JAMIA HAMDARD UNIERSITY

SCHOOL OF LAW
CODE OF CIVIL PROCEDURE
RESEARCH PAPER OF
RACTIFICATION OF CONTRACT
Submitted to – Yasin sir

Submitted by – Mohd Tipu

Introduction
Rectification of an instrument is the process of making changes to an instrument. This prevents
the parties from fraud or mutual mistakes of either party to the contract. Section 26 of the
Specific Relief Act, 1963 states about rectification. However, it is at the discretion of the court to
grant rectification. The only two grounds on which rectification can be claimed are fraud and
mutual mistake of parties and only the parties or their representative can file a suit for the same.
If any written contract does not convey the real intention or the specific agreement made by the
parties, the court can order rectification. Modification to a contract can be made under the
directions of the court and the changes made resume the parties to a place where they would
have been if the error hasn’t been made. It must be proved that the parties had a consensus of
mind to the contract but was entered incorrectly when reduced to writing.

Specific Relief Act,

1963 Specific Relief Act, 1963 was enacted to provide remedies against contractual and civil
rights breaches. This comes into play when the compensation or damages provided are not
adequate. There are two types of relief in the act: specific relief and preventive relief. Sections 5
to 35 relate to specific relief that is provided when a person has been affected by any breach of
contract and the fiscal compensation fails to meet the contractual obligation. This is for matters
regarding the recovery of immovable property or movable property. Say, A has paid the sum as
agreed in the terms of the contract but B who received the sum, refuses to hand over the house to
A. the court can order specific relief for A to recover the house from B. Sections 36 to 42 deals
with preventive relief, it is provided when someone is prevented from doing something which he
is legally liable to do. For example, if X had paid a sum of money to Y to search for a house for
him and Y ignored X in search of a house for Z. then the court may award a preventive relief
where Y needs to fulfill his obligations against X first before searching a house for Z. A legal
instrument is a legal document that is in written form and is legally enforceable. It may confer
certain rights, duties, promises, and obligations to the parties of the document. Rights and
liabilities may be created, transferred, restricted, or extended. “Rectification of an instrument”
means correcting the instrument’s errors. Under the Specific Relief Act, rectification is seen as
an impartial remedy of a grant by the court when facts do not align with the intention of the
parties. In a contract, rectification means corrections or changes made to the contract. Chapter III
and Chapter V of the Specific Relief Act, 1963 deal with the rectification of instruments and
cancellation of instruments respectively. Relief of rectification can be sought for contracts or any
written instruments.

A legal instrument is a legal document that is in written form and is legally enforceable. It may
confer certain rights, duties, promises, and obligations to the parties of the document. Rights and
liabilities may be created, transferred, restricted, or extended. “Rectification of an instrument”
means correcting the instrument’s errors. Under the Specific Relief Act, rectification is seen as
an impartial remedy of a grant by the court when facts do not align with the intention of the
parties. In a contract, rectification means corrections or changes made to the contract. Chapter III
and Chapter V of the Specific Relief Act, 1963 deal with the rectification of instruments and
cancellation of instruments respectively. Relief of rectification can be sought for contracts or any
written instruments.

Section 26 of the Specific Relief Act, 1963 Section 26 of the Specific Relief Act deals with
rectification. It reads as follows:

“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.

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 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.

” There are certain circumstances when the rectification shall be made to a contract;

A) When there is a commitment of fraud or a mutual mistake by both parties then either the
party or his representatives can file for rectification of the instrument. No other person has
the right to file a suit for rectification. The plaintiff can file a suit to rectify the instrument if
any of his rights are in issue and the defendant can file under sub-clause of the section. B) If
rectification is made under clause (1) and the court eventually discovers that there is the
 involvement of fraud or mutual mistake of parties, then the discretionary powers lie with the
court for rectification.
B) If a claim for rectification is made, then it is at the discretion of the court to grant and
enforce it.
C) No relief shall be granted until the parties specifically claim for rectification of the
instrument. Section 26 explicitly provides modes of rectification such as during fraud,
mutual mistake of parties, and real intention of parties.

FRAUD

Any act to deceive a person amounts to fraud. Fraud is said to have been committed when
there is the presence of untrue facts, voluntary concealing of fact, or failure to fulfill a
promise which was committed with the same intent. So when someone intentionally suggests
or falsifies a fact with the motive to misrepresent them, there lies a way to rectify the
instruments.

Mutual

Mistake of parties In a case that involves the mistake of both parties to the contract, the
person claiming for rectification is to prove the agreement that the agreement was formed
with the consent of the parties because the mistake when reduced to writing failed to reveal
the real intention of the parties.Mutual mistakes shall be established by either party. Had the
mistake not been from the side of either party but from the written document, no rectification
can be made. A unilateral contract not amounting to fraud shall not be subject to
rectification.

Intention of parties

The real intention of the parties is important to decide rectification. Court decides the
authentic intention of the parties in framing the contract. The objective of Section 26 is to
ensure that the defects do not prevail over the intention of the parties.Pre-requisites for
Section 26 include the existence of fraud and mutual or common mistakes. The burden of
proof rests with the person claiming for rectification of the instrument.

Effect of rectification of the instrument

An instrument shall be rectified by the court only.The confirmation of the court vests for the
authenticity of the deed as to the real intention of the parties. This ensures the affirmation of
the true intention of the parties to the contract while executing it. After the execution of the
rectified instruments, it is to be read and construed as if the original one had been drafted
incorporating the changes in the rectified instrument. A deed of the transfer becomes a
conveyance when rectified by the court. The court’s order should declare that the deed is
rectified and specify the manner of rectification along with the direction of endorsement on
the order of conveyance. If rectification is allowed then the changes shall have a
retrospective effect. Section 31 of the Specific Relief Act, 1963 deals with the cancellation
of the instrument which occurs when there is a potential cause of damage to the parties
rendering the document void or voidable. It is at the discretion of the court to cancel it.

Case Laws
InNatarajan Asari Vs Pichamuthu Asari AIR 1972 Mad 192, it was held that a suit for
rectification can be claimed for a sale deed on grounds of mutual mistake concerning the
description or cost of the property.

Suggested question
Q- When can an instrument be Ractified under specific relief act ?
A- (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 .