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PETITIONER: R.N. GOSAIN A

       Vs.

RESPONDENT: YASHPAL DHIR

DATE OF JUDGMENT23/10/1992

BENCH: [K. JAYACHANDRA REDDY AND S.C. AGRAWAL, JJ.]

ACT: Constitution  of   India,  1950-Article   136-Special  leave petition- Whether  entertainable, when  petitioner  (tenant) avails protection from eviction on the basis of undertaking East Punjab  Urban Rent  Restriction Act,  1949-Section 13A- Eviction  of  tenant  High  Court’s  order  Protection  from eviction availed  by tenant  under  an  undertaking-Invoking Supreme  Court   under  Article   136  of  the  Constitution assailing High Court’s judgment-Legality of.

HEADNOTE: A residential  house was  let out  to the petitioner by the respondent.  The respondent  was initially  employed  as Accounts  Officer   with  the   Finance  Department  of  the Government. In  1969, he went on deputation with the Haryana Agricultural University.  While he  was employed on the post of Comptroller  in the  University he  retired from  service with effect from February 28, 1991. Claiming  to  be  a  "specified  landlord"  within  the meaning of  Section 2(hh)  of the  East  Punjab  Urban  Rent Restriction Act,  1949,  the  respondent  moved  a  petition seeking eviction  of the petitioner under section 13A of the Act before the Rent Controller. The petition  was dismissed  by the  Rent Controller on the view  that the  respondent did not fall within the ambit of the  definition of  "specified landlord", since he failed to show  that he was holding or had held an appointment in a public service or post in connection with the affairs of the Union or of the State. The respondent  filed a  revision petition  before  the High Court  under section  18-A(8) of  the  Act,  which  was allowed by  the High  Court on  March, 1992.  The High Court held that the respondent, at the time of his retirement from the post  of Comptroller  in the  University, was holding an appointment in  connection with the affairs of the State and hence he  was a  specified landlord  within the  meaning  of section 2(hh)  of the  Act and that the respondent had fully satisfied the conditions as contained in section 13-A of the Act and  he was  entitled to  recover the  possession of the premises in  dispute from  the petitioner.  The  High  Court allowed one  month’s time  for the  petitioner to vacate the premises subject  to his  paying the  entire arrears of rent within 15  days from  the date  of the  order and  filing an undertaking that he would hand over the vacant possession of the premises on the expiry of the aforesaid period. On March  16, 1992,  the petitioner moved a petition in the High  Court under  section 151 CPC seeking three months’

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time to  vacate the house and for waiving the requirement of filing of  an  undertaking.  The  High  Court  rejected  the petition. Thereafter, the  petitioner  submitted  an  undertaking dated March  20, 1992 before the Rent Controller wherein the petitioner referred  to the direction contained in the order of the High Court dated March 6, 1992. On March  21, 1992,  the petitioner  filed the  special leave petition under Article 136 of the Constitution in this Court and succeeded to get an order staying dispossession on March 26, 1992. In response  to the  notice issued on the Special Leave Petition, the  respondent filed  a counter-affidavit raising an objection  that in  view of  the undertaking given by the petitioner, the jurisdiction of this Court under Article 136 of the Constitution could not be invoked. The  respondent-landlord  submitted  that  in  view  of petitioner-tenant’s having  taken the  benefit of  direction contained to  the order  of the  High Court allowing him one month’s time  to  vacate  the  premises  on  his  filing  an undertaking that  vacant possession of the premises would be handed over  on the  expiry of  the period  and  his  having submitted a  written  undertaking  in  accordance  with  the direction, the  petitioner was precluded  from assailing the judgment of  the High  Court by invoking the jurisdiction of this Court under Article 136 of the Constitution. The petitioner-tenant  submitted that  he did  not take any undue advantage by giving the undertaking; that prior to 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  that it 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. Dismissing the special leave petition, this Court, HELD: 1.01  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.  [263-F]  1.02  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. [264-H] 1.03 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  have any  effect on the legal consequencew flowing as a  result  of  the  filing  of  the  undertaking  by  the petitioner. [263-D] Verschures Creameries  Ltd.  v.  Hull  and  Netherlands Steamship Co.  E Ltd.,  1921 (2) K.B. 608 at p. 612; Thacker Hariram Motiram  v. Balkrishan  Chatbrabhu Thacker  &  Ors., [1989] Supp.  2 SCC  655 and Vidhi Shanker v. Heera Lal 1987 Supp. SCC  200; Ramchandra  Jai Ram  Randive  v.  Chandanmal Rupshand & Ors., [1987] Supp. SCC 254, referred to. Halsbuly’s Laws  of England,  4th Edn.  Vol.  16,  para 1508, referred to.

