1. This is a second appeal in a suit for ejectment and arrears of rent.
2. The respondent Chandratan sued the appellant Kasirokhan for ejectment and arrears of rent in respect of a house and a 'bara' situated at Bikaner on the basis of two rent-notes Exs. P-1 and P-2 dated 21-9-1947 alleged to have been executed by the defendant. The defendant denied execution of these rent-notes or having been put in possession of the property by the plaintiff. He alleged that one Isak was the owner of the property and was in possession of the same. According to the plaintiff, Isak had mortgaged the house and the bara for Rs. 10,000/- by a registered deed of mortgage dated 18-9-1947. The trial Court after evidence held that the execution of the rent-notes had not been proved and the suit was dismissed. On appeal, the learned District Judge reversed that finding and decreed the suit in favour of the plaintiff. The defendant has filed this second appeal.
3. Learned counsel for the appellant argued that the appeal which had been filed by the plaintiff in the lower appellate Court was barred by time and the Court had committed error in giving the benefit of Section 5, Limitation Act to the plaintiff respondent. The Rajasthan Law of Limitation which came into force in the State on 24-1-1950 provides limitation of 30 days for an appeal to be presented to the court of District Judge. The judgment in the present case was pronounced by the Court of Munsif on 21-11-1950 and the appeal was filed in the Court of the District Judge on 19-1-1951, i.e., on the 59th day. After allowing the period for obtaining copies of judgment, the appeal was barred by 6 days. The plaintiff had urged in the lower Court that according to the Bikaner Law of Limitation prior to the enforcement of Rajasthan Limitation Act, the period provided for an appeal to the District Judge was 60 days. The plaintiff had asked his lawyer to present an appeal but he said that there should be no hurry about it as the period for appeal was 60 days. Plaintiff's submission was that under the erroneous advice of his lawyer, the appeal came to be barred by 6 days. The lower appellate Court granted the benefit of Section 5, Limitation Act to the plaintiff. Learned counsel for the appellant argued that the Rajasthan Law of Limitation having been brought into force on 24-1-1950 the advice given by the lawyer of the plaintiff could not be said to be bona fide and must be treated as having been negligently given and in that case the benefit of Section 5, Limitation Act, could not be given to the plaintiff.
4. Learned counsel for the plaintiff respondent finding himself in a difficult position made an application to-day that he may be permitted to withdraw the suit with permission to .file a fresh suit. This was opposed by learned counsel for the appellant. The prayer to withdraw the suit with liberty to file a fresh suit can be given if the case could be brought within the four corners of Order 23, Rule 1(2), Civil P. C. and such permission can be given if a suit must fail by reason of some formal defect or there were other sufficient grounds to allow the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. There is no such defect in the suit and as regards other sufficient grounds it has been held in various cases that these grounds should be 'ejusdem generis' with the formal defect. In some cases a broad view was also taken that those grounds need not be 'ejusdem generis' with formal defect. In the present case there is no inherent defect in the suit as brought in the lower Court nor has the plaintiff been deprived of any opportunity of evidence but the whole defect seems to have been created by a mistaken advice of the lawyer. In the circumstances like these it would not be just and proper to allow the plaintiff to withdraw the suit under Sub-rule (2) of Rule 1, Order 23, Civil P. C. with liberty to institute a fresh suit. The petition is, therefore, rejected.
5. Learned counsel for the respondent prays that he would in that case withdraw the suit. On referring to Vakalatnama, it however appears that the power to withdraw the suit had not been conferred on Mr. Ugam Raj who appears to-day and wants to withdraw the suit. Mr. Ugam Raj wants time to obtain a proper Vakalatnama. Time allowed ten days. Mr. Chandmal wanted costs of adjournment but in the circumstances of this case, no costs for adjournment are allowed.
(The case coming on for final disposal after the disposal of the interlocutory petition the Court delivered the following :)