PRASHANT RAMACHANDRA DESHPANDE Vs. MARUTI BALARAM HAIBATTI

JUDGEMENT

(1.) In this tenant's appeal directed against the order dismissing his revision for non-compliance of Ss. (1 of Section 29 of the Karnataka Rent Control Act, 1961, what has been vehemently argued for the landlord is that the appellant having given an undertaking before the High court that he would vacate the premises within six months, he is precluded from approaching this court under Article 136 of the Constitution of India. Reliance has been placed on R. N. Gosain v. Yashpal Dhir and it is urged that since law does not permit a person to approbate and reprobate and this principle is founded on the doctrine of election, this petition is liable to be dismissed on this ground.

(2.) Election is a defence available affecting property and "considers that as done which ought to have been done", Halshury's Laws of England, 4th Edn. , Vol. 16, para 1372. It is statutorily recognised by Section 35 of the Transfer of Property Act, 1882. It applies where a person professes to transfer property which he has no right to transfer. Similarly, on the principle that a person may not approbate and reprobate, "a species of estoppel has arisen which seems tobe intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1 that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and (2 that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent". Vide Halsbury's Laws of England, 4th Edn Vol. 16, para 1507.

(3.) None of these principles apply to an undertaking given by a tenant for vacating the premises within specified time. It is not a transfer of property by a person who has no right to transfer. The doctrine of election cannot be applied to deprive a person of his statutory right to appeal, much less a constitutional right of invoking extraordinary jurisdiction of this court as he having undertaken to vacate the premises was precluded from exercising his right to approach higher court. It is not exercise of option between two remedies open to him but depriving him of his constitutional right which would be contrary to constitutional guarantee and against law. There is no estoppel against statute.