K.S. Gupta, J.

1. R.L. Malhotra, defendant No. 2 has filed this application under Order 6 Rule 17 and Section 151, CPC alleging that the plaintiff filed suit for specific performance of the agreement dated 1.6.1991 and in the alternative for damages etc. against defendant No.1 contending that the plaintiff was a tenant under defendant No.1 in respect of front portion of the first floor of flat No. M-84-A, Greater Kailash-I, New Delhi @ Rs. 1,600 per month w.e.f. 1st May, 1983. On Ist June, 1991, defendant No. 1 entered into the aforesaid agreement to sell with the plaintiff for a consideration of Rs. 5,10,000. Plaintiff paid Rs. 50,000 in cash by way of earnest money and the balance sale consideration was to be paid according to the schedule mentioned in the agreement. Defendant No. 2 is impleaded as a party as aforementioned flat was sold to him by defendant No.1 under a registered agreement to sell dated 19.11.1991. Plaintiff has further alleged that during the subsistence of the agreement dated 1.6.1991, defendant No. 1 could not have entered into another agreement dated 19.11.1991 with defendant No. 2.

2. It is stated that the plaintiff has filed this suit in collusion with defendant No.1 to cause loss to defendant No. 2. In her written statement, defendant No.1 raised false plea that defendant No. 2 represented to her that he would get the aforesaid flat vacated from the plaintiff and as such a fake agreement dated 19.11.1991 was created. Defendant No.1 further falsely alleged that a sum of Rs. 1,00,000 which was given to her by defendant No. 2 through a cheque was returned to defendant No.1 after the encashment of the cheque.

3. It is pleaded that prior to the execution of the alleged agreement dated 1.6.1991, defendant No.1 and her husband Pratap Sarpal had entered into another agreement with defendant No. 2 for sale of the aforesaid flat on 5.4.1985 for a consideration of Rs. 3,00,000. Out of this sale consideration, Rs. 1,20,000 were paid in advance by defendant No. 2 to defendant No. 1 and her husband. Defendant No.1 and her husband, however, failed to execute the sale deed and transfer the flat in favour of defendant No. 2 in the record of the builder-M/s. Rama Prastha Builders Pvt. Ltd. In November, 1991, defendant No.1 and her husband came to defendant No. 2 and asked him to advance some money as they were in financial crisis. Defendant No. 2 asked them to refund Rs. 1,20,000 together with interest @ 18% per annum, totalling Rs. 2,60,000. It is stated that defendant No.1 and her husband pursuaded defendant No. 2 to pay another sum of Rs. 1,15,000 to get the said flat transferred in defendant No. 2s favour in the record of the builder. At that stage, agreement dated 19.11.1991 was reduced into writing. Though, the sale consideration was mentioned therein as Rs. 1,15,000 but in fact it was Rs. 3,75,000 including the said amount of Rs. 2,60,000. Rs. 14,000 were paid in cash on 18.11.1991 while Rs. 1,000 in cash on 19.11.1991 by defendant No. 2. Defendant No. 2 paid another sum of Rs. 75,000 for getting the flat transferred in his name in the record of the builder. He later on came to know that defendant No.1 paid only Rs. 5,750 by cheque to the builder for the purpose of transferring his name in their record. It is further alleged that defendant No. 2 is a bona fidepurchaser for valuable consideration without notice of the alleged agreement dated 1.6.1991 Defendant No.1 and her husband wrote a letter to the plaintiff to attorn to defendant No. 2 and they also gave Power ofAttorney to enable him to file petition against the plaintiff. Defendant No. 2 filed petition for eviction against the plaintiff in the Court ofthe Rent Controller, Delhi. It is alleged that when defendant No. 2 came to know about the execution ofthe alleged agreement dated 1.6.1991 from the written statement filed by the plaintiff in the eviction proceedings, he approached defendant No.1and her husband. They told him that the said agreement was cancelled prior tothe execution ofthe agreement dated 19.11.1991 and they handed over to him relevant correspondence exchanged between them and the plaintiff. Defendant No. 2 could not raise the said pleas in the written statement since the original agreement and the receipt dated 5.4.1985 were not available. Aforesaid pleas are sought tobe incorporated in the written statement by defendant No. 2by seeking additions in existing para No. 3of the preliminary objections and paras 4, 6, 14 & 19 of the written statement on merits.

