TMI Blog1998 (8) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... nataka dismissing a revision petition filed by the appellant-tenant under Section 50 of the karnataka Rent Control Act, 1961 (for short the Act ) challenging an order of eviction passed against the appellant. While dismissing the revision petition on 25-7- 1994, learned Judge of the High Court granted six months' time to appellant-tenant for vacating the premises in question and directed him to file an undertaking within 4 weeks. Appellant-tenant has pursuant to the said direction, filed the undertaking that he would vacate the premises within six months. The preliminary objection raised by the learned counsel for the respondent is that the tenant is precluded from approaching this Court under Article 136 of the Constitution of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore alone. Relying on those decisions Agrawal, J., speaking for the two Judge Bench in R. N. Gosain vs. Yashpal Dhir (supra) has observed thus: 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 and thereby obtain some advantage, to which the 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. A passage from Halsbury's Laws of England was cited by the learned Judges (vide para 1508 in Vol. 16 of the 4th Edn.). Learned Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate inheres in it. Doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had, (vide Black's Law Dictionary, 5th Edn.). It is now trite that the principle of estoppel has no application when statutory rights and liabilities are involved. It cannot imped right of appeal and particularly the constitutional remedy. The House of Lords has considered the same question in Evans vs. Bartlam (1937 2 All E.R.646). The House was dealing with an order of the Court of Appeal whereby Scott L.J. approved the contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est would end the right of appeal. The doctrine of election applies only to a man who elects with full knowledge of the facts. A party to a lis can be asked to give an undertaking to the court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking no court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reversed or modified by the superior court or even the same court on a review the undertaking given by the party will automatically cease to operate. merely because a party has complied with the directions to give an undertaking as a condition for obtaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 21, shall be entitled to contest the application before the Court under that Section or to prefer or prosecute a revision petition under Section 50 against an order made by the Court on application under Section 21 unless he has paid or pays to the landlord or deposits with the Court or the District Judge or the High Court, as the case may be, all arrears of rent due in respect of the premises upto the date of payment or deposits and continues to pay or to deposit any rent which may subsequently become due in respect of the premises at the rate at which it was last paid or agreed to be paid, until the termination of the proceedings before the court or the District Judge or the High Court, as the case may be. (2) The deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he prosecutes his revision. On the first stage when his revision petition is not maintainable unless it is accompanied by either payment or deposit of all the arrears of rent due up to the date of payment or deposit . If the revision is validly preferred then in the next stage of prosecution of revision the tenant has to continue to pay or deposit any rent which may subsequently become due until termination of the proceedings. Learned counsel for the appellant contended that the liability of the tenant under Section 29(1) of the Act would come into operation only after the court determines the amount to be paid. This argument is based on sub-section (3) but the contingency under that sub-section would arise only where there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
