Order for fresh disposal of R.C.O.P.is not a remand order.

1. C.R.P.No. 490 of 1998 hasbeen filed against the order of the learned District and Sessions Judge, Madurai in R.C.A.No.4 of 1997 dated 110. 1997, reversing the order of the Additional District Munsif, Madurai Town in R.C.O.P.No.411 of 1994 dated 19. 1996.

2. C.R.P.No.491 of 1998 has been filed against the order of the District and Sessions Judge, Madurai, dated 110. 1997 in R.C.A.No.5 of 1997 reversing the order of the Additional District Munsif of Madurai Town in I.A.No.93 of 1995 in R.C.O.P. No.411 of 1994, dated 19. 1996.

3. An eviction petition R.C.O.P.No.411 of 1994 was filed by the petitioner herein against the first respondent on the ground of wilful default. After the filing of the said petition, as the rents were not paid, the petitioner filed I.A.No. 93 of 1995 Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. An order was passed by the Rent Controller to deposit the arrears of rent in I.A.No.93 of 1995. As the first respondent failed to deposit the rent, eviction was ordered in R.C.O.P.No.411 of 1994. Hence, the first respondent filed two appeals viz., R.C.A.Nos.4 and 5 of 1997. The lower appellate authority has remitted the matter back to the Rent Controller for deciding the issue as to whether there is a relationship of landlord and tenant between the petitioner and the first respondent and whether there was wilful default in payment of rent.

4. Aggrieved by the common order dated 110. 1997 made in R.C.A.Nos.4 and 5 of 1997, the abovesaid two revision petitions have been filed by the landlord.

5. The learned counsel for the petitioner Mr. D. Peter Francis, raised two points (1) There is no provision for the appellate authority to remand the matter back to the Rent Controller; and (2) The appeals preferred by the first respondent were not maintainable, since there was no deposit of the arrears of rent as directed by the Rent Controller under section 11(4) of the Act.

6. The learned counsel for the respondents Mr. R. Subramanian, on the other hand contended that the Rent Control Courts will have jurisdiction only when the relationship of landlord and tenant is established. As it was raised as a substantial defence, without deciding the said issue, the Rent Controller allowed the petitions filed under Section 11(4) and also passed the consequential order of eviction for not depositing the arrears. Therefore, the appellate authority was justified in remitting the cases back to the Rent Controller.

7. As regards the first contention of the learned counsel for the petitioner, i.e., there is no provision under the Tamil Nadu Building (Lease and Rent Control) Act, 1960, empowering the appellate authority to remand a case to the Rent Controller, the learned counsel cited the following decisions: reported in P. Narasimhan (died) and Others v. Narayana Chetty and others, 1982 T.L.N.J. 462. wherein Justice M.A. Sathar Sayeed, has held following decision of Ramaprasada Rao, J as he then was, reported in The Senior Superintendent of Post Offices, East Thanjavur v. K.R.M.S. Chockalingam Chettiar, 1967 (II) M.L.J. 412, that the appellate authority can retain the appeal on his file and can call for a finding of clarification with reference to the matters that are necessary for the disposal of the appeal. The learned Judge has also referred to the following decisions to hold as above:

1.RengaswamiNaidu v. The Second Judge, Court of Small Causes, Madras, 1949 (1) M.L.J. 24 (SN) ; 2. Kuttappa Nair v. Shahul Hammed, 1973 (II) M.L.J. 55 In the above cases, the decision by the Rent Controller was on merits after regular trial etc., and the remand was on the ground that some evidence was lacking and necessary for the disposal of the case. When the matter was taken up on appeal, not on any preliminary issue etc., the appellate authority after finding that some evidence was necessary or lacking, remanded the case to the Rent Controller, relying upon Section 23(3) of the Act, which directs t