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RELIEF OF CLAIMING RECTIFICATION OF INSTRUMENT IN A SUIT CAN BE CLAIMED BY WAY OF AMENDMENT 2010 SC

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JUSTICE DR. B.S. CHAUHAN and JUSTICE SWATANTER KUMAR in SUBHADRA & ORS. .Vs. THANKAM Reported in AIR 2010 SC 3031, “The relief of rectification can be claimed where it is through fraud or a mutual mistake of the parties that real intention of the parties is not expressed in relation to an instrument. Even then the party claiming will have to make specific pleadings and claim an issue in that behalf…………… The plea of the appellant that since no relief for rectification has been prayed, the decree for specific performance ought not to be granted is not tenable. Section 26(4) of the Act only says that no relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed. However, proviso to Section 26(4) of the Act makes it clear that when such a relief has not been claimed by the concerned parties, the Court shall, at any stage of the proceedings allow him to amend the pleadings on such terms, as may be just, for including such a claim and it would be necessary for the party to file a separate suit. The legislative intent in incorporating this provision, therefore, is unambiguous and clear. The purpose is not to generate multiplicity of litigation but to decide all issues in relation thereto in the same suit provided the provisions of Section 26 of the Act are attracted in the facts of a given case.”

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