fully applies to the facts in the present case. 9. On the other hand, learned counsel for the respondents placed reliance on the judgment of Kerala High Court in Kalpakamani and Others Vs. Shajathan and Another, in which it is held that writ under Article 227 of the Constitution of India is not maintainable against an interim order of rejecting application for amendment in the plaint. In view of the law laid down by the Hon'ble Supreme Court, as stated above in Puran Ram v. Baguram and another (supra), I find that the law cited by the learned counsel for the respondents will not apply because in that case the High Court reversed the order of the Second Additional District Judge, Bikaner under Article 227 of the Constitution of India and it is no where held that the petition under Article 227 of the Constitution of India cannot be filed. 10. Learned counsel for the respondents also placed reliance on the judgments of this Court in Bahadur Singh and Another Vs. Avtar Singh, (2007) 147 PLR 628 and Parbhati Lal Vs. Dalip Singh and another, (2012) 4 RCR(Civil) 1007. I have gone through both these judgments. 10. Learned counsel for the respondents also placed reliance on the judgments of this Court in Bahadur Singh and Another Vs. Avtar Singh, (2007) 147 PLR 628 and Parbhati Lal Vs. Dalip Singh and another, (2012) 4 RCR(Civil) 1007. I have gone through both these judgments. In view of the law laid down by the Hon'ble Supreme Court, the law laid down in these judgments will not apply in the present case. 11. It has come on record that the petitioner filed one application for amendment of the plaint and in the meantime filed second application but the counsel has withdrawn his first application by making the statement. His application filed under Order 6 Rule 17 C.P.C. has been withdrawn and has not been decided on merit. Therefore, in no way, it can be held as a ground to dismiss the application and in my view it is not necessary to take the permission of the Court to withdraw that application. Again where the amendment is necessary for the just decision of the case between the parties, it is no ground that the application has been filed at belated stage. 12. As regards the earlier ex parte decree, that has already been set aside and now the respondents have filed the written statement. Therefore, on this ground also the amendment application cannot be dismissed. Therefore, from the record I find that the impugned order passed by the learned Additional Civil Judge (Senior Division), Abohar is not as per law and is set aside. I find merit in the revision petition and the same is allowed. The application filed under Order 6 Rule 17 C.P.C. by the petitioner for the amendment of the plaint and for rectification of the instrument/agreement to sell is allowed.