Supreme Court of India
KARAM KAPAHI & OTHERSversusM/S. LAL CHAND PUBLIC CHARITABLE TRUST & ANOTHER
- Citation
- 2010 INSC 200
- Decided
- 7 April 2010
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
A party that admits the landlord‑tenant relationship and non‑payment of rent cannot later contest the landlord’s title or seek equitable relief, as the doctrine of election and estoppel preclude such inconsistent pleas, and the Court may dismiss the appeal under Article 136.
Summary
The Lal Chand Public Charitable Trust leased property to the South Delhi Club and later terminated the lease for non‑payment of rent. The Trust sued for possession; the Club contested the Trust’s title and sought relief under Section 114 of the Transfer of Property Act, while also admitting non‑payment of rent in its statements. The High Court granted a decree for possession and rejected the Club’s Section 114 relief, a decision the Club appealed. The Supreme Court examined the applicability of Order 12 Rule 6 of the CPC, the doctrine of election (approbate and reprobate), and Section 116 of the Evidence Act, holding that the Club’s inconsistent pleadings barred it from claiming equitable relief. It also noted the Club’s dilatory tactics as a factor disqualifying it from Article 136 relief. The Court dismissed both appeals, upheld the High Court’s decree, and ordered the Club to pay costs.
Issues considered
- The admissibility and effect of the Club’s admissions under Order 12 Rule 6 of the CPC.
- Whether the Club can invoke Section 114 of the Transfer of Property Act despite admitting non‑payment of rent.
- The applicability of the doctrine of election (approbate and reprobate) to the Club’s contradictory pleadings.
- The relevance of Section 116 of the Evidence Act in estopping the Club from challenging the Trust’s title.
- The propriety of exercising discretionary jurisdiction under Article 136 given the Club’s conduct.
Legislation cited
- Code of Civil Procedure, 1908s. Order 12 Rule 1, s. Order 12 Rule 6, s. Order 8 Rule 5
- Indian Evidence Act, 1872s. Section 116
- Transfer of Property Act, 1882s. Section 114
Subjects
leasenon‑payment of rentOrder 12 Rule 6Section 114doctrine of electionapprobate and reprobateArticle 136discretionary jurisdictionestoppeldilatory tactics
Judgment
[2010] 4 S.C.R. 422
A KARAM KAPAHI & OTHERS
v.
MIS. LAL CHAND PUBLIC CHARITABLE TRUST &
ANOTHER
(Civil Appeal No. 3048 of 2010)
B
APRIL 7, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Constitution of India, 1950:
c
Article 136 - Suit by Trust (lessor) against Club (lessee)
seeking termination of club's lease for non-payment of rent -
Suit by Club questioning title of Trust - Admission by Club
in the written statement that there was execution of lease deed
0 and non-payment of rent - Application u/s. 114 of 1882 Act,
by Club, seeking relief against forfeiture for non-payment of
rent, in suit filed by Trust- Trust filing application u/O. 12 r. 6
for passing judgment on admission - High Court decreeing
the suit for possession since clear admission by club about
E non-payment of rent and directing the Club to hand over
vacant possession - Challenge to - Held: Controversy is
between the pa1ties on an admission of non-payment of rent,
judgment can be rendered on admission by court - Court can
consider the stand of the Club in its petition u/s. 114 in
pronouncing judgment on admission in view of clear words
F 'pleading or otherwise' used therein - Stand of the Club while
questioning the title of the Trust is inconsistent with its stand
in the application uls. 114 - Club approbates and reprobates
which is not legally permissible - Doctrine of Election is
applicable - Suit by Club questioning title of the Trust was
G dismissed and nothing on record to show that it has been
restored - Club is prima facie stopped from challenging the
title of the Trust - Thus, Club not entitled to any equitable
relief under Article 136 having regard to its conduct - It
H 422
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 423
CHARITABLE TRUST
adopted dilatory tactics in prolonging the litigation - Thus, A
order of High Court upheld - Code of Civil Procedure, 1908
- 0. 12 r. 6 - Transfer of Property Act, 1882 - s. 114 -
Evidence Act, 1872 - s. 116 - Doctrines.
Code of Civil Procedure, 1908:
B
Or. 12 r. 6 - Judgment on admission - Object of - Held:
Is to give the plaintiff a right to speedy judgment - Under 0.
12 r 6 admissions can be inferred from facts and
circumstances of the case.
c
Doctrines/Principles:
Doctrine of Election - Applicability of.
Principle of 'approbate and reprobate' - Applicability of.
D
The respondent-Charitable trust had leased out
certain property to the Club-lessee for 25 years. The trust
and some of its members filed a suit against the Club
seeking term.ination of club's lease for non-payment of
lease rent by the Club. The trust had issued several E
letters as also legal notices calling upon the Club to pay
the rent but the Club did not give reply. Thereafter, the
trust by a legal notice terminated the tenancy of the Club.
The Club filed a suit seeking a declaration to the effect
that the trust has no right, title and interest in the suit
F
premises; for cancellation and revocation of the sub-lease
and restrain the trust from claiming and demanding any
lease rent from the Club. The trust filed written statement.
The application as well as the suit were dismissed for
default. The Club filed its application for restoration of the G
suit and the same was kept pending. In the suit filed by
the trust, the Club filed its written statement. It admitted
that there was an execution of sub-lease between the .
parties though the title of the trust over the suit property
· was disputed; that it had not paid rent and was ready to
deposit the same. The Club filed an application praying H
424 SUPREME COURT REPORTS [2010) 4 S.C.R.
A that the trust be restrained from receiving the lease
money. High Court dismissed the same and directed the
Club to pay the arrears of rent. The said order became
final. However, the Club did not comply with the direction
given by the Single Judge. The Club filed an application
B u/s. 114 of the Transfer of Property Act seeking relief
against forfeiture for non-payment of rent, in the suit filed
by the Trust. Thereafter, the Trust filed an application
under Order 12 Rule 6 CPC for passing a judgment on
admission. The trust stated that in the written statement
c filed by the Club, the club admitted the relationship of
lessor and lessee; rent being above Rs.3500/- p.m.; a
notice of termination of lease of the Club has been duly
served on the Club and non-payment of rent by the Club,
were also admitted. Trial judge held that the Club was not
entitled to relief u/s. 114 of the Transfer of Property Act;
0
and that since there is clear admission by the club about
non~payment of rent, the plaintiff-trust is entitled to a
decree for possession in respect of the entire suit
property. The Division Bench dismissed the appeal and
directed the Club to hand over vacant possession in
E respect of the suit property to the Trust. Even after
disposal of appeal, the club took several steps for
delaying the execution of the decree. Applications were
filed and were dismissed. Hence the present appeals, one
by some members of the Club and other by the Club.
F This Court stayed the operation of the High Court's
judgment.
Dismissing the appeals, the Court
HELD: 1.1. The principles behind Order 12 Rule 6 of
G CPC are to give the plaintiff a right to speedy judgment.
Under this Rule either party may get rid of so much of the
rival claims about 'which there is no controversy'. The
thrust of the amendment to Order 12 Rule 6 by the
Amendment Act of 1976 is that in an appropriate case, a
H
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 425
CHARITABLE TRUST
party, on the admission of the other party, can press for A
judgment, as a matter of legal right. However, the Court
always retains its discretion in the matter of pronouncing
judgment. [Paras 46 and 48] [443-G; 444-D]
Thorp vs. Holdsworth (1876) 3 Chancery Division 637, B
referred to.
1.2. If the provision of Order 12 Rule 1 is compared
with Order 12 Rule 6, it becomes clear that the provision
of Order 12 Rule 6 is wider in as much as the provision
of order 12 Rule 1 is limited to admission by 'pleading or C
otherwise in writing' but in Order 12 Rule 6 the
expression 'or otherwise' is much wider in view of the
words used therein namely: 'admission of fact, either in
the pleading or otherwise, whether orally or in writing'.
Under Order 12 Rule 6 admissions can be inferred from D
facts and circumstances of the case. Admissions in
answer to interrogatories are also covered under this
Rule. In the instant case, where the controversy is
between the parties on an admission of non-payment of
rent, judgment can be rendered on admission by Court. E
[Paras 49, 50 and 55) [444-E-H; 445-G]
Shikharchand and Ors. vs. Mst. Bari Bai and Ors. AIR ·
1974 Madhya Pradesh 75, approved.
Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan F
(Smt.) and Anr. (2005) 11 SCC 279; Uttam Singh Duggal and
Co. Ltd., v. United Bank of India and Ors. (2000) 7 SCC 120,
referred to.
Mu/las's commentary on the Code, 16th Edition, Volume G
II, page 2177, referred to.
1.3. In the instant case, even though statement made
by the Club in its petition under section 114 of the
Transfer of Property Act does not come within the
definition of the word 'pleading' under Order 6 Rule 1 of H
426 SUPREME COURT REPORTS [2010] 4 S.C.R.
A the Code, but in Order 12 Rule 6 of the Code, the word
'pleading' has been suffixed by the expression 'or
otherwise'. Therefore, a wider interpretation of the word
'pleading' is warranted in understanding the implication
of this rule. Thus, the stand of the Club in its petition
B under section 114 of the Property Act can be considered
by the Court in pronouncing judgment on admission
under Order 12 Rule 6 in view of clear words 'pleading
or otherwise' used therein especially when that petition
was in the suit filed by the Trust. However, the provision
c under Order 12 Rule 6 of the Code is enabling,
discretionary and permissive and is neither mandatory
nor it is peremptory since the word "may" has been used.
But in the given situation, as in the instant case, the said
provision can be applied in rendering the judgment.
[Paras 58, 59 and 60) [447-C-F]
0
1.4. The Club ~.as taken inconsistent pleas. On the
one hand the Club alleged that the trust is not its lessor
and has no right to receive the lease rent and it questions
the title of the Trust. On the other hand the Club is seeking
E the equitable remedy against forfeiture under section 114
of the Transfer of Property Act where it has proceeded
on the basis that the Trust is its lessor and the Club is
the lessee and as a lessee it has to pay the lease rent to
the Trust. The Club is relying on the same instrument of
F lease. Therefore, the Club seeks to approbate and
reprobate. Legally this is not permissible. The common
law doctrine of Election is a part of the jurisprudence and
applies in the instant case. [Paras 61, 63 and 69) [447-G-
H; 448-A, C; 450-C]
G
Nagubai Ammal and Ors. vs. B. Shama Rao and Ors.
AIR 1956 SC 593; Bhanu Ram vs. Baij Nath Singh and Ors.
AIR 1961 SC 1327; C. Beepathuma and Ors. vs. Velasari
Shankaranarayana Kadambofithaya and Ors. AIR 1965 SC
241, referred to.
H
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 427
CHARITABLE TRUST
Verschures Creameries Ltd. vs. Hull and Netherlands A
Steamship Co. Ltd. 1921-2 KB 608; Streatfield vs. Streatfield
9th Edition, Volume I, 1928, referred to.
'Equity-A course of lectures' by F.W. Maitland,
Cambridge University, 1947; Halsbury's Laws of England B
Volume XIII page 454 para 512, referred to.
1.5. From the pleadings between the parties it is clear
that the Club admitted in its written statement that the
Trust is its lessor; that it has not paid the lease rent; that
the lease rent is more than Rs.3500/- per month in its C
reply to the Trust's petition under Order 12 Rule 6; and
also admitted the receipt of notice of termination of lease
issued by the Trust on the ground of non-payment of
lease rent. [Para 71] [450-F-H; 451-A]
D
1.6. The suit filed by the Club questioning the title of
the Trust as its lessor has been dismissed and nothing
has been shown to this Court that it has been restored
as on date. Such a plea is prima facie not acceptable in
view of the provisions under section 116 of the Evidence E
Act. Section 116 prima facie applies to the instant case
and the Club is prima facie stopped from challenging the
title of the Trust. [Paras 72 and 73] [451-B; 451-G]
D. Satyanarayana vs. P. Jagadish (1987) 4 SCC 424,
distinguished. F
2.1. The jurisdiction of this Court under Article 136 of
the Constitution is basically one of conscience. The
jurisdiction is plenary and residuary in nature. It is
unfettered and not confined within definite bounds. G
Discretion to be exercised here is subject to only one
limitation and that is the wisdom and sense of justice of
the judges. This jurisdiction has to be exercised only in
suitable cases and very sparingly. While exercising
jurisdiction under Article 136 the conduct of the party is H
428 SUPREME COURT REPORTS [2010] 4 S.C.R.
A a relevant factor and in a given situation this Court may
refuse its discretionary jurisdiction under Article 136.
[Paras 76 and 79] [452-F; 453-8, C, DJ
2.2. The Club is not entitled to any equitable relief
under Article 136 of the Constitution having regard to its
8
conduct. From the facts it is clear that the Club was very
negligent in pursuing its case. Its case was dismissed on
several occasions. The Club also adopted dilatory tactics
in prolonging the litigation. Even after losing the appeal
before the High Court, the Club, through its members
C initiated several proceedings to stall the execution of the
decree and in those proceedings the High Court held that
with knowledge of the Club those proceedings by the
members were initiated. Even while filing the Special
Leave Petition before this Court, initially the members of
D Club came with the usual plea of not being aware of the
eviction proceeding against the Club as they were not
parties to the same. On that plea the members initially
obtained a stay of the execution proceedings. Thereafter,
the Club taking advantage of the existing stay order, filed
E its SLP. On facts, it is clear that the conduct of the Club
is such as to disentitle it to any discretionary remedy.
Thus, for the reasons aforesaid, this Court is not inclined
to interfere in exercise of its jurisdiction under Article 136.
The costs assessed at Rs.25,0001- is to be paid by the
F Club to the Trust. The order of High Court is upheld.
[Paras 74, 75 and 80] [451-H; 452-A-D; 453-F]
Kunhayammed and Ors. vs. State of Kera/a and Anr.
(2000) 6 SCC 359; Preetam Singh vs. The State AIR 1950
SC 169; Municipal Board, Pratabgarh and Anr. vs.
G Mahendra Singh Chawla and Ors. (1982) 3 SCC 331;
Transmission Corpn. of A.P. Ltd. vs. Lanco Kondapal/i Power
(P) Ltd. (2006) 1 SCC 540; Jagraj Singh vs. Birpal Kaur
(2007) 2 SCC 564 Tanna and Modi vs. CIT, Mumbai XXV
and Ors. (2007) 7 SCC 434; Prestige Lights Ltd. vs. State
H Bank of India (2007) 8 SCC 449, relied on.
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 429
CHARITABLE TRUST
Case Law Reference: A
(1876) 3 Chancery Referred to. Para 46
Division 637
(2005) 11 sec 219 Referred to. Para 50
B
(2000) 1 sec 120 Referred to. Para 51
AIR 1974 Madhya Approved. Para 57
Pradesh 75
1921-2 KB 608 Referred to. Para 63 c
AIR 1961 SC 1327 Referred to. Para 63
AIR 1956 SC 593 Referred to. Para 66
AIR 1965 SC 241 Referred to. Para 68
D
(1987) 4 sec 424 Distinguished. Para 73
(2000) 6 sec 359 Reiied on. Para 76
AIR 1950 SC 169 Relied on. Para 76
(1982) 3 sec 331 Relied on. Para 78 E
(2006) 1 sec 540 Relied on. Para 79
(2001) 2 sec 564 Relied on. Para 79
(2001) 1 sec 434 Relied on. Para 79 F
(2007) 8 sec 449 Relied on. Para 79
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3048 of 2010.
G
From the Judgment & Order dated 9.1.2009 of the High
Court of Delhi at New Delhi in RFA (OS) No. 34 of 2002.
WITH
Civil Appeal No. 3049 of 2010. H
430 SUPREME COURT REPORTS [2010] 4 S.C.R.
A Ravi Shankar Prasad and Soli J. Sorabjee, Sandeep
Narain (for S. Narain & Co.), Manu Nair (for Rajiv Nanda),
Anand Misra, Ekta Kapil Gaurav Chauhan, Sudhanshu Goil and
Bikash Mohanty (for B. Vijayalakshmi Menon) for the appearing
parties.
B
The Judgment for the Court was delivered by
GANGULY, J. 1. Leave granted in both the petitions, being
SLP(C) No. 9080/2009 filed by Karam Kapahi and three others
and SLP(C) No.9091 of 2009 filed by M/s South Delhi Club Ltd.
c
2. Both the appeals impugn the judgment and order dated
9.1.2009 passed by a Division Bench of Delhi High Court in
RFA (OS) No. 34/2002.
3. In the appeal filed by Karam Kapahi, Sujit Madaan,
D Anup Malik and Neeraj Girotra, it is asserted that as members
. of the M/s South Delhi Club Ltd. (hereinafter referred to as the
'Club') they are directly affected by the judgment and decree
passed in Suit (Suit No.518 of 1999) filed by the respondent
Trust. Challenging the judgment and decree in the suit, Appeal
E RFA (OS) No. 34 of 2002 was filed by the Club. Their main
contention in the SLP is that they were not parties to the Suit
but they may be affected by the orders passed therein. On such
representation a Bench of this Court by an order dated
9.4.2009 permitted them to file a special leave petition and also
F issued notice and stayed further proceedings for the execution
of the judgment and decree of the High Court.
4. About a fortnight thereafter, the Club filed another
Special leave petition (C) No. 9091/2009 challenging the same
G judgment of the Appellate Bench of the High Court and a Bench
of this Court on 24.4.2009 in view of the previous notice already
against the same judgment issued notice in that special leave
petition filed by the Club and directed it to be tagged with the
earlier special leave petition (C) No. 9080/2009 filed by the
H
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 431
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
members. Both the matters were heard together in view of A
common questions of fact and law in these matters.
5. The material facts are as under.
G. Respondent No.1 - M/s Lal Chand Public Charitable
Trust and Anr., a registered charitable trust (hereinafter, 'the B
Trust') was the lessor and the Club was the lessee. On or about ..
16.12.1998 the Trust and some of its members filed a Suit,
being Suit No. 518/1999, before the Delhi High Court against
the Club in view of termination of club's lease for non-payment
of lease rent by the Club. The suit was for possession in respect C
of its land and building situated at Central Park, Greater
Kailash-1, New Delhi and also for recovery of an amount of Rs.
11,60,000/- as damages and mesne profit and also for future
damages.
D
7. In the said plaint the stand of the plaintiff-trust was that
by a sub-lease dated 4.11.1965 property in question (fully
described in the plan attached to the plaint) was leased to the
Club for 25 years. Thereafter, Supplementary deed of Sub-
lease dated 25.7.1979 was also executed between the parties E
and the same was duly registered. As the supplementary lease
dated 25.7.1979 expired on 3.11.1990, the Club requested the
Trust for a further renewal and further renewal was given for a
period of 25 years from 4.11.1990 on the terms and conditions
as stipulated in the Agreement and the said lease was also duly
registered. F
8. In terms of the sub-lease, the Club undertook to pay
quarterly to the Trust on account of monthly lease rent by the
10th of the beginning of each quarter month, and a sum
equivalent to 14% of the monthly subscription paid or payable G
by the members of the Club. It is also averred in the plaint that
it is agreed between the parties that in case of default in
payment of lease rent for two consecutive quarters, the Trust
will be entitled to terminate the said sub-lease.
H
432 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 9. The case of th~ respondent-Trust is that the Club
defaulted in payment of rent and before the filing of the Suit the
Trust issued several letters dated 25.12.1996, 14.1.1997 and
18.6.1997 calling upon the Club to pay the rent but as the Club
failed to pay the amount, the respondent-Trust served a legal
B notice dated 25.7.1997, again calling upon the Club to pay the
entire lease rent failing which, it was made clear, that the Trust
will take legal action. The exact averment in the plaint is as
follows:
" ... thus compelling the plaintiff to serve a legal notice dated
c 25.7.1997 and by the said notice, the defendant was called
upon to pay the entire lease money failing which the
defendant was informed that the plaintiff shall be left with
no option but to terminate the sub-lease and take further
legal action in the matter. The said notice was duly
D received by the defendant and despite receipt of the
notice; the defendant did not pay the amount."
10. In the Written Statement filed by the Club, paragraph
(9) of the plaint was dealt with in paragraph (9) of the Written
E Statement but the aforesaid fact was not denied.
11. Prior to suit another legal notice dated 28.10.1997 was
issued by the Advocate on behalf of the Trust to the Club
wherein it was expressly stated that the Club has deliberately
committed default in making payment for the quarters ending
F September 1996, December, 1996, March 1997, June 1997,
September 1997, December 1997, March 1998, June, 1998
despite service of previous notices.
12. It appears that the Club did not respond to the said
G notice. This has been stated in paragraph 10 of the plaint and
it has been further averred that the said notice dated
28.10.1997 sent by the Advocate on behalf of the trust was
received by the Club but the Club did not give any reply. This
fact was not denied in paragraph (10) of the Written Statement
H filed by the Club.
