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1962 Supreme(Ker) 242
Judges : M.S.MENON,S.VELU PILLAI
JOSEPH - Appellant
Versus
DISTRICT JUDGE, ERNAKULAM - Respondent
Case No : W. A. No. 871961
Decided On : 10/29/1962
Advocates Appeared :
V. M. Gopalakrishnan Nair; V. Viswanatha Menon; For Appellant Government Pleader; For Respondents 1; 3 A. S. Krishna Iyer; A. K. Ramaseshadrinathan; For Respondent 2
The Appellate Authority's power is limited to deciding the appeal itself, not remanding the case for fresh disposal.
Headnote:
REMAND - Rent Control - Kerala Buildings (Lease and Rent Control) Act, 1959, S.18 - Madras Buildings (Lease and Rent Control) Act, 1946, S.12(3) - Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, S.18(2)
Fact of the Case:
The appellant was directed to surrender possession of a building by the Rent Controller. The case was remanded by the Appellate Authority, which was challenged by the appellant under Art.226 and 227 of the Constitution.
Finding of the Court:
The District Judge concluded that the Appellate Authority had no power to remand and directed it to deal with the appeal. The High Court held that the Appellate Authority's power is limited to deciding the appeal itself, not remanding the case for fresh disposal.
Issues: The main issue was whether the Appellate Authority had the power to remand the case for fresh disposal.
Ratio Decidendi: The relevant sections of the Acts mentioned in the judgment make it clear that the Appellate Authority's power is limited to deciding the appeal itself, either on the materials on record or after further inquiry, and not remanding the case for fresh disposal.
Final Decision: The appeal was dismissed, and no costs were awarded.
1. The petitioner in O.P. No. 309 of 1960 is the appellant before us. He was the respondent in R. G. P. No. 24 of 1957 before the Rent Controller, Ernakulam. By that petition his landlord sought his eviction from building No. 122 in Ward No. VI of the Ernakulam Municipality. The Rent Controller allowed the petition and directed him to surrender possession of the building by Ext. P-1 dated 23 81958.
2. The appellant before us appealed to the Rent Control Appellate Authority, Ernakulam. The Appellate Authority remanded the case to the Rent Controller for a fresh disposal. Ext. P-2 dated 30 31959, as amended by Ext. P 3 dated 24 71959, is the order of remand.
3. The landlord sought a revision of the order of remand before the District Judge of Ernakulam by R. C. R. P. No. 12 of 1959. The District Judge came to the conclusion that the Appellate Authority had no power to remand and directed it to deal with the appeal.
4. The appellant before us then filed O. P. No. 309 of 1960 and challenged the correctness of the order in revision under Art.226 and 227 of the Constitution. Vaidialingam, J., dismissed the petition by his judgment dated 10 31961. This appeal is directed against that judgment.
5. S.18 of the Kerala Buildings (Lease and Rent Control) Act, 1959, deals with appeals. Sub-section (3) of that section (omitting the Explanation thereto) reads as follows:
"The appellate authority shall send for the records of the case from the Rent Control Court and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either directly or through the Rent Control Court, shall decide the appeal"
The District Judge said:
"That the Appellate Authority has no power of directing a remand is clear from S.18 (3) of Act XVI of 1059 which defines the powers of the Appellate Authority, in hearing the appeal. It says that it shall decide the appeal after sending for the records of the case and after giving the parties an opportunity of being heard and if necessary after making such further inquiry as it thinks fit either directly or through the Rent Controller. Thus sub-section (3), which is the relevant section for consideration, does not give the Appellate Authority the power to remand the petition for fresh disposal. If the Appellate Authority feels that a further enquiry is necessary, it shall make that further enquiry itself or through the Rent Controller and then decide the appeal. In short, if the Appellate Authority feels that for the decision of the appeal further materials are necessary, it shall gather such materials or direct the rent controller to. gather such materials and place it before the Appellate Authority, so that the Appellate Authority shall dispose of the appeal. No power is given to the Appellate Authority, by which the Appellate Authority can send back the petition for fresh disposal as it was done in this case."
6. S.12 (3) of the Madras Buildings (Lease and Rent Control) Act, 1946
"The Appellate Authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal."
came up for consideration before a Division Bench of the High Court of Madras in C. M. P. No. 6144 of 1948. The Court said:
"The Appellate Authority under the Madras Act XV of 1946 has not got all the ordinary powers of the Appellate Court of the land and if it finds that the material on record is not sufficient, it can make further enquiry personally or through the Controller and decide the appeal itself but it cannot remand the case for fresh disposal by the Rent Controller." (62 Law Weekly, Journal Section, Page 35)
7. S.18 (2) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947
"On such appeal being preferred, the Commissioner shall send for the records of the case from the Controlle
