Krishan Lal vs Lrs Of Ramrakh And Anr
2023 Latest Caselaw 4368 Raj

[2023/RJJD/013361]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11177/2016

Krishan Lal son of Shri Rati Ram by caste Vishnoi, aged about 65 years, resident of Dabla, Tehsil Raisinghnagar, District Sri Ganganagar.

----Petitioner Versus

1. Legal representatives of Ramrakh son of Mallu Ram by caste Vishnoi :-

1/1. Binjha Ram son of Late Shri Ramrakh by caste Vishnoi, resident of 6 P.B.M. (Dhani), Tehsil Raisinghnagar, District Sri Ganganagar.

1/2. Vijay Laxmi Daughter Of Late Shri Ramrakh, wife of Shri Sultan by caste Vishnoi, resident of Dabla, Tehsil Raisinghnagar, District Sri Ganganagar.

2. Civil Judge (Senior Division) Raisinghnagar, District Sri Ganganagar.

                                                                  ----Respondent

For Petitioner(s)          :     Mr. N.L. Joshi
                                 Ms. Kirti Joshi
For Respondent(s)          :     Mr. Rahul Sharma
                                 Mr. Prashant Sharma



               HON'BLE DR. JUSTICE NUPUR BHATI

                                      Order

Reserved on 03/05/2023
Pronounced on 10/05/2023

1. The instant writ petition has been preferred by the petitioner

under Article 226 and 227 of the Constitution of India with the

following prayers:-

"(i) It is, therefore, most respectfully prayed that the writ petition of the petitioner may kindly be allowed by quashing and setting aside the impugned order dated 16.09.2016 (Annexure-11) and order dated

[2023/RJJD/013361] (2 of 15) [CW-11177/2016]

05.07.2016 (Annexure-7) passed by learned Civil Judge (S.D.), Raisinghnagar, District Sri Ganganagar by allowing the application dated 03.02.2016 and 01.08.2016 (Annexure-8)

(ii) Any other appropriate order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner;

(iii) Cost of the petition may kindly be awarded in favour of the petitioner."

2. Brief facts of the case are that:-

On 03.01.1985, the petitioner entered into an agreement for

sale to purchase the suit property for a sum of Rs.36,000/-. He

paid the entire consideration amount to the respondent No.1-Late

Shri Rakhram on the same day. In this regard, an agreement took

place between the parties and possession of the land in-question

was also delivered to the petitioner. In the said agreement,

description of the land was given as "Chak 6 B.P.M., Tehsil

Raisinghnagar, District Sri Ganganagar Square No.119/331-25

Bigha and Square No.116/331-24.10 Bigha total 49.10 Bigha".

3. It was also agreed that after getting sale permission, the

sale deed would be executed in favour of the petitioner, but, the

respondents neither got the permission to sale, nor the sale deed

got executed. Thereafter, a sum of Rs.10,000/- was paid to the

respondent No.1-Late Shri Ramrakh on 15.06.2005.

4. As per the terms of the agreement, the petitioner filed a suit

in the year 2008 for Specific Performance of Contract, as the

respondent did not execute the sale deed in-question. On

[2023/RJJD/013361] (3 of 15) [CW-11177/2016]

10.07.2013, the suit was further amended and an amended plaint

was filed. A written statement was filed in the suit by the

respondent No.1/2-Smt. Vijay Laxmi, whereby she denied the

averments made in the plaint and also refused the execution of

any agreement.

5. In the said suit, the learned trial court framed issues

regarding the agreement in question, which are reproduced

hereinbelow:-

"1. आया प्रतिवादी के द्वारा वादी के पक्ष मे चक 6 बी पी एम तह रायसिंहनगर का मुन 119/131 की 25 बीघा व मुन 116/31 की 24- 10 बीघा कुल 42-10 बीमा का बेचान का एक इकरारनामा दिनां क 3.1.85 को कर इकरारनामा किया गया का बेचान अपने पक्ष में करवाने का अधिकारी है ।

-वादी

2. आया वादी अपने इकरारनामा के अपने हिस्सा की पालना हे तु हमेशा तैयार तत्पर व इच्छु क रहा है

- वादी

3. आया वादी प्रतिवादी के विरूद्ध स्थाई निषे धाज्ञा भी प्राप्त करने का अधिकारी है ।

- वादी

4. आया वादी का वाद अन्दर मियाद है ।

- प्रतिवादी"

6. During pendency of the suit, the respondent No.1/1-Binjha

Ram, filed a compromise dated 06.02.2012 vide which, he

admitted the agreement and stated that he has no objection, if

half of the land is transferred in favour of petitioner, which fact

was verified by the learned trial court on 15.02.2012.

