Bombay High Court
Raju vs Yusufbhai Fakir Mohamad Bagwan on 12 December, 2011
Bench: S.V. Gangapurwala
1 wp 4518.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4518 OF 2011
Raju S/o Bhanudas Shinde,
Age : 38 Years, Occu. : Agril.,
R/o Pedgaon, Tq. Shrigonda,
Dist. Ahmednagar. .. Petitioner
Versus
Yusufbhai Fakir Mohamad Bagwan,
Age : 45 Years, Occu. : Agril. & Business,
R/o Pedgaon, Tq. Shrigonda,
Dist. Ahmednagar. .. Respondent
Shri V. D. Sapkal, Advocate for the Petitioner.
Shri N. V. Gaware, Advocate for the Respondent.
CORAM : S. V. GANGAPURWALA, J.
DATE : 01ST DECEMBER, 2011.
DATE RESERVED FOR JUDGMENT : 30/11/2011
DATE ON JUDGMENT PRONOUNCED : 12/12/2011
JUDGMENT :
. Rule. Rule returnable forthwith. With the consent of
parties taken up for final hearing.
2. The present respondent/original plaintiff filed a suit for
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specific performance of contract purportedly on the basis of
agreement of sale dated 03.10.2007 in respect of property bearing
gat No. 159 to the extent of 1H 20R. During the pendency of the
suit the plaintiff filed an application for amendment U/O 6 Rule
17 of the Code of Civil Procedure thereby seeking amendment in
the plaint so also in the agreement. The said application is
allowed. Aggrieved thereby the present petition is filed.
3.
Shri Sapkal, the learned counsel for the petitioner/original
defendant contends that the Court could not have allowed the
amendment in the plaint so also in the agreement. The Court
has no jurisdiction to allow the amendment in the agreement
U/O 6 Rule 17 of the Code of Civil Procedure Code. The plaintiff
in his application had very specifically sought amendment in the
plaint to the effect that instead of gat No. 159 the same should be
referred as gat No. 459 and also in the agreement of sale
executed between the parties which is the basis for the suit, i. e.
the said agreement of sale be amended and instead of gat No. 159
the same should be written as gat No. 459. The Court could not
have allowed the application seeking amendment in the
agreement. The same was beyond the jurisdiction of the Court.
The learned counsel further submitted that no reasons are given
for allowing the amendment in the plaint also. In such
3 wp 4518.11
circumstances, the order cannot be sustained.
3. Shri Gaware, the learned counsel for the
respondent/plaintiff submits that the Court has the authority
and jurisdiction to allow amendment in the plaint, so also in the
agreement of sale between the party by virtue of Sec. 26 of the
Specific Relief Act. The learned counsel relies on the judgment
of the Apex Court in the case of Puranram Vs. Bhaguram and
another reported in 2008 B.C.I. 181 and another judgment of
the Apex Court in a case of Commissioner of Income Tax
Kanpur, Vs. Kamla Town Trust reported in AIR 1996 S.C.
620. The learned counsel further contends that the said
amendment does not change the nature of the suit and in a suit
for specific performance such a relief can be claimed. The
learned counsel supports the order passed by the Trial Court.
4. With the assistance of learned counsel I have gone through
the pleadings, the application for amendment and the order
passed by the Trial Court. Before I advert to the submissions
canvased by learned counsel, it would be appropriate to refer to
the relevant provisions.
4 wp 4518.11
CODE OF CIVIL PROCEDURE
1. ........
2. ........
ORDER VI
Pleadings Generally
1. ..........
2. .........
[17. Amendment of pleadings.-- The Court may
at any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of
determining the real questions in controversy
between the parties :
Provided that no application for amendment
shall be allowed after the trial has commenced,
unless the Court comes to the conclusion that in
spite of due diligence, the party could not have
raised the matter before the commencement of trial.]
SPECIFIC RELIEF ACT 1963
1. ...........
2. ...........
5 wp 4518.11
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 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 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
6 wp 4518.11
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.
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.
