SCHWARTZ DASAN Vs. K S DEVADOSS

JUDGEMENT

(1.) C. R. P. No. 490 of 1998 has been filed against the order of the learned District and Sessions Judge, Madurai in R. C. A. No. 4 of 1997 dated 15. 10. 1997, reversing the order of the Additional District Munsif, Madurai Town in R. C. O. P. No. 411 of 1994 dated 13. 9. 1996.

(2.) C. R. P. No. 491 of 1998 has been filed against the order of the District and Sessions Judge, Madurai , dated 15. 10. 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 13. 9. 1996.

(3.) 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 that the appellate authority shall decide the appeal. Instead of deciding the appeal, the appellate authority sent the matter back to the Rent controller and such a course was not permitted. But the case on hand is entirely different. The case was not decided on merits. There was no finding given as to whether the relationship of landlord and tenant existed and whether there was a wilful default. The tenant filed a counter to the effect that there was no relationship of landlord and tenant. Inspite of it the landlord has filed the petition under Section 11 (4) of the Act. The Rent Controller without going into the relationship passed an order to deposit arrears of rent. Therefore, the appellate authority goes into the matter and finds that there was no decision upon the relationship of landlord and tenant and without a decision on the said question, the order on the petition filed under section 11 (4) of the Act was not maintainable. Hence, he found that the petition filed under Section 11 (4) was not maintainable in this case. Therefore, after reversing the order passed on the petition filed under Section 11 (4), he sets it aside. Thereafter, what the appellate authority has done is that he has simply directed the Rent Controller to take up the Rent Control Petition for decision on merits. This is not a remand order. The appellate authority has finally decided the appeal before him and he has not sent back the issue that arose before him for decision by the Rent Controller. The order passed by the appellate authority is only a consequential direction for disposal of the case which gets restored before it in view of the order passed by the appellate authority. One cannot construe the order of the appellate authority as a remand order as contemplated by the provisions contained in Order 41 Rule 23 and 23 A of Civil Procedure Code. AS per the above provisions, remand is necessary when there is a decision on a preliminary issue by the lower Court and the decision being not accepted by the lower appellate Court and whereas a retrial is considered necessary. Has the appellate authority in this particular case reversed the order passed by the Rent Controller on a preliminary issue" Has he found that a retrial was necessary in this case No. Preliminary point was decided by the Rent Controller and there is no direction also by the appellate authority for a retrial. Only in such circumstances, the order of the appellate authority can be construed to be an order of remand under the provisions of order 41 Rule 23 and 23a of Civil Procedure Code.