Sultan Singh, J.
(1) Om Prakash Gupta, respondent before me filed an eviction petition against his tenant S.K. Gupta and sub-tenant R.C. Gupta on the grounds covered by clauses (a), (b), (d) & (L) of the proviso to S. 14(1) of the Delhi Rent Control Act, 1958 (herein the Act). Respondent R.C. Gupta the alleged sub-tenant filed his reply on 13.11.1980 denying that respondent S.K. Gupta had sub-let the premises to him without permission and consent of the landlord. He stated that he was a lawful sub-tenant since 24.5.1961. It appears that subsequently respondent R.C. Gupta filed an amended reply on 13.7.1983 in which he said that he was a lawful sub-tenant in the disputed premises as the same have been let out to him by S.K. Gupta with the consent and knowledge of the landlord and he is residing with his family as a lawful subtenant. The landlord at no stage raised the objection regarding the sub-letting. In the additional pleas he also added that he was a tenant in the premises in dispute under the landlord and his brother Tarsem Parkash.
(2) On 248.1983 the appellant, R.C. Gupta again made an application for amendment of the reply by which he wanted to insert the plea that respondent No. 2, S. K. Gupta was the cousin and agent of the landlord and he let out the premises on rent to the appellant. Respondent No. 2 S.K. Gupta was not a tenant of the landlord in the premises in dispute. He never occupied the premises. S.K. Gupta was receiving rent on account of or on behalf of the landlord. In order to save income-tax the rent note was got executed by him in the name of S.K. Gupta. The petition itself was mala fide and collusive between the landlord and respondent No. 2. S.K. Gupta. The eviction petition was also not maintainable for want of permission from the competent authority under the Slum Areas (I & C) Act. It was never disclosed to him that S.K. Gupta, respondent No. 2 was not the landlord or that his status was that of a tenant. These facts were omitted to be stated by him in the earlier replies due to inadvertence. He wants to delete the word 'sub' before the word 'tenant' wherever the words 'lawful subtenant' occur.
(3) This application was rejected by the Addl. Controller on 4.10.1983. An appeal was taken to the Tribunal which by its order dated 22.11.83 dismissed the appeal as non-maintainable because refusal to allow the aforesaid amendment does not decide the rights of the parties.
(4) I have heard the learned counsel for the parties. I have discussed this matter in Umesh Kumar Gupta v. Dr W.M. Sadoc, Sag 236/82 decided on 14.2.84. I have held as follows :
'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 u/s 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 present appealable. That means that before deciding the appealability one has to examine the nature of the proposed amendment.'
thereforee, the Tribunal should have gone into the merits of the proposed amendment what effect it has on the rights of the parties.
(5) Two courses are now open to this court either to remand the case or to decide the matter itself, I think in the facts of this case, the second is the better alternative. It is bevies that the respondent first admitted that he was a sub-tenant and now he wants to assert that he was a tenant and not a sub- tenat. He wants to repudiate his admission which he cannot be permitted to do without any adequate Explanationn vide Kishan Chand v. Ramesh Chander 1969 Rcj 839. The Explanationn of the respondent is that he could not take up this plea due to inadvertence. I do not see any inadvertence here. It is a rank denial affecting the rights of the landlord. In M/s Modi Spinning & Weaving Mills Co. Ltd. v. M/s Lodha Ram & Co. : 1SCR728 , amendment was refused because the defendant could not be allowed to substitute an entirely different and new case which wilt prejudice the plaintiff irretrievably. Same is the case here.