ivil Appeal No 1638 of 1987
From the Judgment and Order dated 28111986 of the Karnataka High Court in CRP No 365 of 1984
SB Bhasme and AS Bhasme for the Appellant
RS Hegde and SN Bhat for the Respondent
The Judgment of the Court was delivered by KANIA J
This is an appeal from a judgment and order of a learned Single Judge of the Karnataka High Court
Only a few facts are necessary to appreciate the contro versy raised before us
476 The appellant herein was the plaintiff in Original Suit No 103 of 1981 in the Court of 2nd Additional Civil Judge Belgaum
It was the case of the appellant in the plaint that on July 16 1976 the respondentdefendant entered into an agreement in his favour for sale of the suit property com prising a shop and a bhatti room situated at Kirloskar Road Belgaum City for a sum of Rs20000
The appellant paid to the respondent as part consideration a sum of Rs5000 and pursuant to the agreement for sale the appellant was put in possession of the suit property
The sale agreement provided that the registered sale deed was to be executed by the respondent after securing a No Objection certificate or permission from the competent officer as required under the Karnataka Urban Land Ceiling Act and within one month of the grant of such permission
The respondent received the No Objection or permission as aforesaid on March 31 1981 but failed to execute the registered deed of sale as provided under the said agreement
Hence on 30th June 1981 the appellant filed the present suit
It may be observed here that in the plaint there was no specific averment that the appellant was and had always been ready and willing to perform his part of the said agreement
The respondent filed a written statement raising several contentions and inter alia raised the contention that the suit was not maintain able for non compliance with the provisions of section 16c of the 
The issue as to whether the suit was not maintainable on the aforesaid ground was directed to be tried as a preliminary issue
At this stage the appellant applied for leave to amend the plaint by incorporating an averment in the plaint that the appellant was and had always been ready and willing to perform his part of the said agreement
The learned Additional Civil Judge before whom the said application was made rejected the same
A revision petition was preferred by the appellant against the judgment of the learned Additional Civil Judge to the High Court of Karnataka but the said revision peti tion was dismissed by a learned Single Judge of the said High Court as aforesaid
The learned judge took the view that the application for amendment was filed beyond the period of limitation and the application could not be grant ed as a vested right of the respondent would be disturbed by allowing the said amendment
It is the correctness of this decision which is challenged before us
In the leading case of Pirgonda Hongonda Patii vs Kal gonda Shidgonda Patil and Others  a Bench comprising three learned Judges of this Court laid down the principles which should govern the question of granting or disallowing amendments
It was held by this Court that all amendments ought to be allowed which 477 satisfy the two conditions a not working injustice to the other side and b of being necessary for the purpose of determining the real questions in controversy between the parties
Amendments should be refused only where the other party cannot be placed in the same position as if the plead ing had been originally correct but the amendment would cause him an injury which could not be compensated in costs
It is merely a particular case of this general rule that where a 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 the amendment must be refused to allow it would be to cause the defendant an injury which could not be compensated in costs by depriv ing him of a good defence to the claim
In LJ Leach  Co  Anr
vs Messrs Jardine Skinner  Co  another Bench comprising three learned Judges of this Court held that it is no doubt true that courts would as a rule decline to allow amendments if a fresh suit on the amended claim would be barred by limita tion on the date of the application
But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the Court to order it if that is required in the interests of justice
If these principles are to be followed there is little doubt that the learned judge was in error in rejecting the application for amendment made by the appellant
In the present case no fresh cause of action was sought to be introduced by the amendment applied for
All that the appel lant sought to do was to complete the cause of action for specific performance for which relief he had already prayed
It was only that one averment required in law to be made in a plaint in a suit for specific performance in view of the provisions of sub section c of section 16 of the was not made probably on account of some over sight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for
There was no fresh cause of action sought to be introduced by the amendment and hence no question of caus ing any injustice to the respondent on that account arose
