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CASE NO.: Appeal (civil)  1673 of 2008

PETITIONER: Puran Ram

RESPONDENT: Bhaguram & Anr

DATE OF JUDGMENT: 29/02/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: 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.  3.      On 18th of December, 1997, the plaintiff/appellant had filed a  suit for specific performance of a contract to sell relating to 25 bighas  of irrigated agricultural land in Chak No. 3 SLM, being Square No.  112/63, Colonization Tehsil Pungal, District Bikaner, Rajasthan  (hereinafter called as "the suit property") and for permanent  injunction.  4.      The case made out by the appellant in the plaint is to the  following effect :- 5.      The appellant had entered into an agreement for sale to  purchase the suit property for a sum of Rs. 2,00,000/-. On 12th of  April, 1991, he paid a sum of Rs.50,000/- to the vendor Bhaguram. By  virtue of the payment, Bhaguram, the respondent No.1, has put the  appellant in possession of the suit property and has also agreed to  receive a further sum of Rs.1,50,000/- from the appellant within a  period of 30 days and thereafter execute the sale deed in favour of the  appellant. On                 12th of April, 1991, Bhaguram received the  balance consideration money of Rs.1,50,000/- from the appellant and  executed an agreement to sell and a power of attorney in his favour.  Since the respondent No.1 had failed to execute the sale deed after  receiving the balance consideration money of Rs.1,50,000/-, the  appellant was constrained to file the suit for specific performance of  contract for sale and for permanent injunction in respect of the suit  property. It is to be noted that the appellant in his plaint has described  the suit property as falling in Chak No.3 SSM, Tehsil Pungal, District  Bikaner. 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

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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.             7.      By an order dated 16th of May, 2005, which is now impugned in  this appeal, the High Court allowed the petition and set aside the order  of the trial court, inter alia, on the following grounds:-  [i]     Relief sought for by the appellant by way of amendment  of the plaint could not be allowed in view of the expiry of the  period of limitation; [ii]    If such amendment was allowed, the nature of the suit  would change from a suit for specific performance of contract  for sale to a suit for declaration which was not permissible;

8.      On the aforesaid findings, the High Court, as noted herein  earlier, had rejected the application for amendment of the plaint by  passing the impugned judgment. The said order is now under  challenge before us by way of a special leave petition in respect of  which leave has already been granted. It may be stated at this juncture  that the trial court in its discretion had allowed the application for  amendment of plaint. In that situation, it needs to be seen whether it  was open to the High Court in the exercise of its power under Article  227 of the Constitution to reverse the said order and reject the  application for amendment of plaint. We will come to this question  later after we deal with the question whether the application for  amendment of plaint in the facts and circumstances of the case and on  the allegations made in the plaint could be rejected.   9.      Heard the learned counsel for the parties and examined the  impugned order and the order of the trial court as well as the  application for amendment of the plaint and other materials on record.  After hearing the learned counsel for the parties and considering the  nature of amendment sought for, we are not in agreement with the  order passed by the High Court rejecting the application for  amendment of the plaint. The learned counsel appearing on behalf of  the appellant has contended that in view of the nature of amendment  sought for in the plaint as well as in the agreement, the High Court  was not justified in rejecting the prayer for amendment of the plaint  and the agreement. He further contended that in view of Section 26 of  the Specific Relief Act, 1963, it was open to the appellant to apply for

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amendment of the agreement for sale. The learned counsel for the  appellant also contended that since the prayer for amendment of the  plaint was only to correct a part of the description of the suit property  in the agreement for sale as well as in the plaint, the court was not  justified in rejecting the application for amendment of the plaint and  the agreement. Further, by such amendment of the plaint, neither the  nature and character of the suit would be changed nor the question of  limitation could arise. According to the learned counsel for the  appellant, the suit would remain a suit for specific performance of the  contract for sale and only a part of the description of the suit property  would be changed, as noted herein earlier, by way of such  amendment. The learned counsel appearing for the respondent,  however, sought to argue that the amendment of the agreement, even  so far as a part of the description of the suit property is concerned, can  not be allowed in a suit for specific performance of the contract for  sale. According to him, Section 26 of the Specific Relief Act clearly  expresses the intention that if the description of the suit property  needs to be corrected, it can only be corrected by instituting a suit for  correction or rectification of the deed. He has also drawn our attention  to sub-section (4) of Section 26 and submitted that no relief for  rectification of an instrument should be granted to any party under  section 26 of the Act unless it has been specifically claimed. So far as  the prayer for amendment of the plaint is concerned, the learned  counsel for the respondent contended that the prayer for amendment  of the plaint would be barred by limitation as the agreement was  entered into on 12th of April, 1991 and the amendment of the plaint  was sought on 9th of May, 2003.  Accordingly, neither the prayer for  amendment of the agreement, nor the prayer for amendment of the  plaint could be allowed even though the said amendment relates only  to the change of a part of the description of the suit property.                     10.     Keeping the arguments advanced by the learned counsel for the  parties in mind, let us now consider whether the prayer for  amendment of the plaint and the agreement, in the facts and  circumstances of the case, could be allowed or not. So far as the  prayer for correcting or rectifying the agreement in respect of a part of  the description of the suit property is concerned, it would be  appropriate to look into the provisions made in Section 26 of the  Specific Relief Act, 1963. Chapter 3 of the Specific Relief Act, 1963  specifically deals with rectification of instruments. Section 26  provides as to when an instrument may be rectified and reads as  under: -  "26. When instrument may be rectified. \026(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, 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 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

