Allahabad High Court
Smt. Basikali vs Ram Adhar And 7 Others on 26 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:119953 Court No. - 36 Case :- SECOND APPEAL No. - 504 of 2024 Appellant :- Smt. Basikali Respondent :- Ram Adhar And 7 Others Counsel for Appellant :- Rakesh Kumar Srivastava Counsel for Respondent :- Lavkush Kumar Shukla Hon'ble Kshitij Shailendra,J.
1. Heard Shri R.P. Singh, holding brief of Shri Rakesh Kumar Srivastava, learned counsel for the appellant.
2. This is plaintiff's second appeal arising out of a suit under Section 26 of Specific Relief Act, 1963 claiming rectification in a document, which contained error in describing number of the plot purchased by the plaintiff by sale deed. The suit was dismissed by the trial court and the Civil Appeal filed by plaintiff was also dismissed by the first Appellate Court.
3. The case of the plaintiff-appellant is that the defendant executed a registered sale deed dated 11.08.2008 in favour of the plaintiff in respect of Gata No. 655/2, however, when the certified copy of the same was issued, an apparent mistake came to the notice to the effect that in place of Gata No. 655/2, Gata No. 6552 was mentioned therein and, consequently, the instant suit was filed claiming correction/rectification in the document.
4. Both the courts below have dislodged the claim of the plaintiff on the ground that the original sale deed contained correct description of gata number, i.e. 655/2 and merely because there was an error in the certified copy, no relief could be granted to the plaintiff in whose favour the correct document exists.
5. Learned counsel for the appellant submits that at the strength of certified copy containing wrong description, the other side was taking advantage in many ways and, therefore, need to file the suit arose.
6. Be that as it may, in order to maintain a suit for rectification of a deed/instrument, it should fall under the parameters of Section 26 of Specific Relief Act, 1963. The said provision reads as follows:
"26. When instrument may be rectified.?
(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies does not express their real intention, 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; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:
Provided 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 pleading on such terms as may be just for including such claim."
7. A bare perusal of the provision shows that when the real intention of the parties is not clear, either because of fraud or by mutual mistake of the parties, a contract or instrument in writing can be rectified. The correction of typographical or other identical mistakes is, therefore, covered by Section 26 of the Specific Relief Act, 1963.
8. In the present case, there is no dispute that original sale deed dated 11.08.2008 contains correct description of gata number. Mere error in computer records, as alleged by the plaintiff, or in issuance of certified copy, irrespective of their correction, would not be sufficient to grant a decree in favour of the plaintiff, when the original instrument of transfer rightly describes the property number. The Appellate Court has also observed that it was open for the plaintiff-appellant to take recourse to the provisions of the Registration Act, 1908 seeking correction in any record, but no such evidence was led to this effect. The said option is still available to the plaintiff-appellant in case any error in the computer records of the Registry Office still persists.
9. In the considered opinion of the Court, Section 26 of the Specific Relief Act, 1963 has no application for correction of certified copies of any instrument, as the same, in itself, is not a contract between the parties in relation to an immovable property.
10. In view of above, this Court does not find any error in the view taken by both the courts below. No substantial question of law arises for consideration in this appeal.
11. The second appeal is dismissed.
Order Date :- 26.7.2024 Sazia