M.L. Jain, J.
(1) The landlord Dr. W.M Sadoc filed an execution application under Section 21 of the Delhi Rent Control Act, 1958 (hereinafter the Act) because the three years of limited tenancy had expired. The lease agreement was executed on 6-12-1976 for a period of three years. The respondent filed objections on 11-4-1980. In these objections he stated that there was no relationship of landlord and tenant between the parties. He denied that the premises were let out to him and that he was inducted as a tenant. His father Munna Lal Gupta was in fact the tenant.
(2) He made an application on 11-9-1981 under Order 6 Rule 17 and Section 151 of the Code of Civil Procedure. He wanted to insert an amendment showing how his father became the tenant. He stated that the permission under Section 21 of the Act was granted on 12-12-1976 to him out on 1-2-1978 it was agreed between the landlord and his father that the fixed term tenancy should be surrendered, the defendant would not be a tenant and Munna Lal Gupta would become the tenant of the premises in dispute and the month of tenancy would commence on the 1st of each calendar month. The fixed term tenancy came to an end and a regular tenancy for an indefinite period was created in favor of Munna Lal Gupta with effect from 1-2-1978. Thus with effect from 1-2-1978, there was no relationship of landlord and tenant between the parties and as such no execution under Section 21 of the Act can be maintained against him.
(3) The learned Additional Controller by his order dated 14-5-1982 dismissed the application. He was of the view that the respondent wants to introduce entirely a new case and wants to retract from his reply dated 11-4-1980 that he was never a tenant and the premises under Section 21 were never let to him. He now wants to say that he ceased to be a tenant after 31-1-1978.
(4) An appeal was taken against this order of the Additional Controller. The learned Tribunal relying upon Sita Ram Talwar v. Jaidev Sharma 1972 Rcj 562, held that the appeal was not maintainable because the order was only a procedural order and did not affect the rights of the parties. Hence, this appeal which does raise a question of law.
(5) I have heard the learned counsel for the parties. The Supreme Court in The Central Bank of India v. Gokal Chand. : 1SCR310 , while interpreting Section 38 of the Act which provides for appeal against every order of the Controller to the Rent Control Tribunal, held that the object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right orliability. In the context of Section 38(1), the words 'every order of the controller made under this Act,' though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. But even an interlocutory order is subject to appeal provided it affects some right or liability of any party. The same principle was reaffirmed in Bant Singh Gill v. Shanti Devi and others, : 3SCR59 , and followed in Kishan Chand v. Ramesh Chander and others 1969 Rcj 839, in relation to an order under Order 6 Rule 17 and in KundanLal Handa and others v.Gian Chand Jain and others 1972 Rcr 412 in relation to an order under Order 21 Civil Procedure Code. In Sita Ram Talwar (Supra) what came to be specifically considered was whether an order allowing or refusing an adament of a pleading under Order 6 Rule 17 Civil Procedure Code was appealable or not. Safeer J. observed as follows :-
'THE scope of Order 6 Rule 17 of the Civil Procedure Code is such that if an order is to fall within its purview, it would only be a procedural order allowing or refusing an alteration or amendment in an existing pleading. Such an order would be outside the provision if it in any was affects or determines any right or liability of any party to the litigation.
'THEallowing of an alteration or amendment in a pleading would only enable the parties to promote the determination of the real questions in controversy. By itself it would not be determining or affecting their rights or liabilities.'
''the order under Order 6 Rule 17 will not by its own force and within its own scope affect any right or liability of parties and its appealability is ruled out by a composite reading of Section 104 and Order 43 Rule I of the code. Where, however, the order although purporting to have been passed on an application moved under Order 6 Rule 17 moves outside the authority provided by that provision, its appealability will have to be determined in terms of the observations made by the Supreme Court in : 1SCR310 , while dealing with Section 38 of the Act.'
It will be noticed that the learned Judge himself moved outside the dictum laid down by the Supreme Court by insisting upon determining instead of affecting the rights or liability of the parties. The Supreme Court did not use the word, 'determining' B.C. Misra J. was more cautious and observed as follows;
'THEREFORE,it is not possible to lay down as a matter of law that an order passed under Order 6 Rule 17 of the Code of Civil Procedure will under no circumstances be appealable under Section 38 of the Rent Act. But as a matter of law the appealability would depend on the nature of each order passed in terms of the dictum laid down by the Supreme Court in Gokal Chand's case'.
He also gave some illustrations of the cases in which the amendment will affect the rights of the parties. However, in Smt. Bhagwati Devi and others v. Haji S.M. Sayeed 1979(2) Rcr 142, Avadh Behari,J. construed Sita Ram (Supra) as follows:
'IT was held by the Division Bench that ordinarily an order allowing or refusing amendment does not affect the rights and liabilities of the parties.'
Thus Sita Ram (Supra) and Bhagwati Devi (Supra) seem to give an impression that an appeal against an order allowing or refusing an amendment made by the Controller will not lie under Section 38 of the Act. But Section 38 as interpreted by the Supreme Court lays down that all orders of the Controller will be appealable if they affect the rights or liabilities of the parties. To my mind, in order to determine whether the order affects the rights of the parties, it would be necessary to examine whether the proposed amendment affects the rights or liabilities of the parties or not. If the proposed amendment does so affect, then refusal or permission to allow it will certainly affect the rights and liabilities of one or the other of the parties. It cannot, thereforee, be said that an order refusing or allowing amendment is per se not appealable. That means that before deciding the appealability one has to examine the nature of the proposed amendment.
(6) By the proposed amendment the tenant wants to show that with effect from 1-2-1978 his father became the tenant and that too with no fixed term. This pleading affects the rights of the parties. That was why it was opposed. thereforee, the Tribunal should have considered whether the amendment was or was not rightly refused.
(7) Consequently, I accept this appeal, set aside the impugned order and remand the case and direct the Tribunal below to decide the appeal on merits. No costs. The parties shall appear before the Rent Control Tribunal on 27-2-1984.