1992 Supreme(MP) 701

(SUPREME COURT)
K. Jayachandra Reddy and S.C. Agarwal, JJ.
R. N. Gosain v. Yashpal Dhir
S.L. P. No. 4325 of 1992; Decided on 23.10.1992*.

Headnote:(1) Approbate and Reprobate -- tenant filing undertaking to vacate the premises within a month -- cannot thereafter challenge the order of eviction.

        (2) Election (Option) -- doctrine applies to the undertaking given in the Court -- person giving undertaking to vacate the premises -- cannot thereafter be allowed to challenge the eviction order.

        (3) Constitution of India -- Art. 136 -- jurisdiction of Supreme Court -cannot be invoked against undertaking given as per order of High Court.

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        Shri D.V. Sehgal, the learned senior counsel appearing for the respondent, has submitted that in view of his having taken the benefit of direction contained in the order of the High Court allowing him one months time to vacate the premises on his filing an undertaking that he shall handover vacant possession of the premises on the expiry of aforesaid period and his having submitted a written undertaking in accordance with the said direction, the petitioner is precluded from assailing the judgment of the High Court by invoking the jurisdiction of this Court under Article 136 of the Constitution. Shri Sehgal has urged that the fact that the petitioner has qualified his undertaking by using the words subject to his rights for filing SLP in the Honble Supreme Court against the order of eviction would not alter the position. In support of his aforesaid submission Shri Sehgal has placed reliance on the decisions of this Court in Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker & Ors. [1989 Supp. (2) SCC 655], Vidhi Shanker v. Heera Lal [1987 Supp. SCC 200] and Ramchandra Jai Ram Randive v. Chandanmji Rupchand & Ors. [1987 Supp. SCC 254].

        Dr. A. M. Singhvi, the learned counsel appearing for the petitioner, has, however, laid stress on the fact that the undertaking had to be given by the petitioner in the peculiar circumstances arising on account of this Court being closed due to vacations from March 16, 1992 to March 20, 1992. Dr. Singhvi has submitted that the petitioner has not taken any undue advantage by giving the undertaking inasmuch as before giving the undertaking, he had moved an application for extension of time before the High Court wherein he had clearly indicated that he intended to file a special leave petition in this Court against the order of the High Court dated March 6, 1992 and this was also expressly stated in the undertaking filed in the Court wherein it is mentioned that the undertaking was subject to his right to file the special leave petition in this Court against the order of eviction. Dr. Singhvi has urged that in view of the aforesaid facts and circumstances the decisions on which reliance has been placed by Shri Sehgal would have no application to the present case.

        Held : In view of the judgment of the High Court allowing the petition for eviction filed by the respondent, the petitioner was liable to be evicted from the premises forthwith. Under the directions given by the High Court, the petitioner could continue in occupation of the premises for a period of one month on his (i) paying the entire arrears of rent within 15 days from the date of the judgment and (ii) filing an undertaking with the Court of Rent Controller to the effect that he shall hand over the vacant possession of the premises on the expiry of the period of one month. The petitioner made an effort to obtain extension of time for vacating the premises without furnishing the undertaking and he filed a petition for that purpose before the High Court. The said petition was, however, dismissed by the High Court Having failed in his attempt to obtain extension of time for vacating the premises without furnishing an undertaking the petitioner had two options open to him, (i) to avail the protection from eviction from the premises for a period of one month by filing an undertaking as directed, or (ii) not to avail the said protection and run the risk of immediate eviction. The petitioner chose the first option. In order to avail the protection from eviction from the premises for a period of one month he filed the requisite undertaking in the Court of the Rent Controller within the period of 15 days prescribed under the directions of the High Court The statement in the undertaking that it was subject to the rights of the petitioner to file special leave petition in this Court against the order of eviction, does not, in our view, have any effect on the legal consequences flowing as a result of the filing of the undertaking by the petitioner. By furnishing the said undertaking the petitioner elected to avail the protection from eviction from the premises and he enjoyed the said protection till the passing of the order by this Court on March 26, 1992, staying dispossession of the petitioner. Having elected to avail the protection from eviction under the order dated March 6,1992 passed by the High Court, by filing the requisite undertaking the petitioner cannot be permitted to assail the said order.

        Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See: V erschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., 1921 (2) R. B. 608, at p. 612, Scrutton, LJ.]. According to Halsburys Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside." (para 1508).

        In Thacker Hariram Motiram v. Balkrishan Chatbrabhu Thacker & Ors. (supra), this Court was dealing with a similar situation. The High Court, while deciding the second appeal in an eviction matter gave the appellant (tenant) one years time subject to his giving an undertaking within a period of three weeks stating that vacant possession would be handed over within the aforesaid time. The appellant gave an undertaking in accordance with the said terms wherein he undertook that he would vacate and give vacant possession of the suit premises by December 31, 1985, i.e., to say after one year if "by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court". It was held that in view of the said undertaking the petitioner could not invoke the jurisdiction of this Court under Article 136 of the Constitution and he should abide by the terms of the undertaking.

        I Similarly in Vidhi Shanker v. Heera Lal (supra) and Ramchandra Jai Ram Randive v. Chandanmal Rupchand & Ors. (supra), this Court declined to exercise its discretion under Article 136 of the Constitution in cases where the petitioner had given an undertaking in the High Court and had obtained time to vacate the premises on the basis of such undertaking.

        We are, therefore, of the opinion that the petitioner, having given an undertaking in pursuance to the directions given by the High Court in the judgment dated March 6,1992, and having availed the protection from eviction on the basis of the said undertaking, cannot be permitted to invoke the jurisdiction of this Court under Article 136 of the Constitution and assail the said judgment of the High Court. In that view of the matter, we do not consider it necessary to deal with the submission urged by Dr. Singhvi that the respondent, being an employee or the University at the time of his retirement, was not a specified landlord under section 2 (hh) of the Act. 1921 (2) K. B. 608, 1989 Supp. (2) SCC 655, 1987 Supp. SCC 200 and 1987 Supp. SCC 254 relied on. S. L. P. Dismissed.