T V BALAKRISHNAN Vs. T S VENKATACHALAM

JUDGEMENT

(1.) C. M. P. No. 7812 of 1979 has been filed to dismiss the civil revision petition C. R. P. No. 1707 of 1979. The said revision petition itself is filed against the order of the authorities functioning under the Tamil Nadu Act 18 of 1960 dismissing the petition filed by the petitioner in the revision petition to set aside the ex parte order for eviction passed on 2-11-1971. The respondent in the revision petition, who has filed the present civil miscellaneous petition to dismiss the revision petition contends as follows,namely

(2.) The fact that such an endorsement was made by the petitioner in the civil revision petition is not denied before me. Consequently the only question that arises for consideration is, what is the legal consequence of this endorsement made by the revision petitioner. According to the learned counsel for the respondent in the revision petition, in view of the above endorsement made by him, the revision petitioner had disabled himself from filing the civil revision petition and this court has to dismiss the civil revision petition. In support of this contention, the learned counsel drew my attention to two decisions, namely, one of the Allahabad High Court in Anant Das v. Ashburner and Co., (1875-77) ILR 1 All 267 (FB) and the other of the Calcutta High Court in Protab Chunder Dass v. Arathoon (1882) ILR 8 Cal 455, and also to a Bench decision of this High Court in Dr. Thirumal Rao v. Ranganatha Mudaliar, 1949-1 Mad LJ 280, wherein a reference to. the decisions of the Allahabad High Court and the Calcutta High Court cited above has been made. The decision of the All High Court is directly in point. In that case, there was an agreement whereby the judgment debtor bound himself not to file an appeal, if the decree holder would give the judgment, debtor time to satisfy the decree and it was held that that agreement was not hit by Section 28 of the Contract Act. The court observed: "He forwent his right to question in appeal the decision which had been passed by an ordinary tribunal. Such an agreement is, in our judgment, prohibited neither by the language nor the spirit of the Contract Act and an appellate court is bound by the rules of justice, equity and good conscience to give effect to it and to refuse to allow the party bound by it to proceed with an appeal".

(3.) The Bench of this court in the decision referred to already distinguished the above decision on the facts of the case before the Bench of this court. In the case dealt with by the Bench of this court a letter was given by the tenant against whom an order for eviction was passed to the following effect "As you have brought a warrant of possession against me in the above E. P. for the ground floor No. 95 Thayagaraja Road, Thyagarayanagar, I request you time for today and I assure you that I will give complete possession of the said place by tonight". With reference to this language the Bench observed.