Research › Browse › Judgment

Kerala High Court · body

1962 DIGILAW 313 (KER)

JOSEPH v. DISTRICT JUDGE, ERNAKULAM

1962-10-29

M.S.MENON, S.VELU PILLAI

body1962
Judgment :- 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. 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 Controller and after examining such record 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 in AIR. 1952 Patna 458. 1952 Patna 458. In that case Das, J. with whom Ramaswami, J., agreed, said: 'It is true that sub-section (2) does not in express terms give the power of remand. Learned counsel for the appellant has drawn our attention to S.107, Code of Civil Procedure, which expressly gives the appellate Court a power to remand a case. Learned Counsel has also referred us to various rules in 0.41 of the Code of Civil Procedure. His contention is that, in the absence of express provisions, sub-section (2) of S.18 of the Act must be construed as excluding the power or remand. The words of sub-section (2) must, I think, be construed in their ordinary grammatical sense, in consonance with reason and commonsense. Sub-section (2) states that the Commissioner shall, after examining the record and, if necessary, after making such further enquiry as he thinks fit, either personally or through the Controller decide the appeal. The important words are 'decide the appeal'. It cannot be said that in the case before us the Commissioner failed to decide the appeal; m effect he set aside the order of eviction and sent the case back to the Controller for a fresh from the words of sub-section (2) of S.18 that an order of remand is not one of the ways of deciding an appeal and why the Commissioner should be restricted to two kinds of orders before us that the Commissioner could not delegate his power to the Controller and the Control Act, 1947." 8. The view that appeals to us is the view.adopted by the High Court of Madras. An order of reversal and remand may be one way of dealing with an appeal; but what is apparently required is not such an order but a decision of the appeal itself by the Appellate Authority on the materials on record or after such further enquiry as the Appellate Authority deems fit. The relevant sub-section in all the three Acts mentioned in this judgment deals with the ambit of the further enquiry that is possible and makes it quite clear that the further enquiry shall be conducted either personally by the Appellate Authority or through the Rent Controller. The relevant sub-section in all the three Acts mentioned in this judgment deals with the ambit of the further enquiry that is possible and makes it quite clear that the further enquiry shall be conducted either personally by the Appellate Authority or through the Rent Controller. This must mean that the only purpose for which an Appellate Authority can invoke the services of a Rent Controller is for conducting an enquiry and submitting its result, and not for any decision of the case itself after a reversal and remand directed by it. 9. No specific power of remand is conferred on an Appellate Authority by any of the provisions of the Act. There is no provision, for example, like S.107 (1) (b) of the Code of Civil Procedure, 1908, which says that subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power to remand a case. S.23 of the Act confers on the Appellate Authority the powers which are vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters enumerated in that section. The power of remand under S.107 (1) (b) of the Code of Civil Procedure, 1908, is not one of the powers that can be considered as conferred by that section. 10. The appeal fails and is hereby dismissed. No costs.