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IF THE PARTIES HAD DELIBERATELY LEFT OUT SOMETHING FROM THE WRITTEN INSTRUMENT THAT CANNOT BE PUT IN

Court in State of Karnataka & Anr. v. K. K. Mohandas & etc, AIR 2007 SC 2917 Under Section 26 of the Specific Relief Act, an instrument or contract may be rectified when through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intention. According to Dr. Banerjee in his Tagore Law Lectures on the, Law of Specific Relief, if the parties had deliberately left out something from the written instrument, that cannot be put in, by resort to the remedy of rectification. Here, the parties have entered into written contracts and admittedly no term is incorporated therein regarding enforcement of the ban on trade of toddy to the public in the District of Dakshina Kannada. Nor is there any case pleaded in the plaint of any mutual mistake in the matter of setting down the terms of the contract. There is also no plea of fraud on the part of the State in entering into the contract. On the terms of the contract, the plaintiffs had obtained the right to vend arrack for the Excise Year 1990-91 on their obligation to pay the bid amount in monthly instalments. In the absence of any foundation in the pleadings being laid by the plaintiffs establishing a ground for the grant of the relief of rectification, the mere adding of a prayer by way of an amendment could not be considered sufficient to grant them the relief of rectification.

RECTIFICATION OF INSTRUMENT CANNOT BE SOUGHT BY WAY OF AMENDMENT UNDER ORDER VI RULE 17

In the High court of Karnataka by Justice K.Bhakthavatsala, in the case of Fakkirawwa vs Ashok Decided on 18 July, 2014, WRIT PETITION NO.76686 & 76687/2013

Chapter-III of the Specific Relief Act, 1963 deals with regard to rectification of instruments in the event of fraud or mutual mistake of the parties mentioned therein. As per sub-Section (2) of Section 26, if, in 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. Further, sub-Section (3) of Section 26 says that 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. ………………… The above-said provision does not permit the plaintiff, who has filed a Suit for specific performance of agreement to seek direction to the defendants to amend the Sy. No.63/A/2 instead of Sy. No.63/2A in the agreement of sale. It is pertinent to mention that if the case of the plaintiff is that there is mistake in mentioning correct survey number in the agreement of sale, it is open to the plaintiff to plead the same in the plaint or seek amendment of the plaint for such a relief in the suit by urging the grounds, but the above-said provision does not give any such right to the plaintiff to seek rectification of the instrument viz., the agreement of sale by filing an application under Order VI Rule 17 of CPC.


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