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 433
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
13. Thereafter a legal notice dated 2.12.1997 was sent on A
behalf of the Trust terminating the tenancy of the Club in view
of non-payment of lease rent and the arrears and calling upon
the Club to hand over the peaceful vacant possession. The said
notice has been disclosed by the Club in its special leave
petition before this Court. B
14. After the Trust terminated the tenancy of the Club by
its notice dated 2.12.1997, a reply was sent by the Club on
6.12.1997 with a plea that the Trust is not the lessor of the suit
premises and has no right to let out the same to the Club and C
thus inter alia the title of the Trust over the suit premises was
challenged. In the said reply, the Club pointed out to a suit filed
by it, namely, Suit No. 1605 of 1997 (South Delhi Club Limited
v. DLF Housing and Construction and others). However, prior
thereto the Trust gave its notice dated 25. 7.1997 demanding D
rent. ·
15. The main contention in Club's suit, inter alia, is that the
Trust has divested itself from its ownership over the suit property
and has ceased to be its owner and as such is not entitled to
any beneficiary interest. In the suit a decl<uation was sought to E
the effect that the Trust has no right, title ahd interest in the suit
premises and also for cancellation and revocation of the sub-
lease dated 23.09.1992 and with a further prayer to restrain the
Trust from claiming and demanding any lease rent from the Club.
F
16. To that suit, being 1605of1997, the Trust filed a written
statement on 17 .08.1998 and also filed an application for
rejection of plaint (I.A. No. 7294 of 1998). The Club was to file
its replication to the written statement filed by the Trust. The
matter was repeatedly adjourned on 18.3.1995, 15.9.1999 and
19.1.2000 but the Club did not file its replication nor did it take G
steps to effect service on defendant no.5. Under those
circumstances, the Court declined the prayer of the Club for
further adjournment to file their replication and directed the
matter to be listed on 21.2.2002. It appears that the Club was
not taking any step and the matter was adjourned from time to H
434 SUPREME COURT REPORTS [2010) 4 S.C.R.
A time. On 10.12.2001, the matter again appeared and it was
recorded that there was no appearance on behalf of the plaintiff
i.e. the Club and the matter was directed to be listed on
8.4.2002. Nobody appeared for the Club on 8.4.2002, and the
Court was pleased to pass the following order:-
B
"There is no appearance on behalf of the plaintiff. On
the last date also, nobody had turned up on his behalf.
In the circumstances, the application as well as suit
are dismissed for default."
c
17. Then on 8.5.2002 the Club filed its application for
restoration of the suit and the restoration application was listed
for disposal on 1.10.2002. Then again by an order dated
11.12.2002 the restoration application was ordered to be listed
0 on 6.2.2003.
18. In the course of hearing of the matter before this Court
nothing was produced to show that the said suit has been
restored. It a:Jpears that the said application for restoration was
kept pending and the last order for its listing was passed on
E 16.5.2006.
19. Now coming back to the suit filed by the Trust, it
appears that in that suit (No. 518 of 1999) the Club filed its
written statement on 14.2.2000.
F
20. On a perusal of the written statement of the Club, the
following position will emerge:
(a) The club has admitted that there was an execution
of sub-lease dated 4.11.1965 between the parties
G though the title of the trust over the suit property was
disputed. It was also admitted in paragraph 8 that
the Club withheld the payment of rent and was
ready to deposit the same before the Registrar of
the High Court. In paragraph 15 of the written
H statement the arrears of rent were worked out. In
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 435
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.)
paragraph 10 of the written statement non-payment A
has been admitted but the Club gave its reasons
for such non-payment. In paragraph 11, 12 and 13
the notice of termination of the lease was
acknowledged.
B
(b) In the said suit the Club filed an I.A. being 1724 of
2000 inter alia praying that the Trust be restrained
from receiving the lease money.
(c) The said I.A. came up for hearing on 24.07.2000
and a learned Judge of the Delhi High Court inter C
alia held since the Club admitted that it was
inducted as a tenant in the suit premises under the
lease deed, it cannot withhold the payment of rent/
damages inter alia on the ground that the suit
premises belong to MCD who had never D
demanded any rent. The I.A. was thus dismissed
and the Club was directed to pay the arrears of rent
from July 1996 till the date of the said order within
a month from the date of the order. The operative
portion of High Court's order dated 24.7.2000 is set E
out below:-
"... It is pertinent to note that under Section 116 of the Indian
Evidence Act, a tenant is estopped from denying the title
of the lessor to the tenanted premises during the
continuane of lease. The Defendant having admitted that F
it was inducted as a tenant in the Suit premises by the
Plaintiff under aforesaid two registered lease deeds, can
not now withhold the payment of rent/damages on the
ground of premises allegedly belonging to MCD who has
not demanded any rent. I.A. 1724/2000 is, therefore, liable G
to be dismissed and in l.A.2281/99 an Order under Rule
10 of Order 39 CPC deserves to be passed against the
Defendant directing it to pay the arrears of rent/damages
since July 1996 and future rent/damages at the last paid
rate which the Defendant's counsel had also undertaken H
436 SUPREME COURT REPORTS [2010] 4 S.C.R.
A to pay as is manifest from the Order dated 15th
December, 1999.
Accordingly, I.A. 1724/2000 is dismissed. In
l.A.2281/99 the Defendant is directed to pay arrears of
rent/damages since July 1996 till date at the last paid rate
B
within one month from today and it will also continue to
make payment thereof for the subsequent period, month
by month at the same rate to the Plaintiff Trust."
21. Prior to that order dated 24.7.2000 in the suit filed by
C the Trust (Suit No. 518 of 1999) an order was passed on
15.12.1999 wherein it was recorded by the High Court that the
counsel for the Club undertook to pay rent and clear all
damages on or before the next date of hearing. The exact order
passed by the High Court is set out below:-
D
"Ld. Counsel for defendant submit that defendants would
make the payment of the rent/damages at the "last paid
rate" and clear all arrears on or before the next date of
hearing. It is made clear that payments made towards rent/
damages would be without prejudice to the rights and
E
contentions raised by the defendants assailing the right of
the plaintiff to receive payment of rent/damages."
22. Challenging the Single Bench order dated 24.7.2000,
the Club filed an appeal being FAO (OS) No. 272 of 2000
F before the Division Bench and one of the contentions of the
Club was that the learned Single Judge was in error in holding
that under Section 116 of the Indian Evidence Act, a tenant is
estopped from denying the title of the lessor to the tenanted
premises during the continuance of the lease. However, the said
G appeal with all those contentions of the Club was dismissed
in-limine by a Division Bench of the Delhi High Court by an
order dated 19.9.2000 which reads as under:
"A copy of the order aated 15th December, 1999 passed
in this very suit has been brought to our notice. In view of
H
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 437
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
the said order, in our view it is not even open to the A
appellant to raise this issue of payment of renUdamages
to the respondents again. The said order has been passed
protecting the rights and contentions of the respective
- parties. In view of the said order, this appeal is dismissed
in limine."
