IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.346 of 2009 ----- Shiv Lagan Devi wife of Late Arjun Chaudhary, resident of Village+ Post-Saraeya, P.S. Badahara (Krishangarh) District- Bhojpur. --Plaintiff-Petitioner. Versus 1. Bhola Kushawaha S/o Late Ram Nath Kushawaha, resident of Village+ Post-Saraeya, P.S. Badahara (Krishnagarh) District- Bhojpur. Defendant 1st Party- Opposite Party Ist Set. 2. Bankatesh Narayan Son of Motilal Sah, resident of Village+ Post-Saraieya, P.S.-Badahara (Krishangarh) District-Bhojpur. Defendant 2nd party-Opposite Party 2nd Set. ----- For the petitioner : M/s. Gopal Govind Mishra & Vijay Kumar Mishra, Advocates. For O.P.No.1 : M/s Rakesh Kumar Mishra & Ratna Das, Advocates For O.P.No.2 : Mr. Anish Chandra Sinha, Advocate. ----- 07. 11.08.2009 Heard learned counsel for the petitioner, learned counsel for opposite party no.1 and learned counsel for opposite party no.2. 2. This civil revision has been filed by the sole plaintiff- petitioner challenging order dated 17.01.2009 by which the learned Munsif, Bhojpur rejected his petition under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) read with Section 26 of the Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’ for the sake of brevity) for amendment/ correction of the revisional survey plot number of the said land given in the registered deed of agreement for sale dated 10.07.1995 with respect to ½ decimal of plot no.139. 3. The aforesaid suit was filed by the plaintiff-petitioner for specific performance of contract on the basis of above mentioned agreement for sale dated 10.07.1995 said to have been executed by - 2 - defendant no.1-opposite party no.1 in favour of the plaintiff- petitioner, whereafter defendant no.1 executed a registered sale deed dated 08.10.1998 in favour of defendant no.2 with respect to ½ decimal of revisional plot no.269. In the said suit, both the defendants-opposite parties appeared and filed their respective written statement, whereafter issues were framed and evidence of the plaintiff started and till date eight witnesses on his behalf have already been examined. 4. It transpires that much subsequently the plaintiff filed a petition for amendment of the revisional plot number mentioned in the schedule of the plaint praying that revisional plot no.139 typed therein should be changed to 269. The said amendment petition was allowed by the court on 14.08.2006 by which only the number of the revisional plot in the schedule of the plaint was amended accordingly. 5. It further transpires that much thereafter on 19.11.2008 the plaintiff filed another petition under the provision of Order VI Rule 17 of the Code as well as Section 26 of the Specific Relief Act, 1963 for amending the agreement for sale dated 10.07.1995, only with regard to number of the revisional plot as it was mentioned ‘139’ therein although it should have been ‘269’. This petition has been rejected by the learned court below vide its order dated 17.01.2009 which is under challenge in the instant civil revision. 6. The claim of the plaintiff-petitioner is that defendant no.1 is not the owner of plot no.139, but he has fraudulently included - 3 - plot no.139 in the said agreement for sale dated 10.07.1995 although he was the owner of plot no.269 and the plaintiff had intended to purchase the land of the latter plot. He further submits that Section 26 of the Act is quite clear that when an agreement is entered into through fraud or a mutual mistake not expressing the real intention, the aggrieved person may file a suit for its correction or if a suit is already filed by him, he may file a petition therein for getting it corrected. In this regard, learned counsel for the petitioner has relied upon a decision of the Hon’ble Apex Court in case of Puran Ram V. Bhaguram & Anr., reported in A.I.R. 2008 Supreme Court 1960, stressing upon its paragraphs 11 and 12. 7. On the other hand, learned counsel for defendant no.1 submits that no fraud has been played and the agreement for sale was with respect to Plot No.139 itself which the plaintiff had also knowledge and although originally defendant no.1 was the owner of Plot no.269 and was not the owner of Plot No.139, but there was an oral exchange between him and another person, who was the owner of Plot No.139, and only thereafter the said agreement was entered into between the parties. Hence, he states that neither there was any fraud or mutual mistake, nor can it be said that the real intention of the parties was not expressed. Learned counsel for opposite party no.1 further claims that proviso to sub-section (4) of Section 26 of the Act provides 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 - 4 - including such claim. He submits that it is quite apparent that the plaintiff has never sought amendment of his pleading or relief, rather he had sought amendment of the description of the land only in the Schedule of the plaint. Hence the said relief having not been claimed in his pleading, the provision of Section 26 of the Act is not applicable in the facts and circumstances of the case. Learned counsel for defendant no.2-opposite party no.2 supports the claim of defendant no.1-opposite party no.1. 8. After hearing learned counsel for the parties and perusing the materials on record, including the impugned order and the provisions of law, it is quite apparent that the agreement for sale is of 1995 and the suit was filed in the year 1998 and the petition on which the impugned order was passed was filed in the year 2008, i.e. after about a decade of the filing of the suit when the plaintiff has already examined eight witnesses, including herself. 9. It is also not in dispute that the description of the property in the schedule of the plaint with regard to number of the plot had been amended in the year 2006, but pleadings or relief portion of the plaint have never been sought to be amended, nor any such relief with regard to any error in the Mahadnama i.e. agreement for sale due to fraud or mutual mistake without expressing the real intention of the parties has been included or added in the plaint till date. 10. Furthermore, it is quite apparent that in the petition for amendment of the schedule of the plaint, the plaintiff had not - 5 - mentioned about any fraud or mutual mistake, rather he had stated that due to typographical error, plot number was wrongly mentioned. Thus, it is quite apparent that the plaintiff had now come up with a different story of fraud and mutual mistake in the agreement for sale not expressing the real intention of the parties, which is contradicted by his own earlier stand. 11. It further transpires that the real intention of the parties was clear in the agreement for sale that the plaintiff wanted to purchase Plot No.139 which defendant no.1 wanted to sell. In the said circumstances, it is quite apparent that the provision of Section 26 of the Act is not applicable to the facts and circumstances of this case as the real intention of the parties was quite apparent and there was no question of any fraud or mutual mistake. Furthermore since the pleading in the plaint is not sought to be amended provision of Order VI Rule 17 of the Code will also not be applicable. 12. So far the decision of Hon’ble Apex Court in case of Puran Ram (Supra) cited by learned counsel for the petitioner is concerned, it has been held therein that in a suit for specific performance of contract it was permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement as per Section 26 of the Act only when due to fraud or mutual mistake of the parties, the said agreement in writing did not express their real intention, which does not apply in the instant case. 13. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the learned - 6 - court below, nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed with a direction to the learned court below to consider at the time of final hearing of the suit the question as to whether the agreement for sale in question was fraudulent or erroneous mentioning therein Plot No.139 which was not owned by defendant no.1 and inclusion of the said plot in the agreement for sale was fraudulent being on the ground of an oral exchange of land which was not permissible in law. Sunil (S. N. Hussain, J.)