Mutual mistakes in property descriptions in agreements can be amended under CPC, and the validity of related Sale Deeds should be determined at trial.

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

Heard the learned counsel for the petitioners and learned counsel for the respondents.

2. The present petition is filed praying this Court to issue writ in the nature of certiorari by quashing the order dated 21.08.2019, passed by the Principal Civil Judge and CJM, Belagavi in O.S No.74/2016 on I.A No.15, vide Annexure-N as null and void and issue any other writ or direction as this Court deems fit in the circumstances of the case.

3. The factual matrix of the case of the plaintiffs/petitioners before the Trial Court is that the respondent Nos.1 to 4 entered into an agreement of sale with the petitioners on 03.09.2007. Thereafter, they executed one more supplementary agreement on 07.11.2008. The respondent Nos.1 to 4 failed to execute the Sale Deed and a notice was issued on 15.04.2015, which was not replied by them. Hence, the petitioners filed suit in O.S No.74/2016 before the Trial Court for relief of specific performance of contract based on the Agreement of Sale dated 03.09.2007 and 07.11.2008. The petitioners also filed I.A No.15 under Order VI Rule 17 R/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘ CPC ’) for amendment of plaint, i.e., description of suit property as well as the Agreement of Sale to rectify R.S No.207/1 into R.S No.207/A/1. Further prayer is made to insert Paragraph Nos.19A, 21A and to add prayer (cc) to declare that the Sale Deed executed subsequently is null and void. The said application was rejected and hence, the present petition is filed before this Court.

4. Learned counsel for the petitioners would vehemently contend that the Trial Court has failed to notice that prayer made in the I.A No.15 is for amendment of plaint as well as for correction of the instruments. The Trial Court has considered the application as if the prayer is made only for rectification of the instrument and thereby wrongly rejected the entire application. The impugned order is contrary to Section 26 of the Specific Relief Act, 1963 (hereinafter referred to as the ‘Act’) in view of law laid by the Hon’ble Supreme Court in the case of Puran Ram Vs. Bhaguram and another reported in AIR 2008 SC 1960 . It is also contended that the Trial Court has failed to notice that the mistake has committed in mentioning survey number of the suit property in the instrument, notice as well as in the plaint. The mistake can be treated as mutual mistake, because respondent Nos.1 to 4 in the cause title notice has admitted that they are the owners of R.S No.207/1. Only in the written statement they took up the contention that they are owners of R.S No.207/A/1 and not in R.S No.207/1. So there is no proper application of mind by the Trial Court in considering the application. The relief sought in the application for amendment also not changes the nature of dispute as well as the pleadings of the parties. Hence, the Trial Court committed an error in passing such an order.

5. The learned counsel appearing for respondent No.1 would vehemently contend that the amendment sought cannot be allowed and the same changes the very nature of the suit. The counsel also contends that the prayer sought is not in consonance with the Civil Rules of Practice and there cannot be different prayers. The counsel appearing for the respondent Nos.2 to 4 would also vehemently contend that cause of action also sought for correction and the suit was filed in the year 2016, they cannot amend the cause of action that arose in 2018 and the same has been considered by the Trial Court.

6. The learned counsel appearing for respondent No.16, who is the subsequent purchaser also vehemently contend that there cannot be any correction of the instrument as well as the plaint. The description of the property cannot be corrected by making such an amendment. Hence, the Trial Court has rightly taken note of the said fact into consideration.

7. Having considered the grounds urged in the petition as well