23. It appears that the said order of the High Court dated
B
19.9.2000 was never challenged by the Club and it became
final. However, the direction which was given by the learned
Single Judge in its order dated 24. 7 .2000 referred to
hereinabove was not complied with by the Club.
c
24. Then on 8.5.2001, the Club filed an application under
Section 114 of the Transfer of Property Act in the suit filed by
the Trust (Suit No.518 of 1999).
D
25. In the said application the stand of the Club is that the
controversy between the parties, namely, the Trust and the Club.
has been resolved and the Club has no objection to pay the
rent reserved under the said sub-lease dated 23.9.1992. In
paragraphs (7) and (8), the Club made this categorical
E
statement:
"7. That with the disclosure of the said documents the
controversy between the parties stands resolved and the
Defendant can have no objection to paying the rent
reserved under the said sub-lease Deed dated 23.9.1992. F
8. That the Defendant has paid a portion of the arrears of
rent and undertakes to pay all future rent in accordance
with the terms of the said sub-lease Deed dated
23.9.1992". G
26. In that application a prayer was made for relieving the
Club against forfeiture resulting from the non-payment of rent
and to declare that the Club holds the suit property as if the
forfeiture has not occurred on the Club's undertaking to honour
all its obligations under the sub-lease dated 23.9.1992. H
438 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 27. Sometime in May 2000, the Trust, in its Suit, filed an
application under Order 12 Rule 6 of the Code of Civil
Procedure for passing a judgment on admission. In the said
application in paragraph 4, the Trust asserted that on a perusal
of the written statement filed by the Club following things are
B admitted; (i) relationship of Lessor and Lessee (ii) Rent being "
above Rs.3500/- p.m. and (iii) a notice of termination of lease
of the Club has been duly served on the Club and (iv) non-
payment of rent by the Club.
28. To that application a reply was filed by the Club. While
c replying the averments made in paragraph 4 of that application,
the Club only referred to the suit filed by the Club stating that
the lease in question is fraudulent and is under challenge, but
specific averments made in paragraph 4 of Trust's application
were not denied. In answer to the averment made in paragraph
D 6 of the Trust's application about the monthly rent of the suit
premises, no specific denial was given by the Club except
urging that the lease deed is void ab-initio. ·
29. The suit filed by the Trust then came up for hearing and
E by a judgment and order dated 22.10.2002 the learned Trial
Judge refused to grant relief under Section 114 of the Transfer
of Property Act. The Court also held that since there is clear
admission by the club about non-payment of rent the plaintiff is
entitled to a decree for possession in respect of the entire suit
F property.
30. Then an appeal was filed by the Club impugning the
said judgment which was dismissed by a Division Bench of the
Delhi High Court by judgment and order dated 9.1.2009.
G 31. The Division Bench also held that the conduct of the
Club disentitles it from the equitable relief under Section 114.
32. The Division Bench after dismissing the appeal
directed the Club to hand over vacant possession in respect
of the suit property to the Trust by 31.3.2009.
H
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 439
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
33. It is interesting to note that even though in its petition A
under Section 114 of the Transfer of Property Act, the Club took
a stand that it has no objection of paying the rent reserved
under the sub-lease dated 23.9.1992, in the appeal which was
filed by the Club being RFA (OS) No.34 of 2002 against the
order of Single Judge dated 22.10.2002, the Club took a totally B
contrary stand that the Trust has no right or title over the.suit
premises and it cannot demand the rent.
34. It appears that in the course of the appeal, the Club
took various contrary stands and adopted various dilatory
tactics. From the order passed by the Division Bench of the C
High Court, it appears that it has been noted that the appellant
took various adjournments before concluding its arguments and
sought adjournments on 21.7.2003, 11.12.2003, 12.4.2004,
13.10.2004, 23.11.2004 11.1.2005, 7.2.2005, 2.8.2005,
16.9.2005 and as a result of which the appeal was dismissed D
for non-prosecution on 18.10.2005 by the Division Bench.
35. Thereafter, the Club again filed an application for
restoration of the appeal and the appeal was restored by the
Division Bench on 16.1.2006 wherein the Court commented E
upon the dilatory tactics resorted to by the Club and restored
the appeal by imposing a cost of Rs.10,000/- on the Club.
36. As the Division Bench refused to grant any stay of the
order dated 30.11.2005 in respect of the execution proceeding,
the Club filed a special leave petition being SLP (C) No. 25261 F
before this Court. The said Special Leave Petition was
disposed of by this Court by an order dated 6.7.2006. While
disposing of the said petition, this Court was pleased to
observe that the appeal filed by the Club should be disposed
of within a reasonable time and all dilatory tactics adopted by G
the tenant-Club should be defeated. After observing that this
Court ordered that the High Court should dispose of the appeal
with utmost expedition preferably within six months and made
it clear that in case the tenant-Club adopts dilatory tactics in
the disposal of the appeal within the time schedule, the High H
440 SUPREME COURT REPORTS [2010] 4 S.C.R.
A Court shall record an order to that effect that the interim order
passed by this Court shall stand vacated and the decree may
be executed, if necessary, by deputation of armed forces.
37. Even though this Court by its order dated 6.7.2006
B directed the disposal of the appeal within six months, it was
disposed of, as stated above, only in the month of January,
2009.
38. Even after the disposal of the appeal, several steps
were taken delaying the execution of the decree. Some
C Members of the Club filed a petition praying for extension of
time for handing over possession beyond 31st March, 2009 as
that was the deadline to hand over possession by the Club to
the trust. The Members prayed for extension of time of eight
weeks from 31.3.2009. The application by the members was
D dismissed by the Division Bench of the High Court by an order
dated 24.3.2009.
39. Thereafter, another set of Members filed a suit being
CS(OS) No. 509/2009 before the Delhi High Court with a
E prayer to set aside the judgment of the learned Single Judge
dated 22.10.2002 which was affirmed by the Division Bench
by its judgment dated 9.1.2009.
40. I.A. No. 3583/2009 was also filed in the said suit for
staying the operation of the order dated 22.10.2002 passed
F by the Single Judge. The said application was also dismissed
by a detailed order of the Delhi High Court on 30.3.2009. While
doing so the Court observed that the Club and its members
were fully aware about the pendency of the suit, the passing of
the judgment and decree as well as of the appeal filed against
G the judgment otherwise resolution could not have been passed
on 23.10.2002 in favour of Mr. Bhandari to file the appeal
against the judgment and decree of the High Court.
41. The said judgment dated 30.3.2009 passed in the I.A.
H was not challenged.
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 441
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
42. In the earlier part of this judgment, this Court noted that A
the first special leave petition against the Division Bench
Judgment was filed by some members of the Club, inter alia,
on the ground that they are affected by the judgment and decree
of the High Court to which they were not made parties and on
such representation, this Court issued notice and stayed the B
operation of the High Court's judgment dated 9.1.2009. About
a fortnight thereafter the Club filed its special leave petition and
took advantage of the previous order of stay which was passed
by this Court and got its special leave petition tagged with the
petition filed by the Club members. Now this Court is hearing c
both the petitions together.
43. In the background of these facts, Mr. Ravi Shankar
Prasad, learned Senior Counsel for the appellant-Club
highlighted the following points in support of his submission that
the appeal should be allowed: · D
(a) The High Court erred by applying the principles of
Order 12 Rule 6 of Civil Procedure Code in the
facts and circumstances of this case as there was
no clear admission by the Club of case of the Trust E
in its plaint.
(b) The principles of Section 114 of the Transfer of
Property Act are independent of the provision of
Order 12 Rule 6. Section 114 of the Transfer of
F
Property Act is an equitable remedy for a lessee
in a given case and the stand taken in a proceeding
under Section 114 cannot be taken into
consideration to reach a finding under Order 12
Rule 6 of the Code.
G
(c) Assuming there is failure to deny case in the plaint
that does not necessarily amount to proof and the
Court before granting decree ought to have
considered the proviso to Order 8 Rule 5 of the
Code. H
442 SUPREME COURT REPORTS [2010] 4 S.C.R.
A (d) The overall conduct of a litigant in pursuing the case
at various stages cannot be considered for the
purpose of disentitling it from getting an equitable
relief in a proceeding under Section 114 of the
Transfer of property Act.
B
(e) In the facts of this case, bar of estoppel under
Section 116 of the Evidence Act does not operate
on the Club from questioning the title of the Trust.
44. On the other hand, Mr. Soli J. Sorabjee, learned Senior
C Counsel appearing on behalf of the Trust advanced the
following submissions:-
(a) The object of Order 12 Rule 6 is to enable a party
to obtain speedy judgment and the application of
D the Rule cannot be narrowed down. According to
the learned counsel, certain relevant and vital facts
in the plaint of the Trust have been admitted by the
Club.
(b) The learned Counsel further submitted that in the
E instant case, the Club cannot question the title of
the landlord i.e. the Trust, and the suit (Suit No.
1605 of 1997) which it filed questioning the title of
the Trust was dismissed and there is nothing on
record to show that it has been restored.
F
(c) The contentions which the Club raised in its petition
for relief under Section 114 of the Transfer of
Property Act were not taken without prejudice to its
stand in the written statement. Club's admissions
G in the written statement and in its petition under
Section 114 of the Transfer of Property Act are
c;lear and the Court can take both into consideration.
(d) The stand of the Club in its suit and in its application
filed in the Trust's suit for restraining the Trust from
H
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 443
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
receiving the rent is inconsistent with the Club's A
stand in its application under Section 114 of the
Transfer of Property Act. The Club thus approbates
and reprobates which it legally cannot do.
(e) The Club did not accept the order dated 24.7.2000
B
passed by the learned Single Judge directing it to
pay arrears from July 1996 but it was challenged
by the Club by way of appeal, which was dismissed.
Assuming subsequent payments were made
pursuant to the said order dated 24. 7.2000 that
does not efface the consequences of non-payment
c
in the past.
(f) Reliance on the first proviso to Order 8 Rule 5 of
the Code is misconceived and in the instant case
both the learned Single Judge and the Division D
Bench on appreciation of the pleading held that
there were clear admissions.
(g) In the facts and circumstances of the case and on
its overall conduct, the Club is not entitled to obtain
E
the discretionary relief from this Court under Article
136 of the Constitution of India.
45. Considering the aforesaid rival contentions of the
parties, this Court is unable to accept the stand of the appellant
and is inclined to dismiss both the appeals for the reasons F
discussed hereinbelow.
46. The principles behind Order 12 Rule 6 are to give the
plaintiff a right to speedy judgment. Under this Rule either party
may get rid of so much of the rival claims about 'which there is G
no controversy' [See the dictum of Lord Jessel, the Master of
Rolls, in Thorp versus Holdsworth in (1876) 3 Chancery
Division 637 at 640]. In this connection, it may be noted that
order 12 Rule 6 was amended by the Amendment Act of 1976.
47. Prior to amendment the Rule read thus:- H
444 SUPREME COURT REPORTS [2010] 4 S.C.R.
A "6. Judgment on admissions. - Any party may, at any
stage of a suit, where admissions of facts have been
made, either on pleadings or otherwise, apply to the Court
for such judgment or order as upon such admission he may
be entitled to, without waiting for the determination of any
8 other question between the parties and the Court may
upon such application make such order or give such
judgment, as the Court may think just."
48. In the 54th Law Commission Report, an amendment
was suggested to enable the Court to give a judgment not only
C on the application of a party but on its own motion. It is thus
clear that the amendment was brought about to further the ends
of justice and give these provisions a wider sweep by
empowering judges to use it 'ex debito justitial, a Latin term,
meaning a debt of justice. In our opinion the thrust of the
D amendment is that in an appropriate case, a
party, on the
admission of the other party, can press for judgment, as a
matter of legal right. However, the Court always retains its
discretion in the matter of pronouncing judgment.
E 49. If the provision of order 12 Rule 1 is compared with
Order 12 Rule 6, it becomes clear that the provision of Order
12 Rule 6 is wider in as much as the provision of order 12 Rule
1 is limited to admission by 'pleading or otherwise in writing'
but in Order 12 Rule 6 the expression 'or otherwise' is much
F wider in view of the words used therein namely: 'admission of
fact. ........ either in the pleading or otherwise, whether orally or
in writing'.
50. Keeping the width of this provision in mind this Court
held that under this rule admissions can be inferred from facts
G and circumstances of the case [See Charanjit Lal Mehra and
others v. Kamal Saroj Mahajan (Smt.) and another, (2005) 11
SCC 279 at page 285 (para 8)]. Admissions in answer to
interrogatories are also covered under this Rule [See Mullas's
commentary on the Code, 16th Edition, Volume II, page 2177].
H
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 445
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
51. In the case of Uttam Singh Duggal & Co. Ltd., v. A
United Bank of India and others, (2000) 7 SCC 120, this
Court, while construing this provision, held that the Court should
not unduly narrow down its application as the object is to enable
a party to obtain speedy judgment.
B
52. In that case it was contended on behalf of the appellant,
Uttam Singh Duggal, that:
(a) Admissions under Order 12 Rule 6 should only be
those which are made in the pleadings.
c
(b) The admissions would in any case have to be read
along with the first proviso to Order 8 Rule 5 (1) of
the Code and the Court may call upon the party
relying on such admission to prove its case
independently. D
(c) The expression 'either in pleadings_ or otherwise'
should be interpreted ejusdem generis. [See para
11, pages 126-127 of the report]
53. Almost similar contentions have been raised on behalf E
of the Club. In Uttam Singh (supra) those contentions were
rejected and this Court opined no effort should be made to
narrow down the ambit of Order 12 Rule 6.
54. In Uttam Singh (supra) this Court made a distinction F
between a suit just between the parties and a suit relating to
Specific Relief Act where a declaration of status is given which
not only binds the parties but also binds generations. The Court
held such a declaration may be given merely on admission
(para 16, page 128 of the report).
G
55. But in a situation like the present one where the
controversy is between the parties on an admission of non-
payment of rent, judgment can be rendered on admission by
Court.
