K.S. Venkataraman, J.
1. The criticisms levelled by the learned District Judge, that the learned District Munsif did, not consider the points indicated by the learned District Judge and should have examined Sri Radhakrishnan as a Court witness, will not justify an order of reminded Under Order 41, Rule 23, Civil Procedure Code. It is settled law, at any rate, so far as the Court is concerned, under Order 41, Rule 23, that, before the suit could be remanded to the trial Court, it is necessary for the appellate Court to find that the decree of the trial. Court should be set aside. (Vide Balasubramania Iyer v. Subbiah Thevar I.L.R. : AIR1965Mad417 ), wherein the earlier decisions are referred to and also Ahmed Rowther v. Bathumal Beevi : (1960)1MLJ37 . Examining the case from that point of view, all that can be said about the judgment of the learned District Munsif is that he has not considered same of the aspects indicated by the learned District Judge and, as for the examination of Sri Radhakrishnan as a Court witness, it is, in the last resort, a matter of discretion for the particular Judge. The learned District Munsif thought that he was justified in acting on the materials placed before him and came to the conclusion that the discharge had been proved.. When the learned District Judge felt that the other aspects also required consideration and that Sri Radhakrishnan should be examined as a Court witness, he should have proceeded under Order 41, Rule 27, and taken additional evidence on the points formulated by him either himself or have the additional evidence taken by the learned District Munsif. In any case, the appeal should have been kept on the file of the learned District Judge and should have been disposed of by him, and a remand was not justified.
2. Accordingly, the order of remand is set aside and the learned District Judge is directed to restore A.S. No. 119 of 1963 on his file and dispose it of according to Jaw.. I do not wish to say anything further about the merits of the case or about the question as to who should have examined Sri Radhakrishnan, whether the plaintiff or the defendants. These points may be agitated before the learned District Judge, and may even become academic if the learned District Judge should think fit to examine Sri Radhakrishnan as a Court witness. The District Judge can dispose of the appeal even on the materials available or, if he thinks it necessary, he can take additional evidence under Order 41, Rule 27, in which case the parties will be given just opportunity to adduce further evidence which may be necessary. The Court-fee paid on the memorandum of appeal here will be refunded. The parties will bear their own costs is this appeal.