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SMT. GEETA MAHESHWARI versus PAWAN KUMAR & OTHERS

High Court of Judicature at Allahabad

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Smt. Geeta Maheshwari v. Pawan Kumar & Others - CIVIL REVISION No. - 425 of 2007 [2007] RD-AH 17308 (1 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 6

Civil Revision No. 425 of 2007

Smt. Geeta Maheshwari

Vs.

Pawan Kumar & Ors.,

*********

Hon. Dilip Gupta, J.

This Civil Revision under Section 115 of the Code of Civil Procedure (hereinafter referred to as ''CPC') has been filed by the defendant for setting aside the order dated 11th October, 2007 passed by the Special Judge/Additional District Judge, Aligarh in Original Suit No. 459 of 2001 by which the applications bearing No. 239-C/2 and 240-C/2 filed by the defendant were rejected.

Original Suit No. 459 of 2001 had been filed for specific performance of the registered agreement dated 2nd January, 1998 executed by the defendant in favour of the plaintiffs for sale consideration of Rs. 6 lacs out of which Rs. 5 lacs was paid as earnest money and the rest amount was agreed to be paid at the time of registration of the sale deed. The details of the land consisting of boundary walls and the gate which had been agreed to be sold was indicated at the foot of the plaint and is as follows:-

"Details of property

Land consisting of boundary wall and gate situated as Pala Sahibabad, Pargana and Tehsil Koil, District Aligarh bounded as under:-

East-Aarazi Kela and Krishna

West-Rasta 25 feet wide

North-Plot of School

South-Aarazi of Bhagwati Prasad."

A written statement was filed on behalf of the defendant. Thereafter the defendant moved an application for amendment of the written statement and sought rectification of the agreement to sell. This application was numbered as Paper No. 178-A. Subsequently, two applications, Paper No. 239-C/2 and 240-C/2 were filed by the defendants. The prayer contained in the application 239-C/2 was that the earlier incomplete application bearing Paper No. 178-A be treated as not pressed and the fresh application bearing Paper No. 240-C/2 for rectification of the instrument be entertained. In the application bearing Paper No. 240-C/2 the defendant stated that earlier the plaintiff had amended her written statement by adding paragraph 26-A in which it was stated that the plaintiff under the garb of the agreement to sell wanted to grab the adjacent open area of 360 square yards lying to the northern side of the defendant's property while the said adjacent open area does not belong to her. It was, therefore, alleged that the sale agreement does not represent the true state in respect of the description of the northern boundary and the same is not only result of mistake but rather a case of fraud at the plaintiffs behest. It was, therefore, prayed that paragraph 26-B may be added in the written statement and the same is as follows:-

"26B. That the Defendant has also become justify and lawfully entitled to seek rectification of the impugned alleged Sale Agreement in Suit, in so far as in place of mentioned northern boundary, (not only mistakenly but rather wrongfully and fraudulently at plaintiff behest) states otherwise, instead of the vacant Plot measuring 360 Sq. Yards under possession & control of Sh. Vijay Kumar, the subject matter of Regd. Purchase Agreement dated 15.3.85 in his favour."

The plaintiff filed objections to the aforesaid applications. These two applications came up before the Court and were rejected by the order dated 11th October, 2007.

Learned counsel for the Revisionists submitted that in view of the provisions of Section 26 of the Specific Relief Act, 1963 (hereinafter referred to as the ''Act') the Court below failed to exercise the jurisdiction vested in it and the application filed for amendment of the written statement was liable to be allowed. Section 26 of the Act is reproduced below:-

"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 to any other defence open to him, ask for rectification of the instrument.

(2) If, any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third person in good faith and for value.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:

Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim."

A perusal of the aforesaid Section 26 of the Act clearly shows that when through fraud or mutual mistake of the parties a contract does not express their real intention then (a) either party 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 to any other defence open to him, ask for rectification of the instrument.

The Court below has observed that the Suit had been filed for specific performance of the registered agreement dated 2nd January, 1998. The said agreement refers to the entire land purchased by the defendant through the registered sale deed dated 3rd May, 1983 executed by Ajab Singh in favour of the defendant. A comparison of the boundaries of the land indicated in the registered sale deed dated 3rd May, 1983 and the boundaries indicated in the agreement to sell dated 2nd January, 1998 shows that there is no difference at all. The Court had, therefore, concluded that in such circumstances there is no need for claiming any rectification.

Learned counsel for the Revisionists has not been able to point out any difference in the boundaries mentioned in the agreement to sell and the sale deed. It cannot, therefore, be said that the Court below acted in exercise of its jurisdiction illegally or with material irregularity.

The Civil Revision is, accordingly, dismissed.

Date:- 1.11.2007

NSC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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