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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; 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."

11.     After closely examining the provisions made under Section 26  of the Specific Relief Act, 1963, we do not find any difficulty to hold  that in a suit for specific performance of contract for sale, it is  permissible to amend a part of the description of the suit property not  only in the plaint but also in the agreement. Section 26 clearly says as  to when a contract or other instrument can be rectified and provides  that when through fraud or a mutual mistake of the parties, the  agreement in writing does not express their real intention, it is open to  the parties to apply for amendment of the instrument. It provides that  when such a situation arises, 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. 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

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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.  14.     We may now take into consideration as to whether the High  Court, in the exercise of its power under Article 227 of the  Constitution, was justified in rejecting the application for amendment  of the plaint, which, in the discretion of the trial court, was allowed.  We are of the view that the High Court ought not to have interfered  with the order of the trial court when the order of the trial court was  passed on sound consideration of law and facts and when it cannot be  said that the order of the trial court was either without jurisdiction or  perverse or arbitrary. 15.     Before parting with this judgment, we may deal with the

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submission of the learned counsel for the respondent that the  application for amendment could not be allowed inasmuch as the  same was barred by limitation. We are unable to accept this  contention of the learned counsel for the respondents.  In this regard,  we may observe that the court may, in its discretion, allow an  application for amendment of the plaint even where the relief sought  to be added by amendment is allegedly barred by limitation. This view  was also expressed by this Court in Pankaja & Anr. Vs. Yellappa  (Dead) by LRs. & Ors. [(2004) 6 SCC 415]. In that decision, it was  held that there is no absolute rule that in such a case, the amendment  should not be allowed and the discretion of the court in that regard  depends on the facts and circumstances of the case and such discretion  has to be exercised on a judicious evaluation thereof. It was further  held in that decision that an amendment, which subserves the ultimate  cause of justice and avoids further litigation, should be allowed. It is  well settled by a catena of decisions of this Court that allowing and  rejecting an application for amendment of a plaint is really the  discretion of the Court and amendment of the plaint also should not be  refused on technical grounds.  In this connection reliance can be  placed on a decision of this court in Jai Jai Ram Manohar Lal Vs.  National Building Material Supply, Gurgaon [ AIR 1969 SC 1267 ].    In paragraph 8 of the said decision this Court observed that "since the  name in which the action was instituted was merely a misdescription  of the original plaintiff, no question of limitation arises; the plaint  must be deemed on amendment to have been instituted in the name  of the real plaintiff on the date on which it was originally  instituted."  A reading of this observation would amply clear the  position that no question of limitation shall arise when mis- description of the name of the original plaintiff or mis-description of  the suit property arose in a particular case.  Apart from that in the  present case, although, the relief claimed before as well as after the  amendment remained the same i.e. a decree for specific performance  of the contract for sale, even then, in the facts and circumstances of  the present case, as noted herein earlier, we do not find why the High  Court should have interfered with the discretion used by the trial court  in allowing the application for amendment of the plaint.   16.     For the reasons aforesaid, we are unable to sustain the  impugned order of the High Court. Accordingly, the impugned order  of the High Court is set aside and that of the Second Additional  District Judge, Bikaner is restored. The application for amendment of  the plaint, as prayed for, is thus allowed. It will be open to the  respondents to file their written statement if the same has not yet been  filed and if the same has been filed, it will be open to them to file an  additional written statement within a period of one month from the  date of supply of a copy of this order to the trial court. 17.     The appeal is thus allowed to the extent indicated above. There  will be no order as to costs.