MODI, J. - (1.) THIS is a defendants first appeal in a suit for recovery of arrears of rent and damages.
(2.) A preliminary objection has been raised that the appeal is barred by time. The only question which arises therefore for determination before us at this stage is one of limitation. It is necessary to mention a few dates in order to appreciate this point. The trial Court decreed the suit by its judgment dated 15th February, 1960. An application was then made to the trial Court by the defendants for setting aside the exparte decree on the 20th of March, 1960. This application was dismissed on the 8th of August, 1960. The present appeal was then filed in this Court on 19th of August, 1960, and was obviously barred by time. An application under sec. 5 of the Limitation Act was also filed by the defendants along with the memorandum of appeal. The main ground made in this application is that the appellants were under the impression that the decree, which was passed against them on the 15th of Feb. , 1960 in their absence, was passed really under O. 17 R. 2 of the Code of Civil Procedure, and therefore, they thought it proper to file an application to the trial Court itself for having it set aside, instead of filing an appeal to this Court, and therefore, the time taken for the disposal of this application from the 10th of March, 1960 upto the 8th of August, 1960 deserves to be condoned. It was further mentioned that the appellants had applied for a copy of the order of the trial Court refusing to set aside the exparte decree as well as of the original judgment and decree dated the15th of February, 1960 on the 9th of August, 1960 and the same had been received on the 19th of August, 1960 and the appeal was filed in this Court on the same date. Before proceeding further, it may also be mentioned that the defendants filed an appeal in this Court against the order of the trial Court refusing to set aside its decree on the 14th of September, 1960 and it is admitted before us that that appeal was dismissed in limine by a Bench of this Court on the 28th of October, 1960. It is, in these circumstances, that the question of limitation falls for determination before us. We may! state at-once that if the time between the 10th of March, 1960 when the defendants filed this application for setting aside the decree of the trial Court and the 8th of August, 1960 when that application was dismissed, is allowed to them, then this appeal would clearly be within time. It has, however, been strenuously contended before us on behalf of the plaintiff respondent that the defendants cannot be allowed in law the benefit of the time so spent within the meaning of sec. 5 of the Limitation Act. We have given our careful and anxious consideration to this contention and have come to the conclusion that it has force. We would now refer to a few cases which support us in the view we have felt persuaded to accept. In Ardha Chandra Rai Chowdhry Vs. Matangini Dassi (1) the plaintiff's suit was decreed on the 13th of April, 1893. On the 10th May one of the defendants who was not represented at the proceeding of the suit made an application to have the decree set aside. On the 30th November; 1893, the Subordinate Judge rejected the application. On the 24th February, 1894 the defendant filed an appeal to the High Court against the order of the subordinate court rejecting his application, and that appeal was dismissed on the 18th January 1895. Thereafter, on the 30th March 1895 appeal was filed against the original decree to the High Court, and the question of limitation arose. It was contended that the time during which the defendant was prosecuting his application for setting aside the exparte decree should be excluded in computing the period of limitation in filing the appeal, under sec. 14 of the Limitation Act. It was held, that the Limitation Act did not apply to appeals, and further, that it was not a case in which an application could properly be made for setting aside the exparte decree. What was further held is of importance for are purposes, and that was, even supposing that the defendant could have maintained an application for our setting aside the ex-parte decree, he, having failed in that application on merits, could not be allowed the benefit of sec. 5 of the Limitation Act. This case was followed by the Cal. High Court in Rajendra Nath Kannar Vs. Kamal Krishna Kundu Chowdhury (2) and it was held: - "where an application under R. 13, O. 9, Civil P. C. for setting aside an ex parte decree fails on the merits the time spent in prosecuting that application cannot be deducted under sec. 5 from the proper time allowed for filing an appeal. " The same view was taken in Ko Tha Lin Bwin Vs. Kohla Kye (3 ). In Jotiba Limbaji Kana-shenavar Vs. Ramappa Jotiba Kanashenavar (4), it was held, following this line of decisions, that the fact that the defendants took proceedings to set aside the ex-par:e decree, did not constitute "sufficient cause" within the meaning of sec. 5 of the Limitation Act inasmuch as it was open to the defendants to pursue the current remedy of preferring an appeal against the ex parte decree on the merits while he was prosecuting his application to have the ex parte decree set aside. It was further observed that the result of accepting the contrary view would lead to unnecessary waste of time, for it was conceivable that, after his appeal from the order of the lower court refusing to set aside the ex parte decree was dismissed, the defendant may resort to the remedy of applying in revision to the High Court, and thus very considerable time would be thrown away in the filing of the appeal from the decree if the time so taken has to be condoned for purposes of limitation for filing such appeal. It is unnecessary to multiply cases which have adopted this line of decision. As against this view, the learned counsel for the defendants appellants has strongly pressed upon us the contention that his clients had received legal advice that an application for setting aside the decree that was passed against them, being ex parte, was perfectly competent, and that they had with due diligence pursued that remedy, and, consequently they should be allowed the benefit of all the time taken in the disposal of that application. Strong reliance has been placed in support of this contention on two decisions of the Privy Council, namely, Brij Inder Singh Vs. Lala Kanshi Ram (5) and Sunderbai Vs. Collector of Belgaum (6) and a decision of the Saurashtra High Court in Bai Hirubai Kanji Vs. Darji Girdhar Keshav (7 ). The question in Brij Indar Singh's case (5) related to the condonation of time taken by a party in prosecuting an application for review of a judgment against it in the matter of an appeal which was subsequently filed by it after the review application had been disposed of. It is