H
446 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 56. Order 12 Rule 6 of the Code has been very lucidly
discussed and succinctly interpreted in a Division Bench
judgment of Madhya Pradesh High Court in the case of
Shikharchand and others vs. Mst. Bari Bai and others
reported in AIR 1974 Madhya Pradesh 75. Justice G.P. Singh
B (as His Lordship then was) in a concurring judgment explained
the aforesaid rule, if we may say so, very authoritatively at page
79 of the report. His Lordship held:-
" ... I will only add a few words of my own. Rule 6 of Order
12 of thf3 Code of civil Procedure corresponds to Rule 5
c of Order 32 of the Supreme Court Rules (English), now rule
3 of Order 27, and is almost identically worded (see Annual
Practice 1965 edition Part I. p. 569). The Supreme Court
Rule came up for consideration in Ellis v. Allen (1914) Ch
904. In that case a suit was filed for ejectment, mesne
D profits and damages on the ground of breach of covenant
against sub-letting. Lessee's solicitors wrote to the
plaintiffs ·solicitors in which fact of breach of covenant was
admitted and a case was sought to be made out for relief
against forfeiture. This letter was used as an admission
E under rule 5 and as there was no substance in the plea of
relief against forfeiture, the suit was decreed for ejectment
under that rule. Sargant, J. rejected the argument that the
rule is confined to admissions made in pleadings or under
rules 1 to 4 in the same order (same as ours) and said:
F
"The rule applies wherever there is a clear
admission of facts in the face of which it is impossible for
the party making it to succeed."
Rule 6 of Order 12, in my opinion, must bear the same
G construction as was put upon the corresponding English
rule by Sargent, J. The words "either on the pleadings or
otherwise" in rule 6 enable us not only to see the
admissions made in pleadings or under Rules 1 to 4 of
the same order but also admissions made elsewhere
H during the trial."
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 447
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
(Emphasis added) A
57. This Court expresses its approval of the aforesaid
interpretation of Order 12 Rule 6 by Justice G.P. Singh (as His
Lordship then was). Mulla in his commentary on the Code has
also relied on ratio in Shikharchand (supra) for explaining these B
provisions.
58. Therefore, in the instant case even though statement
made by the Club in its petition under Section 114 of the
Transfer of Property Act does not come within the definition of
the word 'pleading' under Order 6 Rule 1 of the Code, but in C
Order 12 Rule 6 of the Code, the word 'pleading' has been
suffixed by the expression 'or otherwise'. Therefore, a wider
interpretation of the word 'pleading' is warranted in
understanding the implication of this rule. Thus the stand of the
'Club in"its petition under Section 114 of the Transfer of Property o
Act can be considered by the Court in pronouncing judgment
on admission under Order 12 Rule 6 in view of clear words
'pleading or otherwise' used therein especially when that
petition was in the suit filed by the Trust.
59. However, the provision under Order 12 Rule 6 of the E
Code is enabling, discretionary and permissive and is neither
mandatory nor it is peremptory since the word "may" has been
used.
60. But in the given situation, as in the instant case, the F
said provision can be applied in rendering the judgment.
61. The contentions of the Club cannot be accepted on
another legal ground also. It is clear that the Club has taken
inconsistent pleas. On the one hand the Club alleged that the G
Trust is not its Lessor and has no right to receive the lease rent
and it questions the title of the Trust. On the other hand the Club
is seeking the equitable remedy against forfeiture under
Section 114 of the Transfer of Property Act where it has
proceeded on the basis that the Trust is its Lessor and the Club
H
448 SUPREME COURT REPORTS [2010] 4 S.C.R.
A is the Lessee and as a Lessee it has to pay the lease rent to
the Trust. Therefore, the Club seeks to approbate and
reprobate.
62. The phrase 'approbate and reprobate' is borrowed
from Scots Law where it is used to express the Common law
8 principles of Election, namely, that no party can accept and
reject the same instrument.
63. In the instant case while filing its Suit and questioning
the title of the Trust, the Club seeks to reject the lease deed.
C At the same time while seeking the equitable remedy under
Section 114 of the Transfer of Property Act, the Club is relying
on the same instrument of lease. Legally this is not permissible.
{See the observation of Scrutton, L.J., in Verschures
Creameries Ltd. vs. Hull and Netherlands Steamship Co.
D Ltd.,- 1921-2 KB 608, ·which has been approved by a
Constitution Bench of this Court in Bhau Ram vs. Baij Nath
Singh and Ors. - AIR 1961 SC 1327]
64. The principle of Election has been very felicitously
expressed in the treatise 'Equity - A course of lectures' by
E F.W. Maitland, Cambridge University, 1947. The learned author
has explained the principle thus:
"The doctrine of Election may be thus stated: That he who
accepts a benefit under a deed or will or other instrument
F must adopt the whole contents of that instrument, must
conform to all its provisions and renounce all rights that are
inconsistent with it. .... "
65. In the old equity case of Streatfield vs. Streatfield
G (White and Tudor's Leading Cases in Equity, 9th Edition,
Volume I, 1928) this principle has been discussed in words
which are so apt and elegant that I better quote them:
"Election is the obligation imposed upon a party by Courts
of equity to choose between two inconsistent or alternative
H rights or claims in cases where there is a clear intention
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 449
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
of the person from whom he derives one that he should A
not enjoy both. Every case of election, therefore,
presupposes a plurality of gifts or rights, with an intention,
express or implied, of the party who has a right to control
one or both that one should be a substitute for the other.
The party who is to take has a choice, but he cannot enjoy B
the benefit of both (f). The principle is stated thus in Jarman
on Wills (g): "That he who accepts a benefit under a deed
or will must adopt the whole contents of the instrument,
conforming to all its provisions, and renouncing every right
inconsistent with it" (h). The principle of the doctrine of c
election is now well settled."
66. This principle has also been explained by this Court
in Nagubai Ammal and Ors. vs. B. Shama Rao and Ors.- AIR
1956 SC 593. Speaking for a three-Judge Bench of this Court,
Justice Venkatarama Ayyar stated in para 23 at page 602 of D
the report:
"The doctrine of election is not however confined to
instruments. A person cannot say at time that a transaction
is valid and thereby obtain some advantage, to which he E
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. That is to approbate and
reprobate the transaction.
F
It is clear from the above observations that the maxim that
a person cannot 'approbate and reprobate' is only one
application of the doctrine of election."
(f) Story (3rd ed.), p.452; Dillon v. Parker, 1 Swans.394, note (b); Thellusson
v. Woodford, 13 V. 220. G
(g) (6th ed.), 532; and see Farwell on Powers (3rd ed.), p.429.
