Madras High Court
B.S.Dinesh vs Duraisamy on 19 February, 2024
2024:MHC:6484
C.R.P.(NPD).No.2618 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.02.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.(NPD).No.2618 of 2018
and
C.M.P.No.15710 of 2018
B.S.Dinesh ... Petitioner
vs
1.Duraisamy
2.Pasupathi
3.Vijayakumar
4.Usharani
5.Vijayalakshmi
6.State of Tamil Nadu
Rep. by the District Collector
Salem.
7.The Sub Registrar
Omalur Taluk
Salem District. ... Respondents
1/12
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.2618 of 2018
Prayer: Civil Revision Petition is filed under Section 115 of the Civil
Procedure Code, praying to set aside the order and decreetal Order dated
26.07.2018 passed in I.A.No. 7 of 2018 in A.S.No. 19 of 2017 on the file of
the learned Addl. District Judge (Fast Track) Court at Mettur by allowing the
Civil Revision Petition.
For Petitioner : Mr.N.Manokaran
for M/s.A.Damodaran
For R6 and R7 : Mr.V.Jeevagiridharan
Additional Government Pleader
For R1 to R5 : No Appearance
ORDER
The Civil Revision Petition is filed challenging the order passed by the First Appellate Court dismissing the petition filed by the petitioner seeking amendment of the plaint.
2. The petitioner herein filed a suit seeking rectification of boundary number in the Sale Deed executed in his favour as Document No.3182/2006, dated 15.06.2006 on the file of the Sub Registrar, Omalur. The petitioner 2/12 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2618 of 2018 sought for a direction to Sub Registrar, Omalur to rectify the defects by correcting the survey number as 93/2B instead of 93/1B. The suit was dismissed by the Trial Court mainly on the ground that the petitioner cannot seek a direction to Sub Registrar, Omalur to rectify the survey number instead he should have prayed for direction against respondents 1 to 5/defendants 1 to
5. Aggrieved by the same, the petitioner filed an appeal in A.S.No.19 of 2017. Pending appeal, the petitioner filed a petition seeking amendment of the plaint so as to include a new prayer in the plaint seeking direction to respondents 1 to 5 to execute Rectification Deed in favour of plaintiff by correcting survey number as 93/2B instead of 93/1B. The said application was dismissed by the First Appellate Court on the ground that the petitioner should raise the point at the time of argument of the appeal and the same cannot be raised by way of interlocutory application. Aggrieved by the same, the petitioner is before this Court.
3. The learned counsel appearing for the petitioner by taking this Court to proviso to Section 26 of the Specific Relief Act, 1963 submitted that the Court can permit the parties to include a prayer for rectification of the 3/12 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2618 of 2018 instrument at any stage of the proceedings.
4. Though the contesting respondents 1 to 5 are served and their names appeared in the cause-list, there is no representation for the respondents 1 to
5. The official respondents 6 and 7 are represented by Additional Government Pleader.
5. The petitioner herein filed a suit seeking rectification of the wrong survey number mentioned in Sale Deed executed in his favour by substituting correct survey number. The Sale Deed was executed by respondents 1 to 5 in favour of the petitioner. Therefore, the petitioner should have sought for direction against his vendors namely the respondents 1 to 5. However, in the suit the petitioner sought for a direction to the Sub Registrar, Omalur. In order to cure the said defect, the present application has been filed.
6. Section 26 of the Specific Relief Act, 1963 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 4/12 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2618 of 2018 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 subsection (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:5/12
https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2618 of 2018 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. The Hon'ble Apex Court in Babu Lal vs. Hazari Lal Kishori Lal reported in (1982) 1 SCC 525 while explaining the meaning of word 'proceedings' employed in Section 22 of the Specific Relief Act, 1963, which is similar to Section 26 of the Specific Relief Act, 1963, observed that proceedings includes an execution proceedings.
8. In Puran Ram vs. Bhaguram and another reported in (2008) 4 SCC 102 while considering the scope of Section 26 of the Specific Relief Act, 1963, the Hon'ble Apex Court held that courts may allow the parties to amend the pleading at any stage of the proceedings so as to include a relief for rectification of the instrument. The relevant portion of the Hon'ble Apex Court reads as follows:-
“14. Section 26, of course, says that it would be open to a party to institute a suit for correcting the description of the 6/12 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2618 of 2018 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 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.7/12
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15. 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 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.8/12
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16. As noted hereinearlier, 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. 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.”
9. In the light of the law laid down in the above mentioned case laws, it is clear that a relief for rectification of the instrument, based on which a suit was filed, can be sought for by the parties at any stage of the proceedings. In the case on hand, the main relief sought for by the petitioner is rectification of the instrument. However, instead of seeking relief against the vendors, the 9/12 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2618 of 2018 petitioner sought for the same against the Sub Registrar, Omalur.
10. The allowing of the new prayer sought for by the petitioner will cure the defect in the original prayer sought for by the petitioner and the same will enable the Court to adjudicate the real controversy between the parties. Therefore, the petitioner should be permitted to introduce a new prayer sought for. In the amendment application, the petitioner sought for inclusion of the new prayer seeking direction to the contesting respondents to rectify the mistake. However, the petitioner failed to seek deletion of the old prayer-B wherein he sought for direction to Sub Registrar, Omalur to rectify the defects on behalf of the contesting respondents.
11. The learned counsel appearing for the petitioner made an endorsement that the new prayer sought for by the petitioner may be substituted in the place of prayer-B in the plaint. The said endorsement of the learned counsel for the petitioner is recorded.
12. Accordingly, the Civil Revision Petition is allowed by permitting the 10/12 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2618 of 2018 petitioner to amend plaint by substituting the new prayer mentioned in his petition in I.A.No.7 of 2018 in A.S.No.19 of 2017 in the place of original prayer-B. The amendment shall be carried out within a period of three weeks from the date of receipt of copy of this order. No costs. Consequently, the connected civil miscellaneous petition is closed.
19.02.2024
Index : Yes
Speaking order : Yes
Neutral Citation : Yes
dm
To
1.The Addl. District Judge (Fast Track) Court, Mettur.
2.The District Collector, State of Tamil Nadu Salem.
3.The Sub Registrar Omalur Taluk Salem District.
11/12 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2618 of 2018 S.SOUNTHAR, J.
dm C.R.P.(NPD).No.2618 of 2018 19.02.2024 12/12 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis