Vasu v. Pathooty Umma — 1990 DIGILAW 150 (KER)

Judgment :- Bhat,J. 1. The revision petition comes before us on a reference by T. L. Viswanatha Iyer, J. doubting the correctness of the decision in C.R.P. No.2559 of 1989 between Kalloli Kunhikannan and another v. Mannan Paithal and another reported in (1990 (1) KLT 651:1990 (1) K.L.J. 407). 2. The revision arises on a petition filed by the respondent, land-lord of a shop room for eviction of the tenant under S.11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1963 (for short, 'The Act') on the ground that the tenant (revision-petitioner) has kept rent in arrears and that the land-lord bonafide needs the building for the occupation of her dependent son, P.W.1 to enable him to start trade in auto spare parts. The petition was opposed by the tenant who admitted arrears of rent but denied the need alleged. He raised the plea under first proviso to S.11(3) that the land lord has other buildings of her own in her possession in the same town. He also raised the plea under second proviso to S.11(3) that he depends for his livelihood mainly on the income derived from the tailoring business conducted by him in the disputed shop room and that no other suitable building is available in the locality for him to carry on the tailoring business. Learned Rent Controller passed an order for eviction under S.11(2)(b) of the Act, but denied relief of eviction based on S.11(3) of the Act, rejecting the plea of bona fide need for the purpose of land-lord's son, P.W.1. Learned Rent Controller also rejected the tenants claim for benefit of second proviso to S.11(3) of the Act. Learned counsel for the revision petitioner submits that subsequently the eviction order under S.11(2)(b) was vacated on arrears of rent belong deposited, though learned counsel for the respondent is unable to confirm the correctness of this statement. 3. The land-lord on 10-10-1986 filed an appeal before the Subordinate Judge, appellate authority constituted under S.18 of the Act against rejection of the demand for eviction under S.11(3) of the Act. 3. The land-lord on 10-10-1986 filed an appeal before the Subordinate Judge, appellate authority constituted under S.18 of the Act against rejection of the demand for eviction under S.11(3) of the Act. The Subordinate Judge was then the appellate authority by virtue of a notification issued by the Government under S.18 of the Act, On 31-8-1989, the State Government issued another notification conferring on District Judges the powers of the appellate authorities for the purpose of the Act in supersession of all previous notifications on the subject. This notification was published in the official gazette on 26-9-1989 and took effect only with effect from that date. The High Court, on the administrative side, issued an official memorandum to the concerned judges stating as follows: "When the notification comes into force, the Subordinate Judges will send the records of the pending cases to the concerned District Judges after issuing notice to the counsel/ parties requesting them to appear before the transferee court on the dates specified therein, under intimation to the High Court The District Judge will take up the cases on the notified dates and pass appropriate orders". In accordance with this official memorandum, the Subordinate Judge sent the records of the appeal to the District Judge of the District who ultimately heard the appeal and allowed the appeal filed by the land-lord. Learned District Judge reversed the finding of the Rent Controller under S.11(3) of the Act and held that the ground for eviction thereunder has been established. This revision petition is against the order of the learned District Judge. 4. In Kalloli Kunhikannan and another v. Mannan Paithal and another (1990(1) KLT 651:1990 (1) KLJ 407) Radhakrishnan Menon, J. has held that institution of a proceeding carries with it right of appeal then existing in accordance with the law then in force, that the vested right of appeal can be taken away only by a subsequent enactment expressly or by necessary implication and not otherwise. This principle has been applied to hold that an appeal filed before the Subordinate Judge (appellate authority) before the Government notification dated 31-8-1989 and pending on that day has to be disposed of by the Subordinate Judge since the notification does not expressly or by necessary implication require the appeal to be disposed of by the District Court on whom the notification confers power of appellate authority. Learned judge placed reliance on the decision of the Supreme Court in Carikapati Veeraya v. Subbaiah Choudhry & others (AIR 1957 S.C. 540), Mohd. Idris & others v. Sat Narain & others (AIR 1966 S.C.1499) and Shri. Vijaya Lakshmi Rice Mills v. State of AP. (A.I.R. 1976 S.C.1471). Learned Judge reiterated the same view in a later decision in C.R.P.No. 2739 of 1989 Kerala Transport Company v. C.R. Ananda Valli Amma. In the later decision learned judge held that a litigant has vested right of appeal to a particular forum, distinguishing the decision in Ittyavira Mathai v. Varkey Varkey (AIR 1964 S.C. 907) and placing reliance on the decisions in Mukund Deo v. Mahadu and others (AIR 1965 S.C.703), Manujendra Dutt v. Purnedu Prasad Roy Chowdhury (AIR 1967 S.C 1419) and other decisions referred to in the earlier decision. Learned judge further indicated that the notification dated 31-8-1989 did not abolish the appellate forum. If this is the correct view the appeal ought to have been heard and disposed of by the learned Subordinate Judge and not by the District Court. 5. Any land-lord desiring to evict a tenant has to move the Rent Controller on any one of the grounds enumerated in S.11 of the Act. The parties have right of appeal against the decision of the Rent Controller according to S.18 of the Act. Clause (a) of sub-section (1) of S.18 states that "the Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a Subordinate Judge the powers of appellate authorities for the purposes of this Act in such areas or in such classes of cases as may be specified in the order". Clause (b) states that "any person aggrieved by an order passed by the Rent Control Court, may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction". It is significant to note that the statute itself does not constitute or designate appellate authority; nor does the statute constitute the court in the hierarchy of courts as appellate authority. The statute empowers the Government to confer the powers of appellate authorities on such officers not below the rank of a Subordinate Judge. It is significant to note that the statute itself does not constitute or designate appellate authority; nor does the statute constitute the court in the hierarchy of courts as appellate authority. The statute empowers the Government to confer the powers of appellate authorities on such officers not below the rank of a Subordinate Judge. In exercise of this enabling power the Government had conferred on Subordinate Judges at various stations, power of appellate authorities under S.18 of the Act. 6. S.20 dealing with revision lays down that "In cases where the appellate authority empowered under S.18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit." Till 26-9-1989, Subordinate Judges were empowered as appellate authorities and against their appellate judgments revision lay before District Courts. 7. The government notification dated 31-8-1989 published on 26-9-1989 has brought about a significant change in the appellate forum and this has an impact on the revisional forum. The government notification has superseded all previous notifications by which the power of appellate authorities had been conferred on Subordinate Judges. Under the notification, the power of appellate authorities is conferred on District Judges having jurisdiction over the areas within which provisions of the Act have been extended. In other words, Subordinate Judges are deprived of the power of appellate authorities conferred on them earlier, and the power is conferred on District Judges. The Subordinate Judges have become denuded of the power of appellate authorities and the District Judges have become clothed with such power. This has an impact on the revisional forum in certain cases by virtue of the provisions of S.20. S.20, it may be recalled, makes the District Court the revisional forum in cases where the appellate authority is the Subordinate Judge and the High Court in cases where the appellate authority is the District Judge. This would mean that where ever an appeal is required to be and has been disposed of by District Judge revision lies to the High Court. This would mean that where ever an appeal is required to be and has been disposed of by District Judge revision lies to the High Court. In Joseph v. Malathy Amma (1989 (2) KLT 953), Krishnamoorthy, J. has held that where the Subordinate Judge decided an appeal before notification, revision lay before the District Court and not to the High Court. In Mathew v. Gilbert (1990 (1) KLT 139) the same learned judge has held that in regard to all appellate orders passed on or before 26-9-1989, revision lay before District Court. The dispute in this case is whether in cases like the present one, it is the District Judge who is required to dispose of the appeal or whether it is the Subordinate Judge who continues to have jurisdiction to dispose of the appeal. 8. To us the answer appears to be simple. Prior to the notification of 31-8-1989 the Subordinate Judge was the appellate authority persona designata; he was the appellate authority not by virtue of his status as Subordinate Judge and not because his court was the Subordinate Judge's court, but because the Government, in exercise of the power under S.18 conferred on him power of appellate authority. Government is the authority empowered under S.18 to confer such power; Government must naturally have the power to withdraw the power from the Subordinate Judges. The Government which conferred on the Subordinate Judges powers of the appellate authorities has by superceding the earlier notification withdrawn that power from them. With effect from such withdrawal, the Subordinate Judges cannot discharge the functions of appellate authorities under S.18 of the Act. The Government has, by the notification conferred on District courts power of appellate authorities. Only the District Courts have the power to entertain and dispose of appeals. 