(h) See Walpole v. Conway, Barn. C. 159; Kirkham v. Smith, 1 Ves. Sen. 258;
Macnamara v. Jones, 1 Bro. Ch. 481; Blake v. Sunbury, 4 Bro. Ch. 21;
Wintourv. Clifton, 21B.447; 8 De G. M. & G. 641; Codrington v. C., L.R. 7
H.L. 854, 861; Pitman v. Crum Ewing, (1911) A.C., at pp.228, 233; Brown
v. Gregson, [1920] A.C. 860, 868. H
450 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 67. On the doctrine of election the learned Judge has also
referred to Halsbury's Laws of England, (Volume XIII page 454
para 512) in which this principle of 'approbate and reprobate'
has been described as a species of estoppel which seems to
be 'intermediate between estoppel by record and estoppel in
B pais' (Page 602 of the report).
68. The said principle has also been accepted by this
Court in C. Beepathuma and Ors. vs. Velasari
Shankaranarayana Kadambolithaya and Ors. - AIR 1965 SC
C 241, paragraphs 17-18.
69. Therefore, the common law doctrine of Election is a
part of our jurisprudence and squarely applies in this case
inasmuch as the Club has advanced inconsistent pleas as
noted hereinabove.
D
70. In so far as non-payment of lease rent is concerned,
the Club has admitted it in its written statement in paragraphs
(8) and (10). The Club has also admitted it in its reply to the
Trust's petition under Order 12 Rule 6 referred to hereinabove.
E The Club has also admitted non-payment of rent in its petition
under Section 114 of the Transfer of Property Act where it
sought the equitable remedy of forfeiture and which has been
denied to it by the High Court for valid reasons.
71. From the pleadings between the parties in this case
F the following things are admitted:
(a) the Club has admitted in its written statement that the
Trust is its Lessor;
(b) the Club has also admitted that it has not paid the lease
G rent;
(c) the Club has also admitted that the lease rent is more
than Rs.3500/- per month in its reply to the Trust's petition
under Order 12 Rule 6;
H
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 451
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
(d) the Club has also admitted the receipt of notice of A
termination of lease issued by the Trust on the ground of
non-payment of lease rent.
72. The Suit filed by the Club questioning the title of the
Trust as its Lessor has been dismissed and nothing has been B
shown to this Court that it has been restored as on date. Such
a plea is prima facie not acceptable in view of the provisions
under Section 116 of the Evidence Act. However, in support
of its case that the Club is not estopped under Section 116 of
the Evidence Act to challenge the title of the lessor, learned
Counsel for the Club relied on a judgment of this Court in 0. C
Satyanarayana vs. P. Jagadish - (1987) 4 SCC 424. The
principle laid down in that decision is not attracted in the facts
of this case.
73. In 0. Satyanarayana (supra) the tenant was a sub- o
tenant of the tenant-respondent. The sub-tenant was threatened
with eviction by the superior landlord. Being threatened with
such eviction, the sub-tenant started paying monthly rent directly
to the superior landlord. In such a situation the Court held that
an exception to the rule of estoppel under Section 116 of the E
Evidence Act can be made since title of the landlord came to
an end as he was evicted by the title paramount. The Court held
even if there is a threat of eviction by the title paramount, the
tenant can attorn to the title paramount and a new jural
relationship of landlord and tenant may come into existence. In
F
such a situation, a sub-tenant can question the title of the tenant
and the bar under Section 116 of the Evidence Act cannot
apply. Here the fact situation is totally different. Here the Club
was not facing threat of eviction from anybody excepting the
Trust and there is no question of a superior landlord. In the
instant case Section 116 prima facie applies and the Club is G
prima facie stopped from challenging the title of the Trust.
74. Apart from the reasons discussed above, in our opinion
the Club is not entitled to any equitable relief under Article 136
of the Constitution having regard to its conduct. From the facts H
452 SUPREME COURT REPORTS [2010) 4 S.C.R.
A discussed above it is clear that the Club was very negligent in
pursuing its case. Its case was dismissed on several
occasions. The Club also adopted dilatory tactics in prolonging
the litigation. Even after losing the appeal before the High Court,
the Club, through its members initiated several proceedings to
B stall the execution of the decree and in those proceedings the
High Court held that with knowledge of the Club those
proceedings by the members were initiated. Even while filing
the Special Leave Petition before this Court, initially the
members of Club came with the usual plea of not being aware
C of the eviction proceeding against the Club as they were not
parties to the same. On that plea the members initially obtained
a stay of the execution proceedings. Thereafter, the Club taking
advantage of the existing stay order, filed its SLP.
75. In the backdrop of these facts one thing is clear that
D the conduct of the Club is such as to disentitle it to any
dis:::retionary remedy.
76. The jurisdiction of this Court under Article 136 of the
Constitution is basically one of conscience. The jurisdiction is
E plenary and residuary in nature. It is unfettered and not confined
within definite bounds. Discretion to be exercised here is
subject to only one limitation and that is the wisdom and sense
of justice of the judges (See Kunhayammed and others vs.
State of Kera/a and another- (2000) 6 SCC 359 at 371). This
F jurisdiction has to be exercised only in suitable cases and very
sparingly as opined by the Constitution Bench of this Court in
the case of Preetam Singh vs. The State reported in AIR 1950
SC 169, at paragraph 9.
77. Over the years this view has been repeated in several
G cases and some of which are noticed hereunder.
78. In Municipal Board, Pratabgarh and another vs.
Mahendra Singh Chawla and others reported in (1982) 3 SCC
331, a two Judge Bench of this Court held that in exercising
H the discretionary jurisdiction under Article 136 law is to be
KARAM KAPAHI & ORS. v. LAL CHAND PUBLIC 453
CHARITABLE TRUST [ASOK KUMAR GANGULY, J.]
tempered with equity and if the equitable situation so demands A
the Supreme Court should mould the final order (See paragraph
6).
79. Subsequently in Transmission Corpn. of A.P. Ltd. vs.
/
Lanco Kondapalli Power (P) Ltd. reported in (2006) 1 SCC 540 B
this Court held that while exercising jurisdiction under Article
136 the conduct of the party is a relevant factor and in a given
situation this Court may refuse its discretionary jurisdiction
under Article 136 (See paragraphs 54, 55 and 56). Similar
views have been expressed in the case of Jagraj Singh vs. C
Birpal Kaur reported in (2007) 2 SCC 564 wherein this Court
held that the conduct of the parties is relevant when the Court
is exercising its jurisdiction under Article 136 (See paragraph
30). In Tanna & Modi vs. CIT, Mumbai XXV and others
reported in (2007) 7 SCC 434 this Court held it does not
exercise its discretionary jurisdiction under Article 136 just D·
because it is lawful to do so (See paragraph 23). In the case
of Prestige Lights Ltd. vs. State Bank of India reported in
(2007) 8 sec 449 the Court refused to exercise jurisdiction
under Article 136 of the Constitution having regard to the
conduct of the parties. E
80. For the reasons aforesaid this Court is not inclined to
interfere in exercise of its jurisdiction under Article 136. Both
the appeals, the one filed by Karam Kapahi & Others and the
next one filed by the M/s. South Delhi Club Ltd. are dismissed F
with costs assessed at Rs.25,000/- (Rupees Twenty~five
thousand) to be paid by M/s South Delhi Club to M/s. Lal Chand
Public Charitable Trust within four weeks from date. The
Judgment of the High Court is affirmed.
N.J. Appeals dismissed.
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