I. D. Dua ( 1 ) THIS is a second appeal from order under section 39 of the Delhi Rent Control Act directed against the order of the learned Rent Control Tribunal dated 23rd July, 1968 dismissing the present appellant s appeal and maintaining the order of the learned Rent Controller dated 15th December, 1967, by means of which amendment of the written statement filed by the respondent in this Court was allowed by introducing a plea of want of notice under section 106 of the Transfer of Property Act. The order which is described by the appellant to be arbitrary so far as relevant reads thus :- "i have heard the learned counsel for the parties. In my opinion, it would be quite just and expedient to allow the amendment in question on payment of costs amounting to Rs. 25. 00. 00" ( 2 ) THE appellant s learned counsel submits that this order does not show any reasons for exercising the discretion in favour of the respondent in the proceeding which started as far back as May, 1964. It is common case of the parties that about six witnesses for the landlord were examined before the Controller when the application for amendment of the written statement was presented sometime in November, 1967. Shri Vijay Kishan has relied on to begin with a decision of this Court in Pritam Singh v. Suraj Pershad. It was observed in that decision that the Court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such terms as may be just and in the larger interests of justice, the Court should, as a general rule, permit amendments which may be necessary for determining the real question in controversy between the parties. Such power of amendment is recognised during proceedings under the Delhi Rent Control Act. It was emphasised in that decision that this power however wide, is discretionary and the discretion is to be exercised on judicial principles. While dealing with sect on 106. Transfer of Property Act, it was observed that this section merely lays down a deeming provision in regard to duration of certain leases in the absence of contract or local usage and provides for their termination by notice specified to be observed in the manner provided. While dealing with sect on 106. Transfer of Property Act, it was observed that this section merely lays down a deeming provision in regard to duration of certain leases in the absence of contract or local usage and provides for their termination by notice specified to be observed in the manner provided. This section, however, does not exclude or prohibit other means of terminating such leases nor does it concern itself with the inherent jurisdiction of the Court empowered to deal with eviction proceedings. Want of notice under this section was accordingly held not to go to the inherent jurisdiction of the Courts of the Rent Controllers under the Delhi Rent Control Act. Reference has next been made to a decision of the Supreme Court in Santosh Kumar v. Bhai Mool Singh. Specific reliance has been placed on following observations at P. 324 :- WE do not wish to throw doubt on those decisions which decide that ordinarily an appeal will not be entertained against an exercise of discretion that has been exercised along sound judicial lines. But if the discretion is exercised arbitrarily, or is based on a misunderstanding of the principles that govern its exercise, then interference is called for if there has been a resultant failure of justice. As we have paid the only ground given for concluding that the defence is not bona fide is that the defendant did not prove his assertions before he was allowed to put in his defence ; and there is an obvious failure of justice if judgment is entered against a man who, if he is allowed to prove his case, cannot but succeed. According interference is called for here. " ( 3 ) THE next decision cited is Naresh Chander Mittal v. Bishamber Nath Chopra, but this decision seems to be of little assistance and need not detain me. He has also relied on some unreported decisions of this Court. In Bansi Dhar v. R D. Bansal, R. S. A. 323-D of 1966 decided on 24th October, 1968. after reproducing section 106, Transfer of Property Act, it was observed as under :- "this section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties, and insuch cases, the duration has to be determined by a reference to the object or purpose for which the tenancy is created. after reproducing section 106, Transfer of Property Act, it was observed as under :- "this section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties, and insuch cases, the duration has to be determined by a reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only the express leases of uncertain duration, but also to leases implied by law which may be inferred from possession and accceptance of rent and other circumstances It would thus appear that this section would raise the requisite presumption at the time when the lease starts ; in other words, this section must be in force at the time of the commencement of the lease in order to incorporate the implied terms in the bilateral agreement giving rise thereto. It would, therefore, be somewhat doubtful to apply this section to this section to those leases which were in existence before its enforcement for variation of the terms of those bases after their enforcement, is not easy to uphold on the plain reading of this section. Once a contractual lease is created, its terms, as intended by the parties, whether express or implied, must govern the relationship from the very inception of the agreement and in the absence of a clear statutory provision, a modification of those terms cannot be implied by a provision like section 106, Transfer of Property Act. "in this connection Shri Vijay Kishan has also drawn my attention to a recent Full Bench decision of the Punjab and Haryana High Court reported as Bhaiya Ram v. Mahavir Parshad. . The conclusion of the Full Bench is recorded at pages 1041 and 1042 of the report. It is observed at page 1042 that plea of want of notice under section 106 of the Transfer of Property Act is not such that cannot be waived by a tenant and a tenant is entitled to waive the objection regarding