2024:MHC:879 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.02.2024 CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR C.R.P.(NPD).No.2618 of 2018 and C.M.P.No.15710 of 2018 B.S.Dinesh ... Petitioner vs

1.Duraisamy

2.Pasupathi

3.Vijayakumar

4.Usharani

5.Vijayalakshmi

6.State of Tamil Nadu Rep. by the District Collector Salem.

7.The Sub Registrar Omalur Taluk Salem District. ... Respondents Prayer: Civil Revision Petition is filed under Section 115 of the Civil Procedure Code, praying to set aside the order and decreetal Order dated 26.07.2018 passed in I.A.No. 7 of 2018 in A.S.No. 19 of 2017 on the file of the learned Addl. District Judge (Fast Track) Court at Mettur by allowing the Civil Revision Petition.

For Petitioner : Mr.N.Manokaran for M/s.A.Damodaran For R6 and R7 : Mr.V.Jeevagiridharan Additional Government Pleader For R1 to R5 : No Appearance

ORDER

The Civil Revision Petition is filed challenging the order passed by the First Appellate Court dismissing the petition filed by the petitioner seeking amendment of the plaint.

2. The petitioner herein filed a suit seeking rectification of boundary number in the Sale Deed executed in his favour as Document No.3182/2006, dated 15.06.2006 on the file of the Sub Registrar, Omalur. The petitioner sought for a direction to Sub Registrar, Omalur to rectify the defects by correcting the survey number as 93/2B instead of 93/1B. The suit was dismissed by the Trial Court mainly on the ground that the petitioner cannot seek a direction to Sub Registrar, Omalur to rectify the survey number instead he should have prayed for direction against respondents 1 to 5/defendants 1 to 5. Aggrieved by the same, the petitioner filed an appeal in A.S.No.19 of 2017. Pending appeal, the petitioner filed a petition seeking amendment of the plaint so as to include a new prayer in the plaint seeking direction to respondents 1 to 5 to execute Rectification Deed in favour of plaintiff by correcting survey number as 93/2B instead of 93/1B. The said application was dismissed by the First Appellate Court on the ground that the petitioner should raise the point at the time of argument of the appeal and the same cannot be raised by way of interlocutory application. Aggrieved by the same, the petitioner is before this Court.

3. The learned counsel appearing for the petitioner by taking this Court to proviso to Section 26 of the Specific Relief Act, 1963 submitted that the Court can permit the parties to include a prayer for rectification of the instrument at any stage of the proceedings.

4. Though the contesting respondents 1 to 5 are served and their names appeared in the cause-list, there is no representation for the respondents 1 to 5. The official respondents 6 and 7 are represented by Additional Government Pleader.

5. The petitioner herein filed a suit seeking rectification of the wrong survey number mentioned in Sale Deed executed in his favour by substituting correct survey number. The Sale Deed was executed by respondents 1 to 5 in favour of the petitioner. Therefore, the petitioner should have sought for direction against his vendors namely the respondents 1 to 5. However, in the suit the petitioner sought for a direction to the Sub Registrar, Omalur. In order to cure the said defect, the present application has been filed.

6. Section 26 of the Specific Relief Act, 1963 reads as follows:-

“26. 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 institute a suit to have the instrument rectified; or (b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or (c) a defendant in any such suit as is referred to in clause (b), may, in addition