9. Learned counsel for the revision petitioner relying on the decision in Kalloli Kunhikannan's case and Kerala Transport Company's case contends that when a landlord filed a petition before the Rent Controller, his right of appeal and revision and forum of appeal and revision were settled by the then existing law and any change of law cannot affect either his right of appeal or revision or the forum thereof unless the new law so provided expressly or by necessary implication. According to learned counsel, notwithstanding the deprivation of the Subordinate Judge of his appellate authority, the Subordinate judge has power to dispose of appeals pending before him. This argument is not limited to appeals pending before the Subordinate Judge on the date of the notification; it would apply also to appeals to be filed after the date of notification incases where eviction petition was pending or decided on the date of the notification. If this argument is to be accepted, simultaneously there will be two sets of appellate authorities in the State, Subordinate Judges acting as appellate authorities in regard to certain cases and the District Judges acting as appellate authorities in regard to another type of cases. We do not think such a situation is contemplated by the notification dated 31-8-1989 issued under S.20. It is argued before us that the notification has no retrospective effect so as to deprive the Subordinate Judge of the appellate authority vested in him and there is nothing in the notification which expressly or impliedly takes away the appellate power from Subordinate Judges and, therefore, he continues to be the appellate authority in regard to cases filed before the Rent Controller prior to the date of notification whether or not they were decided prior to 31-8-1989. 10. This is not a case where the jurisdiction of an existing court in the hierarchy of courts under the Civil Court Actor the Criminal Procedure Code is sought to be altered. Jurisdiction of civil courts is defined under law. A litigant before a civil court has a vested right of appeal under the then existing law. Such vested right survives or continues as long as it is not taken away expressly or by necessary implication by a hew law or amendment. Where at any point of time, jurisdiction of appellate court is altered, the litigant who had approached the trial court earlier may have a right of appeal to the appellate court as per the law existing at the time of institution of suit, unless there is a specific provision to the contrary in the new law or amendment or a contrary implication necessarily arises. This principle cannot apply to a case like the present one which does not deal with jurisdiction of appellate court in the existing hierarchy of the courts, but deals with powers of officers on whom specific appellate power is conferred as persona designata by a notification under S.18 of the Act. It is open to the Government to take away that power. Once that power is taken away, the officer though he does not ceases to be a judge presiding over the Subordinate Judge's Court, cease to be appellate authority for the purpose of S.18 of the Act. Thereby he loses his jurisdiction, competency and power to function as appellate authority. As long as the notification dated 31-8-1989 stands, Subordinate Judge cannot be asked to hear and dispose of an appeal filed before him at a time when he had the power of appellate authority; nor can he entertain any appeal against an order passed by Rent Controller in a petition filed before 31-8-1989. If the Subordinate Judge proceeds to entertain or dispose of such an appeal after he is denied of the power of appellate authority by virtue of the notification dated 31-8-1989 he will be doing an act without authority. 11. We now consider the decisions relied on in C.R.P.Nos. 2550 of 1989 and 2739 of 1989. In Garikapati v. Subbiah Choudhry (AIR 1957 SC 540) the Supreme Court held that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. The Supreme Court further held that this vested right of appeal can be taken away only by a subsequent enactment by an express provision or by necessary implication and not otherwise. The Supreme Court was dealing with the question whether the vested right of appeal survived or had been taken away. The litigant in that case had a right of appeal to the Federal Court. The Supreme Court was dealing with the question whether the vested right of appeal survived or had been taken away. The litigant in that case had a right of appeal to the Federal Court. Repeal of the Government of India Act 1935 by Art.359 of the Constitution