IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 RCRev..No. 232 of 2003() ------------------------ RCA.39/2001 of ADDL.DISTRICT COURT, KOZHIKODE RCP.11/1998 of MUNSIFF COURT, PAYYOLI .................... (S): REV.PETITIONER/RESPONDENT/PETITIONER/LANDLORD: ------------------------------------------------------------------ E.P.MOIDEEN, AGED 48, S/O. MAMMU, WHITE HOUSE, THRIKKOTTOOR AMSOM, PALOOR DESOM, KOYILANDY TALUK, NOW AT DOHA, QATAR BY POWER OF ATTORNEY HOLDER, PANTHIVAYALIL KHADERKUTTY, AGED 67 YEARS, S/O.MAMMAD,VANMUKAM AMSOM, KATALOOR DESOM, KOYILANDY TALUK. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): APPELLANT/RESPONDENT/TENANT: ------------------------------------------- THEKKEKOYILANDY VALAPPIL RAMACHANDRAN, AGED 48 YEARS, S/O. CHIRIYANDAN, HOUSE NO.VI/282, VATAKARA AMSOM, DESOM, VADAKARA TALUK. ADV. SRI.C.R.SIVAKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN IA 2361/2003 & 1056/04 DISMISSED. 29.10.2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.232 of 2003 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October, 2008. O R D E R Ramachandran Nair, J. The landlord is the revision petitioner herein. Eviction was sought under Section 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The main allegation was that the tenant was doing hardware business in the petition schedule building, but he has ceased to occupy the building for a period more than one year without a reasonable cause. The Rent Control Court found in favour of the landlord. In appeal filed by the tenant as R.C.A.No.68/1999, the matter was remanded for fresh consideration by the Rent Control Court. Both parties were allowed opportunity to adduce evidence. Thereafter, the Rent Control Court again found in favour of the landlord which was challenged by the tenant in appeal before the Appellate Authority. By the impugned judgment, the Appellate Authority set aside the order passed by the Rent Control Court and again remanded the matter for fresh consideration. This is under challenge in this revision petition. 2. The judgment passed by the Appellate Authority is under attack on RCR 232/2003 -2- various grounds. Mainly, it is contended that by remitting the matter afresh, the Appellate Authority has acted inconsistently. It is pointed out that the earlier order of remand has been complied with by the Rent Control Court and therefore there is no necessity to remand the matter for fresh evidence. It is also contended that the evidence available in the case ought to have been assessed by the Appellate Authority. 3. When the matter was considered by the Rent Control Court initially, the power of attorney holder of the landlord was examined as P.W.1 and the Advocate Commissioner was examined as P.W.2. Exts.A1 to A3 and C1 and C2 have been marked on the side of the landlord. R.Ws.1 to 3 were examined on the side of the tenant and Exts.B1 to B21 were marked on his side. After the remand, the tenant was further examined and Exts.B22 to B44 were marked and both sides submitted that there is no further evidence and accordingly the matter was heard by the Rent Control Court. 4. Relying upon the report of the Commissioner, the Rent Control Court found that grounds for eviction have been established by the landlord. The evidence adduced by the tenant to sustain his absence on the date of visit of the Commissioner was rejected by the Rent Control Court. The evidence adduced by the tenant in support of the plea that he has been doing RCR 232/2003 -3- business at the crucial period, was also rejected. 5. A reading of the judgment rendered by the Appellate Authority shows that the evidence adduced by both parties have been analysed and certain findings have also been rendered. In fact, the parties had no case that sufficient opportunity was not given to adduce fresh evidence by the Rent Control Court. After taking a prima facie view of all aspects and after discussing the evidence, the Appellate Authority remanded the matter in the following fashion: “Considering the entire evidence and circumstances of the case, I am of the view that, for the ends of justice, the matter requires re- consideration and the case has to be remanded to the trial court for fresh disposal in accordance with law.” In the operative portion, there is a direction to give both sides an opportunity to adduce further evidence, if any. 6. The question is whether the order of remand passed in this fashion is inconsistent with the order passed by the Appellate Authority in R.C.A.No.68/1999. In the said appeal, the tenant had filed I.A.No.1984/2000 to receive additional evidence, which was allowed by the Appellate Authority. After referring to various aspects of the case the Appellate Authority remanded the matter by allowing an opportunity to the RCR 232/2003 -4- tenant to prove the document produced along with I.A.No.1984/2000 and also to adduce further evidence, if any, required by both parties. After remand, R.W.2 was examined and fresh documents were marked in evidence as Exts.B22 to B44. Nobody had a complaint that sufficient opportunity was not given to adduce evidence pursuant to the above order of remand. Therefore, the question is whether the view taken by the Appellate Authority as per the impugned judgment by directing the parties to adduce fresh evidence, if any, is correct or not. 7. Normally, a remand of the matter is required only if the evidence before the court is insufficient to enter into clear findings on the matter in issue. When evidence is available, both oral and documentary, unless there is a specific finding that fresh evidence is necessary to decide the dispute or that the parties were denied opportunity to lead evidence, the matter cannot be remanded back in a light fashion. In tune with the earlier order of remand, the Rent Control Court allowed both parties to adduce evidence and the entire oral and documentary evidence was considered in detail by the Rent Control Court. There was no difficulty for the Appellate Authority to enter into findings on the merits of the matter. Herein, the first ground on which remand is made, is on the finding that the Rent Control Court has not entered a finding as regards the question whether actually the RCR 232/2003 -5- Commissioner had visited the petition schedule building. The two reports and the oral evidence of the Commissioner were available before the court itself. There was no difficulty for the Appellate Authority to enter clear findings on those aspects and fresh evidence was not at all necessary and nobody had raised any argument in that respect also. Subsequently, after analysing the various items of evidence and after rendering findings on the merits, the Appellate Authority simply remanded the matter for allowing fresh evidence. One of the reasons is that the application of the tenant for issuance of a Commission at that time was denied. It is true that the application for issuance of a Commission by the tenant was dismissed. But that was not taken in appeal before the Appellate Authority. In fact, the two reports of the Commissioner were before the court and the Commissioner was cross-examined also. The question is only whether the reports could be accepted or not or whether the facts available in them are sufficient to order eviction. Therefore, we are of the view that in the absence of any plea by either side that fresh evidence is necessary in the matter, the order of remand passed by the Appellate Authority is not justified. The Appellate Authority ought to have considered the matter on merits on the evidence available, viz. both oral and documentary. 8. Therefore, the judgment passed by the Appellate Authority is set RCR 232/2003 -6- aside. The matter is remitted back to the Appellate Authority to dispose of the appeal on merits. Since it is an old matter, we direct the Appellate Authority to dispose of the appeal afresh within a period of three months from today. The revision petition is disposed of accordingly. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/