[2023/RJJD/013361] (4 of 15) [CW-11177/2016]

7. On 22.01.2016, when the Patwari visited the land in-

question for attachment in pursuance of providing the Bank Loan

to the petitioner Krishan Lal, he supplied him copy of the

agreement to which, the Patwari pointed out the error committed

in the agreement regarding description of the property to which,

he filed an application under Order 6 Rule 17 CPC on 03.02.2016

seeking amendment in the pleading. The application preferred by

the petitioner was rejected by the learned trial court vide order

dated 05.07.2016 on the ground that description of the property

given in the plaint is in accordance with the agreement dated

03.01.1985 and there is no such clerical error.

8. After dismissal of the abovementioned application, the

petitioner moved another application on 01.08.2016 under Section

26 of the Specific Relief Act, 1963, read with Order 6 Rule 17 CPC

seeking amendment in the pleading as well as rectification in the

agreement dated 03.01.1985, in which, the petitioner specifically

stated that due to the mutual mistake committed by both the

parties, "Square No.116/331" was mentioned in the agreement

instead of "Square No.116/330" and also proposed for amendment

in the plaint for rectification of the 'Square Number' in the

agreement, relevant portion of which is reproduced hereinbelow

for the sake of ready reference:-

"प्रस्तावित संशोधन:-

(क) यह कि ईकरारनामा दिनां क 03-01-1985 के प्रथम पृष्ठ पर भू मि विवरण अन्तर्गत "मुरब्बा नं 0 116/331" के स्थान पर "मु नं० 116/330" किया जावें ।

[2023/RJJD/013361] (5 of 15) [CW-11177/2016]

(ख) यह कि वाद-पत्र में भूमि के विवरण के संबंध में जहां -जहां मुनं० 116/331 अं कित हुआ है उसे मु 0 नं 0 116/330 किया जावें। यह संशोधन बाद पत्र के अनुतोष में भी किया जावें।

(ग) यह कि वादी सदभावी है उसने जानबुझकर कोई गल्ती गफलत नही ं की है ।"

9. The respondent No.1/1-Binjha Ram, admitted the contents of

the application preferred by the petitioner and filed reply in this

regard on 07.09.2016, but the respondent No.1/2-Smt. Vijay

Laxmi in her reply dated 14.09.2016, denied the averments made

in the application preferred by the petitioner by stating that there

was no mutual mistake in the said agreement.

10. After hearing the arguments advanced by both the parties,

the learned trial court vide impugned order dated 16.09.2016,

rejected the application under Order 6 Rule 17 CPC preferred by

the petitioner on the ground, that for seeking rectification in a

document, a separate suit can be filed. The learned trial court

further observed that no amendment was sought in the plaint

regarding rectification of the agreement.

11. Being aggrieved of the orders dated 16.09.2016 (Annexure-

11) and 05.07.2016 (Annexure-7) passed by the learned Civil

Judge (S.D.), Raisinghnagar, District Sri Ganganagar, the

petitioner has preferred the instant writ petition.

12. Learned counsel Shri N.L. Joshi, representing the petitioner,

submitted that:-

[2023/RJJD/013361] (6 of 15) [CW-11177/2016]

(a) The learned trial court has committed a grave error in passing

the impugned orders dated 16.09.2016 and 05.07.2016 and has

failed to consider the provisions of law. Learned counsel for the

petitioner, relies upon Section 26 read with sub-Section (1) and

(2) of the Special Relief Act, 1963 (hereinafter referred to as 'the

Act of 1963'), which reads as below:-

"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 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."

[2023/RJJD/013361] (7 of 15) [CW-11177/2016]

Learned counsel for the petitioner further relies upon sub-

Section (4) of the Act of 1963, which reads as below:-

"(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."