abolished the Federal Court. However the Abolition of Privy Council Jurisdiction Act, 1949 which decided that the Federal Court, in addition to the powers conferred on it by the Federal Court (Enlargement of Jurisdiction) Act 1947 would have all the powers exercised by the Privy Council. Though the 1947 Act was repealed, the provisions of the Act were continued in force under Art.72(1). The Adaptation of Laws 0.1950 modified Sub-sections 109 and 110 of the Code of Civil Procedure by raising the valuation from Rs.10,000 to Rs.20,000 but the provision did not affect rights acquired under any existing law. The question arose whether the litigant had a right of appeal before the Supreme Court, since appeal to Supreme Court could be filed only if the valuation was above Rs.20,000/-and valuation in the particular case was below Rs.20,000/- but above Rs.19,000/- which was the limit prescribed in regard to the Federal Court. The Supreme court held that his right of appeal continued since such a right existed when the court was initially approached and the right had not been taken away by an express or implied provision. The consequence that followed was that the litigant had a right of appeal before the Supreme Court. The Supreme Court laid down the following propositions: "(1) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (2) The right of appeal is not a mere matter of procedure but is a substantive right. (3) The institution of the suit carries with it implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (2) The right of appeal is not a mere matter of procedure but is a substantive right. (3) The institution of the suit carries with it implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (4) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (5) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." This decision did not lay down that the pre-existing appellate forum cannot be abolished or that the litigant continued to have a right of appeal to the Federal Court notwithstanding its abolition. 12. Ittyavira Mathai v. Varkey Varkey & another (AIR 1964 S.C. 907) related to a suit instituted before the repeal of the Travancore High Court Act (4 of 1099) and an appeal filed after the repeal of the Act by Act 5 of 1125. At the time of filing the appeal, S.25 of the 1125 Act which provided that a Full Bench will hear and decide appeals from the decrees of the District Courts in which the amount or value of the subject matter is in excess of Rs.5,000/- stood repealed. The appellants contended that their appeal could be heard only by a bench of three judges as provided by S.11(1) of the 1099 Act. This contention was negatived by the Supreme Court. High Court of Travancore had been abolished and the new High Court of Travancore-Cochin had come into being. The Supreme Court observed that "a litigant has no right to contend that a Tribunal before whom he should have taken an appeal when he instituted the suit, should not be abolished. New rights were conferred in place of those which were taken away and only the new rights could be availed of. The Supreme Court observed that "a litigant has no right to contend that a Tribunal before whom he should have taken an appeal when he instituted the suit, should not be abolished. New rights were conferred in place of those which were taken away and only the new rights could be availed of. After the new rights were conferred even they were modified in one respect and that was with regard to the hearing of certain kinds of appeal by a Full Bench", (emphasis supplied). The Supreme Court also indicated that the question whether an appeal is to be heard by a particular number of judges is a matter of procedure and not of a right. This decision cannot be regarded as an authority for the position that besides a vested right of appeal there is a vested right to a particular forum of appeal. On the other hand, the Supreme court indicated that no litigant can contend that a Tribunal should not be abolished. If the Tribunal can be abolished, another Tribunal naturally must take its place and the latter Tribunal must be treated as the proper forum. 13.Reliance is also placed on the decision of the Supreme Court in Kasibai v. Mahadu (AIR 1965 SC 703). Para.3 of the judgment contains the following observations: "It is true that as a general rule, alterations in the law of procedure are retrospective, but a right of appeal to a particular forum is a substantive right and is not lost by alteration in the law, unless provision is made expressly in that behalf, or a necessary implication arises". (Emphasis supplied) In this case a suit was filed in a court in the erstwhile Hyderabad State under the Hyderabad Civil Procedure Code. Under the Hyderabad Code a second appeal would lie even on question of fact. In the Second Appeal filed before the High Court of Hyderabad, the court interfered in regard to question of fact. This was challenged before the Supreme Court on the ground that by the time the second appeal was heard, Hyderabad Code had ceased to apply and the Civil Procedure Code, 1908 had been made applicable in erstwhile Hyderabad State and under the latter Code, Second Appeal would not lie in regard to a question of fact. This was challenged before the Supreme Court on the ground that by the time the second appeal was heard, Hyderabad Code had ceased to apply and the Civil Procedure Code, 1908 had been made applicable in erstwhile Hyderabad State and under the latter Code, Second Appeal would not lie in regard to a question of fact. Supreme Court held that even when the suit was filed aright accrued to the parties to have a second appeal before the High Court as provided in the Hyderabad Code and this right had not been taken away expressly or by necessary implication by any statute. The question whether when a forum which existed earlier had ceased to exist or had been replaced by another corresponding forum, the litigant has a right to insist that the forum which ceased to exist should itself hear his appeal did not come up for consideration before the Supreme Court and in fact, was not considered by the Supreme Court. We, therefore, cannot regard this decision as an authority for the proposition that a litigant has a vested right of appeal to a particular forum. Such a proposition cannot be laid down since that would certainly impinge on the right of the Legislature or other competent authority to establish or remove or replace a forum. As observed by Supreme Court in Ittyavira Mathai's case (AIR 1964 S.C. 907), a litigant has no right to contend that a Tribunal before whom he had a right of appeal when he instituted the suit should not be abolished. 14. We will now consider the decision in Mohd. ldris v. Sat Narain (AIR 1966 S.C.1499). U.P. Agriculturists Relief Act was repealed by U.P. Zamindari Abolition and Land Reforms Amendment Act. An application under S.12 of the former Act for redemption of a mortgage was pending at the time of repeal. The Supreme Court held that the application was not in any way affected by the repeal of the former Act by the latter Act having regard to S.6 of the U.P. General Clauses Act and more so in view of the U.P. Zamindari Abolition and Land Reforms Amendment Act. The Supreme Court held that the application was not in any way affected by the repeal of the former Act by the latter Act having regard to S.6 of the U.P. General Clauses Act and more so in view of the U.P. Zamindari Abolition and Land Reforms Amendment Act. The Supreme Court indicated that there was nothing in the latter Act which took away the right of suit in respect of a pending action and there was no provision in the latter Act that pending cases should stand transferred to Assistant Collector for disposal though similar provisions are commonly found in a statute which takes away the jurisdiction of one court and confers it on another. For these reasons, the Supreme Court concluded that the application pending was not in any way affected. The case dealt with an authority constituted by one statute repealed by another statute without any specific provision regarding the transfer of cases. Such a case was covered squarely by S.6 of the U.P. General Clauses Act which is similar to the provisions of S.4 of the Kerala Interpretation and General Clauses Act which provision shall be considered by us later. 15. In C.R.P.No.2739 of 1989, the learned single judge placed reliance on a decision of the Supreme Court in Manujendra v. Purnedu (AIR 1961 S.C.1419). In this ease a suit was filed for ejectment and for mesne profits. Pending suit Calcutta Thika Tenancy Act was enacted. Both parties agreed that defendant was a Thika tenant and the court transferred the suit to the Thika Controller (Munsiff) under S.29 of the Act. The Act was amended in 1953. By the amending Act S.28 and 29 of the Act were deleted. The Thika Controller granted the relief of ejectment. The decision was confirmed by the appellate court and High Court. It was argued before the Supreme Court that the deletion of S.29 had the effect of depriving the Controller of his jurisdiction to try the suit. The Supreme Court held that the deletion of S.29 would not affect pending proceedings and would not deprive the Controller of his jurisdiction to try proceedings, pending before him at the time when the Amending Act came into force, and inspite of the deletion, the Controller continued to have jurisdiction to proceed with the said suit transferred to him since no different intention was discernible in the Amending Act. The Controller continued to function and did not cease to exist and there being no contrary intention, he continued to have jurisdiction. This decision cannot support the view taken in Kalloli Kunhikannan's case. In the present case the right of appeal was before an Officer not below the rank of a Subordinate Judge on whom the government conferred appellate authority. It was open to the government to take away the power from Subordinate Judge and vest the power in another Judge like the District Judge. When that contingency occurs