JUDGMENT - A.P. SHAH, J.:---This petition takes exception to an order passed by the Competent Authority, Pune, directing delivery of possession of the licensed premises to the respondents.

2. Ms. Purohit, learned Counsel for the petitioner, raised before me a twofold submission. Firstly, Ms. Purohit submitted that the application of the respondents is barred under Order 23, Rule 1 of the C.P.C. Alternatively, she submitted that the application must be held to be barred by the provisions of section 31-H of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Before I deal with the submission of Ms. Purohit, I would briefly state the factual background.

3. Under an agreement of leave and licence dated February 4, 1984, the respondents inducted the petitioner in flat No. 9 in building called Manashree Apartments, situate at Fatima Nagar, Pune. The agreement of leave and licence was for a period of 11 months and there is no dispute that the said agreement has come to an end by efflux of time. Initially, the respondents approached the Co-operative Court by filing a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960 claiming possession of the premises. The petitioner contested the dispute by filing a written statement. It is not necessary to deal with the various contentions raised in the written statement, but suffice it to say that the petitioner challenged the maintainability of the dispute on the ground that the Co-operative Court has no jurisdiction to try the dispute. On December 1, 1994, the respondents made an application for withdrawal of the dispute with a liberty to file appropriate proceedings. The Co-operative Court, however, passed an order permitting only unconditional withdrawal without granting any liberty for institution of fresh proceedings. Thereafter, the respondents filed the present proceedings before the Competent Authority under part 2-A of the Act for recovery of possession. By the impugned order, the Competent Authority has granted the application.

4. Turning then to the submission raised by Ms. Purohit, it is necessary to mention at the outset that section 31-H of the Act has no application to the facts of the present case, which contemplates withdrawal of the proceedings pending in the other Courts at the time on the date of commencement of the Amending Act of 1986. Admittedly, the dispute in the present case was filed after the Amending Act came into force and, therefore, section 31-H is not attracted.

5. Now I will deal with the other part of the submission of the learned Counsel. Ms. Purohit says that the order of the Co-operative Court clearly shows that the dispute was withdrawn unconditionally and if that is so, the initiation of the present proceedings on the same cause of action is barred by sub-rule (4) of Rule 1 of Order 23. The submission must be rejected for more than one reason. In the first place, it is not permissible for the petitioner to approbate and reprobate at the same time. Before the Co-operative Court, the petitioner specifically contended that the Co-operative Court has no jurisdiction to try the dispute. If the Co-operative Court has no jurisdiction, then, surely, the bar under Order 23, Rule 1 of the C.P.C. will not operative. It is an age old principle that a party shall not at the same time affirm and disaffirm the same transaction---affirm it as far as it is for his benefit, and disaffirm it as far as it is to his prejudice. In (Shah Mukhun Lall v. Baboo Sree Kishen Singh)1, 12 Moors I.A. 157, Lord Chelmsford observed:

"A man cannot both affirm and disaffirm the same transaction, show its true nature for his own relief, and insist on its apparent character to prejudice his adversary. This Principle, so just and reasonable in itself, and often expressed in the terms, that you cannot both approbate and reprobate the same transaction, has been applied by their Lordships in this committee to the consideration of Indian Appeals, as one appli

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