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5. It is evident from the records that after the closure of the evidence of both the sides and when the case was posted for arguments, the above application came to be filed.

6. The revision petitioner/plaintiff, by alleging that the sale made by the respondent/defendant was an outright sale, that the non-inclusion of buildings in the sale deed was a mistake, that the respondent/defendant is https://www.mhc.tn.gov.in/judis very well aware of the above mistake and that in order to avoid technicality, he was advised to file an application to amend the pleadings for including the relief of rectification of the instrument dated 18.11.2013 and accordingly, filed the above application seeking permission to amend the prayer so as to include the relief of rectification of the instrument dated 18.11.2013.

(c) a defendant in any such suit, as is referred to in Cl.(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.
“11. First sentence in the Section shows that in order to get an instrument rectified, the foremost thing to be established is that through fraud or mutual mistake of the parties a contract or other instrument in writing does not express the real intention of the parties. Pleading and proof of fraud or a mutual mistake of the parties are mandatory requirements for obtaining a relief of rectification of an instrument. In this particular case, the plaintiff/respondent has no case that the wrong descriptions did occur in Ext.A1 on account of any fraud played by the defendant/appellant. No such pleading is raised in the plaint. It is clear from Order 6 Rule 4 of the Code of Civil Procedure that particulars like fraud, breach of trust, wilful default, undue influence, etc. have to be specifically pleaded. From the records it is borne out that no evidence relating to fraud was let in at the time of trial, rightly because there is no pleading. Therefore, that element in Section 26 of the Act does not arise in this case.

17. Essentials for claiming rectification of an instrument, as revealed by the precedents, can be summarised. Firstly, the relief will not be granted unless a completed agreement is reached prior to the written agreement, which is sought to be executed. In other words, if the negotiations leading up to the execution of the document were vague and inconclusive or if it is impossible to ascertain what was the intention of the parties and what they really meant, then the challenged instrument can only be said to represent the agreement that https://www.mhc.tn.gov.in/judis has been concluded. If there is no antecedent agreement proved, upon which a rectification can be based, the relief cannot be granted. Secondly, both the parties must have intended that the exact term of the prior agreement should be reduced to writing and this intention should remain unchanged up to the moment of the actual execution of the instrument. That is, if it is proved that the parties subsequently changed their original intention and that the instrument finally represents the true intention of the parties, it becomes fatal to a suit for rectification. Thirdly, the evidence relating to mistake common to both the parties must be clear and the burden of proving this lies on the party praying for rectification. It is also settled that the mistake should be obvious and not a mere probability. Fourthly, a party should seek rectification of literal mistakes, so as to enable the parties to act according to their intentions already revealed clearly and unequivocally, so as to prevent them from nullifying their prior agreement.”