R.N. GOSAINversusYASHPAL DHIR

                              R.1'. GOSAIN                                        A
                                     v.
                             YASHPAL DHIR

                             OCTOBER 23, 1992

      (K. JAYACHANDRA REDDY AND S.C. AGRAWAL, JJ.]                                B

      Constitution of India, 195(}-Article 136-Special leave petition--
Whether entertainable, when petitioner (tenant) avails protection from eviction
on the basis of undertaking.
                                                                                  c
      East Punjab Urban Rent Restriction Act, 1941)-Section BA-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

      A residential house was let out to the petitioner by the respondent.        D
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.                                                           E

      Claiming to be a "specified landlord" within the meaning of Section
2(hh) of the East Punjab Urban Rent Restriction Act, 1949, the respon-
dent moved a petition seeking eviction of the petitioner under section 13A
of the Act before the Rent Controller.
                                                                                  F
      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.
                                                                                  G
      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
6, 1992. The Hi~h Court held that the respondent, at the time of his
retirement from the post of Comptroller in the University, was holding an
api:ointrnent in connection with the affairs of the State and hence he was        H
                                      257
    258                 SUPREME COURT RFPORTS 11992] SUPP. 2 S.C.R.

A 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 pe!itioner. 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
B   and tiling 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' time to vacate the
c   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.
D
         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
E
    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-
F   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
G   f'rom assailing the judgment of the High Court by invoking the jurisdic-
    tion 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
H   he had clearly indicated that he intended to file a special leave petition in
                    R.N. GOSAIN v. YASHPAL DHIR                            259

this Court against the order of the High Court dated March 6, 1992 and A
that it was also expressly stated in the undertaking tiled 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,
                                                                                   B
       HELD : 1.01 Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election which postu·
lates that no party can accept and reject the same instrument: (263-F]

      1.02 The petitioner, having given an undertaking in pursuance to the         C
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]
                                                                                   D
       1.03 The statement in the undertaking, that it was subject to the rights
of the petitioner to tile special leave petition in this Court against the order
of eviction, does not have any effect on the legal consequence flowing as a
result of the tiling 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. Chandan-
mal Rupchand & Ors., (1987] Supp. SCC 254, referred to.

      Halsbury's Laws of England, 4th Edn. Vol. 16, para 1508, referred to.
                                                                                   F

     CIVIL APPELLATE JURISDICTION : Special Leave Petition (C)
No. 4325 of 1992.

     From the Judgment and Order dated 6.3.1992 of the Punjab and                  G
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.                                           H
    260                    SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A         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
B
    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
C   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
D   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
E   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(S) of the Act which was allowed by the High Court by
    judgment dated March 6, 1992. The High Court held that the respondent,
F   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.
G 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 :

            11
H                However, the respondent is allowed one month's time to
              R.N. GOSAIN v. YASHPAL DHIR [AGRAWAL, J.)                261

        vacate the premises provided he pays the entire arrears of           A
        rent within 15 days from tvday, and also files an undertak-
        ing 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   B
under section 151 CPC seeking three months, time to vacate the house and
for wah1ng the requirement of 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      c
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 posses-
        sion of the premises on the expiry of one month from 6.3.92          D
        as per the order ofHon'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.n                                   E
      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 disM
        1
                                                                             F
        possession to be effected."

      On April 9, 1992, an order was passed in the following terms :
         11
          lssue notice returnable within two weeks. In the meantime,
         stay of eviction to continue.''                                     G

      In response to the said notice, the respondent filed a counterM
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.            H
    262                  SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A          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 lhe expiry of aforesaid
    period and his having. submitted a written undertaking in accordance with
B
    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
c   eviction" would not alter the position. In support of his aforesaid submis-
    sion Shri Sehgal has placed reliance on the decisions of this Court in
    Thacker Hariram Motiram v. Ba/krishan Chatbrabhu Thacker & Ors., [1989]
    Supp. 2 SCC 655; Vidhi Shanker v. Heera Lal, [1987] Supp. SCC 200 and
    Ramchandra Jai Ram Randive v. Chandanma/ Rupchand & Ors., [1987]
D   supp. sec 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
E   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 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
F
    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
G   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 directions given by the High Court, the
H   petitioner could continue in occupation of the premises for a period of one
          R.N. GOSAIN v. YASHPAL DHIR [AGRAWAL, J.]                     263

month on his (i) paying the entire arrears of rent within 15 days from the A
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 ior the purpose before B
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, C
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 protec-
tion 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 D
 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 protec-
                                                                                E
tion 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.
                                                                                F

      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, G
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 ad- H
    264                 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A vantage 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 17iacker Hariram Motiram v, Ba/krisha11 Chatbrabhu Thacker &
  Ors. (supra), this Court was dealing with a similar situation. The High
B 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
C 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 Constitu-
D tion 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.
E            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)

F         Similarly in Vidhi Shanker v. Heera Lal (supra) and Ramchandra Joi
    Ram Ra11dive v. Chandanmal F..upchand & 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.

G          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 w1dertaking, cannot be permitted to invoke
    the jurisdiction of this Court under Article 136 of the Constitution and
H   assail the said judgment of the High Court In that view of the matter, we
           R.N. GOSAIN v. YASHPAL DHIR [AGRAWAL, l.l                   265

do not consider it necessary to deal with the submissions urged by Dr.        A
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, dism;ssed but without any
orders as to costs.                                                           B
V.P.R.                                                  Petition dismissed.