true that their Lordships of the Privy Council in this case held that if a party bona fide presented an application for review of a judgment, within the ordinary period limited for appealing, then the time occupied by the Court in disposing of such application should not be reckoned among the days limited for appealing, out should be added thereto, and a memorandum of appeal filed within such extended period should be received as presented within time. It must be remembered, however, that in arriving at this decision their Lordships were greatly impressed by the submission which was put forward before them, and which was in fact accepted, that there was a rule of procedure sanctioning that course which had been laid down by Full Benches of various High Courts in India, and an upsetting of that practice was likely to cause great inconvenience, and it was because of this special consideration that their Lordships expressly said that they would not propose to interfere. It is clear, therefore, that this decision must be held confined to applications for review only, and the various High Courts in India have consistently refused to extend this principle 10 cases like the one we have before us. What we have said above is fully borne out by the decisions of the various courts to which we have already referred. We respectfully agree with this view. So far as the case of Sunderbai (6) is concerned, that was a case where an appeal was presented in a wrong court owing to mistaken legal advice, and was later presented in the right court, and it was, in these circumstances, that the Privy Council held that the appeal must be held to have been filed within time. That case bears no parallel to the case which we are called upon to consider. 8. The last case, which remains to be considered, is of Bai Hirubai Kanji (7 ). In this case the facts were these: The plaintiff's suit was dismissed on the 25th June, 1948. On the 2nd July, 1948 she applied to the trial Court for restoration of the suit under Order IX of the Code of Civil Procedure. That application was dismissed on the 1st of April, 1949. The plaintiff then carried an appeal against that order to the District Court, Junagadh which allowed the appeal on the 27th April, 1949 and restored the suit. The defendant then filed a revision against the order of the District Court to the High Court on the 20th February, 1950. The High Court allowed the revision by its order dated the 23rd June, 1950 holding that the order of dismissal of the suit by the trial Court should be considered as an order under O. XVII R. 3, Civil Procedure Code, and that an appeal lay directly from that order as a decree. Thereafter, the plaintiff filed an appeal to the High Court on the 26th September, 1950 along with an application under sec. 5 of the Limitation Act. It was held that although sec. 14 of the Limitation Act was not directly applicable to appeals, the principle underlying it should be applied to appeals in considering an application under sec. 5 and, therefore, the existence of circumstances contemplated by sec. 14 may be regarded as a good ground for excusing the delay caused by the wrong proceedings, and that that would afford a sufficient cause for the condonation of the delay within the meaning of sec. 5 where the parties had acted with reasonable diligence. In this case what seems to have happened is that the plaintiff was misled to think, by certain observations made by the learned Single Judge of the High Court, that the appeal lay to the District Court at Junagadh, and, so, she went there in the first instance. At Junagadh, however, she was advised that the appeal would have to be filed at Rajkot in the High Court, and so she proceeded to Rajkot, and it was on account of these circumstances that she could not file the appeal till the 26th of September, 1950 although the order of the learned Judge of the High Court allowing the defendant revision was passed on the 23rd of June, 1950. To this extent this case is quite distinguishable on facts from the case before us. But in so far as reliance is sought to be placed on it to support the view that the entire period from the 25th of June, 1948 to 23rd of June, 1950 should be excluded from computing the period of limitation prescribed for appeal to the High Court because the plaintiff was pursuing a concurrent remedy which was open to her, then, with all respect, we do not feel disposed to accept it as sound because the two Privy Council decisions upon which reliance seems to have been placed by the learned Judge in arriving at the conclusion at which he did, do not go so far as to directly support the view propounded by him, and, in any case, the acceptance of this view would lead to unnecessary waste of time and protraction of litigation which would be entirely avoidable on the view which we have felt disposed to accept as correct. 9. The broad principle, that is deducible from the discussion made above, by pre-ponderence of judicial opinion in our country is, that where it is open to a litigant to adopt concurrent remedies, and he adopts one of those remedies, and fails on the merits, then when he later chooses to adopt the second remedy, he cannot be held entitled (save in the exceptional case of a review where such an application would properly lie) to the exclusion or condonation of time which has been spent by him on the prosecution of the first remedy, the ratio being that it was perfectly open to him to pursue the second remedy while he was prosecuting the other one, and that any other view would be productive of unnecessary delay in the administration of justice and lead to needless protraction of litigation. And on a balance of all the relevant considerations we respectfully agree with this view. 9. Applying this principle to the facts of the case before us, we come to the conclusion that when the defendant failed on the merits in his application dated the 10th March, 1960 to have the ex parte decree, passed against him, set aside, the trial Court having dismissed this application on the 8th of August, 1960 and he then filed an appeal in this Court on the 19th of August, 1960, he cannot be held entitled to have deducted, out of the normal period for filing the appeal to this Court, the period spent by him in the prosecution of his application to have the ex parte decree set aside, that is, from the 10th of March, 1960 to 8th of August, 1960; and if that is the correct conclusion to come to in the circumstances of the case on the state of the law we have discussed above, there is no escape from the conclusion that the present appeal is barred by time. 10. In the result, we hold that the objection as to limitation must prevail, and this appeal must be dismissed as barred by time. But, having regard to all the circumstances of the case, we would not make any order as to costs. . ;