ORDER 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. (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. 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 often in two slightly different senses: the first. a dismissal without setting out any reasons; and the second, one after hearing the appellant or applicant at some length, and setting out the reasons, but without noticing the opposite party. The summary dismissal in this instance is of the latter description. Obviously, the opposite party is to be noticed only where there is Something to meet, and the appellant cannot make a grievance that this has not been done, simply because he has been frustrated in the hope that a notice to the opposite side and the subsequent hearing will give him a year or two to stick on to the house in spite of the concurrent judgments against him, Thus, the present "summary" dismissal is not in contravention of the principles laid down by the Supreme Court. 4. Nor do I find any question of policy. The full Bench ruling in Gulabchand Vs. Kudilal, A.I.R. 1959 MP 151 dealing with the interpretation of public policy in regard to contracts. I fail to see what application it has to the present case. 5. The next ground is that the objection to the legality or validity of the notice though not pleaded in the suit can as of right be taken in the second appeal. Courts have wide discretion in allowing fresh grounds to be taken even in second appeal subject, of course to the hearing of the opposite side on this and the maintenance of any rights acquired by it by limitation. But what the applicant means is something different and farther-reaching. He wants that he can question the correctness of the quit notice at any stage of the litigation. I do not agree. In fact, a concession of this nature would be the most dangerous and oppressive. Even if there is some substance in this ground, it was the duty of the defendant to raise it in the suit itself. Had he raised it at that stage it would have been a preliminary point decided in a few months. If, as he hopes, he had succeeded in showing that the notice was defective, the suit would have been dismissed. Had he raised it at that stage it would have been a preliminary point decided in a few months. If, as he hopes, he had succeeded in showing that the notice was defective, the suit would have been dismissed. The plaintiff would have given a fresh notice and if the tenant did not quit, would have brought a fresh suit. All this would have taken a far shorter period than the three years during which he has been occupying the house and agitating on other points which he has lost. The only legitimate inference is that the defendant purposely omitted to raise this ground keeping it as it were, in reserve to be advanced, if he failed on the other grounds, so that there could be prolongation of the litigation and the chance of his continuing to stay in the premises. It is not a matter of remedying of an in advert ant omission, but a device that the Courts cannot encourage unless there is a definite direction in statute or in case-law that it should do so- 6. It is argued that, whether or not it is pleaded, an alleged defect in the notice under Section 106 Transfer of Property Act, is a basic attack on the jurisdiction of the court to entertain the suit, and as such can be urged whenever the party chose to. It is not necessary to go into any lengthy discussion, except to note that this is not a case where a defect in the notice or even its absence is an absolute bar. This is subject to ''a contract or agreement to the contrary." Thus, the shortage (as is alleged here) of one day or part of a day (or even the absence of notice) can be waived by the conduct of the party. A party's failure to allege at the proper stage that the defect of a shortage of a day should be deemed to be a tacit agreement or waiver. 7. A body of case-law has been cited but they are all in regard to cases where the notice concerned was an absolute legal necessity without any qualification, such as "agreement or contract to the contrary", or ones where the plea of absence of or defect in the notice was taken at the appropriate stage. 7. A body of case-law has been cited but they are all in regard to cases where the notice concerned was an absolute legal necessity without any qualification, such as "agreement or contract to the contrary", or ones where the plea of absence of or defect in the notice was taken at the appropriate stage. This plea could also be allowed if the Court were satisfied that it was not kept back with a ulterior purpose. For example, in the ruling reported in Udebhan vs. Jagannath, 5 IC 699, the notice was an absolute necessity under Section 79 of the Berar Land Revenue Code, and the plea also seems to have been taken in time at the proper stage. Similarly in the old Privy Council ruling reported in Madhoparsad vs. Gajadhar, I.L.R. 11 Cal 111, there was a case of a notice that was absolutely necessary. The Court also allowed the mortgagor to raise the plea at a later stage. In the Bombay case, Dodhu vs. Madhavrao, I.L.R. 18 Bom 110, the defendants wanted to take a new plea at the stage of second appeal that being strangers to the agreement, they could not be made parties to a suit for specific performance. They were allowed to take it. The argument seems to be that by analogy the defendant should be allowed to take a new ground in second appeal in every litigation. I do not agree. Whereas in the Bombay case the defendants could not have had any ulterior purpose in keeping back what they considered to be the ground of defense, in the present case, the defendant stood to (and actually did) gain by this method by being able to stick to the premises by prolonging the litigation. Thus, whatever be the merits of this fresh ground it would not be proper at this stage to allow the defendant to raise it. 8. The fourth point urged is that this is a defect going to the root of the suit. In view of what has been said above, it is unnecessary to pronounce on the merits of this ground. But it is not a ground going to the root of the suit because as already noted, the failure to raise it can be taken as a tacit waiver. 9. The application is summarily dismissed. Application dismissed.