RAJ RANA HARISINGJI Vs. STATE

JUDGEMENT

(1.) THIS is an appeal against a final award given by the learned Additional Commissioner, Jagir dated 6. 6. 58. A preliminary objection has been raised about the maintainability of this appeal on the ground of limitation. It was pointed out that the decision in appeal was filed before the Board of Revenue on 24. 9. 58 i. e. beyond the statutory period of 90 days as provided in sec. 39 (i) of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. The learned counsel for the appellant, however urged that the period of limitation should be counted from the date of the communication of the award to his client. THIS contention is incorrect. According to provision of Sec. 39 (1) of the Act an appeal has to be filed within 90 days from the date of such decision. His other contention is that he may be given a benefit of sec. 5 of the Limitation Act for condoning the excess period. THIS contention is again not maintainable because sec. 5 of the Limitation Act does not apply to appeals under the Land Reforms and Resumption of Jagirs Act. In the alternative it was also urged that his client having spent sometime in filing a review petition against the order of the learned Additional Jagir Commissioner, the said period may be condoned under sec. 14 of the Limitation Act. THIS contention is also without any substance. As a rule where two remedies are open to a party, the one by filing a review and the other for filing an appeal and if he elects one of them and fails on the merits, the time during which it was sought cannot be excused for the purpose of seeking thereafter the other remedy. An authority on this point may be found in A. I. R. 1916 Patna 352 34 Indian Case 44 (D. B. ). In the present case the appellant had filed a review petition before the lower court and the same having been dismissed on merits, the time spent in pursuing that remedy cannot be condoned. It is also significant to point out that sec. 14 of the Limitation Act applies only to suits or applications. A suit as defined in sec. 2 of the Limitation Act does not include an appeal. A. I. R. Allahabad 1917 Privy Council 156 may be cited as an authority in support of this view. Taking these facts into consideration we are of the opinion that the present appeal filed before us being time barred deserves to be issued. .