- (1.) THE petitioner impugns the orders which are on record as Annexures P -9 and P -10 dated 14.2.2011. The petitioner is the plaintiff who sought enforcement of agreement to sell dated 22.6.2006. During the course of proceedings, the respondent filed an application for decreeing the suit. The petitioner filed reply to the application and the matter was adjourned on some occasions in furtherance of consideration of this application filed by the respondent which warranted the petitioner to deposit the balance sale consideration in view of the plea of the respondent for decreeing the suit.
(2.) ON 12.12.2006, the following order was passed upon the statement made by the counsel for the petitioner : - "Shri Dang has filed an application seeking time to deposit balance sale consideration pleading therein that the Director of the plaintiff who is looking after the transaction was out of the country and he is likely to come back tomorrow and on this account the sale consideration could not be deposited today. A period of one week has been sought to deposit sale consideration amount. Shri Jain, learned counsel for defendant has strongly opposed the request made by Shri Dang, learned counsel for plaintiff for granting time. Shri Dang, learned counsel for plaintiff has stated at bar that in case the plaintiff fails to deposit the balance sale consideration in the Court by next date of hearing, he will have no objection if suit of the plaintiff is dismissed on this account. Heard. In the interest of justice, adjourned to 19.12.2006 for depositing balance sale consideration in the Court. It is made clear that in case the plaintiff fails to deposit the balance sale consideration in the Court on or before 19.12.2006, the suit of the plaintiff shall stand dismissed."
(3.) THEREAFTER on 19.12.2006, the petitioner deposited a sum of Rs.65 lacs and moved an application for amendment of the plaint vide which he intended to give up the claim for specific performance qua the land situated in Village Dhankot and prayed that he did not want to purchase the land situated in the revenue estate of Village Bassi. He thus, sought to restrict his claim to a portion of the agreement. The learned Court dismissed the application in view of the earlier statement made by the learned counsel for the petitioner on 12.12.2006where despite the undertaking, the petitioner failed to deposit the requisite amount. On due consideration of the matter, I am of the opinion that no infirmity has been committed by the learned trial Court as in the peculiar facts and circumstances of the case when the respondent made an application for decreeing the suit without objection provided the petitioner deposits the sale consideration and petitioner also gave an undertaking regarding the deposit of the sale consideration, he cannot be permitted to wriggle out of the situation in the garb of making an application under Order 6 Rule 17 C.P.C. to restrict his claim. Learned counsel for the petitioner contends that in view of the provisions of Section 26 of the Specific Relief Act, 1963, the same could be done. Section 26 is extracted here 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 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 : 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.";