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2019 Supreme(P&H) 2410
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Amol Rattan Singh, J.
Kuldeep Singh - Appellant
Versus
Rajinder Singh - Respondent
Civil Revision No. 1348 of 2014
Decided On : 20-02-2019
Mr. HPS Ghuman, Advocate, for the Appellant; Mr. G.S. Nagra, Advocate, for the Respondent
The main legal point established in the judgment is that the court may allow rectification in an instrument if it does not express the real intention of the parties, as provided under section 26 of the Specific Relief Act, 1963. However, the court must consider the timing of the correction and the existence of genuine errors before allowing amendments, especially after the trial has commenced.
Headnote:
Amendment - Specific Relief Act - 26 of the Specific Relief Act, 1963 - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of section 26 of the Specific Relief Act, 1963, which empowers the court to allow rectification in an instrument if that document does not express the real intention of the parties. The court also referred to Rule 17 of Order VI of the Code of Civil Procedure, which allows for the amendment of pleadings at any stage of the proceedings, subject to certain conditions.
Fact of the Case:
The respondent filed a suit seeking possession of the suit property by way of specific performance of an agreement of sale. The respondent sought amendment of the plaint and a part of the agreement to correct a wrong khasra number due to a clerical mistake. The petitioner opposed the amendment, alleging that the suit was based on a forged and fabricated agreement.
Finding of the Court:
The court found that the agreement contained incorrect khasra numbers and areas, likely due to a mistake made by the petition writer. The court held that the amendment sought was necessary to prevent irreparable loss and injury to the respondent. The court allowed the amendment under section 26 of the Specific Relief Act, 1963, citing a judgment of the Supreme Court in Puran Ram vs. Baguram, (2008) 2 ACJ 40.
Issues: The issues revolved around the correction of the khasra numbers in the agreement and whether the amendment should be allowed after the trial had commenced.
Ratio Decidendi: The court held that the amendment could be allowed even after the trial had started if there was an inherent error in the document that had been corrected thereafter. However, the court found that the correction in the revenue record was not existent at the time the application seeking amendment was made, and therefore, the trial court erred in allowing the amendment at such a belated stage.
Final Decision: The petition was allowed, and the impugned order allowing the amendment well after the trial had started was set aside.
JUDGMENT
Amol Rattan Singh, J. - By this petition, the petitioner challenges the order dated 28.01.2014 passed by the learned Civil Judge (Junior Division), Nabha, by which that court has allowed the application of the respondent (plaintiff in the suit before that court), filed under Order VI, Rule 17 of the Code of Civil Procedure, (read with section 26 of the Specific Relief Act, 1963), seeking amendment of his plaint.
2. The suit filed by the respondent is one seeking a decree of possession of the suit property by way of specific performance of an agreement of sale stated to have been entered into the parties on 01.03.2007, with the application seeking amendment of the plaint and a part of the agreement, having been filed on 09.12.2011 (copy Annexure P-2 with the petition). A perusal of the said application shows that the amendment sought by the respondent was that in the agreement of sale itself a wrong khasra number had been given (describing the suit land), which as per the application, was due to "an inadvertent view taken by the Patwari while preparing copy of jamabandi for the year 2003".
Thus, it was contended that the khasra number having been wrongly written in the revenue record, the same was copied by the deed writer in the agreement, leading to therefore the plaint also containing the wrong khasra number (as per the respondent-plaintiff).
It is further stated in the application that when the jamabandi (record of rights) for the year 2003 was compared with the subsequent jamabandi for the year 2008-09, the difference in khasra numbers came to light, which as per the respondent was a clerical mistake, and that he had thereafter consulted the Patwari, with the correct khasra numbers then having come to his knowledge.
Thus, he sought the correction of the khasra numbers in the instrument itself, i.e. the agreement of sale, as also in the plaint accordingly, vide the application that has been allowed vide the impugned order.
3. A perusal of the said order shows that after noticing the aforesaid contentions/pleadings in the application and the reply filed by the present petitioner (defendant in the suit), it was seen that he had stated that the suit itself was based on a forged and fabricated agreement, which actually the present petitioner had never executed (as per his stand), he further stating that even the jamabandi and khasra girdawari, i.e. the record of rights and the annual record, were forged by the plaintiff in connivance with the Halqa Patwari.
Thus, as per the petitioner in his reply to the application filed by the respondent before the trial court, the proposed amendment could not be allowed as it would also change the nature of the case, thereby prejudicing him.
4. After considering the contentions of both sides, the learned Civil Judge recorded that a perusal of the agreement dated 01.03.2007 showed that it contained khasra numbers as per the jamabandi for the year 2003-04, which was issued on 26.02.2007.
In the said jamabandi, it was recorded that vide Mutation no.759, the petitioner (Kuldeep Singh son of Charan Singh) became the owner of a 206th share out of a 1697th share in the suit property.
It was further recorded by that court that in fact in the said jamabandi the khasra numbers and respective areas of the khasra numbers were not written in a sequence, because before some khasra numbers no area was mentioned and before others it had been mentioned twice. It was further recorded that the area of khasra no.295 was shown to be "Nil".
Hence, it was held that there was every possibility that the petition writer who had scribed the agreement of sale, had written the wrong khasra numbers, showing an incorrect area, with the plaintiff (respondent herein) also having placed on record a jamabandi for the year 2008-09, and another jamabandi for the same year (2003-04), but issued on 01.07.2013. (As already noticed the jamabandi for that year as had been originally referred to, was issued on 26.02.2007 as r
