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Danakoti Chettiar and anr. Vs. M.M. Duraisamy Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1962)2MLJ82
AppellantDanakoti Chettiar and anr.
RespondentM.M. Duraisamy Chettiar
Cases ReferredMd. Ayoob v. Krishna Iyer
Excerpt:
- - srinivasa ayyar concedes that if the respondent files a fresh application now, it will be perfectly competent for the rent controller to ascertain the fair rent in accordance with the provisions of act xviii of 1960. he does not dispute an application filed under the old act if pending after the new act came into force will have to be disposed of under this new act......c.j.1. the learned district judge has set aside the order of the appellate authority fixing the fair rent under the provisions of the madras buildings (lease and rent control) act, 1949 and remanded the cases to the rent controller for disposal in accordance with the provisions of madras act (xviii of 1960). mr. k.v. srinivasa ayyar, who contests the correctness of the order of the lower court on behalf of the petitioner, contends first that the lower court had no power of directing a remand. it has been held in several cases that the power of remand is an inherent power in a court exercising appellate jurisdiction. the jurisdiction exercised by the district judge under section 12-b of the act of 1949, is, though revisional, appellate in character. it would follow that the court.....
Judgment:

S. Ramachandra Iyer, C.J.

1. The learned District Judge has set aside the Order of the Appellate Authority fixing the fair rent under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949 and remanded the cases to the Rent Controller for disposal in accordance with the provisions of Madras Act (XVIII of 1960). Mr. K.V. Srinivasa Ayyar, who contests the correctness of the order of the lower Court on behalf of the petitioner, contends first that the lower Court had no power of directing a remand. It has been held in several cases that the power of remand is an inherent power in a Court exercising appellate jurisdiction. The jurisdiction exercised by the District Judge under Section 12-B of the Act of 1949, is, though revisional, appellate in character. It would follow that the Court sitting in Revision would be competent to remand the cases for fresh disposal. In the present case the learned District Judge has considered the relevant matters and come to the conclusion that the basis adopted by the Appellate Authority in fixing the fair rent even at less than the contract rate was erroneous. There can possibly be no exception to that finding. From that it follows that the order of the Appellate Authority could not be sustained.

2. By the time the matter came up before the learned District Judge, the 1949 Act had been replaced by Act XVIII of 1960 and the learned Judge took note of that fact and gave in my opinion a proper direction, to have the petitions disposed of by the Rent Controller in accordance with the provisions of the new Act. This direction is the subject-matter of the second argument by Mr. K.V. Srinivasa Ayyar who contended that it would not be competent for the learned District Judge to direct an enquiry by the Rent Controller into a petition filed prior to the coming into force of Act XVIII of 1960, by considerations which are relevant to the fixation of fair rent by the later enactment. In support of his contention the learned Counsel relied upon the decision of Srinivasan, J., in Md. Ayoob v. Krishna Iyer & Sons (1961) 2 M.L.J. 184 : I.L.R. (1961) Mad. 897. After having gone through the judgment, I do not consider that the learned Judge laid down any inflexible rule that a petition filed under the old Act cannot be remanded to the Rent Controller for the purpose of disposal in accordance with the provisions of the new Act. What all the learned Judge has stated is that the Revisional Court would not be bound to set aside the order of the Court below fixing the fair rent on the basis of the old Act and remand the fair rent application for a fresh determination in the light of the new Act. But where the Court in the exercise of its revisional or appellate jurisdiction considers that the adjudication by the inferior Tribunal has to be set aside and that the matter should be heard afresh, it will be acting within its jurisdiction if it directs that the matter should be disposed of at the fresh hearing on the basis of the new Act. Indeed, in my opinion, that will be the only proper method of dealing with the matter as the Act of 1949 is ex concessi no longer in force. After the coming into force of Act XVIII of 1960 the considerations specified in that Act alone would apply in the determination of the fair rent. Mr. Srinivasa Ayyar concedes that if the respondent files a fresh application now, it will be perfectly competent for the Rent Controller to ascertain the fair rent in accordance with the provisions of Act XVIII of 1960. He does not dispute an application filed under the old Act if pending after the new Act came into force will have to be disposed of under this new Act. But what he contends is that such a thing cannot be done in application filed under the old Act and an order is passed thereon. True. But where that order has been set aside the position will be that the application still remains undisposed of. At the time when the application comes up for disposal the only enactment in force being Act XVIII of 1960, the disposal of the application will have to be made in accordance therewith. There are, therefore, no merits in these Civil Revision Petitions, and they are dismissed with costs.


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