1. This second appeal has been filed by the tenants, Shrimati Bhagwanti and Arjan Dass, against an order of Mr. Mohan Lal Jain, Rent Control Tribunal, Delhi, dated 6th June, 1968, in Rent Control Appeal No. 475 of 1968, dismissing the said appeal as nor being maintainable for the reason that the order of Mr. A. P. Chowdhary, Additional Controller, Delhi, dated 3rd May, 1968, appealed from, was only procedural and interlocutory in nature and, as such was not appealable under Section 38 of the Delhi Rent Control Act, 1958.

2. Haveli Ram, claiming to be the landlord in respect of Quarter Nos. 1314, Block No. 20, Moti Nagar, New Delhi, filed a petition, dated 27th December, 1965, on 3rd January, 1966, before Mr. A.P. Chowdhary, Additional Controller, Delhi, for eviction of three alleged tenants in respect of the said premises, viz. (1) Shrimati Bhagwanti, (2) Sunder Dass son of Durga Dass and (3) Arjan Dass, under Clauses (3) and (h) of the proviso to Subsection (1) of Section 14 of the Delhi Rent Control Act, 1958. In column 18 (b) of the application, the heading of which was whether notice required has been given and if so, particulars there of (copies of such notice and the tenants reply, if any, should be furnished), it was stated as under:

Notice given, although not required.

The alleged tenants filed their reply or written statement on 8th March,, 1966 in opposition to the application for eviction. In reply to the allegation in paragraph 18(b), it was stated in the written statement that no notice had been received by the answering respondents. The alleged tenants also denied that there was any relationship of landlord and tenant between the parties, and pleaded that Bhagwanti was the owner of the premises in dispute and was in possession of the same.

3. On 27th December, 1967, the evidence of A. W.1 was recorded, and at that stage the alleged tenants filed on the date, an application under Order 6 Rule 17 of the Code of Civil Procedure stating that in a recent judgment reported in Mannjendra Dutt v. Purnedu Prosad Roy Chowdhary it had been held by the Supreme Court that notice under Section 106 of the Transfer of Property Act was essential to bring to an end the alleged relationship of landlord and tenant and the landlord could not sue for eviction without complying with the said requirement and that they should, therefore, be permitted to take the plea of absence of a notice of termination, by amendment of their written statement. The said application was opposed by the landlord, Haveli Ram. He filed a reply, dated 10th January, 1968, stating the decision of the Supreme Court was inapplicable, and that in any case a valid notice terminating the tenancy was issued by him, but that the same was refused by the alleged tenants. By his order, dated 3rd May, 1968, the Additional Controller rejected the said application on the grounds that it was made very late, that if the amendment was allowed the alleged landlord would be obliged to withdraw his application for eviction, that if the alleged tenants had raised the said objection either in the beginning or at an earlier date, the alleged landlord would have withdrawn his application for eviction and filed a fresh petition after serving the necessary notice, that an award of damages would not adequately compensate the alleged landlord as his petition would become unmaintainable, that the notice mentioned in column 18(b) of the pleadings was a notice required under the provisions of the Delhi Rent Control Act and not a notice contemplated by Section 106 of the Transfer of Property Act, and that since the alleged tenants had denied that there was a relationship of landlord and tenant between the parties, the amendment, if allowed, would amount to introduction of not only a new case, but also an inconsistent case.

4. Against the said order, Shrimati Bhagwanti and Arjan Dass preferred an appeal under Section 38 of the Act to the Court of Mr. Mohan Lal Jain, Rent Control Tribunal, Delhi. Haveli Ram was impleaded as Respondent No. 1, and Sunder Dass was impleaded as Respondent No. 2 in the appeal with a note that there was no such person as Sunder Dass son of Durga Dass. By his order, dated 6th June, 1968, Mr. Mohan Lal Jain observing that he felt inclined to agree with the reasoning adopted by the Additional Controller, held that once the alleged tenants waived the plea of requirement of service of notice terminating the tenancy, they were not entitled at a later stage to set up that plea, and that even otherwise, the Counsel for the alleged tenants conceded before him that the tenancy in dispute was of a period prior to December, 1962, when the Transfer of Property Act was made applicable to the Union Territory of Delhi, and it was thus obvious that the strict provisions of Section 106 of the Transfer of Property Act had not application. He further held that the impugned order of the Additional Controller, being only procedural and interlocutory, was not appealable, as decided in the Central Bank of India v. Gokal Chand 2 (1966) DLT 262 (DB) and that, considered from any angle, the appeal had no merit. He accordingly dismissed the appeal. It is against the said appellate order that the present second appeal has been filed by Mr.mati Bhagwanti and Arjan Dass. Sunder Dass was originally shown as second respondent in the memorandum of second appeal. Subsequently, the appellants moved an application, C. M. No. 25J of 1968. praying that the name of Sunder Dass, respondent No. 2 may be struck off from the memorandum of second appeal. The said application was allowed by S. N. Shankar, J. on 16th January, 1969. Thus, Haveli Ram is now the sole respondent in the second appeal.

