An appellate court cannot remand a case for fresh trial without finding that the trial court's judgment is wrong or requires to be set aside.

JUDGMENT :- This appeal is preferred by the plaintiff against the order of remand of the learned District Judge, East Tanjore, directing the trial court, the Sub Court, Mayuram, to try afresh and dispose of the suit, O. S. 26 of 1958, after giving opportunity to both sides to adduce additional evidence in the light of the observations made by him in his order. This order of remand is clearly illegal and opposed to the provisions of Or. XLI Rule 23 C.P.C.

2. The facts of the case may be briefly stated. The plaintiff (appellant herein) granted a lease to the first defendant evidenced by a registered lease deed, Ex, A.1, dated 29-06-1954, comprising nanja lands of an extent of 32 acres 90 cents for a period of five years. The first defendant is the lessee, the second defendant being his surety for the due performance of the obligations of the lessee. For two years the lessee appears to have paid the rent due to the plaintiff but trouble arose during the subsequent years.

3. On 2-2-1957, the lessee issued notice, Ex. B-17, to the landlord purporting to be under S. 3(9) of the Madras Cultivating Tenants (Payment of Fair Rent) Act, Act XXIV of 1956 (hereinafter called the Act) in which the lessee stated that he was surrendering the lease as he had leased the lands to certain tenants who were claiming rights under the said Act. The plaintiff however did not accept the stand taken up by the lessee, as according to him, the first defendant (lessee) alone was in actual cultivation and enjoyment of the property, and his case of sub-lease was wholly false. As the first defendant was in default and as there were arrears in the payment of rent, the plaintiff filed a petition in the Rent Court for recovery of possession and on 20-2-1958, the Rent Court granted time till 5-3-1958 to the lessee for payment of arrears of rent. But the lessee did not comply with that order of the Rent Court, which therefore passed an order of eviction on 6-3-1958. The plaintiff took possession of the property through court from the first defendant (lessee) in April 1958. The present suit, O. S. 26 of 1958, has thereafter been filed by the plaintiff to recover Rs. 9882-50 nP being the arrears of rent.

4. The main defence of the first defendant was that he had sub-leased the properties to some sub-tenants putting them in possession of the properties that he had already issued to the plaintiff a notice of surrender, Ex. B. 17, aforesaid, and that he was therefore not liable for arrears of rent and the lessor's remedy, if any, was against the sub-lessees. As regards the quantum of arrears claimed in the suit, there was no dispute and the only serious point of controversy between the parties related to the question of factum of sub-lease and the alleged surrender. Both the parties adduced oral and documentary evidence touching this aspect of the matter.

5. At the outset it must be noticed that both the parties had adduced whatever evidence, both oral and documentary, they desired and there has been no complaint whatsoever either in the trial court or in the appellate court that any of the parties desired to adduce additional evidence. So far as the parties were concerned the evidence adduced was complete. In a carefully considered judgment the trial court came to the clear conclusion that the first defendant alone was in cultivation and possession of the properties, and that the case of sub-lease put forward by him was wholly false and cannot possibly be accepted. From a perusal of the discussion of the oral and documentary evidence by the trial Judge it is clear that the evidence adduced by the first defendant was worthless and utterly false; in fact I would say that it is not possible to come to any other conclusion on the evidence. The trial court naturally took into account the fact that the first defendant had no consistent case as to when the sub-lease was created, when possession was handed over to the sub-lessees, what the terms of the lease were and whe