the Subordinate Judge is denuded of his appellate authority which is thereafter vested with the District Judge. Once the power is withdrawn and the officer ceases to have the power of appellate authority, there is no question of the officer exercising appellate authority even in a case pending before him. 16. Reliance is placed on the decision in Sri Vijayalakshmi Rice Mills and others v. State of AP. (AIR 1976 S.C.1471). Appellants, Millers, were required to sell to the State Government a certain quantity of rice at controlled price as per requisition of the requisitioning authority as per the provisions of the AP. Rice Procurement (Levy) Order, 1959 issued under S.3 of Essential Commodities Act. Appellants sold the required quantity of rice to Government. Subsequently the controlled price was increased. Appellants put forward a claim for payment at the enhanced price on the ground that the new price was "substituted" for the old price. It was held that there was no intention to give retrospective effect to the change in price and "substitution" was only from the date on which enhancement was effected. This decision has no impact on the question in controversy in the present case. 17. S.4 of the Kerala General Clauses Act on which learned counsel for revision petitioner places reliance deals with effect of repeal. This decision has no impact on the question in controversy in the present case. 17. S.4 of the Kerala General Clauses Act on which learned counsel for revision petitioner places reliance deals with effect of repeal. It states that "where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed." Learned counsel for the revision petitioner stresses on the provision that the repeal has no effect on the right, privilege acquired or accrued under the repealed enactment and that any investigation, legal proceedings or remedy in respect of such right shall not be affected by the repealed enactment. S.4 has a bearing only on the question of repeal of an enactment. It cannot have bearing on a case like the present one where there is no repeal of an enactment or a change of forum or change of right or change of remedy by virtue of an enactment being repealed by another enactment, but where a particular judge who functions as an appellate authority has been deprived of that power and replaced by District Court as appellate authority by a proper notification issued by the competent authority. We do not think S.4 has any relevance in this context. 18. Our view that Subordinate Judge ceased to have jurisdiction to deal with appeals is fortified by precedents. In Firm Murlidhar and others v. Firm Kishorelal and others (AIR 1959 Raj. 246), when the suit was filed and law provided for right of appeal in such suits, to District Court. 18. Our view that Subordinate Judge ceased to have jurisdiction to deal with appeals is fortified by precedents. In Firm Murlidhar and others v. Firm Kishorelal and others (AIR 1959 Raj. 246), when the suit was filed and law provided for right of appeal in such suits, to District Court. By subsequent legislation, High Court was made appellate forum in such suits. A Division Bench of The Rajasthan High Court observing that it is not an invariable rule that a party should have a right of appeal to the identical forum in every case, to which at the date of institution of the suit he had a right of appeal, if in the meantime the forum has been abolished and some other forum substituted, so long as the right of appeal itself has not been taken away or otherwise prejudicially affected held that appeal lay to High court. In several decisions, it has been consistently held that though a right of appeal is a substantive right, the right cannot be extended to claim or right of being heard by a specific Bench or a specified number of judges. See Chanabasappa v. Narasinga Rao Gundu Rao (AIR 1959 Mys. 253), Narayana Panicker Sankaranarayana Panicker & others v. Sankaranarayana Panicker Narayana Panicker & others (AIR 1955 T.C.53), P. Mohammed Meera Lebbi v. Thirumalaya Gounder Ramaswamy Gounder & others (AIR 1966 S.C 430), Soomi Antony D'Costa Nicholas D'Costa v. Francis Roche Anthony Kurush Roche & others (AIR 1962 Madras 304) and Ittyavira Mathai v. Varkey Varkey & another (AIR 1964 S.C.907). 19. With great respect we disagree with the view taken by learned single judge in Kalloli Kunhikannan's case (1990 (1) KLT 651:1990(1) KLJ 407) and in C.R.P.No.2739 of 1989. The parties had a vested right of appeal, but no right of appeal to a particular officer or authority such as the Subordinate Judge; the notification dated 31-8-1989 did not destroy the right of appeal, but only altered the forum. The appellate authority is no longer the Subordinate Judge; it is the District Court. The Subordinate Judge who was appellate authority, persona designata, has become denuded of his authority and could not have entertained, heard or disposed of the appeal. It was lawful for the Subordinate Judge to have transmitted the records to the District Court and for the District Court to have heard and disposed of the appeal. The Subordinate Judge who was appellate authority, persona designata, has become denuded of his authority and could not have entertained, heard or disposed of the appeal. It was lawful for the Subordinate Judge to have transmitted the records to the District Court and for the District Court to have heard and disposed of the appeal. The instructions issued by the High Court in the official memorandum are lawful. 