MODES OF RECTIFICATION AND CANCELLATION OF INSTRUMENTS, WHEN AND HOW ? - K.Pardha Saradhi Rao, Junior Civil Judge, Sulthanabad. Specific Relief Act 1963 was introduced as an important piece of Legislation after duly replacing the prior Act of 1877. This Act exclusively dealt with equitable reliefs/remedies, namely:- 1. Recovery of Possession. 2. Specific Performance of Contracts of Agreements of sale. 3. Rectification of Instruments. 4. Cancellation of Instruments. 5. Rescission of Contracts of Agreements of sale. 6. Declaratory reliefs. Granting of Perpetual Injunction, Mandatory Injunction and Declaration of title over the property and also for recovery of possession over the property being main reliefs which are to be granted by way of granting decrees in the Main title suits. In the Interlocutory Applications, declaratory reliefs are usually granting as Ad-Interim Injunction or Temporary Injunction being grant of preventive reliefs. Section 26 deals with the ‘Rectification of Instruments’. Section 27 deals with the ‘Rescission of Contracts'. Section 31 deals with the ‘Cancellation of Instruments’. Section 34 deals with the Granting of ‘Declaratory reliefs’. Section 37 deals with ‘Injunctions’ generally. Section 38 deals with the Granting of ‘Perpetual Injunction’. Section 39 deals with the Granting with ‘Mandatory Injunction’. Section 40 deals with the ‘Damages’ in lieu of, or in addition to ‘Injunction’ relief. Section 41 deals with the ‘Refusal of Injunctions’. Out of the above quoted sections, Section 26 and Section 31 are covering with the present topic. As per the language used in sub-section (1) to Section 26, it is clearly understood : that as and when any fraud or occurrence of mutual mistake of the parties to a contract or other instrument which was reduced into writing, (barring articles of association of a company, to which Companies Act 1956 applies), which does not express their real intention, then such a contract or other written instrument is liable to be rectified : a) Either of the party to such a contract or other written instrument, or representative-in-interest, of either party is supposed to institute a suit to have the said contract or written instrument rectified. b) The plaintiff in his suit accrues right for rectification of instrument as an issue, can claim through his pleadings that the written instrument is liable to be rectified. c) The defendant in any such suit as referred to (a) & (b), is entitled to raise his defence seeking rectification of written instrument, apart from any other defence left open for him. As per the language used in sub-section (2) to Section 26, it is clearly understood : the Court upon finds that the written instrument was obtained through fraud or mutual mistake, which does not express the real intention of the parties to the suit filed as mentioned in sub-section (1), the Court in exercise of its discretion may order direction of rectification of written instrument duly expressing its intention that such direction of rectification is expected to be done without there being causing prejudice to the rights so acquired by third parties in good faith and for value under the written instrument. As per the language used in sub-section (3) to Section 26 clearly understood : the written contract may initially is liable for rectification and thereafter, if the party to the suit for claiming such rectification so prayed in his suit pleadings, then the Court if thought that it is a fit case may be specifically enforced such rectification. As per the language used in sub-section (4) to Section 26 clearly understood : that no Court is empowered to grant relief of rectification of written instrument to any party unless and until such relief has been specifically claimed. As per the language used in Proviso to Section 26 clearly understood : that if any party to the suit has failed to claim any relief of rectification instrument in his respective pleadings, the Court shall allow such party at any stage of the proceedings for amendment of his pleadings on imposition of certain terms which are just for including such claim of rectification of written instrument. From the above keen perusal of the terms of language used in Section 26 mean that : any contract of agreement or other written instrument can be rectified by the Court in any suit as and when the Court find : such contract or other instrument does not express the real intention of the parties ; such contract or other instrument was obtained through fraud or mutual mistake of the parties and the said rectification can be rectified at the instance of : either party to contract or written instrument ; or his representative-in-interest. A party to the suit can obtain rectification of a contract or other instrument when he is able to show that there has been commission of fraud and mutual mistake. Thus such a party can institute that kind of suit for rectification instrument and if the Court feels such claim is found to be true, it may rectify the instrument by expressing the parties real intention without there being causing any prejudice to the rights so acquired by third persons in good faith and for value thereunder while exercising its discretionary jurisdiction. The provisions of Section 26 are not at all applicable to a case where there is no valid and complete contract. The word ‘instrument’ includes a decree, an award or even an acknowledgment and it also includes every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or accorded. As per the language used in Section 26, it is very much clear and known to a prudent man that : either parties to a contract or their legal representatives alone can maintain an action of the Court for rectification of instrument and not a third party. Any beneficiary has no right in maintain an action for rectification of an instrument in the absence of an assignment made by District Judge in favour of such beneficiary, who would have to execute a bond in favour of District Judge for his benefit. The principles laid down in Section 26 would apply to compromise decrees also, because that sort of compromising is not the result of adjudication between parties to the suit and it is an instrument of contract made by the hand of the Court, but by the will of the parties and a decree in which a mistake has cruptine an account of mutual mistake of the parties in an earlier transaction which extends into judicial proceedings automatically as it were without mistake on the part of judge is not similar footing with a compromise decree in which there is a mistake due to mutual mistake of the parties. Whereas, a compromise decree stands on no higher footing than that of a contract between the parties and such a decree can be collected or rectified, if owing to fraud or mistake and it does not represent the real contract between the parties. The word ‘fraud’ means and includes : any of the following acts committed by a party to a contract or with his connivance or by his agent, with an intention to deceive another party thereto, or his agent or to induce him to enter into the contract. 1. The suggestion as to a fact, of that which is not true by one who does not believe it to be true. 2. The active concealment of a fact by one having knowledge or belief of the fact. 3. A promise made without any intention of performing it. 4. Any other act fitted to deceive. 5. Any such act or omission as the law specifically declares to be fraudulent. Mutual Mistake :- The word “Mutual Mistake” means common mistake on the part of both parties to contract. A party seeking rectification has to establish that there was a prior complete agreement which was reduced into writing in accordance with the common intention of the parties and by reason of a mistake the writing did not express the ‘real intention’ of the parties. There cannot be rectification where the mistake was not a ‘mutual mistake’ but only a mistake committed by the Scribe. There cannot be rectification on the basis of unilateral mistake not amounting to fraud. A mutual mistake can be established by any one of the parties to a contract. Where in a conditional sale, the price in reconveyance was omitted by mistake, such mistake can be rectified. Courts in exercise of jurisdiction under this Section do not rectify contract but they merely rectify the instrument which fails to give effect to the ‘intention of the parties’ and hence it will be necessary for a plaintiff to show that there was ‘concluded contract’ antecedent to the instrument which is sought to be rectified and that such a contract is inaccurately expressed in the instrument. The power which the Court possesses of reforming written agreements where there has been an omission or insertion of stipulations contrary to the ‘intention of the parties’ and under a ‘mutual mistake’ is one which has been frequently and most usefully exercised. But is is also one which should be used with extreme care and caution. To substitute a new agreement for one which the parties have deliberately subscribed ought only to permitted upon evidence of a different intention of the clearest and most satisfactory description. Real Intention of parties :- In a suit for rectification of deed, it is not necessary to have evidence of a binding contract antecedent to the instrument which is sought to be rectified and it is enough it, the plaintiff proves beyond reasonable doubt the concurrent intention of the parties at the moment of executing the instrument and the instrument fails to give effect to that concurrent intention.