An order affecting the rights and liabilities of the parties is appealable under Section 38 of the Act.

G.P. MITTAL, J.

1. An Eviction Petition on the ground of bonafide requirement under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (the Act) was filed by the Petitioner on 19.02.2010. By an order dated 11.05.2011 an application seeking leave to contest filed by the Respondent tenant was allowed by the Rent Controller. The case was fixed for filing of the written statement on 07.07.2011. None appeared on behalf of the Petitioner (the landlord) and the Eviction Petition was dismissed in default under Order IX Rule VIII of the Code of Civil Procedure (CPC).

2. On 08.07.2011, the counsel for the Petitioner came to know that the Petition was dismissed in default on 07.07.2011 and an application for restoration was moved on 12.07.2011 on the ground that the counsel could not appear before the Controller because of wrong noting of the date. The application was however dismissed on 03.11.2011.

3. The primary question for determination in the Petition is whether the Petition under Article 227 of the Constitution of India is maintainable against the order passed by the Controller or he should have pursued the remedy of Appeal under Section 38 of the Act.

4. The learned counsel for the Petitioner states that only the orders which affect the rights or liabilities of the parties have been made Appealable under the Act. Any procedural order passed by the Controller is not Appealable under Section 38 of the Act. It is urged that the order of dismissal of the Petition in default passed under Order IX Rule VIII CPC was such a procedural order and therefore, the Petition under Article 227 of the Constitution of India is maintainable. Reliance is placed on a judgment of this Court in Smt. Bhagwati Devi & Ors. v. Haji S.M. Sayeed, 1979 (2) RCR 142 where it was held that an order refusing an amendment of pleading was not such an order which affects the rights and liabilities of the parties. A similar view was taken in S.K. Aggarwal v. Abdul Aziz, 81 (1999) DLT 278.

5. On the other hand, learned counsel for the Respondent states that an order dismissing the Eviction Petition cannot but be an order affecting the rights and liabilities of the parties and, therefore, the only remedy available to the Petitioner was to file an Appeal. Learned counsel for the Respondent places reliance on Surendra Kumar v. Krishna Dwivedi, 2005 (6) AD (Delhi) 508 where the judgment in S.K.Aggarwal (supra) was also referred to. The learned Single Judge held as under:-

“6. The legal position which emerges from the above cited authorities is that an order allowing or rejecting an application under Order VI Rule 17 CPC is appealable if it effects the rights of the parties. In the case in hand the rejection of the application is on the ground that the proposed amendment has the effect of withdrawing the admission and also change the nature of the case, in the opinion of this court, effects the right of the party seeking amendment. In any case whether the amendment has been wrongly declined is a legal question. Having regard to the background of this case i.e. the various judicial proceedings between the parties and the predecessor-in-interest of Smt. Krishna Dwivedi, this Court is of the opinion that the appeal lay under Section 38 of the Act against such an order of rejection of the application under Order VI Rule 17 CPC…..”

6. Thus, the learned Single Judge took the view that wherever there is an amendment which affects the rights or liabilities of the parties an order would be Appealable, otherwise Appeal would not be maintainable.

7. In Central Bank of India v. Gokal Chand, AIR 1967 SC 799, the Supreme Court dealt with the object of granting a remedy of only in respect of the orders affecting the rights or liabilities of the parties. Paras 2 and 3 of the report are extracted hereunder:-

“2. The Delhi Rent Control Act, 1958 empowers the Controller to pass orders for fixing the standard rent or lawful increase thereof, eviction of tenants and various ot