M.L. Jain, J.
(1) The facts of this appeal are that the appellant is respondent's tenant in the premises B-8, Greater Kailash,Partl, New Delhi, with effect from May 10, 1968. However, on May 17, 1968, the Rent Controller granted permission to the parties under sec. 21 of the Delhi Rent Control Act (hereinafter the Act) to create a limited tenancy for 3 years. Again on October 30, 1971, the Controller granted permission to the landlady to create a limited tenancy in favor of the tenant from November 1, 1971, to October 31, 1975. Again on November 14, 1975, Controller made the following order:-
'HAVINGregard to the facts stated in the application and the statement made by the parties, permission u/s 21 of the Delhi Rent Control Act is granted to Smt. Prem Khanna appllicent to let out the premises directed in the application and shown in the plan, A.W. 1/1 for residential purpose, to Mrs. S.D. Noronha, respondent for a limited period of one year with effect from 15.11.1975.'
(2) A lease-deed was also executed in that respect on December 21, 1975, wherein it was stipulated interalia that (1) on an application made by the parties under sec. 21 of the Act, the Controller was pleased to allow the parties to create a limited tenancy for a period of one year, (2) the premises were required for residential purposes, (3) possession of the building had already been given to the leasee on November 15, 1975, and (4) if any extra tax or leuy was imposed in case the premises were used for purposes other than residential, the lessee shall be liable to pay the same.
(3) According to Sec. 21, and Rule 5 of the Delhi Rent Control Pules, 1959, an application for recovery of possession where the tenant does not vacate the premises after the expiry of the limited tenancy, may be made by the Lesser within six months of such expiry. So, on January 10, 1977, the landlady filed such apdlication in which she stated that the period for which the permission was granted has already expired and the tenant inspire of repeated demands has not given possession of the premises.
(4) The application was contested by the tenant on the grounds amongst others that it was liable to dismissal as the necessary averments and particulars required for such an application were not stated. The permission under sec. 21 of the Act was anullity and obtained by fraud because such a permission is available only in case of residential purposes, while the tenant has all along and within the knowledge of the landlady, running a school in the premises which was converted into a partnership on October 1, 1972. under the name of 'Junior & Tiny Tota'. The landlady has accepted respondent as a tenant by accepting rent after the expiry of the so-called limited tenancy.
(5) In her replication filed on May 17, 1977, the landlady averred that after the Controller gave the permission, the tenant excuted a lease-deed, though she refused to appear before the Registrar for registration thereof. Tenancy from 1968 and running of school in the premises were denied.
(6) The learned Addl. Rent Controller by his order dated May 30, 1977, dismissed the application on the ground that it did not contain the averment that the premises were let with the permission of the course for a period of one year as agreed to between the parties 'in writing'. The learned Addl. Rent Controller relied upon a decision of this court in Asa Nand v. Gulab Rai, 1995 Rlr 175. However, in view of Kasturi Lal-v. Shiv CharnDas Mathur, 1976 Rcr 703, he held that the tenant cannot be allowed to question the validity of the permission under which the tenant was put in possession and to plead that the premises were not let for residential purpose or that the respondent had become a tenant by acceptance of rent after the expiry of the period of the limited tenancy. As, however, observed that the applicant was at liberty to file a fresh application in accordance with law. The landlady filed a fresh application on June 3, 1977, praying for the benefit of sec. 3 and 14 of the Limitation Act. At the same time on July 14. 1977. she also filed an appeal in the Tribunal against the order of the Addl. Rent Controller of May 30. 1977. While this appeal was pending, the second application was dismissed by the Addl. Rent Controller on July 23, 1977, holding that the provisions of the Limited Act did not apply to an application under sec. 21 of the Act and the applicant cannot take the advantage of sec. 5 and 14 of the Limitation Act
(7) An the appeal, the landlady made an application under Order 6, Rule 17, Civil Procedure Code , for amendment of the application. The learned Tribunal by its order dated October 27, 1977, allowed the amendment. The Tribunal observed that though the application, if read properly as a whole, fulfillled the requirements of sec. 21 of the Act, yet in order to meet the technical ground, it allowed the amendment as it did not work any injustice to the opoosite party in any manner. It rejected the contention that with the dismissal of the second application on July 23, 1977, the tenant had acquired a valuable right which would be defeated if the amendment were allowed. The proceedings thereafter appear to have gone on, and on December. 5, 1977. the Tribunal accepted the appeal and remanded the case to the Addl. Rent Controller for affording the parties an opportunity to lead evidence and then decide the objection of the respondent regarding creation of fresh tenancy by agreement after the lapse of the period of limited tenancy and directed that other objection of the respondent shall not be gone into. It is against this order that the present second appeal has been filed.
