A party cannot raise a new ground in second appeal which was not pleaded in the suit itself, especially when the party has purposely omitted to raise the ground in order to prolong the litigation.

H.R. Krishnan, J

1. This is an application for a certificate under Clause (10) of the Letters Patent from the judgment of dismissal of the second appeal No.328 of 1959, upholding the concurrent judgments of the lower courts. The applicant who was the defendant in the suit is an unwilling tenant who has been ordered to be ejected after lengthy litigation started in 1956. A new ground was raised in second appeal that the notice was defective, the tenant having been called upon to vacate on a date just previous to that on which the monthly tenancy ended. Whatever its merits, this new ground was not taken for consideration, it was not pleaded in the suit and even in the first appeal it was not urged though a petition was filed conveniently enough after the hearing, but before the judgment. Even if there was any substance, a timely pleading would have been disposed of ad limine and the plaintiff could easily have got a new notice served long ago. Instead, by his device of keeping back this ground the defendant has been able to drag on litigation for three years, and now, at the end of it, wants, on the new ground, to prolong it further still staying in the house all the time.

2. It is urged now that a certificate for appeal under the Letters Patent should be given for the following reasons:-

(1) That a summary dismissal is wrong and has been disapproved by the Supreme Court when there is an "arguable point of law".

(2) That besides, it is a matter of policy that this appeal should be admitted for hearing.

(3) That the ground that the notice is defective though not raised in the pleadings, is one that could as a matter of right, be raised even in second appeal.

(4) That the allegation that the notice is defective is on its merits, a sound one justifying the dismissal of the suit.

These grounds have been argued with very considerable ability and elaborateness by the learned Counsel for the applicant and deserve for that reason alone to be examined at full length.

3. If it has been held by the Supreme Court that whatever some point of law, which the appellant or the applicant considers arguable, is mentioned, the case should be admitted as a matter of course, there is nothing more to be said. Nothing would be easier for the High Court to admit all appeals or applications mechanically, though it may be that the so-called "arguable point" is merely a device by an unwilling tenant to stay on in the house sometime longer. Actually, the authority placed, namely Muhtak Hussein Vs. The State of Bombay A.I.R. 1953 SC 282 does not lay down such a proposition. It was a criminal case in which the appellant had been sentenced to imprisonment for two years and there was a question in regard to the form of direction to the jury. The appellant certainly had no ulterior interest in prolonging the litigation. The High Court concerned dismissed the appeal summarily, apparently without any discussion of the grounds. The Supreme Court has directed that when there was a really arguable case, such dismissal was not right and further, when the Court considered that there was no substance in the appeal, it would be advisable for it to indicate its reasons. Assuming that this principle, though pronounced in respect of a criminal case, is applicable to civil cases also, we are concerned here with a second appeal from concurrent judgments and a new ground raised without its having been pleaded, the defendant appellant frantically anxious to stay on, having as it were, a vested interest in prolonging the litigation. Whether the point raised is arguable is obviously a matter for the Court to decide and it would certainly be failing in its duty if it takes the line of least resistance and admits the case for hearing, and allows the unwilling tenant to stay on. Certainly, the Supreme Court has directed that in all such cases, the grounds for the dismissal should be indicated in the judgment and in this, it has been so recorded. The words "summary dismissal" are used o