The discretionary nature of Section 26(1)(b) of the Specific Relief Act 1963 allows the plaintiff to claim rectification in the pleading.

The revision petitioner/respondent/defendant has filed this present civil revision petition as against the order dated 16. 2008 in I.A.No.43 of 2008 in O.S.No.161 of 2006 passed by the learned Subordinate Judge, Tiruvallur in allowing the application filed by the respondent/petitioner/plaintiff under Order 6 Rule 17 of Civil Procedure Code praying to amend the plaint.

2. The trial Court, while passing orders in I.A.No.43 of 2008 in O.S.No.161 of 2006, has inter alia opined that by allowing the amendment, the cause of action will not change and also filing of the new suit can be prevented and has resultantly allowed the said application.

3. The learned counsel for the revision petitioner/respondent/defendant urges before this Court that the order of the trial Court passed in I.A.No.43 of 2008 in O.S.No.161 of 2006 in allowing the amendment as prayed for by the respondent/petitioner/plaintiff is not correct in law and while allowing the said application, the trial Court has exceeded its jurisdiction and further that the trial Court has not taken into account of the fact that the proposed amendment will change the nature and character of the original cause of action of the suit and that the trial Court placing reliance on the decision of the Honourable Supreme Court in Puran Ram-v-Bhaguram and another(2008(2)CTC 224) is not correct as the said decision is not applicable to the facts of the present case and in any event, after commencement of the trial of the suit, the amendment application should not have been allowed by the trial Court and therefore prays for allowing the civil revision petition to prevent the aberration of justice.

4. In I.A.No.43 of 2008 in O.S.No.161 of 2006 filed by the respondent/petitioner/plaintiff, it is inter alia averred that during the course of trial, the revision petitioner/respondent/defendant has taken a new defence in respect of the correctness of the Survey Number and the boundary on the east in regard to the suit property which has not been put forth in the pleadings that the mistake is bonafide and mutual one which has crept in in the agreement and has been incorporated in the plaint and therefore this bonafide and mutual mistake requires to be remedied in the interest of justice for proper adjudication of the dispute between the parties.

5. The respondent/petitioner/plaintiff in I.A.No.43 of 2008 in O.S.No.161 of 2006 has taken a categorical stand that he has been advised to state that it is not necessary to seek any relief of rectification and he can seek the relief in respect of the correct survey number of the correct property with correct boundary, the relief of specific performance.

6. In the decision reported in Puran Ram-v-Bhaguram and another (2008(2)CTC 224), the Honourable Supreme Court has inter alia held that in an application for amendment filed by the plaintiff seeking amendment of plaint as well as agreement for sale, the said amendment is permissible and separate suit to rectify the mistake in agreement for sale is not always necessary and it is open to the party to claim relief of rectification of underlying instrument in the suit itself.

7. The learned counsel for revision petitioner/respondent /defendant submits that as per Section 26(1)(b) of Specific Relief Act 1963, in the instant case, the respondent/petitioner/plaintiff has to amend the agreement of sale and without amending the agreement of sale, the present application I.A.No.43 of 2008 filed by him is not maintainable in law.

8. In this connection, it is useful to refer to the relevant portion to Section 26 of Specific Relief Act 1963, which runs as follows.

"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 in