(8) The first contention of the learned counsel for the appellant is that under sec. 21 of the Act. no limited tenancy could becreated as the premises were in fact and within the knowledge of the landlady let not for residence but - for running a school. Thus, a fraud was played upon the Addl. Rent Controller. This argument is not available to the appellant because of this court's decision in Kasluri Lal v. Shiv Charan Dass Mathur, 1976 Rcr 703 (supra).
(9) The next contention advanced is that an application for recovery of possession on the expiry of the limited tenancy can be made only if it falls squarely within the provisions of sec. 21. Unless it fulfills the conditions speci- fied in that section, the Rent Controller will have no Jurisdication to entertain and act upon such an application. The applicant failed to make proper averments in order to give jurisdiction to the Rent Controller. It was said in Asa land's ease (supra) that it is the requirment of sec. 21 that it should be stated that the requisite premission had been obtained from the Controller thereafter the landlord had let out the whole or a part of the premises for residence for a fixed period agreed to in writing between him and the tenant, Now, reading the first application of the petitioner for recovery of possession, it is quite obvious that all the facts necessary to give jurisdiction to the Rent Controller were fully stated. It did not mention that an agreement in writing was subsequently executed. It stated that the permission had been granted which is not denied. But, the fact is that a lease-deed was executed which clearly states the period of tenancy and that the possession had been given on November 15, 1975, and that the premises were being let out for residential purposes. This was expressly so stated in the rejoinder. That fulfilled thereforee all the requirements of the section as explained by the High Court in Asa Nand's case. It is. thereforee difficult for me to understand the reasoning adopted by the Addl. Rent Controller in throwing out the application, as it failed to write the words 'in writing' in it. The sanction of the Controller was in writing. The Addl. Rent Controller took a very hyper-technical view. That was never the intention of the dicta in Asa. Nand's case (supra). However, such an omission, if at all there was any. could be rectified by a suitable amendment under Order 6, Rule 17, Civil Procedure Code , which was wisely permitted by the learned Rent Control Tribunal.
(10) It is urged that this amendment should not have been allowed because, (1) due to lapse of time a valuable right has accrued to the tenant meanwhile, (2) the order dismissing the second application on July 23, 1977. had become final as no appeal against it was filed and it raised a bar of resjudicate, and (3) the appeal itself became infructuous as the impugned order of the Addl. Rent Controller dated May 30. 1977, had merged into the second order dated July 23, 1977.