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (C) No. 4325 of 1992.      From the  Judgment and  Order  dated  6.3.1992  of  the Punjab and  Haryana High Court in Civil Revision No. 2830 of 1991.      Dr. A.M. Singhvi and Ms. Kirti Misra for the Appellant.      D.V. Sehgal,  S.M. Sarin, P.N. Puri, Ranbir Singh Yadav and G.K. Bansal for the Respondent.      The Judgment of the Court was delivered by      S.C. AGRAWAL,  J. This  petition for  special leave  to appeal arises  out of  proceedings for eviction initiated by the respondent  (landlord) against  the petitioner  (tenant) under section  13A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ‘the Act’), as amended by Act No. 2 of 1985.      The  proceedings  relate  to  a  residential  house  in Chandigarh which  was let  out  to  the  petitioner  by  the respondent.  The   respondent  was   initially  employed  as Accounts  Officer   with  the   Finance  Department  of  the Government of  Haryana. In  1969, he went on deputation with the Haryana   Agricultural  University (hereinafter referred to as  ‘the University’).  His services  were transferred to the University by the Government of Haryana with effect from November 1,  1975, and  while he was employed on the post of Comptroller in  the University  he retired from service with effect from  February 28,  1991. Claiming to be a ‘specified landlord’ within  the meaning  of section  2(hh) of the Act, the respondent  moved a  petition seeking  eviction  of  the petitioner under  section 13A  of the  Act before  the  Rent Controller, Chandigarh.  The said  petition was dismissed by the Rent  Controller by  order dated  August 5,  1991 on the view that  the respondent  did not  fall within the ambit of the definition  of ‘specified  landlord’ since he had failed to show  that he was holding or has held an appointment in a public service or post in connection with the affairs of the Union or  of the  State. The  respondent  filed  a  revision petition before  the High Court under section 18-A(8) of the Act which  was allowed  by the  High Court by judgment dated March 6,  1992. The  High Court held that the respondent, at the time  of his  retirement from the post of Comptroller in the University,  was holding  an appointment  in  connection with the  affairs of  the State  and hence he is a specified landlord within the meaning of section 2(hh) of the Act. The High Court  further found  that  the  respondent  had  fully satisfied the conditions as contained in section 13-A of the Act and  he was  entitled to  recover the  possession of the premises  in  dispute  from  the  petitioner.  Allowing  the revision, the  High Court  set aside  the order  of the Rent Controller and accepted the petition filed by the respondent under  section   13-A  of  the  Act  for  ejectment  of  the petitioner. The High Court further directed as under:      "However, the respondent is allowed      one month’s time to      vacate  the  premises  provided  he      pays the  entire  arrears  of  rent      within 15 days from today, and also      files an undertaking with the Court      of  the   Rent  Controller  to  the      effect that  he shall hand over the      vacant possession  of the  premises      on the expiry of aforesaid period."      On March  16, 1992,  the petitioner moved a petition in the high  Court  under section 151 CPC seeking three months, time to  vacate the house and for waiving the requirement of

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filing of  an undertaking. The said petition was rejected by the High  Court by  order dated  March 18, 1992. Thereafter, the petitioner submitted an undertaking dated March 20, 1992 before the  Rent Controller  wherein  the  petitioner  after referring to  the direction  contained in  the order  of the High  Court   dated  March   6,  1992   gave  the  following undertaking:      "That the  respondent hereby  gives      undertaking that he will vacate the      premises  and  shall  handover  the      vacant possession  of the  premises      on the  expiry of  one  month  from      6.3.92  as per the order of Hon’ble      High Court,  subject to  his rights      for  filing   SLP  in  the  Hon’ble      Supreme Court  against the order of      eviction.   The    respondent   has      already sent draft for the rent for      the month  of  March  1992  to  the      petitioner and he is not in arrears      of rent."      On March  21, 1992,  the petitioner  filed the  special leave petition under Article 136 of the Constitution in this Court. On  the said  petition the following order was passed on March 26, 1992:      "To come  up in  normal course.  In      the meantime,  no dispossession  to      be effected."      On April  9,  1992,  an  order  was      passed in the following terms:      "Issue notice returnable within two      weeks. In  the  meantime,  stay  of      eviction to continue." .      In response  to the said notice, the respondent filed a counter affidavit on April 18, 1992 wherein an objection has been raised that in view of the undertaking given by him the petitioner cannot  invoke the  jurisdiction  of  this  Court under Article  136 of  the Constitution.   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 month’s time to vacate the premises on his filing an undertaking that he shall hand over 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 Hon’ble 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 Chatbrabhu  Thacker  &  Ors.,  [1989] Supp. 2  SCC 655;  Vidhi Shanker  v. Heera Lal, [1987] Supp. SCC  200  and  Ramchandra  Jai  Ram  Randive  v.  Chandanmal 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

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inasmuch as  before giving the under taking, 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 subjected 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.      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 direclions 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  the 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 3a period of one month by tiling 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 any 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: Verschures  Creameries Ltd.  v. Hull  and  Netherlands Steamship Co.  Ltd., (1921)  2 R.B. 608, at p.612, Scrutton, L.J]. According to Halsbury’s 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

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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 year’s 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,  and it was observed      "This  undertaking   filed  by  the      appellant  in  our  opinion  is  in      clear  variation   with  the   oral      undertaking given  to  the  learned      Judge which induced him to give one      year’s time.  a We  do not  wish to      encourage this kind of practice for      obtaining time  from the  court  on      one plea  of filing the undertaking      and taking  the different stand, in      applications under  Article 136  of      the Constitution." (p.655)      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 submissions urged by Dr.  Singhvi that the respondent, being  an employee of the University at the time of his  retirement, was  not a  ’specified  landlord’  under section 2(hh) of the Act. The special  leave petition  is, accordingly,  dismissed but without any orders as to costs. V.P.R.                              Petition dismissed.