Sultan Singh, J.
(1) This revision under Section 115 of the Code of Civil Procedure is directed against the judgment and order dated 18th July, 1984 dismissing the petitioner's application for leave to amend the written statement.
(2) These are the facts. The plaintiffs-respondents on 26th May, 1982 filed a suit for recovery of Rs. 1,560.58 paise as arrears of lent for the period from 12th May, 1980 to 30th April, 1982 at Rs. 66.00 per month against the petitioner-defendant. They have alleged that the petitioner was a tenant under Narinder Kumar and Satinder Kumar with respect to a flat on the ground floor of the building bearing Nos. 1819-25 ward No Xv Wazir Singh Street, Pabarganj, New Delhi, that they had purchased the property including the the flat under the tenancy of the petitioner by means of a sale deed dated 5th May, 1980 registered on 12th May, 1980 and by operation of law the petitioner became their tenant at Rs. 66.00 per month.
(3) The petitioner in his written statement has alleged that he was not a tenant under the respondents, that Narinder Kumar and Satinder Kumar, the alleged vendors of the respondents had entered into an agreement to sell with him on 6th September, 1977 with respect to property including the flat under his tenancy, that he had filed a suit for specific performance of the said agreement to sell, injunction and declaration that the sale deed dated 5th/12th May, 1980 by Narinder Kumar and Satinder Kumar in favor of the respondents was null and void; the suit was liable to be stayed under Section 10 of the Code of Civil Procedure and there was no relationship of landlord and tenant between the parties. The issues were framed by the trial court on 1st August, 1983.
(4) The petitioner made an application dated 11th November, 1983 under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure for leave to amend the written statement. He has alleged that his suit for specific performance, declaration and injunction against the respondents and the said Shri Narinder Kumar and Satinder Kumar was decreed by judgment dated 3rd September, 1983, that the suit for recovery of rent on the basis of alleged sale deed dated 5th December, 1980 was barred by Section 11 of the Code of Civil Procedure as the sale deed in their favor had since been cancelled by the decree. The respondents in their reply have submitted that the operation of the decree dated 3rd September, 1983 for specific performance, declaration and injunction has been stayed by the High Court in an appeal filed by them, that the amendment was not necessary as the Judgment and decree has not become final. The trial court by the impugned judgment dated 18th July, 1984 held that the judgment had not become final on account of the pendency of the appeal against the decree dated 3rd September, 1983 and thereforee the amendment was not necessary.
(5) Learned counsel for the petitioner submits that the trial court had acted illegally in the exercise of jurisdiction and the trial court ought to have granted leave to amend the written statement as it was necessary to decide the dispute and pendency of appeal against decree dated 3rd September, 1983 is no ground to refuse amendment of the written statement. Admittedly the suit for specific performance, declaration and injunction filed by the petitioner against the respondents and their vendors Narinder Kumar and Satinder Kumar was decreed by the trial court on 3rd September, 1983 and an appeal against the decree is pending in this court. The trial court had already framed an issue relating to stay of suit under Section 10 of the Code. The respondents had claimed their right to recover the arrears of rent on the basis of sale deed dated 5th/12th May, 1980 in their favor. The said sale deed which is basis of the respondents suit for recovery has since been cancelled by the decree dated 3rd September, 1983. The trial court thus ought to have allowed him to raise the plea even if an appeal was pending and the operation of the decree had been stayed.
(6) Order 6 rule 17 of the Code of Civil Procedure reads as under :
'17.Amendment of Pleadings, The court may at any stage of the proceedings allow either party to alter of amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties'.
It provides that all amendments which are necessary for the purpose of determining the real question between the parties may be allowed at any stage of the proceedings, on such terms as may be deemed just and proper. The trial court has observed that the proposed amendment was unnecessary. It is incorrect to say so. At present by judgment and decree dated 3rd September, 1983 the sale deed dated 12th May, P980 on the basis of which the respondents claim the amount in suit stands cancelled. In other words the plaintiffs have no right to recover the said amount. It is thereforee necessary that the defendant should be allowed to raise the plea which is necessary to decide the controversy between the parties. It is well known that where an amendment is sought by a party in order to take up a new ground, the court at that stage cannot consider whether the ground is available or not to him. Further the amendment cannot be refused on the ground that the new ground will not be available to him (See Mangal Dass Sant Ram Gauba v. Union of India and others, : AIR1970Delhi44 .
(7) The argument of the learned counsel for the respondent is that the judgment and decree dated 3rd September, 1983 have not become final as the first appeal is pending in this court and operation of the decree has been stayed by this court. Mere filing of the appeal does not mean that the decree dated 3rd September, 1983 has been set aside or the plea of rest judicata is not available. In case the first appeal is dismissed the judgment and decree dated 3rd September, 1983 would become final and the plaintiffs-respondents would not be entitled to recover the amount in suit as it would be barred under section 11 of the Code of Civil Procedure. The question of validity of sale deed dated 5th May, 1980 in favor of the respondents which is the basis of their suit for recovery of rent has since been decided in the other suit between the parties and thereforee the suit for recovery would be barred. At the moment what the court has to consider is whether the petitioner is entitled to raise the plea of rest judicata. In my view he is entitled to do so. The court is not competent to refuse amendment on the ground that there is no final judgment operating rest judicata between the parties. The trial court acted illegally in the exercise of its jurisdiction by refusing to grant leave to amend the written statement as proposed by the petitioner-defendant.
(8) The revision petition is thereforee accepted with costs a setting aside the impugned order. The petitioner defendant is granted leave to amend the written statement as proposed. Counsel fee Rs. 100.00 parties are directed to appear before the trial court on 8th April, 1985.