(b) The respondent No.1/1-Binjha Ram, son of the respondent

Late Shri Ramrakh, has admitted the averments made in the

agreement in his reply dated 07.09.2016 and has filed a

compromise before the learned trial court. The respondent No.1/2

Smt. Vijay Laxmi has not disputed the mistake of square numbers

in her written statement. As per the provisions of law, separate

suit is not required to be filed but rectification of document could

be ordered in any suit. In this regard, he submitted that the

petitioner has prayed for making amendment in the pleading as

well as for rectification of the document and filing of a separate

suit will lead to the multiplicity of the litigation and by allowing the

proposed amendment/rectification of the document, it will not

change the nature of the suit/reliefs but the learned trial court

dismissed the application preferred by the petitioner in a very

casual manner without considering the provisions of law.

(c) Jamabandi of land of the respondent Late Shri Ramrakh

shows Square No.116/330 and 119/331 as the Square

No.116/331 belongs to one Sajana and not to Shri Ramrakh. Due

to mutual mistake committed by both the parties, square number

[2023/RJJD/013361] (8 of 15) [CW-11177/2016]

was mentioned as 116/331 instead of 116/330. In this regard, the

learned trail court committed grave error by rejecting the

application preferred by the petitioner. He urged that the present

suit is a suit under specific performance of contract and therefore,

typing error in the agreement, deserves to be corrected and the

plaint be amended.

13. He placed reliance upon the judgment rendered by Hon'ble

the Apex Court in the case of Puran Ram Vs. Bhaguram & Anr.

reported in (2010) 4 SCC 102 decided on 29.02.2008. Relevant

portion of the said judgment is reproduced hereinbelow for the

sake of ready reference:-

"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 the contention of the leaned 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.

17. The other ground on which the High Court has refused to permit the appellant to amend the plaint is

[2023/RJJD/013361] (9 of 15) [CW-11177/2016]

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 simpliciter 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, late 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.

18. ......................

19. Before parting with this judgment, we may deal with the 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,

[2023/RJJD/013361] (10 of 15) [CW-11177/2016]

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 v. Yellapa. 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.

20. 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 v. National Building Material Supply. In para 8 of the said decision this Court observed that:

"8. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of the 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 misdescription of the name of the original plaintiff or misdescription 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

[2023/RJJD/013361] (11 of 15) [CW-11177/2016]

performance of the contract for sale, even then, in the facts and circumstances of the present case, as noted hereinearlier, 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."

14. In support of his contentions, learned counsel representing

the petitioner also placed reliance upon the judgment passed by a

Coordinate Bench of the Court in the case of Phool Chand Vs.

Additional District Judge, Raisinghnagar & Anr. in SB Civil Writ

Petition No.16297/2017. Relevant portion of the said judgment is

reproduced hereinbelow for the sake of ready reference:-

"It is not in dispute that the petitioner has filed a suit for specific performance with the contention that the respondent No.2 has executed an agreement to sale in his favour for his agricultural lands, however later on, refused to get the sale deed registered. Along with the said suit, copy of the agreement has also been produced and from perusal of the same, it is clear that the agreement is in relation to the agricultural land situated in Chak 10 PTD, however, in the plaint, it is averred that the agreement is in relation to the land situated in Chak 8 PTDB.

It appears that the wrong description of the name of the village in the plaint is due to inadvertence only. Even if such amendment is allowed to be carried out, the nature of the suit will not be changed as it will remain a suit for specific performance of contract.

In such circumstances, this writ petition is allowed and the impugned order dated 18.11.2017 is set aside

[2023/RJJD/013361] (12 of 15) [CW-11177/2016]

and the application filed by the petitioner under Order VI Rule 17 is also allowed.

The respondent No.2 is also permitted to suitably amend the pleadings in the written statement if he is advised to do so.

The trial court is directed to proceed with the suit expeditiously."

He, thus, urged, that the writ petition filed by the petitioner,

may kindly be allowed while setting aside the impugned orders

dated 16.09.2016 and 05.07.2016, passed by learned Civil Judge

(S.D.), Raisinghnagar, District Sri Ganganagar, by allowing the

applications dated 03.02.2016 and 01.08.2016.