non-issue of such a notice if helikes. Waiver is, however, a deliberate and conscious act as distinguished from estoppel which may be created by law. Whehter the objection has in fact been waived or not in a particular case is a question on the direct and circumstantial evidence avilable in a given case. Waiver is, however, a deliberate and conscious act as distinguished from estoppel which may be created by law. Whehter the objection has in fact been waived or not in a particular case is a question on the direct and circumstantial evidence avilable in a given case. It is submitted that all these various aspects should have been weighed by the learned Controller while deciding whether or rot it was a fit case in which discretion should have been exercised at such late stage of the proceedings when six witnesses had been actually examined in Court by the landlord and more than three years had elapsed after the initiation of eviction proceedings. ( 4 ) ON behalf of the respondent, great stress has been laid on the submission that even though the order of the Controller does not purport to show on the face of it, its reasoning or the considerations which actually weighed with it, in allowing amendment, neverthless this Court should and is entitled to go into the facts to see whether or not the Rent Controller should have rightly allowed the amendment. As a matter of fact, the order of the Rent Control Tribunal on appeal has also been pressed into service for the purpose of supplementing the order of the Rent Controller and saying that the Rent Control Tribunal has held that the discretion was rightly exercised by the Controller and, therefore, this Court should assume that the discretion has been rightly exercised. The submission is somewhat difficult to uphold. Discretion has to be exercised by the authority which is invested with the power and which purports to do so. Neither the Rent Control Tribunal nor this Court is entitled to substitute its own discretion, in regard to the matter requiring discretionary decision for the discretion of the Rent Controller, nor would it ordinarily be permissible for the Rent Control Tribunal or for this Court to give its own reasons in support of the conclusion of the Rent Controller which has to be based on the latter s judicial discretion. It is axiomatic that the order by means of which a discretionary matter is decided, must disclose the working of the judicial mind so as to enable the superior Courts to scrutinise those orders on appeal or revision, if necessity to do so arises. It is axiomatic that the order by means of which a discretionary matter is decided, must disclose the working of the judicial mind so as to enable the superior Courts to scrutinise those orders on appeal or revision, if necessity to do so arises. If such an order merely records the conclusion without disclosing reasons, it may well be suggestive of arbitrariness. When something is to be done within, the discretion of a Court or a judicial Tribunal then it has to be done according to the rules of reason and justice and not according to private opinion : in other words, it has to be done according to law and not humour : it must not be arbitrary, seemingly fanciful or devoid of reason, but legal and regular. The idea of discretion which is to be exercised in a disciplined and responsible manner, postulates that the possessor of discretion must put his mind in the case and really use judgment in coming to a decision and not approach the matter suggesting that his mind is already made up. The decision relied upon by the learned counsel for the respondent do not run counter to the view I have just expressed. They all proceed on their own facts. I would, however, like just to note those decisions in deference to the exhaustive arguments addressed : Mst. Sardar Begum v. Jagdish Chand Bhandari, L. J. Leach and Co. v. Jardine Siknner and Co, Pirgonda Hongonda Patil v. Kalagonda Sid. gonda Patil, Raj Kumar v. Harish Kumar, Narisingh Prasad Paul v. Steel Products Ltd, Amolakchand Mohanlal v. Firm of Sadhuram Tularam, and Masireddi Suryananayana v. Akula Anasuyamma. ( 5 ) NOW the question arises as to what order should be made on the facts and circumstances of this case. The impugned order suffers from a substantial error in as much it is not possible on the facts and circumstances of this case to hold that the Rent Controller has applied his judicial mind to all the relevant considerations and to the recognised principle applicable to a case of amendment like the present. The impugned order suffers from a substantial error in as much it is not possible on the facts and circumstances of this case to hold that the Rent Controller has applied his judicial mind to all the relevant considerations and to the recognised principle applicable to a case of amendment like the present. The correct procedure to adopt in this case would, in my opinion be to quash both the orders of the Rent Controller and of the Appellate Tribunal and send the case back to the Controller to exercise his judicial discretion in accordance with law and in the light of the observations made above. Quite a number of decisions of this Court have since been given dealing with the question of amendment in the matter of introducing a fresh plea of want of notice under section 106, Transfer of Property Act in proceedings for eviction under the Delhi Rent Control Act. In a recent Bench decision. of this Court in Roop Narain God v. Smt. Krishan Devi Bagadia the question whether the dicta of the Supreme Court decision in Manujendra Dutt v. Purnedu Prasad Roy Chaudhury covered the proceedings under the Delhi Rent Control Act. was left open which would suggest that the question needs judicial determination. ( 6 ) FOR the foregoing reasons. I allow this appeal but without any order as to costs and direct the parties to appear before the Controller on 2nd December, 1968 when a short date would be given for further proceeding in accordance wth law. ( 7 ) I need hardly point out that these proceedings which have been pending since 1964 should be given priority and should be disposed of without undue delay.