Puran
Ram Vs. Bhaguram & Anr [2008] Insc 319 (29 February 2008)
Tarun
Chatterjee & Harjit Singh Bedi
CIVIL
APPEAL NO1673 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 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
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.
(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 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 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 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 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 (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 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.
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