S K AGGAEWAL Vs. ABDUL AZIZ

JUDGEMENT

(1.) Mr. Sethi, learned counsel for the petitioner has contended that the petition filed by the petitioner under Article 227 of the Constitution of India is maintainable. On the other hand, Mr. Saini, learned counsel for the respondent has contended that the matter is appealable and this petition is not maintainable. Mr. Sethi in support of his contention has cited Smt. Bhagwati Devi & Ors. Vs. Haji S.M. Sayeed 1979 (2) RCR 142. On the other hand, Mr. Saini has cited in his favour Sita Ram Talwar Vs. Jai Deva Sharma 1972 RCf 562 and Kishan Chand Vs. Ramesh Chander & Ors. 1969 RCf 839. The law is well settled with regard to the orders which are appealable under Section 38 of the Delhi Rent Control Act. Any order which affects or determines the right of the parties is appealable. For that one has to go to the facts and circumstances of each case whether the amendment sought for results into withdrawal of an admission and whether the amendment sought for changes the nature of the cause of action. However, I find force in the argument of Mr. Sethi that in the present case as amendment sought for was dismissed, therefore, he could not have filed an appeal. Learned counsel for the petitioner has relied upon Sita Ram Talwar & Am. Vs. Jai Dev Sharma 1972(2) ILR Delhi 769 in support of his intention.

(2.) I am bound by the ratio of Sita Ram Talwar's case (supra) and I hold the same view. Now coming to the merit of the case. Mr. Sethi has contended that the amendment was in the nature of clarificatory and no fresh cause of action was introduced nor any admission was withdrawn. The amendment was more of a clarification nature. Let us have a look at the original preliminary objection no. 3 as raised by the petitioner. The same is as follows:

(3.) By virtue of the amendment application, the petitioner now wants to amend paragraph 3 of the preliminary objection to the following effect: