SOHAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) A writ petition No. 335/1966 under Article 226 of the Constitution of India was filed by Sohan Singh appellant against the State of Rajasthan and others challenging the order of his dismissal. This writ petition was fixed for hearing on 13 -9 -1969. Nobody appeared on behalf of the petitioner on that day. The writ petition was, however, heard on merits and was dismissed oh 13 -9 -1969. Therefore, an application was moved by Shri R.N. Surolia, learned Counsel for the petitioner, on 18 -9 -1969 for re -hearing of the above writ petition on the grounds set forth in that application. That application for re -hearing was admitted and the Rule -nisi was issued to the respondent dent. After hearing, that application for re hearing (restoration) was dismissed as on reasonable cause was held to have been shown, by the order of the Court dated 7 -4 -70. Thereafter, this special appeal was presented on 8 -4 -70. As this special appeal was barred by time, an application under Section 5 and 14th of the Limitation Act for condonation of delay was also filed. A notice was issued to the opposite party of this application. However, on 26 -10 -1970, the Court passed the following order, which is on the order -sheet of that day: Subject to objection by the opposite party the delay is condoned. When this appeal has come up for hearing before us, the learned Counsel for the respondents has raised a preliminary objection that the appeal is barred by limitation. We have heard the arguments of the learned Counsel for the parties on this preliminary objection.

(2.) IT has been contended on behalf of the appellant that the appellant was bonafide prosecuting the application for re -hearing of his writ petition with due care and attention. He did it under the advice of his counsel that he would get relief in that application ft has, therefore been contended that the delay in filing of the present appeal is not willful and, therefore, the benefit of Section 5 of the Limitation Act should be treated within time. He has placed his reliance on Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and Ors. AIR 1937 PC 276, The State of West Bengal v. The Administrator, Howrah Municpahty and Ors. : [1972]2SCR874a and G. Abdul Shukur v. The Union of India : AIR1973AP118 in support of his contention.

(3.) WE have given our anxious consideration to the rival contentions of the learned Counsel for the parties. It may be said that a distinction has to drawn between adopting a wrong remedy on the legal advice of the counsel and adopting one of the concurrent remedies available. In the present case it was open to the appellant 10 adopt concurrent remedies against the order dated 13 -9 -69 by filing of the application for re hearing, as he did, and by filing a special appeal, as he 1 now done. Out of these two concurrent remedies, there was nothing to prevent him for taking re -course to both of these remedies within time. He opted for the one and allowed the period of limitation to expire for the other. Failing in the remedy he opted first, he has now chidden to adopt the other remedy. Thus ruling cited by Mr Shishodia applies to the present case.