5. As stated above, the Rent Control Tribunal based its order on three grounds, viz (1) that when once the alleged tenants waived the plea of requirement of service of notice terminating the tenancy, they were not entitled to set up that plea again a later stage; (2) that since the tenancy in the instant case had admittedly commenced prior to December, 1962, when the Transfer of Property Act was made applicable to the Union Territory of Delhi, the provisions of Section 106 of the said Act had no application; and (3) that the order of the Additional Controller was only procedural and interlocutory and it was not, therefore, appealable. Pandit Maharaj Kishan, learned Counsel for the appellants tenants contended that the aforesaid three grounds were erroneous and contrary to law.

6. As regards the first ground, it is now settled by the decision of the Division Bench of this Court in Batoo Mal v. Rameshwar Nath that in the case of a tenancy to which Section 106 of the Transfer of Property Act, 1882 applies, an application under Section 14 of the Delhi Rent Control Act, 1958, cannot be filed without service of a proper notice under Section 106 terminating the contractual tenancy, and that even when that even when the tenancy commenced prior to 1st December 1962, the date from which the Transfer of Property Act was made applicable to the Union Territory of Delhi, and Section 106 is not, therefore, applicable, a reasonable notice of about fifteen days terminating the tenancy is essential vide also Boota Ram v. Balmukand4. In the present case, the tenancy admittedly commenced prior to 1st December, 1962 as stated in the order of the Tribunal. The application for eviction was filed on 3rd January, 1966. In paragraph 18(b) of the application, the landlord stated that notice given although not required. The receipt of the said notice was denied by the tenants in their written statement. The landlord produced a copy of the notice, Ex. A. W. 3/2, and the postal acknowledgment Ex. A. W. 3/3. The acknowledgement bears an endorsement that the notice was refused. However, a perusal of the notice. Ex. A. W. 3/2, shows that it purports to have been sent by the landlords Counsel, and it was only stated in it that the tenant should pay the arrears of rent due from him within two months of the receipt of the notice, failing which the Counsel had instructions to file a petition for eviction against the tenants. It was thus only a notice of demand of arrears of rent and not a notice of termination of the contractual tenancy. It is, therefore, clear that no notice of termination of tenancy was served on the tenants before the filing of the application for eviction.

7. The written statement was filed by the tenants on 8th March,, 1966. The plea of absence of service of a notice of termination of the tenancy was not raised in the written-statement. It was sought to be raised by an application on 27th December, 1967, after a witness, A. W. 1/1, was examined on that day. It was stated in the application that in a recent judgement of the Supreme Court reported in Manujendra Dutt v. Purnedu Prasad Roy Chowdhary, it had been held by the Supreme Court that notice under Section 106 of the Transfer of Property Act was essential before filing the application for eviction, and it was prayed that the said plea may be permitted to be raised by an amendment of the written statement. It was the omission to raise the plea in the written statement as originally filed that was considered by the Tribunal as amounting to a waiver of the plea by the tenants. Mr. Maharaj Kishan contended that the tenants were not aware of the legal position as regards the necessity of service of a notice of termination of tenancy on the tenants prior to the filing of an application for eviction under the Rent Control Act when their written statement was filed, that the legal position came to be known when the decision of the Supreme Court was reported and an application for permission to raise the plea was filed shortly thereafter, and that in the circumstances there could be no question of any waiver on the part of the tenants. There is considerable force in the contention of the Counsel. As pointed out by the Division Bench in Batto Mals case (supra) at page 644, waiver implies that the person waiving his right is aware of the right, and if he did not know of the right at all, there could be no waiver of it by him. Again, it was pointed out by the Division Bench in the same case at page 638 that the opinions of the Courts on the question whether an application for eviction could not be instituted before the contractual tenancy was terminated by a notice, were divided, and that no firm view had yet been expressed by this Court. That was why Hardayal Hardy, J. (as His Lordship then was) when the case of Batto Mal came initially before him, referred the same to a larger Bench. The legal position became certain when the decision of the Supreme Court in Manujendra Dutt v. Purnedu Prosad Roy Chowdhary(supra) was pronounced holding that the view of the High Court of Madras in R. Krishan Murty v. Parthasarathy, was not correct law. The said decision of the Supreme Court, was pronounced on 22nd September, 1966. By that date, the tenants in the present case had already filed their written statement on 8th March,, 1966. The decision of the Supreme Court appears to have been reported late in 1967, and the tenants filed the application before the Additional Controller for amendment of their written-statement on 27th December, 1967. Thus, the tenants cannot be said to have waived their right to raise the plea by reason of their omission to raise the same in their written statement. The Tribunal did not consider any of the above aspects.