20. Learned counsel appearing for both sides have argued at length on the merits of the case and the findings of learned Rent Controller and learned District Judge. The claim of the land-lord is that she wants the building to enable her dependent son P.W.1 to start a business in auto spare parts. The bonafides of the claim is denied by the tenant. The Rent Controller held against the case of bonafide need, but learned District Judge upheld the same. One of the circumstances relied on by the tenant is that the land-lord's son, P.W.1 has an autorikshaw as also a lorry and P.W.1 gave evidence that he has no other means of livelihood and if he has other means he would not desire to start business in auto spare parts. There is no reliable evidence to show that at the time of the eviction petition or subsequently he had an autorikshaw of his own, but the tenant relies on Ext.B1 to show that P.W.1 owns a lorry. Ext.B1 as such was not shown to P.W.1 when he was giving evidence. It is said that the name and description of the person who is shown therein as the registered owner tallies with the name and description of P.W.1. Revision petitioner has filed CMP 1215 of 1990 before us praying for reception of certain documents as additional evidence. One of the documents is a certified copy of the registration certificate in respect of the lorry shown in Ext.B1. It is argued that the name and description given in this document tallies with the name and description of P.W.1. Learned counsel for the respondent opposes the reception of additional evidence by this court. 21. Another controversy relates to the question whether land-lord has other buildings of her own in the same town. P.W.1 denied that his mother has any buildings suitable for the purpose of a trade in the town. Learned counsel for the respondent opposes the reception of additional evidence by this court. 21. Another controversy relates to the question whether land-lord has other buildings of her own in the same town. P.W.1 denied that his mother has any buildings suitable for the purpose of a trade in the town. In CMP No.1215 of 1990, five certified copies of five entries in Building Tax Demand Registrar are sought to be produced. According to learned counsel for the revision petitioner these documents show that P. W.1's mother has two other buildings in the same town. According to learned counsel these are shop rooms where if he so desires P.W.1 can commence business in auto spare parts. 22. Yet another controversy is whether the tenant is dependent mainly for his livelihood on the income he derives from the tailoring business he is carrying on in the disputed premises. On this aspect also the evidence does not appear to be clear and specific. There is a controversy as to whether the tenant is actually running a tailoring shop in the disputed premises. Learned counsel have referred to The Commissioner's report and oral evidence in this connection. We do not propose to advert to the evidence or make any comment on the same since we are of opinion that the interests of justice require that the case should be considered de novo by the Rent Controller. We are satisfied that all the aspects which merits serious and consideration at the hands of the Rent Control and Appellate Authority have not received such consideration. Evidence which should have been considered has not been adverted to. There are errors of fact in the orders of learned Rent Controller as well as learned District Judge. We do not propose to elaborate on these matters since we think it necessary to remand the case for fresh disposal by the Rent Controller, giving both parties an opportunity to adduce further evidence. It is open to the parties to amend their pleadings if they consider such amendment necessary or desirable. 23. We over-rule the decision reported in Kalloli Kunhikannan v. Mannan Paithal (1990 (1) KLT 651:1990 (1) KLJ 407) (C.M.P.No.2550 of 1989) and in C.R.P.No.2739 of 1989. It is open to the parties to amend their pleadings if they consider such amendment necessary or desirable. 23. We over-rule the decision reported in Kalloli Kunhikannan v. Mannan Paithal (1990 (1) KLT 651:1990 (1) KLJ 407) (C.M.P.No.2550 of 1989) and in C.R.P.No.2739 of 1989. We set aside the orders of the Rent Controller and District Court and remand the case to Rent Controller for fresh disposal in accordance with law and in the light of the observations contained in this order. The C.R.P. is allowed in this manner, but without costs. Parties will appear before the Rent Controller on 10-4-1990. Remanded.