(11) I have considered over these objections. Firstly, there is no need to go into all this discussion because I find that complete averments as required by sec. 21 of the Act were available, if not in the original application, at least in the rejoinder. However, since these points were argued with considerable vehemance, it will be proper for me to dispose of them. On the date the amendment application was made and on the date it was allowed, no doubt the petition had become barred by time. The rule regarding amendment has been stated by the Suprems Court in M/s. Ganesh Trading Co. v. Moti Ram. : 2SCR614 , that it is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should ordinarily refuse amendment of pleadings. It clearly follows that the rule can be departed from even in case of a newly constituted cause of action, if some extraordinary circumstances can be shown. A mere failure to set out even an essential fact does not constitute a new cause of action. The defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be premitted to be cured so as to constitute a cause of action where there was none provided necessary conditions such as payment of either any additional court-fees which may be payable or of costs of the other side, are complied with. A new cause of action means a new claim made on a new basis constituted by new facts. In L.J. Leach and Co. Ltd. and another v. M/s Jardine Skinner and Co., : 1SCR438 , it was observed that courts as a rule decline to allow amendments if a fresh suit Oh the amended claim would be barred by limitation on the date of the application. But, that is a factor to bs taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the court to order it, if that is required in the interests of justice. Thus, if the interests of justice do so require, then an amendment cannot be declined even though a fresh suit on the amendmended claim would be barred by limitation. Now, no right had accrued to the appellant by lapse of time on the date the application for amendment was made and even if any such right can be said to have accrued to the tenant, then too, in the interests of justice such an amendment as was prayed for should have been allowed and could not ordinarily be declined. One only has to recall what the Privy Council said in Charan Dass and others v. Amir Khan and others, Air 1921 Pc 50. Where the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statue in a form which the statute did not permit, they should be at liberty to express their intention in a plainer and less ambiguous manner, and to amend the plaint so as so express the rights which it has been really their intention all along to establish, although the amendment of plaint is sought to be made at a time when the suit itself if instituted then would be time-barred. Assuming that sec. 11 Civil Procedure Code in terms or the principles thereof apply to an application under sec. 21 of the Act, it appears to me that the order dated July, 23, 1977, cannot be considerel to have heard and decided any issue which was directly and substantially in issue in the appeal. The second application was made in response to the observations of the Addl. Rent Controller, though obviously barred by time and was thrown at the very outset and thereforee, it cannot operate as resjudicata against the appellant. In Sheodan Singh v. Daryao Kunwar, : 3SCR300 ; it was held that in order that a matter may be said to have been heard and finally decided, the decision in the former case must have been on the merits. In Lonankutty v. Thomman and another, : AIR1976SC1645 , it was held that in a matter of rest judicata it is necessary that it must have been in issue directly and substantially and must have been heard and finally decided. The second application was decided on ground of limitation, more in respect of the availability of the advantage under sec. 5 and 14 of the Limitation Act, but limitation was no issue in tn the first application. There was no identity of issues. If any support is required for this conclusion, one may find in Srikakula Chinna Venkatanarayana and others v. Pannapati Elias, : AIR1954Mad1024 . It certainly is not a case as was in M/s. Modi Spinning & Weaving Mills Co. Ltd. and another v. M/s.Ladha Ram &Co.;, : 1SCR728 , of introducing entirely a different new case and of seeking to displace the party completely from the admissions made by his adversary. As a matter of fact, the second application was no application at all. The appeal could also not be said to be no more maintainable against the order of May 30, 1977, as it is urged, it has merged in to the subsequent order of July 23, 1977. I do not know how this is a case of merger of the two orders. These two orders were passed in separate applications and, thereforee, the question of merger does not arise, nor does the latter order supersede the earlier. Merger is generally ofen interim order into the final order or of an interior tribunal's order in to a superior tribunal's order even in respect of which it was said in Stale of Madras v. Madurai Mills Co: Ltd., : 1SCR732 , that the doctrine of merger is not a doctrine of rigid and universal application. It cannot? thereforee? be said that wherever there are two orders, there is a fusion or merger of the two orders irrespective of their scope and subject-matter. The order of May, 30, 1977, was not an order of an interim or an interlocutory nature in the same proceedings or inquiry so as to stand superseded by the order of July 23, 1977, by implication. The argument, thereforee, that the impugned order against which the appeal has been filed is no more in existence, is not tenable.
(12) I thereforee, find no force in any of the arguments advanced against the judgment of the learned Rent Control Tribunal, and this second appeal is hereby dismissed with costs.