5. Bare perusal of Order 6 Rule 17 of the Code of Civil
Procedure it is manifest that the said provision empowers the
Court to allow the amendment to the pleadings. Order 6 Rule 17
of the C. P. C. does not extend beyond amendment to the
pleadings.
6. An agreement between the parties is a voluntary act of the
7 wp 4518.11
parties. The parties on their own volition enter into an
agreement. Sec. 26 of the Specific Relief Act permits a suit to be
instituted for the purpose of rectification of instrument if
through fraud or mutual mistake of the parties the
agreement/instrument is executed. The party in his suit may
claim relief that instrument be rectified. Proviso to Sub Section
4 of Sec. 26 further deals with the powers of the Court to allow
the amendment to the pleadings to claim any such relief with
regard to the rectification of the instrument and if the
rectification is permitted by the Court, then the plaintiff may
further plead that the said rectified document be specifically
enforced. There is nothing in the provisions of the statute i. e.
Sec. 26 of the Specific Relief Act or Order 6 Rule 17 of the Code of
Civil Procedure to allow or to empower the Court to allow
amendment in the agreement before adjudication by invoking the
powers of Order 6 Rule 17 of the C. P. C.
7. Sec. 26 of the Specific Relief Act lays down that a prayer
can be made in the plaint for rectification of the document in
view of that the party may claim amendment in the pleading
regarding the facts necessary for rectification or amendment of
the document and prayer for rectification of document. But by
way of an order on an amendment application cannot direct
8 wp 4518.11
amendment in the document itself. In the present case, precisely
the respondent has sought amendment in the plaint and in the
document. The amendment application filed by the plaintiff is in
vernacular language i. e. Marathi and one of the amendment
claimed can be read in English as under :
"In the agreement of sale dated 4th April, 2008
executed between plaintiff and defendant, where-
ever gat No. 159 appears, the same should be deleted
and in its place gat No. 459 be written in the
original agreement of sale. So also in the boundaries
Pedgaon road be written towards the East."
The said amendment sought is reproduced as under in Marathi.
"d- rlsp fnukad 4 ,fizy 2008 jksth oknh
o izfroknh ;kaps njE;ku >kysY;k ^folkj
ikorhps* eqG nLrke/;s feGdrhps o.kZuke/;s
T;k&T;k fBdk.kh *xV ua 159* vlk mYys[k
vkgs R;k 'kCnkoj dkV ekj.;kr ;smu R;k
fBdk.kh *xV ua 459* vls fygh.;kr ;kos-
rlsp prq%fleke/;s iqoZ fn'ksyk xV ua 458
ps iq<s *o isMxka o v/kks j s o kMh jLrk* vls
fygh.;kr ;kos-"
8. Even in para 10 which deals with the prayer, the plaintiff
had prayed that the application be allowed and the amendment
in the plaint and the document be permitted.
9. The learned Trial Judge has allowed the application and
9 wp 4518.11
has also tried to interprete the judgment of the Apex Court in a
case of Puranram Vs. Bhaguram and another referred supra
as it empowers the Court to allow the amendment in the
document.
10. The manner in which the said judgment is interpreted by
the Trial Court is improper. Perusal of the said judgment of the
Apex Court in Puranram Vs. Bhaguram and another case, it
is manifest that the Apex Court in para 12 of the said judgment
has held as under :
"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."
"It is sufficient to observe that it was not necessary for
the appellant to file a separate suit for that purpose as
10 wp 4518.11
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."
11. It would be manifest that the Apex Court has observed that
it is permissible even in a suit for specific performance to claim
the relief of rectification of the instrument.
12. In view of the above, there is no hesitation to hold that the
Court cannot allow the amendment in the document at this
stage. The order impugned to the extent of allowing the
amendment in the agreement is quashed and set aside. The
order to the extent of allowing the amendment in the pleadings i.
e. the plaint is maintained. The plaintiff can file necessary
amendment application seeking relief of rectification of the
agreement. If such an application is filed the Trial Court shall
consider such application on its own merits.
Rule is accordingly made absolute in above terms, however,
with no order as to costs.
Sd/-
[ S. V. GANGAPURWALA, J. ]
bsb/Dec. 11