4. In the reply, plaintiff has alleged that he came to know about the alleged transaction between the defendants only when he received a notice from the Court of the Additional Rent Controller, Delhi of the Suit being No. 105/92 filed against him by defendant No. 2 on the ground ofnon-payment of rent. Defendant No. 2 all along was aware of the agreement dated 1.6.1991 but still he acted in illegal and mala fide manner by entering into the agreement dated 19.11.1991 todeprive the plaintiff ofhis legible claim in respect of the flat in question. Amendment sought introduces a new case which defendant No. 2 cannot be permitted to set up.

5. In her reply, defendant No.1 has denied that any agreement dated 5.4.1985 was entered into between her and defendant No. 2 for sale of the flat or any consideration of Rs. 3,00,000 was agreed to, as alleged. Defendant No.1and her husband did not even know defendant No. 2 in 1985. It is denied that she orher husband pursuaded defendant No. 2topay a further sum of Rs. 1,15,000 or that any amount over and above Rs. 1,00,000 was paid in cash by defendant No. 2, as alleged.

6. I have heard the parties Counsel and have also taken through the record.

7. In short, by the proposed amendment, defendant No. 2 seeks to raise the plea, that defendant No.1 and her husband had earlier entered into another agreement dated 5.4.1985 for a consideration of Rs. 3,00,000 forsale of the flat in question and a sum ofRs. 1,20,000 was paid in advance by defendant No. 2todefendant No.1 and her husband but they failed toexecute the sale deed and transfer the flat in defendant No.2s favour in the record ofthe builder; that defendant No. 2 on being approached by defendant No.1 and her husband in November, 1991 to advance some money paid Rs.1,15,000 through a cheque and in cash to them and at that stage agreement tosell dated 19.11.1991 was again executed. Law on amendment ofpleadings is well settled by a catena ofdecisions ofthe Supreme Court. (See: Pirgonda Hongonda Patilv.Kalgonda Shidgonda Patil & Ors., AIR 1957 SC 363 [LQ/SC/1957/12] ; Jai Ram Manohar Lalv. National Building Material Supply,AIR 1969 SC 1267 [LQ/SC/1969/131] ; Haridas Aildas Thadani & Ors. v. Godrej Rustom Kermani, AIR 1983 SC319;Ishwardas v.State of Madhya Pradesh & Ors., AIR 1979 SC 551 [LQ/SC/1979/8] ; and Panchdeo Narain Srivastavav. Km. Jyoti Sahay and Anr., AIR 1983 SC 462 [LQ/SC/1983/60] ). All amendments are tobe allowed which satisfy the twoconditions, (a) not working injustice tothe other side, and (b) ofbeing necessary forthe purpose of determining the real questions in controversy between the parties. Amendment can only be refused where the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him an injury which could not be compensated in terms of money, or where the plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation. Submission advanced on behalf of the non-applicants opposing the amendment was that the suit of defendant No. 2 for specific performance on the basis of either of the two agreements dated 5.4.1985 or 19.11.1991 has now become barred by limitation and the amendment if allowed would have the effect of bringing the claim within limitation period and that the agreement dated 5.4.1985 has been fabricated by defendant No. 2 to defeat the suit of the plaintiff. Argument is fallacious inasmuch as defendant No. 2 is not seeking the enforcement of either of the aforesaid two agreements against defendant No.1 but is simply resisting the claim for specific performance of the agreement dated 1.6.1991 in plaintiffs favour. Further, it is not the stage of going into the truth or falsity of the aforesaid agreement dated 5.4.1985. Suit is at its initial stage. Amendment sought thus deserves to be allowed.

8. Consequently, application is allowed on payment of Rs. 2,000 as cost and defendant No. 2 is permitted to amend the written statement on the lines indicated in paras 12 to 17 of the application.

9. Amended written statement be filed within three weeks.