Section 26 of the Specific Relief Act allows for the rectification of an instrument/agreement when it does not express the parties' real intention due to fraud or mutual mistake, and the amendment is necessary for the just decision of the case between the parties.

INDERJIT SINGH, J.

Civil Misc. No. 17124-CII of 2014:

1. Civil miscellaneous application is allowed subject to all just exceptions. Documents annexed with the application are taken on record.

Civil Revision No. 4757 of 2014:

Navtej Singh-petitioner has filed this civil revision petition against respondents Darbara Singh etc. under Article 227 of the Constitution of India for setting aside the impugned order dated 27.5.2014 (Annexure-P. 5) passed by the Additional Civil Judge (Senior Division), Abohar, whereby the application filed for rectification of instrument/agreement to sell dated 4.3.2006 and for amendment of the plaint in view of Section 26 of the Specific Relief Act has been dismissed.

It is mainly stated in the petition that the respondents agreed to sell their agricultural land measuring 35 Acres 3 Kanals situated in the area of Village Shere Wala for a total consideration of Rs. 1,76,66,666/- and the respondents received a sum of Rs. 20 Lacs as earnest money. When the respondents failed to execute the sale deed in terms of the agreement to sell, the suit was filed and that suit was decreed ex parte. Later on, the ex parte decree was set aside and the respondents were allowed to file written statement. In the written statement, the respondents have not denied the execution of the agreement in question and further they have also not denied the receipt of Rs. 20 Lacs as earnest money. After filing the written statement, issues were framed and the petitioner was permitted to lead his evidence. Later on the petitioner came to know that in the agreement to sell dated 4.3.2006 the correct Khasra numbers and their measurement was not mentioned. The petitioner further came to know that even some of the Khasra numbers mentioned in the agreement to sell do not belong to the respondents. When the petitioner came to know regarding the aforesaid facts, he moved an application before the learned trial Court for rectification of instrument/agreement to sell and for amendment of plaint in view of Section 26 of the Specific Relief Act.

2. Notice of motion in this petition was issued to the respondents. Mr. R.K. Singla, Advocate put in appearance on behalf of the respondents and contested this civil revision.

3. I have heard learned counsel for the parties and have gone through the record.

4. Learned Additional Civil Judge (Senior Division), Abohar vide order dated 27.5.2014 dismissed the application for rectification of instrument/agreement to sell as well as the application for amendment of the plaint filed under Order 6 Rule 17 C.P.C.

5. I have gone through the impugned order. The learned lower Court put much emphasis on the passing of the ex parte decree and the fact that there is inappropriate delay in filing the application. Secondly, it is also held that another application has been filed on the same ground and it has been withdrawn and has not mentioned the justified reasons for withdrawing of his earlier application and filing new one without permission of the Court.

6. From the record, I find that the Hon'ble Supreme Court in Puran Ram Vs. Bhaguram and Another, (2008) 4 SCC 102 held as under-

"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 instr