An appellate court can only remand a suit for fresh disposal to the court of first instance in the circumstances laid down in Order 41, Rule 23, C. P. C., and in no other.

( 1 ) THIS appeal is directed against the judgment and order of the Additional District Judge, Anantapur, dated 5/02/1958, in A. S. No. 64 of 1957, on the file of the said Court, ordering remand of the suit to the Court of first instance, namely the Court of the District Munsif of Anantapur for fresh disposal.

( 2 ) THE question for determination in this appeal is whether the order of remand passed by the Additional District Judge is legally sound and supportable.

( 3 ) THE plaintiff brought the suit O. S. 275 of 1955 out of winch this present appeal has arisen for a declaration of his rights as well as that of the village community to use the public pathway indicated in the plaint plan, and to the peaceful enjoyment thereof as well as the open space around a certain fire pit situated in the area, and for an injunction restraining the defendant from interfering with the said rights, and for a mandatory injunction for the removal of the carts of the defendant from the place marked C in the plaint plan and to close up the new and unauthorised pathway marked AB in the plaint plan. The defendant contested the suit on various grounds. Based on the respective contentions in the pleadings, the learned District Munsif, who tried the suit, framed issues in which the question whether the defendant has obstructed the plaintiff in the exercise of his right of way, and therefore the latter was entitled to the injunction prayed for, was raised, besides the question whether the plaintiff had acquired a right of way by prescription over the plot marked C in the plaint plan. After a careful and elaborate consideration of the evidence adduced on either side in the case, the learned District Munsif came to the conclusion that the plaintiff as well as the village community had acquired a right of way through the plot C in the plaint plan, which is part of a public pathway. He also found that the defendant had obstructed the plaintiff in the exercise of his right of way and that, therefore, the plaintiff was entitled to the injunction prayed for. So holding, the learned District Munsif decreed the suit with costs.

( 4 ) AGAINST this judgment and decree the defendant preferred an appeal in A. S. No. 64 of 1957 in the Court of the District Judge, Anantapur, which was heard and disposed of by the Additional District Judge, Anantapur. In that judgment, the learned Additional District Judge expressed the opinion that the documents produced in the case did not conclusively support the case of either party. Having so opined, the learned Additional District Judge proceeded to examine the oral evidence and to assess and appreciate the same. He, however, did not in fact examine the oral evidence in the case, but, instead, allowed I. A. No. 141/57 filed in the appeal before him by the appellant, the defendant in the suit, for additional evidence under Order 41, Rule 27, C. P. C. , and decided to receive a certain copy of a registered sale deed filed with it, in evidence and in doing so made the following order:"the appellant was unable to adduce this document in evidence in defence notwithstanding his due diligence. I am of the view that this must go in record. Under these circumstances, I have no alternative except to set aside the judgment and decree of the lower Court and remand the matter for fresh disposal. "so holding, the learned Additional District Judge allowed the appeal and set aside the decree and judgment of the Court below, and remanded the matter to the Court of first instance for fresh disposal in the light of the observations made in his judgment.

( 5 ) IT has been more than once pointed out by this Court that the power of remand exercisablc by the appellate Courts should be sparingly exercised and should strictly be in conformity with Order 41, Rule 23, C. P. C. , as amended by the Madras Amendment in force in this State, which is in the following terms:"where the Court from whose decree an appeal is preferred has disposed of