SWAMINATHA MUDALIAR Vs. EBRAMSA ROWTHER

JUDGEMENT

(1.) MR. Vinayaka Rao wants to argue grounds Nos. 24 and 25 in the Memorandum of Appeal. MR. Kuppuswami Aiyar for the respondents has brought to my notice the order of the learned Judges passed at the time of admitting the appeal. That order is as follows: Appellant is allowed to add to his grounds of appeal that stated in his C.M.P. filed today, this being practically the only ground available in second appeal. Grounds 1 to 25 are struck out with appellant's consent.

(2.) MR. Srinivasa Aiyar who appeared at the time when the case was taken up for admission before MR. Justice Phillips and MR. Justice Venkatasubba Rao states that he did not carefully read the grounds and that he thought that there was some other good ground for purposes of admission and that is why he consented to give up grounds 1 to 25. From the records it appears that the learned Judges allowed the appellant to put in fresh grounds as they thought there was nothing in the grounds already filed. Having induced the learned Judges to admit the appeal on grounds which were only put in after having undertaken to give up the grounds already mentioned in the Memorandum of Appeal 1 do not think it is competent to the appellant to urge on any of the grounds specifically given up. A vakil may no doubt give up a ground and press it at a later stage with the permission of the Court. But when he gives up certain grounds fearing that his appeal might be dismissed by the admission Court and gets the Court's permission to urge fresh grounds I think it is not open to him now before another bench to urge the grounds which he gave up in order that his appeal might He admitted. I think it would not be fair either to the Judges who admitted the appeal or for the Judge or Judges who hear the second appeal after notice to allow the appellant to urge the grounds specifically given up at the time when the appeal came on for admission. In this view 1 do not think that the appellant is entitled to argue grounds Nos. 24 and 25. The additional grounds filed on 2nd November, 1923 are against the facts of the case. The appellant stated that the District Court ought to have granted time for redemption. But as a matter of fact he ought to have known that he got possession on 24 November, 1921 nearly 2 years before he instructed his vakil to file this ground. This ground therefore cannot now be urged. There is no other point in this case and the Second Appeal is dismissed with costs. The C.M.P. No. 1464 of 1926 is also dismissed.