15. Per contra, learned counsel Shri Rahul Sharma and Shri

Prashant Sharma, representing the respondents, vehemently and

fervently opposed the submissions advanced by the petitioner's

counsel and submitted that;

(a) the case of present petitioner is false and fabricated, as the

petitioner has placed forged documents on record. For rectification

of any document, only a suit can be instituted. No rectification in

the instrument can be ordered without initiating regular trial in a

suit for specific performance of the contract or agreement to sale.

That, neither the petitioner pleaded any rectification in the suit nor

any indication was present in the original suit filed by the

petitioner and the suit cannot be rectified in a routine or casual

manner.

(b) Late Shri Ramrakh never entered into an agreement for sale

on 03.01.1985. Neither the possession of land comprises out of

Chak No.6 BPM, Tehsil Raisinghnagar of Square No.119/331 and

[2023/RJJD/013361] (13 of 15) [CW-11177/2016]

Square No.116/331, nor any other land was given to the

petitioner.

(c) the respondent No.1/1-Binjha Ram, son of Late Shri Ramrakh,

and the petitioner, joined hands with each other because of their

mutual benefit. When the respondent late Shri Ramrakh had never

entered into the agreement to sale of any land to the petitioner,

then no question arises of mentioning incorrect square number i.e.

116/331 or 116/330, as the said mistake was committed by the

petitioner at the time of manipulating forged agreement hurriedly,

therefore, the application under Order 6 Rule 17 CPC, was rightly

dismissed by the learned court below.

(d) When the petitioner failed to seek amendment in the

pleadings, he then, again moved the same application by adding

Section 26 of the Specific Relief Act, 1963 (hereinafter referred to

as 'the Act of 1963'), and the learned trial court was perfectly

justified in rejecting the said application. A bare perusal of Section

26 of the Act of 1963, clearly reveals that any instrument can only

be rectified by a regular suit when it is shown that through fraud

or mutual mistake of a party, a contract or other instrument in

writing does not express their real intention. This rectification can

only be made after filing a regular suit. Section 26 (3) of the Act

of 1963, clearly envisages that a contract in writing may first be

rectified then its specific performance can be initiated.

(e) The relief prayed by the petitioner cannot be awarded to him

just by his oral submissions, more particularly, when the suit was

instituted by the petitioner, this mistake was not pointed out in his

plaint, nor is adumbrate till date.

[2023/RJJD/013361] (14 of 15) [CW-11177/2016]

With the aforesaid submissions, they, thus, urged, that the

writ petition may kindly be dismissed with costs.

16. After hearing the arguments advanced by learned counsel

representing the petitioner, learned counsel representing the

respondents and after minutely perusing the impugned orders and

the documents available on record, this Court is of the firm

opinion, that the important fact of the matter is that the

agreement dated 03.01.1985, in which the petitioner is seeking

correction/amendment for correcting it from "Square No.116/331"

to "Square No.116/330", is being denied by the respondents in

totality and contended that the same is manipulated and is a

forged document. The judgment relied upon by the petitioner's

counsel are at a different footing from the present case because in

those cases, there is a specific finding of the Court that if the

correction/amendment in the agreement/suit is permitted, it shall

not change the description of the land in dispute.

However, in the present case, if the amendment/correction in

the Square Number from "116/331" to "116/330" is allowed, then,

it shall change the description of the land in dispute which is the

subject matter of the suit, which is filed by the petitioner and

there is no prayer in the suit No.05/2008 (184/14) in relation to

correction/amendment in the agreement dated 03.01.1985 and

the petitioner has the remedy for instituting a suit available under

Section 26 of the Act of 1963. Thus, this Court is in agreement

with the findings recorded by the learned court below vide order

dated 16.09.2016 (Annexure-11).

[2023/RJJD/013361] (15 of 15) [CW-11177/2016]

17. As an upshot of the discussion made hereinabove, this Court

is of the opinion that the impugned orders dated 16.09.2016

(Annexure-11) and 05.07.2016 (Annexure-7), passed by learned

Civil Judge (S.D.), Raisinghnagar, District Sri Ganganagar, do not

suffer from any illegality or any infirmity whatsoever, warranting

interference therein.

18. The writ petition is dismissed. Stay application also stands

dismissed.

19. No order as to costs.

(DR. NUPUR BHATI),J

-/Devesh Thanvi/-

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