BALASUBRAMANIA IYER Vs. SUBBIAH THEVAR

JUDGEMENT

(1.) 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 29-6-1954, 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 to 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 the Rent Court, which therefore passed an order of eviction on 6-3-1958. The plaintiff took possession of the property through court form 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.