Delhi District Court
Smt. Raj Rani vs . SubRegistrar & Anr. on 4 March, 2022
Smt. Raj Rani vs. SubRegistrar & Anr.
CS SCJ 3285/16
IN THE COURT OF MS. SONAM SINGH, CIVIL JUDGE07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No : 3285/16
CNR No. : DLCT030072852016
Date of Filing: 16.12.2016
Date of Reserving the Judgment: 20.01.2022
Date of Decision: 04.03.2022
Smt. Raj Rani,
W/o Late Desh Raj Madan,
R/o House no. 11024, Naiwala, Gali No. 1213,
Abdul Rehman Road, Karol Bagh,
New Delhi110005.
Also at :
House no. 7/81, Punjabi Bagh (west),
New Delhi110026.
....... Plaintiff
Versus
1.SubRegistrarIII, Office of the SubRegistrarIII, Asaf Ali Road, Delhi
2. Smt. Neelam Gulati, W/o Late Shri Vagish Chander Gulati, R/o Flat No. 18, Aastha Residency, Hathital, Jabalpur.
.......Defendants.
Suit for Declaration of Rectification of the Registered Sale Deed dated 13.06.1996 1 of 6 (Sonam Singh) CJ07(C)/THC/Delhi Smt. Raj Rani vs. SubRegistrar & Anr.
CS SCJ 3285/16Present: Ms. Payal Jain, Ld. Counsel for plaintiff.
Defendant no. 1 exparte vide order dt. 18.10.2018.
Defendant no. 2 exparte vide order dt. 06.02.2019 (defence struck off).
Judgment (Exparte):
1. The present suit has been instituted by plaintiff seeking declaration of rectification of the sale deed dated 13.06.1996 executed in favour of plaintiff in respect of the 1/4th undivided share of property bearing No. 11024, Naiwala, Gali No. 1213, Abdul Rehman Road, Karol Bagh, New Delhi mentioning correct registration details of the registered GPA i.e. Document No. 516 in Addl. Book No. IV, Vol. No. 216 on pages 71 to 72 registered on 12.01.1981, from registration Document No. 596 in Addl. Book No. IV, Vol. No. 296 on pages 74 to 75 registered on 12.09.1981 of the GPA and the sale deed dated 13.06.1996 is a valid legal document.
2. In the plaint it is averred that 1/4th undivided share of property bearing no. 11024, Naiwala, Gali No. 1213, Abdul Rehman Road, Karol Bagh, New Delhi (hereinafter called 'Suit Property') was owned by defendant no.2 by virtue of registered document, i.e. Document No. 5944, in Addl. Book No. I, Vol. No. 1836, on pages 116 to 120 dated 25.09.1967, Office of the SubRegistrar, New Delhi. It is averred that the suit property was purchased by the plaintiff from defendant no. 2 and defendant no.2 being resident of Jabalpur, executed General Power of Attorney in favour of Shri Baldev Raj Madan and got it registered as Document No. 516 in Addl. Book No. IV, Vol No. 216 on pages 71 to 72 on 12.01.1981 registered at SubRegistrar, Jabalpur. It is further averred that the GPA holder entered into the negotiation of the suit property on behalf of the defendant no. 2, got prepared and executed Sale Deed dated 13.06.1996 in favour of plaintiff and obtained valid sale consideration for and on behalf of defendant no. 2. It is averred that recently, in February 2016, during litigation against the licensee, plaintiff realised that there is a clerical mistake of the parties, occurred in mentioning the details of the registration of Registered General Power of Attorney in the said Registered Sale Deed dated 13.06.0996 as the draftsman wrongly read numerals mentioned in the registered GPA. It is further averred that in place of 2 of 6 (Sonam Singh) CJ07(C)/THC/Delhi Smt. Raj Rani vs. SubRegistrar & Anr.
CS SCJ 3285/16registration, Document No. 516 in Addl. Book No. IV, Vol. No. 216 on pages 71 and 72 registered on 12.01.1981, it is mistakenly mentioned as registration Document no. 596 in Addl. Book no. IV, Vol. No. 296 on pages 74 to 75 registered on 12.09.0981 of the GPA executed by defendant no. 2 in the Sale Deed dated 13.06.1996. It is further averred that plaintiff contacted the erstwhile owner of the suit property i.e. defendant no. 2, as her Power Attorney Holder is since dead, in order to rectify the error in the Sale Deed dated 13.06.1996, and defendant no. 2 is ready and willing to remove the same but remained silent regarding her visit to Delhi for complying the legal procedure to rectify the same and hence, the plaintiff is forced to file the present suit.
3. Perusal of record shows that after issuance of summons to both defendants, officials from the Office of SubRegistrarIII (defendant no.1) had appeared on 02.02.17. Perusal of order dated 03.07.2017 shows that as per delivery report, summons/items were duly delivered at the address of defendant no.2, however, despite delivery of summons, defendant no.2 did not appear in Court. However, in view of the request of ld. Counsel for plaintiff, fresh summons were directed to be issued to defendant no.2 by the Ld. Predecessor of this Court. Further, vide order dated 21.03.2018 defence of both defendants was struckoff as no reply was filed on their behalf. Furthermore, vide order dated 18.10.2018 it was observed by the Ld. Predecessor of this Court that presence of defendant no.2 was required before the Court for effective adjudication and accordingly, court notice was directed to be issued to defendant no.2, and on the same date defendant no.1 was proceeded exparte. Perusal of order dated 06.02.2019 shows that court notice issued to defendant no.2 was received back with the report of refusal, and accordingly, defendant no.2 was proceeded exparte and her defence was also struckoff.
4. PW1 was examined and discharged on 02.11.2019, on which date it was observed by the Ld. Predecessor that till disposal of the suit original sale deed dt. 13.06.1996 be retained on record. Exparte PE was closed on 02.11.2019. On 30.11.2019 statement of Power of Attorney Holder of plaintiff was recorded that copy of sale deed dt. 13.06.1996 which was exhibited as Ex. PW1/2 is a copy of certified copy of the said sale deed obtained from the concerned Registrar Office (defendant no.1) and the contents of same match with the 3 of 6 (Sonam Singh) CJ07(C)/THC/Delhi Smt. Raj Rani vs. SubRegistrar & Anr.
CS SCJ 3285/16original sale deed produced by her before the court and same was retained vide order dated 02.11.19. It was further submitted that it is a general practice of registration of a document i.e. two sets of documents get prepared, executed by parties and one original set is to be given to the party (buyer) and another set retained by the Registrar Office for their records as registered sale deed is a public document. Further, on 05.12.2019 being satisfied, it was directed by the ld. Predecessor of this court that the original sale deed Mark X retained vide order dt. 02.11.19 be released to plaintiff on filing of certified copy.
5. PW1: Ms. Lovleen Authorised Representative of plaintiff (also, daughter of plaintiff) was examined on 02.11.2019 by tendering evidence by way of affidavit which is Ex. PW1/A. The witness has relied upon following documents:
a) GPA (General Power of Attorney) dated 25.09.2019 Ex. PW1/1 (OSR)
b) Sale deed dated 13.06.1996 Ex. PW1/2. Same is deexhibited and is marked as Mark X.
c) GPA dated 12.01.1981 Ex. PW1/3 (OSR)
6. Section 26 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") provides for rectification of instruments, which is reproduced herein 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 bare perusal of aforesaid provision shows that where through fraud a mutual mistake of the parties, an instrument in writing does not express the real intention, then the parties may apply for rectification. The Hon'ble Supreme Court while discussing the law regarding rectification of instruments under section 26 of SRA in Joseph John Peter Sandy v.
4 of 6 (Sonam Singh) CJ07(C)/THC/Delhi Smt. Raj Rani vs. SubRegistrar & Anr.
CS SCJ 3285/16Veronica Thomas Rajkumar (2013) 3 SCC 801 held that section 26 of the Act has a limited application, and is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by none else.
7. In the present suit, it is stated in the plaint as well as in affidavit of PW1 which is Ex.
PW1/A that there is a clerical mistake of parties which occurred in mentioning the details of registration of registered GPA in the Registered Sale Deed dated 13.06.1996 as draftsman wrongly read numerals mentioned in the registered GPA. In order to prove her case, PW1 has led evidence by way of affidavit Ex. PW1/A deposed in the line of averments contained in plaint. Perusal of Ex. PW1/3 (OSR) i.e. Registered GPA shows that same is executed by defendant no.2 Neelam Gulati appointing and nominating Sh. Baldev Raj Madan as her General Attorney and same was executed and registered on 12.01.1981 vide at SubRegistrar Office, Jabalpur, M.P. Perusal of Ex. PW1/2 (deexhibited and MarkedX) and Certified copy of original sale deed palced on record shows that they are the registered sale deed dated 13.06.1996 executed at New Delhi by Mrs. Neelam Gulati, represented through her duly constituted General Attorney Shri Baldev Raj Madan vide S.P.A regd. as document no. 596, in Addl. Book No. IV, Volume No. 296, on pages 74 to 75 on 12.9.1981in favour of Smt. Raj Rani (plaintiff). As stated above, both defendants have been proceeded exparte and despite making appearance, no written statement has been filed by defendant no.1. Further, despite service of summons as well as court notice to defendant no.2, defendant no.2 chose not to appear or file written statement in Court. On perusal of documents brought on record, plaintiff has duly proved her case and the conduct of defendants by not filing written statement despite service further strengthens the case of plaintiff. The averments made by plaintiff thus stand duly proved and plaintiff has duly discharged her burden of proof on the scale of balance of probabilities. Further, since defendant has been proceeded exparte and no evidence has been led by him, there is nothing on record which casts any doubt on the testimony of PW1 and the same has gone unchallenged, uncontroverted and unrebutted.
5 of 6 (Sonam Singh) CJ07(C)/THC/Delhi Smt. Raj Rani vs. SubRegistrar & Anr.
CS SCJ 3285/168. Thus, in view of aforesaid discussion, the suit of plaintiff is hereby decreed and it is declared that the sale deed dated 13.06.1996 executed in favor of plaintiff in respect of 1/4 th undivided share of property bearing no. 11024, Naiwala, Gali No. 1213, Abdul Rehman Road, Karol Bagh, New Delhi, be accordingly rectified thereby mentioning the correct registration details of the registered GPA i.e. Document No. 516 in Additional Book No. IV, Vol. No. 216 on pages 71 to 72 registered on 12.01.1981, from registration Document No. 596 in Addl. Book No. IV, Vol. No. 296 on pages 74 to 75 registered on 12.09.1981 of the GPA.
9. Decree sheet be prepared accordingly.
10. File be consigned to the record room after necessary compliance.
Digitally
signed by
SONAM
SONAM SINGH
SINGH Date:
2022.03.04
17:04:46
+0530
Pronounced in open court: (Sonam Singh)
Dated: 04.03.2022. Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note: This Judgment contains six pages and all the pages have been checked and signed by me.
(Sonam Singh) Civil Judge07, Central, Tis Hazari Courts, Delhi 6 of 6 (Sonam Singh) CJ07(C)/THC/Delhi