IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 CRP.NO. 525 OF 2009() --------------------- AA.127/2003 OF APPELLATE AUTHORITY (LR), ALAPPUZHA OA.127/2000 OF LAND TRIBUNAL, KOTTAYAM REVN. PETITIONER(S): RESPONDENTS/RESPONDENTS -------------------------------------------- 1. STEPHEN,S/O.KOCHAKKAN, MALIYEKKA MATTATHIL HOUSE, PO,COLLECTORATE, KOTTAYAM. 2. JOEBOY STEPHEN, S/O.STEPHEN, MALIYEKKA MATTATHIL HOUSE, PO,COLLECTORATE, KOTTAYAM. 3. ELISHA STEPHEN MALIYEKKA MATTATHIL HOUSE, KHEEZKUNNU, MUTTAMBALAM, KOTTAYAM. 4. BENNY STEPHEN, MALIYEKKA MATTATHIL HOUSE, KHEEZKUNNU, MUTTAMBALAM, KOTTAYAM. 5. SHAJI STEPHEN, KALAPURAKKUNNEL, PO.OLASSA, AYMANAM, BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.JOSEPH ABRAHAM (KOTTAYAM) RESPONDENT(S): APPELLANT/APPLICANT ---------------------------------- E.L.GEORGE, S/OLAZER, KALAPPURACKAL HOUSE, PO.COLLECTORATE,KOTTAYAM. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 SRI.K.M.JAMALUDHEEN(VATTOLAKKUDY) FOR R1 SMT.ACHU SUBHA ABRAHAM FOR R1 SRI.ANIL NAMBOODIRI FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.525 of 2009 ==================================== Dated this the 29th day of October, 2010 O R D E R The question of law that arises for a decision in this revision is whether the Appellate Authority (LR), Alappuzha (for short, “the Appellate Authority”) could have, for the mere asking and as a matter of course order a remand of the casse when that authority could have finally decided the case on the materials on record? 2. This revision arises from the order of the Appellate Authority in A.A. No.127 of 2003 arising from O.A. No.127 of 2000 of the Land Tribunal, Kottayam (for short, “the Tribunal”). According to the petitioners 345 sq. links of land was mortgaged to the respondent and his brother, as per a registered document No.1078 of 2001 with permission to the mortgagees to construct a shed thereon and do business and enjoy the property accordingly. On 08.11.2000 petitioners issued notice to the respondent and his brother claiming that the mortgage is to be redeemed. Notice was served on respondent and his brother. It is the case of petitioner that respondent thereon, to frustrate any move on the part of petitioners to redeem the mortgage filed O.A. C.R.P. No.525 of 2009 -: 2 :- No.127 of 2000 before the Tribunal on 14.11.2000 claiming right of kudikidappu. Petitioners resisted that application contending that no question of kudikidappu arose since it was a mortgage in respect of 345 sq. links of land with permission to put up a shed and do business therein and since no permission was granted to put up a homestead or to reside in the shed. The Tribunal accepted that contention of petitioners and dismissed O.A. No.127 of 2000. That order was carried in appeal by the respondent. The Appellate Authority vide order dated August 18, 2009 allowed the appeal by way of remand and remitted the case to the Tribunal for further evidence and decision. That order is under challenge in this revision. Learned counsel for petitioners contends that even on the evidence let in by the respondent no question of kudikidappu arose since according to the respondent, the shed was constructed at a cost of Rs.1,000/- and his monthly income was Rs.300/- which meant that he had an annual income of Rs.3,600/-. It is also contended that the registered document executed by respondent and his brother would convincingly show that it was a case of mortgage with permission to construct a shed for doing business and no permission was given to construct a homestead or to set up residence in the said shed. Learned C.R.P. No.525 of 2009 -: 3 :- Counsel states that Section 2(25) of the Kerala Land Reforms Act is not attracted and the Appellate Authority was not correct in interfering with the order of the Land Tribunal. It is also contended that a remand was not called for. Material on record was sufficient to decide the issue and there could be no remand for a mere asking. Learned counsel has relied on the decision in M.J. Thomas v. State of Kerala (AIR 1998 Kerala 285) in support of his argument. Per contra it is contended by learned counsel for respondent that a remand would not prejudice the parties as it is an open remand and both sides can adduce further evidence. 3. I have gone through the respective orders passed by the Appellate Authority and the Tribunal. It is seen from the order of the Appellate Authority that after referring to facts and the respective contentions raised by the parties the Appellate Authority has confined its decision to one paragraph where it is stated that even if there is a mortgage, claim of kudikidappu could stand, if permission was granted (by petitioners) only to construct the shed for business purposes, they would have taken action when respondent started residence in the shed and hence, the Appellate Authority felt that it is appropriate to give C.R.P. No.525 of 2009 -: 4 :- the respondent an opportunity (to prove his case). Hence the case was remitted to the Tribunal. 4. Was the Appellate Authority legally justified in setting aside the order and remanding the case to the Tribunal? Appellate Authority has not gone through the evidence produced by either side. It has not properly construed the registered document executed by the respondent and his brother. It has also not considered the contention of petitioners that even on the evidence adduced by the respondent his claim of kudikidappu could not stand. Instead it has simply referred to the contentions raised by the parties and ordered a remand when the Appellate Authority itself could have decided the case on its merit. A remand is not an empty formality. The empty formality of remand is to be eschewed to advance the cause of justice. This Court in Choyi v. Amoo (1990 [2] KLT 282) has held that a remand cannot be ordered whenever the finding recorded (by the lower authority) is not correct. Necessary finding has to be recorded by the superior court on the materials on record and avoid protraction of proceedings. Having heard counsel on both sides and going through the order of the Appellate Authority, I am persuaded to think that the remand was without justification. In C.R.P. No.525 of 2009 -: 5 :- the circumstances remand of the case to the Tribunal cannot be sustained. Appellate Authority has to decide the questions raised before it in the memorandum of appeal in the light of the materials on record. I however make it clear that I have not expressed any view on the merit of the contentions raised by the parties. Resultantly this revision is allowed and order dated August 18, 2009 passed by the Appellate Authority (L.R.), Alappuzha in A.A. No.127 of 2003 remanding O.A. No.127 of 2000 to the Land Tribunal, Kottayam is set aside. The Appellate Authority is directed to hear and dispose of A.A. No.127 of 2003 as provided under law after hearing both sides. I make it clear that it will open to both parties to urge their contentions before the Appellate Authority. The Appellate Authority shall dispose of the appeal as early as possible. Interlocutory Application No.2837 of 2009 shall stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv