Madras High Court
Chandran vs Mariappan on 27 November, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.11.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD) No.3934 of 2008 and M.P.No.1 of 2008 Chandran .. Petitioner -vs- Mariappan .. Respondent This civil revision petition is filed under Article 227 of the Constitution of India, against the fair and final order dated 19.6.2008 made in I.A.No.43 of 2008 in O.S.No.161 of 2006 on the file of the Subordinate Judge,Tiruvallur. For Petitioner : : Mr.N.Damodaran O R D E R
The revision petitioner/respondent/defendant has filed this present civil revision petition as against the order dated 19.6.2008 in I.A.No.43 of 2008 in O.S.No.161 of 2006 passed by the learned Subordinate Judge, Tiruvallur in allowing the application filed by the respondent/petitioner/plaintiff under Order 6 Rule 17 of Civil Procedure Code praying to amend the plaint.
2.The trial Court, while passing orders in I.A.No.43 of 2008 in O.S.No.161 of 2006, has inter alia opined that ' by allowing the amendment,the cause of action will not change and also filing of the new suit can be prevented and has resultantly allowed the said application.
3. The learned counsel for the revision petitioner/respondent/defendant urges before this Court that the order of the trial Court passed in I.A.No.43 of 2008 in O.S.No.161 of 2006 in allowing the amendment as prayed for by the respondent/petitioner/plaintiff is not correct in law and while allowing the said application, the trial Court has exceeded its jurisdiction and further that the trial Court has not taken into account of the fact that the proposed amendment will change the nature and character of the original cause of action of the suit and that the trial Court placing reliance on the decision of the Honourable Supreme Court in Puran Ram-v- Bhaguram and another(2008(2)CTC 224) is not correct as the said decision is not applicable to the facts of the present case and in any event, after commencement of the trial of the suit, the amendment application should not have been allowed by the trial Court and therefore prays for allowing the civil revision petition to prevent the aberration of justice.
4. In I.A.No.43 of 2008 in O.S.No.161 of 2006 filed by the respondent/petitioner/plaintiff ,it is inter alia averred that during the course of trial, the revision petitioner/respondent/defendant has taken a new defence in respect of the correctness of the Survey Number and the boundary on the east in regard to the suit property which has not been put forth in the pleadings that the mistake is bonafide and mutual one which has crept in in the agreement and has been incorporated in the plaint and therefore this bonafide and mutual mistake requires to be remedied in the interest of justice for proper adjudication of the dispute between the parties.
5. The respondent/petitioner/plaintiff in I.A.No.43 of 2008 in O.S.No.161 of 2006 has taken a categorical stand that he has been advised to state that it is not necessary to seek any relief of rectification and he can seek the relief in respect of the correct survey number of the correct property with correct boundary, the relief of specific performance.
6. In the decision reported in Puran Ram-v- Bhaguram and another(2008(2)CTC 224), the Honourable Supreme Court has inter alia held that 'in an application for amendment filed by the plaintiff seeking amendment of plaint as well as agreement for sale, the said amendment is permissible and separate suit to rectify the mistake in agreement for sale is not always necessary and it is open to the party to claim relief of rectification of underlying instrument in the suit itself'.
7. The learned counsel for revision petitioner/respondent /defendant submits that as per Section 26(1)(b) of Specific Relief Act 1963, in the instant case, the respondent/petitioner/plaintiff has to amend the agreement of sale and without amending the agreement of sale, the present application I.A.No.43 of 2008 filed by him is not maintainable in law.
8. In this connection, it is useful to refer to the relevant portion to Section 26 of Specific Relief Act 1963 which runs as follows.
"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."
A perusal of Section 26(1)(b) of The Specific Relief Act,1963 shows that ' 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'. The word 'may' employed in Section 26(1)(b) of the said Act is not a mandatory and it can only lead discretionary one. More over the word 'may' is also not obligatory in the considered opinion of this Court.
9. As a matter of fact in I.A.No.43 of 2008, the respondent/petitioner/plaintiff has specifically stated that it is not necessary to seek any relief of rectification and he can seek the relief in respect of the correct survey number of the correct property with correct boundary, the relief of Specific Performance. In a civil suit instituted by a plaintiff in a Court of law is a Dominus Litus, he can choose the remedy, he requires.
10. In view of the fact that Section 26(1)(a) of the Specific Relief Act 1963 permits either party or his representative in interest may institute a suit to have the instrument rectified and inasmuch as the mistake which has crept in the agreement of sale and incorporated in the plaint has come to the notice of the parties only during the course of trial,the act of the trial Court in allowing the amendment application I.A.No.43 of 2008 in O.S.No.161 of 2006 cannot be found fault with and the trial Court in the considered opinion of this Court has exercised its discretion in a proper and effective way for the purpose of complete adjudication of controversies/disputes involved in the suit between the parties and in that view of the matter,this revision petition fails and the same is hereby dismissed.
11. In the result, this civil revision petition is dismissed leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.43 of 2008 in O.S.No.161 of 2006 is hereby affirmed for the assigned in this revision by this Court sitting in revision. Liberty is given to the revision petitioner/respondent/defendant to file his subsequent pleading , if need be, since I.A.No.43 of 2008 has been allowed and if any additional issue is to be framed based on the subsequent pleading then the trial Court is directed to provide opportunities to both the parties to let in oral and documentary evidence as the case may be in the manner known to law. Further to meet the ends of justice, the trial Court is directed to dispose of the main suit in O.S.No.161 of 2006 within a period of two months from the date of receipt of a copy of this order. Consequently, connected M.P.No.1 of 2008 is also dismissed.
sg To The Subordinate Judge, Tiruvallur