Learned counsel for the respondent placed strong reli ance on the decision of this Court in Ouseph Varghese vs Joseph Aley and Others In that case a suit for specific performance was filed by the plaintiff on the basis of an alleged agreement with the first defendant
The defendant denied the agreement and went on to state that just before his death her husband had agreed to sell to the plaintiff 478 Item No 1 of the suit property less one acre of paddy field for a sum of Rs 11000 but due to the illness of her hus band the sale in question could not be effected
After the written statement to this effect was filed no application for amendment to the plaint was made
The Trial Court de creed the suit
In the appeal the High Court did not accept the agreement pleaded by the plaintiff but granted a decree on the basis of the agreement set out in the written state ment
It was held by a Bench comprising two learned Judges of this Court that the agreement pleaded by the defendant was wholly different from that pleaded by the plaintiff
The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement and hence no decree on the basis of that agreement should have been passed in his favour as done by the High Court
The Court held that it was well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation in the plaint the suit is not maintainable
In our opinion this case does not lend any support to the argument of the learned counsel for the respondent as in the present case there is no question of any decree being passed on the basis of any agreement other than the one pleaded by the appellant in the plaint
In the result the judgment and order passed by the learned Single Judge are set aside
The appeal is allowed
The amendment applied for by the appellant is allowed
The amendment to be carried out by the appellant at his own expense within eight weeks of a certified copy of this order being received by the Trial Court
The Trial Court shall thereafter give time to the respondent to file a supplemen tary written statement if so advised and dispose of the case on merits according to law
There will be no order as to costs of the appeal
GN Appeal allowed


Summary:
The Respondent landlord filed a petition under section 141b of the Delhi Rent Control Act 1958 for an order of eviction of the appellant tenant from a shop situate at GT Road Delhi on the ground that the tenant Duli Chand had sub let or parted with the possession of the said shop after the 9th of June 1952 to Ms Hira Lal Sri Bhagwan illegally and without the written consent of respondent landlord
The contention of the appellant tenant was that he had not sub let or parted with the possession of the shop in ques tion
According to him Hiralal was his relative who died sometime prior to 1958 and that Sri Bhagwan was his son and the name of the business as Ms Hiralal Sri Bhagwan  Compa ny was given in memory of the deceased Hira Lal
In reply the Landlord respondent had contended that it was true that Sri Bhagwan was the natural son of Duli Chand but since he had given him in adoption to Hiralal he had gone out of the family of the appellant and as such it was a clear case of sub letting and parting with the possession of the rented premises
The Rent Controller held that the land lord had failed to prove parting with possession of the tenanted shop
On appeal by the landlord the Rent Control Tribunal held that the tenant had parted with the legal possession of the premises and in that view ordered the eviction of the appel lant tenant under section 14 1 b of the Act
Thereupon the appellant tenant preferred second appeal before the High Court
The High Court having affirmed the finding of the Tribunal that the appellant tenant had parted with the possession of the premises in dispute dismissed the appeal
Hence this appeal by the tenant
Dismissing the appeal this Court HELD Section 141b requires a Consent in Writing of the landlord in order to avoid an eviction on the ground of sub letting 466 assigning or otherwise parting with the possession of the whole or any part of the premises
472B Mere permission or acquiescence will not do
The consent shah also be to the specific sub letting or parting with possession
The requirement of consent to be in writing was to serve a public purpose ie to avoid dispute as to whether there was consent or not
473C If the words were without consent of the landlord it might mean without consent express or implied and in that sense question of waiver may arise
The question of implied consent will not arise if the consent is to be in writing
473E In the instant case though there is some evidence to show that the sign board Ms Hira Lal Sri Bhagwan was seen in the premises since 1972 and the landlord had seen Shri Bhagwan sitting in the shop since the year 1968 there is no positive evidence to show when the landlord had come to know of Sri Bhagwan getting the exclusive possession and doing business in the premises
471G Jagan Nath deceased through L Rs vs Chander Bhan  Ors   Lakshman Singh Kothari vs Smt
Rup Kanwar   Bai Hira Devi  Ors
vs The Official Assign ee of Bombay   Associated Hotels of India Ltd Delhi vs SB Sardar Ranjit Singh  and Ms Shalimar Tar Products Ld
vs HC Sharma  Ors
   referred to