Punjab-Haryana High Court
Chaman Lal vs Darshan Kaur on 16 December, 2014
CR No.6312 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.6312 of 2013 (O&M)
Date of Decision: 16.12.2014
Chaman Lal
...Petitioner
Versus
Darshan Kaur
...Respondent
CORAM: HON'BLE MR.JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. R.S. Mamli, Advocate
for the petitioner.
Mr. Ashok Arora, Advocate
for the respondent.
R.P. Nagrath, J.
Instant revision has been filed by the plaintiff by invoking jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside the impugned order dated 29.08.2013 passed by the trial Court whereby application for amendment of the plaint was dismissed.
2. The petitioner filed suit for specific performance of agreement to sell dated 30.09.2011 executed by respondent- defendant in respect of 39 Kanals 12 Marlas of land. The land SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh CR No.6312 of 2013 2 agreed to be sold is described as (i) 11 Kanals 19 Marlas with specific khasra numbers (ii) 15 Kanals 18 Marlas being 318/8949 share out of 447 Kanals 8 Marlas of Khewat Nos.24 to 26 and (iii) 11 Kanals 15 Marlas of specific khasra numbers.
3. The controversy for disposal of the instant petition pertains to the description of land measuring 15 Kanals 18 Marlas of a specific share out of 447 Kanals 8 Marlas of land. In respect of this disputed portion, there is already a prayer in Head Note 'C' of the plaint for a direction to the respondent to deliver possession of 15 Kanals 8 Marlas of land comprising of Khasra Nos.263/1(7-11), 10/1 (1-11), 5 Min (1-5), 6/2/1(2-10) and 5 Min (3-1) in lieu of 15 Kanals 18 Marlas of the aforesaid land.
4. The petitioner paid an amount of ` 40,00,000/- as part of the sale consideration at the time of execution of the agreement. Subsequet thereto, an additional amount of ` 55,00,000/- was paid on two occasions and thus a total amount of ` 95,00,000/- stood already paid. The sale deed was to be executed by 30.09.2012. The suit is being contested by the respondent who filed written statement dated 08.01.2013.
5. Soon thereafter, petitioner applied for amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure by moving application dated 21.03.2013. The petitioner seeks to amend the plaint to correctly describe the khasra numbers relating to land as mentioned in Part 'C' of head note of the plaint and also the consequent amendments. The petitioner sought amendment to add SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh CR No.6312 of 2013 3 figure 264 before the word '5 Min' and to read description of the land mentioned in the Head Note 'C' of the plaint as Nos.263/1(7-11), 10/1 (1-11), 264// 5 Min (1-5), 6/2/1(2-10) and 5 Min (3-1). The aforesaid mutual mistake has occurred inadvertantly in the agreement itself and the land is shown in continuity as if these are part of Khasra No.263 whereas only first two khasra numbers should be prefixed by 263 and rest with 264. The amendment to seek similar rectification in the agreement is also prayed for.
6. The learned trial Court rejected the application by making following observations:-
"I have given considered thought to the rival contentions, in the wake of pleadings on the record and the contents of the agreement to sell dated 30.09.2011. It is a significant fact to note that the part of description of land for which the said amendment is desired by the applicant-plaintiff does not constitute the suit land, rather it is a part of land upon which possession was to be delivered in case the vendor of impugned agreement to sell dated 30.09.2011, failed to transfer the rights qua the original land as detailed in the first part of the said agreement. So, the preliminary pleadings of the application are mis-conceived. Besides that the collective reading of rival pleadings do not make out a case of mutual mistake. Thirdly, the agreement does not reflect any recital that the latter parcel of land, wherein the SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh CR No.6312 of 2013 4 requisite amendment is sought, is in the possession of Harbhajan Singh son of the defendant. Even otherwise, the requisite amendment does not primarily add to the claim of the plaintiff for specific performance of the agreement dated 30.09.2011, because the suit land differs from the parcel or land for which the amendment is sought. Hence, the application in hand is found devoid of merits. The same is dismissed."
7. I have heard learned counsel for the parties, perused the impugned order and also the paper book and find that the observations of the trial Court are not borne out from record. It was not even permissible for the trial Court to say that this could not be a mutual mistake, as the parties have to be afforded opportunity to prove their respective allegations durig the trial.
8. The petitioner relies upon Annexure P-5, copy of Jamabandi of the land for the year 2003-04 in which the description of the land in the ownership of respondent-defendant is in accordance with the amendment sought to be made in the plaint. Learned trial Court has not looked into this aspect of the case while refusing the prayer for amendment.
9. The law on the subject is quite well settled. In Puran Ram Vs. Bhaguram and another, (2008) 4 SCC 102, suit for specific performance of agreement to sell was filed in respect of irrigated agricultural land measuring 25 Bighas in Chak No.3 SLM being Square No.112/63, Colonization Tehsil Pungal, District Bikaner. SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh CR No.6312 of 2013 5 In the plaint suit land was described as failling in Chak No.3 SSM Tehsil Pungal, District Bikaner. The plaintiff applied for amendment of the plaint giving decription of the suit property as Chak No.3 SLM instead of Chak No.3 SSM and also sought rectification accodingly in the agreement. Hon'ble Supreme Court held as under:-
"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 SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh CR No.6312 of 2013 6 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 independent 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 SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh CR No.6312 of 2013 7 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 Veerasamy & 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 SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh CR No.6312 of 2013 8 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.
13...........Therefore, it is difficult to conceive that by such amendment, that is, instead of Chak No.3 SSM, if Chak No.3 SLM, later on converted to SWM is substituted, either the description of the suit property or the nature of the suit would change. This is only a change in a part of the description of the suit property, which was wrongly described by mutual mistake. Therefore, in our view, this change in a part of the description of the suit property in the plaint cannot convert the suit for specific performance of the contract to a suit for declaration. In any view of the matter, the relief claimed in the suit remained the same i.e. a decree for specific performance of the contract for sale and by amendment, no declaration has been sought for in respect of the instrument."
10. In view of the aforesaid principle laid down by Hon'ble SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh CR No.6312 of 2013 9 Supreme Court, there was no reason for the learned trial Court to disallow the amendment because it was not even the version of the respondent that land entered in the name of respondent is not in terms of the amendment prayed for and as shown in the Jamabandi (Annexure P-5). Though rectification of the agreement itself cannot be made at the initial stage, but the prayer for seeking to rectify the agreement can always be made in the plaint alongwith prayer for specific performance of the agreement to sell. It would be, however, for the trial Court to ultimately hold while deciding the case that intention of the parties while incorporating the aforesaid clause was also with regard to Khasra No.264 in case the genuineness of the agreement is ultimately proved.
11. The instant petition is, therefore, allowed setting aside the impugned order passed by the trial Court and the application for amendment of the plaint and seeking rectification of agreement to sell regarding description of the land by introducing figure 264 as prayed for is allowed, subject to payment of ` 5,000/- as costs.
12. Amended plaint be filed before the trial Court, if not already done and also costs to be paid to the respondent-defendant on the date fixed before the trial Court.
(R.P. Nagrath) 16.12.2014 Judge sk SURESH KUMAR 2015.01.05 10:01 I attest to the accuracy and authenticity of this document Chandigarh