IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD FRIDAY, THE SECOND DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.5708 OF 2009 Between: Mareni Daveedu Raju …Petitioner A n d Gotantla Anthnamma ..Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.5708 of 2009 ORDER: This civil revision petition is directed against the order dated 10.10.2009 in I.A.No.683 of 2009 in O.S.No.853 of 2008, on the file of the II-Additional Junior Civil Judge, Guntur, wherein the said application filed by the respondent herein, the plaintiff, under Section VI Rule 17 CPC read with Section 26 of the Specific Relief Act for amendment of the sale agreement dated 14.03.1990 and the plaint schedule, was allowed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. Perused the record. 3. The respondent herein filed the suit against the petitioner for specific performance of agreement of sale dated 14.03.1990. According to the plaintiff, the defendant and his father jointly offered to sell the suit property to the plaintiff and received the sale consideration of Rs.21,000/- and executed a possessory agreement of sale agreeing to execute the registered sale deed as and when demanded by the plaintiff. Subsequently, the defendant’s father died and the defendant has been postponing the execution of the sale deed on some pretext or the other. The petitioner/defendant filed a written statement contesting the suit. Necessary issues were settled and trial has also commenced. At that stage, the plaintiff filed I.A.No.683 of 2009 seeking amendment of the suit agreement of sale and also the plaint schedule on the ground that the suit agreement, being a property, is situate in D.No.153/B in an extent of Ac.2-55 cents out of which the plaintiff purchased Ac.1-13 cents and that subsequently in the year 2000, the defendant handed over the title deed and pattadar passbook and on verification of the same, it was found that the demarcation number and extent are wrongly noted in the plaint schedule and also the suit agreement of sale. The plaintiff alleges that the defendant and his father played fraud and wrongly described the property in the suit agreement of sale and the same got carried into the plaint schedule. As the pattadar passbook was not available with the plaintiff at the time of filing of the suit for verification and only subsequently when it was traced, the plaintiff came to know about the wrong description of the property. The petitioner/defendant denies the execution of the suit agreement of sale or that any fraud was played and would further contend that if the amendment is allowed it would cause prejudice to the defendant. 4. The plaintiff is seeking not only amendment of the plaint schedule but also amendment of the suit agreement of sale itself regarding the description of the property. Section 26 of the Specific Relief Act which enables rectification of an instrument runs as follows:- (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles 628 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, 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, so far as this can be done without prejudice to rights acquired by third persons 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 5. The present case is covered by clause (b) of Section 26 (1). The plaintiff can ask for rectification of the instrument by making necessary pleading regarding the same by setting out the circumstances under which the rectification is required. In the affidavit filed in support of the application, the plaintiff alleges that defendant and his father played fraud in describing the property at the time of execution of the sale agreement and, therefore, the said agreement did not reflect the real intention of the parties. But, no such pleading is available in the plaint and no amendment of the plaint is also sought in that regard. The plaintiff seeks amendment of the body of the plaint schedule alone pertaining to proposed rectification of the instrument. Sub- section (2) of Section 26 states that the Court may direct rectification of the instrument if the Court finds that the instrument, through fraud or mistake, does not express the real intention of the parties. The Court has, therefore, to necessarily record a finding that the real intention of the parties has not been expressed in the instrument owing to fraud or mistake. The Court can record such a finding only based on the evidence and any evidence could be adduced if only there were to be a pleading to that effect. In the absence of any pleading, any amount of evidence that may be adduced on that aspect would be of no avail and the Court will not be in a position to record a finding required under sub-section (2) of Section 26 before it can order rectification of the instrument. Without taking any steps for amendment of the plaint, seeking rectification of the instrument, the present application filed for amendment of the plaint schedule and rectification of the instrument straight away, is misconceived. The learned Junior Civil Judge in the impugned order permitted amendment on the ground that no separate suit for rectification is required to be filed under clause (b) of sub- section (1) of Section 26 of the Act. The plaintiff may in any suit in which any right arising from the instrument is in issue, claim his pleading that the instrument be rectified. Thus, in a case falling under clause (b) like the present one, no separate suit is required to be instituted, but nevertheless necessary pleading is required to be made in the plaint regarding rectification of the instrument under clause (b) and sub-section (1) enables the Court to direct rectification after recording a finding that the instrument does not express the real intention of the parties either because of fraud or mistake. 6. The impugned order, permitting rectification of the suit agreement of sale and amendment of the plaint schedule, without there being any amendment of the body of the plaint is, therefore, unsustainable and the same is accordingly set aside. It is, however, open to the respondent/plaintiff to seek amendment of the plaint and rectification of the instrument as contemplated under Section 26 of the Specific Relief Act by filing a separate application and on such application being filed, the trial Court may dispose of the same on its own merits without in any way being influenced by any of the observations made hereinabove. 7. In the result, the civil revision petition is allowed. There shall be no order as to costs. ________________________ G.V.SEETHAPATHY, J 02nd September, 2011 Lrkm