The petitioner has succeeded in his suit in O.S.

No.4572/2012 on the file of the V Additional City Civil

Judge, Bengaluru [for short, 'the civil Court'], which is

for specific performance of the Agreement dated

18.05.1991. The suit is decreed not on adjudication of

merits but pursuant to an application filed reporting

compromise.

After

this

compromise

decree,

the

petitioner is also successful in getting the sale deed for

the subject property through the Court9s process. The

reason for the present petition is the rejection of the

applications filed by the petitioner after the sale deed is

executed in execution of the decree for specific

performance.

3

2.

The petitioner has filed two applications viz.,

under Order VI Rule 17 of the Code of Civil Procedure,

1908 [for short, 'the CPC'] and under Section 152 of

CPC. The first application is filed for amendment of the

plaint and the second application is filed for correction

of the decree. The petitioner has filed these applications

contending that the subject property is bound on the

eastern side by 'Racecourse Road' and the property is

also accordingly described in the agreement dated

18.05.1991.

But

in

the

plaint

schedule,

by

inadvertence, the eastern boundary of the property is

mentioned

as

'Racecourse'.

This

inadvertent

typographical error is also reflected in the sale deed.

The civil Court has rejected these applications by the

impugned order opining that the plaint cannot be

amended after the sale deed is executed and the decree

cannot be corrected because there is no typographical

error by the Court.

4

3.

Sri. K.N. Nitish, the learned counsel for the

petitioner, submits that the original agreement dated

18.05.1991 is part of the records in O.S. No.4572/2014

and a mere perusal of this document would indicate

that the eastern boundary of the subject property is

indeed mentioned as 'Racecourse Road'. The original

defendant could only assert title to the property which

abuts this Racecourse Road. The provisions of Order VI

Rule 17 of CPC could be invoked, where circumstances

would justify, even after the disposal of the suit to

facilitate an effective decree.

4.

Sri. K.N. Nitish submits that the petitioner in

seeking the amendment after the decree is only seeking

for an effective decree and is not trying to change the

nature of the dispute or the nature of the claim. The

civil Court should have considered the application for

amendment and the application under Section 152 of

CPC in the light of these circumstances. The civil

5

Court's approach, when the circumstances justify, has

rendered the petitioner without any remedy.

5.

This Court, on perusal of the reasons

assigned, is of the considered view that the civil Court

should have considered the circumstances relied upon

by the petitioner and in the light of the provisions of

Section 26 of the Specific Relief Act, 1963 which enable

a person who can plead mutual mistake to seek

rectification of an instrument. The petitioner could

perhaps plead mutual mistake at the time of agreement

to compound the dispute. This Court therefore is of the

opinion that the applications must be reconsidered with

due opportunity to the petitioner not only to point out a

possible mistake in describing in the subject property in

the plaint schedule but also a mutual mistake in filing

the

compromise

petition

for

a

consent

decree.

Therefore, the following:

6

ORDER

(a) The petition is allowed in part and the

impugned orders both dated 2.1.2018 in

O.S.No.4572/2012 on the file of the V

Additional City Civil Judge, Bengaluru, is

quashed with the applications being restored

for re-consideration in the light of the

observations as aforesaid but with due

opportunity to both the petitioner and the

respondent.

(b)

The petitioner shall appear without

further notice before the civil Court on

26.9.2022 and the applications shall be

taken up for consideration after notice

thereof to the respondent.

Sd/-

JUDGE

AN/-, SA