IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 791 (M/S) of 2003 Omvir and others …Petitioners Versus A.D.J. Ist F.T.C. Haridwar & others …Respondents Hon’ble Tarun Agarwala, J. Heard Sri Sharad Sharma, the learned Senior Counsel assisted by Sri Anirudh Joshi, the learned counsel for the petitioners, Sri Sudhir Kumar, the learned Brief Holder for the State/respondent no. 1 and Sri Rajendra Singh and Sri A.K. Sharma, the learned counsel for respondent nos. 2 and 3. The plaintiff and defendant no. 1 were brothers. A registered agreement to sell was executed between them on 22nd February, 1996, wherein defendant no. 1 agreed to sell the property to the plaintiff. The period for the execution of the sale deed was till 21st February, 1998, but prior to the said period, the defendant no. 1 sold the property to defendant no. 2, i.e., the petitioner on 24th April, 1996. When the plaintiff came to know about the execution of the sale deed, a suit for specific performance was filed against defendant nos. 1 and 2. Written statements were filed by both the defendants and thereafter, defendant no. 1 agreed that the suit may be decreed in terms of the agreement to sell. It transpires that the suit was decreed by the trial court, against which, defendant no. 2 filed an appeal. During the pendency of the appeal, defendant no. 2, i.e., the petitioner filed an application under Order 6 Rule 17 C.P.C. for amending paragraph 24 of the written statement. Defendant no. 2 wanted to add a paragraph that the suit is collusive between the 2 plaintiff and defendant no. 1, on the basis of which, the suit could not be decreed against defendant no. 2 and that no cause of action arose to the plaintiff to file the suit on 8th September, 1997, when time as per the registered agreement to sell was till 21st February, 1998. The lower appellate court rejected the amendment application, against which, the present writ petition has been filed. In the opinion of the Court, the writ petition is not maintainable against an interlocutory order inasmuch as the said order could have been challenged by the petitioners after the appeal was decided in an appropriate forum by taking it as a separate ground as per Section 105 C.P.C. However, since much time has elapsed, this Court is not inclined to dismiss the writ petition on the ground of alternative remedy. The Court, however, finds that the application for amendment of the written statement was misconceived and such ground could not be allowed to be taken by the defendant at this stage. The contention that the suit was collusive between the plaintiff and defendant no. 1 is immaterial in the light of the fact that there was a registered agreement to sell and prior to the expiry of the period, defendant no. 1 had sold the property to defendant no. 2. The moment the plaintiff came to know about the sale made by defendant no. 1 to defendant no. 2, the suit was rightly and immediately filed on 8th September, 1997. The plaintiff was not required to wait till the expiry of the period under the agreement to sell and could have filed the suit even prior to the said period. In the light of the aforesaid, the amendment application alleging collusion and that the plaintiff 3 had no cause of action, is patently erroneous. The impugned order, consequently, does not suffer from any error of law. The writ petition fails and is dismissed. (Tarun Agarwala, J.) 07-12-2011 Salim/