( 1 ) IN this tenants appeal directed against the order dismissing his revision for non-compliance of Ss. (1 of Section 29 of the Karnataka Rent Control Act, 1961, what has been vehemently argued for the landlord is that the appellant having given an undertaking before the High court that he would vacate the premises within six months, he is precluded from approaching this court under Article 136 of the Constitution of India. Reliance has been placed on R. N. Gosain v. Yashpal Dhir and it is urged that since law does not permit a person to approbate and reprobate and this principle is founded on the doctrine of election, this petition is liable to be dismissed on this ground.

( 2 ) ELECTION is a defence available affecting property and "considers that as done which ought to have been done", Halshurys Laws of England, 4th Edn. , Vol. 16, para 1372. It is statutorily recognised by Section 35 of the Transfer of Property Act, 1882. It applies where a person professes to transfer property which he has no right to transfer. Similarly, on the principle that a person may not approbate and reprobate, "a species of estoppel has arisen which seems tobe intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1 that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and (2 that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent". Vide Halsburys Laws of England, 4th Edn Vol. 16, para 1507.

( 3 ) NONE of these principles apply to an undertaking given by a tenant for vacating the premises within specified time. It is not a transfer of property by a person who has no right to transfer. The doctrine of election cannot be applied to deprive a person of his statutory right to appeal, much less a constitutional right of invoking extraordinary jurisdiction of this court as he having undertaken to vacate the premises was precluded from exercising his right to approach higher court. It is not exercise of option between two remedies open to him but depriving him of his constitutional right which would be contrary to constitutional guarantee and against law. There is no estoppel against statute.

( 4 ) EVEN the equitable principle of "approbate and reprobate" cannot be applied. Taking time to vacate is appealing to the court to protect him so that he may make arrangements in the meantime. At the worst the intention might be to gain time to approach the higher court. Grant of time in either case is in the discretion of the court. Its violation may amount to disobedience of the order of court and the person may be proceeded against in contempt. But no other fetter arises. Otherwise in the system prevalent the tenant may be on the road by the time he is able to approach this court. This would be rendering the tenant remediless. The equitable principle of estoppel thus cannot act inequitably against tenant.

( 5 ) REMEDY under Article 136 is a constitutional right. It cannot be taken away by legislation much less by invoking principle of election or estoppel. The jurisdiction exercised by this court under Article 136 is an extraordinary jurisdiction which empowers this court to grant leave to appeal from any judgment, decree or determination in any cause or matter passed or made by any court or tribunal. The scope of this article has been settled in numerous decisions. It is not hedged with any restrictions or any exception as is normally found in the provisions conferring jurisdiction. The principle of "approbate and reprobate" or the law of election which is the basis of the decision in R. N. Gosain case cannot, in our opinion, be applied appropriately to preclude this court from exercising its jur