Govindasamy and Another vs Parasuraman

Srinivasan, J.—There is no merit in this Revision Petition, which is directed against an order of the appellate authority, calling for findings

from the Rent Controller, after setting aside an order passed by him in the Rent Control Original Petition, allowing the same on a preliminary issue.

The Petition for eviction was filed u/s 10(2)(i), 10(3)(a)(i) and 10(2)(iii). One of the contentions raised by the petitioners herein was that the

property was purchased benami in the name of the respondent by the first-petitioner and the petition for eviction was not sustainable. When the

Benami Transactions Prohibition Act, 1988, was passed, an application was taken out by the respondent on the footing that the plea of benami

was not available to the petitioners herein in view of the provisions of the said Act and the Petition for eviction should be allowed. Accepting the

said contention, put forward by the respondent, the Rent Controller straightway allowed the Petition for eviction, without considering any of the

issues, which arose for consideration.

That order was challenged by the petitioners before the appellate authority. Rightly, the appellate authority found that the non-availability of a

plea of benami to the petitioners would not lead to the result of the eviction petition being allowed straightway without any consideration of the

issues on merits. Consequently, the appellate authority set aside the order of the Rent Controller and called for findings from the Rent Controller on

the issues, which arose for consideration, retaining the appeal on his file.

The petitioners have come up against the said order. The contention urged by learned Counsel for the petitioners is that the appellate authority

should have remanded the matter to the Rent Controller for fresh disposal after setting aside the order of the Rent Controller. According to him,

the procedure adopted by the appellate authority in calling for findings from the Rent Controller has deprived the petitioners of their right to appeal

against the order of the Rent Controller in the event of its being against them ultimately. Learned Counsel also submits that this Court has, on

several occasions, considered whether the appellate authority, under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, has

power to remand a matter and certain principles have been laid down in those decisions. According to learned Counsel, the present case will fall

within the range of cases in which this Court has recognised the power of remand in the appellate authority. Learned Counsel invited my attention

to the judgment of Ramaprasada Rao, J. in The Senior Superintendent of Post Offices, East Thanjavur v. K.P.M.S. Chokalingam Chettiar (1967)

II MLJ 412. that judgment has been considered later by another learned Judge of this Court in C. Kuttappa Nair and Another Vs. S.S.A. Shahul

Hameed and Others, .

In my view, it is not necessary to consider whether, in the present case, the appellate authority could have remanded the matter of the Rent

Controller or not. This Court has never expressed any opinion in any of the judgments, referred to by learned Counsel, or in any other judgment

that the only course available to the appellate authority is to remand the matter to the Rent Controller under certain circumstances. This Court had

occasion to consider only whether a remand under certain circumstances was proper or not.

Section 23 of the Act provides that the appellate authority, on an appeal being preferred, shall call 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 enquiry, as he thinks fit, either

personally or through the Controller, shall decide the appeal. The Section provides for the appeal being decided by the appellate authority himself,

after making such further enquiry as he thinks fit, either by himself or through the Rent Controller. The question before me is whether, in the present

case, the appellate authority was within his powers to call for findings from the Rent Controller after he set aside the order of eviction passed by

the Rent Controller. There is no doubt whatever that the order passed by the appellate authority, in this case, falls strictly within the provisions of

Section 23 of the Act and no exception can be taken to it. It was necessary for the appellate authority to hold that the order of eviction passed by

the Controller on the ground that the plea of benami was not available to the petitioners herein was erroneous and required to be set aside before

the appellate authority called for findings on the merits from the Rent Controller. Hence, the procedure adopted by the appellate authority is

perfectly in accordance with law and it does not run counter to any of the judgments rendered by this Court or any of the observations of this

Court.

The contention that the petitioners would lose their right of appeal because of the procedure adopted by the appellate authority is without any

substance. When the appellate authority has called for findings from the Rent Controller, it would only mean that the petitioners would have the

opportunity to adduce evidence before the Rent Controller and after hearing the parties, the Rent Controller would submit his finds to the appellate

authority. Thereafter, the appellate authority will consider the objections, if any, of the parties to the said findings and then only pass orders in the

appeal. This would really, in effect, mean that the petitioners would be able to exercise their right of appeal against the findings of the Rent

Controller without paying any Court-fee. In other words, the petitioners would be in advantageous position than when a remand is ordered by the

appellate authority.

In the result, the Civil Revision Petition has to suffer a dismissal and it is hereby dismissed. There will no order as to costs. Interim stay, granted

already, is vacated.