R.L. Gupta, J.
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 & 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. : 2SCR874a and G. Abdul Shukur v. The Union of India : AIR1973AP118 in support of his contention.
3. Mr. Shishodia appearing on behalf of the respondents has argued that the above cited rulings are of the assistance to the appellant as the facts and circumstances of the cases cited therein are different from tint of the present case. There were the cases where the wrong remedy was followed by the clients on the advice of their counsel. Here in the present case it is not so. There were two concurrent remedies open to the appellant, firstly either to fill a special appeal against the order dated 13-9-1969 and secondly, to file an application for re-hearing Out of these two remedies the appellant preferred the second remedy. Being unsuccessful he has now preferred the first remedy beyond the period of limitation. It was open to him either to follow one remedy or follow both remedies simultaneously. There was no hinder ante for the appellant to have also preferred an appeal within time simultaneously along with his application for re heating. Once he has chosen one remedy and failed therein, he cannot be allowed to take the advantage of the provisions of Section 5 of the Limitation Act in order to follow the other remedy. For this he has relied upon the ruling of this Court in Hassan Chand and Sons, Jaipur v. His Highness Maharaja Shri Gaj Singhji ILR 1961 (Vol. XI) (Raj) 365. It was held in that case that where it is open to a litigant to adopt concurrent remedies and he adopts one of chose remedies, and fails on merits, then when he later chooses to adopt the second remedy, he cannot be held entitled (save in the exceptional case of a review) to the exclusion or condonation of time, which has been spent by him on the prosecution of the first remedy, the ratio being that was perfectly open to him to pursuer 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. Where ah application by the defend in to have the ex-parte decree set aside is dismissed by the trial court, he is not entitled to have deducted, out of the normal period for filing the appeal, the period spent by him in the prosecution of the application.
4. 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.
5. In this view of the matter, the appellant cannot be held entitled to the exclusion or connonation of time which has been spent by him in the prosecution of his application for re-hearing.
6. It n ay also be mentioned here that the provisions of Section 14 of the Limit alien Act are not attracted in the present case.
7. The result is that the application of the appellant under Sections 5 and 14 of the Limitation Act is rejected. The appeal is held to be time barred and in dismissed. The parties are left to bear their own costs.