V.A. Motha, J.
1. Can the co-owners be simultaneously 'landlord' and 'tenant' under the C.P. and Berar Letting of Houses and Rent Control Order, 1949 ('The H.R.C. Order')? Can appellate authority pass order of remand? These are some of the issues raised in this petition.
2. The petitioners and respondent are co-owners of a shop bearing No. 55 in the Wholesale Cloth Market, Gandhibagh, Nagpur. Each of them has undivided 1/2 share. The petitioners took 1/2 undivided share on monthly rent and are in occupation of the whole shop. The respondent filed an application under Clause 13(3)(ii) and (vi) of the H.R.C. Order for permission to terminate the tenancy. This application was resisted, inter alia, on the ground that it was not maintainable as there could be no relationship of landlord-tenant in respect of unspecified share between Co-Owners. The Controller upheld this objection and summarily dismissed the application on that short ground. Being aggrieved by the said Order (Annexure A), an appeal was carried to the Deputy Collector under Clause 21. The Deputy Collector did not agree with the view taken by the Controller, set aside the said preliminary order and remanded the case for decision on merits (Annexure B). The Controller granted permission as sought for (Annexure C). Appeal against the second order was dismissed as barred by limitation (Annexure D). By this petition, orders Annexures B, C and D are challenged.
3. The first submission is that the Deputy Collector has committed an error of law in not condoning the delay. I do not see any merit in this contention. Having regard to the fact that there was gross delay in filing the appeal and the ground of sickness was not even attempted to be substantiated, the Deputy Collector was quite right in holding that the delay was not satisfactorily explained. The order was passed by the Controller on 26th October, 1977. The application for certified copy was filed on 8th November. It was obtained on 3rd December and the appeal was filed on 22nd December, 1977.
4. The second submission is that the appellate authority has no power to remand and hence the remand order (Annexure B) is a nullity, as a result all further proceedings and orders passed thereafter are vitiated, I see no inherent lack of jurisdiction to order remand under Clause 21(2) dealing with appeal.
'21(2) The Collector shall then send for the record of the case form the Controller and, after perusing such record and making such further enquiry as he may think fit, either personally or through the Controller, shall decide the appeal.'
True it is that in the above clause thee is no express of remand as provided by section 107 or Order 41, Rule 23, Civil Procedure Code. So What? There is certainly power to 'decide the appeal' without anything more, which means modes of decision are not prescribed. Either to allow the appeal or to dismiss it, are not the only known modes of disposal. Circumstances may warrant passing of appropriate consequential order as a result of final decision of controversy raised in appeal and for that specific power is not necessary. To hold otherwise would be taking a hyper-technical view of law of procedure which is not an end itself. Every Court-and Appellate Court is no exception-has ample procedural powers to pass order suited for advancing justice. Specific provision for remand is not the only source of remand power. Even under circumstances not warranted by Order 41, Rule 23, Civil Procedure Code, there can be valid remand order. This view is consistently taken by the Court. In M/s. Thimmasamudram Tobacco Co. v. Assistant Collector of Central Excise, : AIR1961AP324 it is held that 'power of remand is inherent in the appellate jurisdiction conferred on appellate authority'. Section 18(2) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, and Clause 21(2) of the H.R.C. Order are provisions in pari materia. While interpreting the said section in Ram Sarup Sinha v. Inderdeo Narayan Sinha, : AIR1952Pat458 it is held that it is permissible to order remand in appropriate cases. No doubt Clause 21(2) refers to holding further inquiry either personally or through the Controller, but that enquiry quite obviously must confine to points necessary for deciding the appeal and not to enlarge its scope. In my view, therefore, ordering remand for fresh decision on the remaining points is one of the permissible modes of deciding the appeal and thee is nothing abhorrent about it in Clause 21(2).
5. A distinction between 'existence' and 'exercise' of jurisdiction has always to be borne in mind. In a given case mere confirming or annulling the order under appeal may not be the satisfactory method of disposal of appeal. Take for example the case at hand. Under the circumstances had the Deputy Collector better choice? He did decide the points raised in appeal finally for which decision further enquiry was not necessary. Would it be proper exercise of jurisdiction to order further enquiry on points not raised before him and to keep the appeal pending till then? Would it not amount to transgressing the limits? Quite obviously it would be. Therefore, the submission that the Deputy Collector ought to have invited findings on merits and till then the appeal ought to have been kept pending cannot be accepted. In no case there is any justification to quash the orders only on that ground and to ask the parties to move back after lapse of several years only to perform empty formality. This point, therefore, must fail. My attention was drawn to three decisions of the Nagpur High Court-(i) Virchand v. Lalsingh, 1952 N.L.J. 188; (ii) (Ramchandra v. Nilkanth), 1953 N.L.J. 213 and (iii) Noor Jahan Khanam v. S.B. Bais, 1958 N.L.J. 2. The full texts of these judgments are not available and it is difficult to ascertain with certainty as to under what circumstances the remand orders were quashed. If by any chance the view taken is that every remand order under Clause 21(2) irrespective of the background is a nullity, I have to record my respectful dissent.
6. This takes me to the last point. 'Nemo potest esse tremens at dominos' is a well known legal maxim. Nobody can be both landlord and tenant in respect of property at the same time. Unless the property is divided between the co-owners, each is an owner of every bit of it and no owner can say that he is owner of a particular strip or portion. Indeed co-ownership presupposes unity of possession. Under the circumstances, the relationship of a landlord and a tenant between co-owners of the same property cannot be created on general principles. It during existence of such relationship the parties become co-owners, the lease comes to an end due to merger as contemplated under section 111(d) of the Transfer of Property Act. The scheme of the H.R.C. Order does not permit departure from the principles. Clause 2(3) defines a 'houses' as meaning a building or part of a building. Clause 2(4) and 2(5) respectively defines 'landlord' and 'tenant' which specifically refer to receipt or entitlement to receive the Rent of a house. 'Any interest' in house is not included in the definition and, therefore, undivided share cannot be held to be a house under the H.R.C. Order. Division Bench of this Court in the case of Dajisaheb alias Nilkanthrao Ramchandrao Raje v. Laxmanrao Daulatrao Jadhao. Special Civil Application No. 450 of 1962, decided on 20th March, 1965 Mh.L.J. 3 has held that undivided share in a land could not be said to be 'land' as defined either under Clause 2(c) of the Berar Regulation of Agricultural lease Act, 1951 or under section 2(17) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The following observations are to the point :
'In our opinion such an undivided interest of a co-owner in the property, even when it consists of agricultural land, is not the land within the meaning of the Leases Act or the new Tenancy Act, nor can a valid lease be created by one co-owner in favour of another co-owner or a third party in respect of the right to enjoy such undivided interest in the property.'
There can thus be no manner of doubt that no relationship of landlord and tenant could be created between petitioners on one hand and the respondent on the other as a result proceedings before the Controller are totally misconceived and have to be quashed as not maintainable. Of all the four orders passed in these proceedings, Annexure A is the only correct order, as a result the rest-Annexures B, C and D-have to be quashed and set aside.
7. To conclude, the petition is allowed and the rule is made absolute in the above terms. No Costs.