8. Mr. Chhatwal referred to the decision of P. N. Khanna J. ofMunila v. Mandlal on the question of waiver. In that case, the objection regarding the absence of service of a notice of termination of tenancy was raised by the tenants for the first time in the second appeal. The learned Judge held that a notice of termination of tenancy under Section 106 of the Transfer of Property Act is deemed to be a term of the tenancy only in the absence of contract, and as the tenants did not raise the plea in their written statements, their unwillingness to take shelter under a plea of notice under Section 106 of the Transfer of Property Act amounted to an admission on their part that the notice was not required in the case of tenancy under which they were holding the premises, and in any case, it amounted to a clear waiver on their part. In the present case, the tenants sought to raise the plea in the Court of the Additional Controller itself. The learned Counsel, cannot, therefore, derive any assistance from the said decision.

9. Mr. Chhatwal, learned Counsel for the respondentlandlord, also pointed out that the tenants denied the relationship of landlord and tenant between themselves and Haveli Ram, and there was, therefore, no point in their pleading that a notice of termination of tenancy was not served upon them before the petition for eviction was filed. There is no force in the argument. It is true that the tenants denied the relationship of landlord and tenant in their written statement. But, the plea of absence of service of notice of termination of the tenancy was only in the alternative, and, it was quite open to them to so plead in the alternative.

10. The second ground mentioned by the Tribunal was also contrary to law. As held by the Division Bench in Batto Mals case (supra), even if the tenancy had commenced prior to 1st December, 1962, a reasonable notice of termination of tenancy was essential prior to the filing of the application for eviction, and no such notice was given in the present case.

11. Coming to the third ground mentioned by the Tribunal, the said ground also was erroneous in law. The order of the Additional Controller dismissing the application filed by the tenants for amendment of their written statement was no doubt interlocutory, but was not merely procedural. As held by the Supreme Court in the Central Bank of India v. Gokal Chand 3 (1967) DLT 1 (SC), even an interlocutory order passed under Section 37(2) of the Delhi Rent Control Act which requires the Controller to follow as far as may be practice and procedure of a Court of Small Causes, is an order under the Act, and is subject to appeal under Section 38(1), provided it affects some right or liability of any party. By the application filed by the tenants before the Additional Controller, they sought to raise the plea of absence of service of a notice of termination of tenancy before the application for eviction was filed against them. According to the decision of the Supreme Court in Manujendra Dutts case (Supra) and the decision of the Division Bench in Batoo Mals case(Supra) a notice terminating the tenancy is essential, and an application for eviction cannot be filed by the landlord under the Rent Control Act without terminating the contractual tenancy by such a notice and getting a right to obtain possession of the premises. Where such a notice has not been served, the tenant has a valuable right to raise the plea of the absence of service of the notice. In the present case, the tenants sought to raise such a plea by amendment of their written statement. It cannot be generalised that all amendments of pleadings are of a procedural nature. It is quite conceivable that there may be amendments which are purely of procedural nature, and there may be amendments which affect the rights and liabilities of any of the parties. Whether an amendment of a written statement is procedural or not has to be judged from the nature of the amendment sought to be made. In the present case, the amendment was for the purpose of raising the plea of the absence of a service of a notice terminating the tenancy prior to the filing of the application for eviction which, if established, would go to the root of the matter and entitle the tenants to claim the dismissal of the application for eviction as not maintainable. It cannot, therefore, be said that the amendment of the written statement for raising such a plea is merely procedural. Though interlocutory and procedural, it affects the right of the tenants to claim a dismissal of the application for eviction. The order of the Additional Controller in the present case dismissing the application for amendment of the written statement was, therefore, not merely interlocutory and procedural, but was one which affected the right of the tenants. As such, it was appealable under Section 38 of the Delhi Rent Control Act, 1958.

12. The above discussion shows that the three reasons given by the Rent Control Tribunal were erroneous in law, and its order dismissing the appeal based on the said reasons was vitiated by substantial error of law. It cannot, therefore, be sustained.

13. For the foregoing reasons, the second appeal is allowed, the order of the Rent Control Tribunal, dated 6th June, 1968 is set aside, and the case is remanded to the Rent Control Tribunal, Delhi. The Tribunal should restore the appeal, R. C. A. No. 475 of 1968, to its file and dispose it of afresh according to law. The parties are, in the circumstances directed to bear their own costs in the appeal before the Tribunal prior to this remand, and in this second appeal. The parties are further directed to appear before the Rent Control Tribunal, Delhi, on 7th February, 1972.