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J U D G M E N T CIVIL APPEAL NO 1673 OF 2008 (Arising out of SLP) No.17637 of 2005) TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal relates to rejection of an application for amendment of plaint in a suit for specific performance of the agreement for sale passed by the High Court of Rajasthan at Jodhpur by which the High Court, in the exercise of its power under Article 227 of the Constitution, had reversed the order of the Second Additional District Judge, Bikaner allowing the application for amendment of the plaint.

6. When the description of a part of the suit property was found to be a mutual mistake, the appellant filed an application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure on 20th of March, 1998 seeking to amend the plaint and give the description of the suit property as Chak No.3 SLM instead of Chak No.3 SSM. Initially, the application for amendment of the plaint was filed seeking to correct a part of the description of the suit property only in the plaint. The application for amendment of the plaint was contested by the respondent No.1. However, by an order dated 29th of August, 1998, the prayer for amendment of the plaint was rejected by the trial court on the ground that the plaint was filed on the basis of the agreement to sell dated 12th of April, 1991 and since no prayer was made for getting the agreement amended, the application for amendment of the plaint could not be allowed. Feeling aggrieved, a revision petition was filed, but later on, the same was rejected as withdrawn with liberty to raise the question in appeal against the final judgment, if such occasion arose. Since the agreement entered into by the parties contained a wrong description relating to the suit property, the appellant filed another application for amendment of the plaint seeking amendment this time not only of the plaint but also the agreement to sell dated 12th of April, 1991 so as to describe the suit property as Chak No.3 SLM, later on converted to Chak No. 3 SWM in place of Chak No.3 SSM. In the said application for amendment, the appellant sought amendment of the agreement on the ground that under Section 26 of the Specific Relief Act, 1963, he was entitled to seek amendment in the plaint as well as in the agreement by which the nature of the suit, which is a suit for specific performance of the contract for sale could not be said to have been changed. This application for amendment of the plaint was also contested by the respondent No.1 contending, inter alia, that if such amendment was allowed, the nature and character of the suit would be changed and also that the appellant cannot be permitted to amend the agreement in question in a suit for specific performance of contract for sale. By an order dated 25th of February, 2005, the Second Additional District Judge, Bikaner, allowed the application for amendment of the plaint. Feeling aggrieved by the aforesaid order of the Second Additional District Judge, Bikaner, the respondent No.2, who has purchased the suit property from the respondent No.1, filed a petition under Article 227 of the Constitution challenging the aforesaid order allowing the application for amendment of the plaint.

(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.

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 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 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 RaoVeerasamy & 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 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. The other ground on which the High Court has refused to permit the appellant to amend the plaint is that if the amendment is allowed, the suit shall be converted into a suit for declaration. We are unable to accept this view of the High Court. In our view, the suit is a suit for specific performance of the contract for sale simplicitor and only a part of the description of the suit property in the agreement as well as in the plaint was sought to be corrected or amended by the appellant by filing the application for amendment of the plaint. If we are permitted to look into the description of the suit property from the original plaint as well as from the application for amendment, it would be clear that the description of the suit property has been kept intact excepting that instead of Chak No. 3 SSM, Chak No. 3 SLM, later on converted to Chak No. 3 SWM, has been sought to be replaced. 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.