Holding

A Special Leave Petition under Article 136 is maintainable despite the appellant’s undertaking, and the doctrine of election or estoppel does not bar a constitutional remedy.

Summary

The tenant, P.R. Deshpande, filed a revision petition under Section 50 of the Karnataka Rent Control Act, 1961, but failed to deposit the arrears of rent required by Section 29(1) at the time of filing. The Karnataka High Court dismissed the revision petition for this deficiency, gave the tenant six weeks to vacate the premises and directed him to file an undertaking, which he complied with. The tenant then filed a Special Leave Petition under Article 136 of the Constitution, and the landlord argued that the tenant was barred from invoking the Supreme Court’s jurisdiction because he had given an undertaking in the High Court. The Supreme Court held that the doctrine of election and estoppel cannot be invoked to preclude a constitutional remedy and that an appeal or SLP remains maintainable despite the undertaking. It also affirmed that the tenant’s failure to deposit arrears at the time of filing rendered the revision petition non‑maintainable, and consequently dismissed the appeal.

Issues considered

The maintainability of a Special Leave Petition under Article 136 after the appellant has given an undertaking to the High Court.
Whether the doctrine of election or estoppel can bar a statutory or constitutional remedy.
Whether the requirement of depositing arrears of rent under Section 29(1) of the Karnataka Rent Control Act must be complied with at the time of filing the revision petition.

Legislation cited

Constitution of Indias. Article 136
Karnataka Rent Control Act, 1961s. 29, s. 50

Subjects

Article 136Special Leave PetitionKarnataka Rent Control ActSection 29revision petitionundertakingdoctrine of electionestoppelmaintainabilityeviction

Judgment

~
·- I

P.R. DESHPANDE A
l v.
MARUTI BALARAM HAIBATTI

AUGUST 11, 1998

(M.M. PUNCHHI, CJ., K.T. THOMAS AND S.S. B
MOHAMMED QUADRJ, JJ.]

Constitution of India-Article 136 Maintainability of Undertaking
by the tenant before High Court for vacating the suit premises-Special
Leave petition preferred against order of High Court-Maintainability c
of-Karnataka Rent Control Act, 1961-Section 29

A revision petition was filed on 20.4. 1991 by the appellant-tenant
in the High Court under the provisions of the Karnataka Rent Control
Act, 1961 against the order of the District Judge. Filing of the said D
revision petition was not accompanied by deposit of arrears of rent as
contemplated under Section 29 of the Karnataka Rent Control Act However,
... the appellant later on deposited the arrears of rent on 27.5.1991 .

The revision petition filed by the appellant was dismissed by the High
Court on 25.7.1994 on the ground that it was not maintainable as it was E
not accompanied by deposit of arrears of rent However, six weeks time was
given to the appellant to vacate the premises on his filing an undertaking
to do so within four weeks. The appellant, therefore, filed an undertaking
as per the direction of the High Court stating therein that he would vacate
the premises within six weeks. F
. ..._
Against the order of the High Court, the appeJlant filed a Special
Leave Petition in this Court. A preliminary objection was raised on behalf
of the Respondent-landlord regarding the maintainability of the Special
Leave Petition on the ground that the appellant could not have preferred
the Special Leave Petition after having filed the undertaking before the G
High Court. On the other hand, the appellant contended that the High
Court had erred in dismissing the revision petition without examining the
·->- matter on merit as the liability to pay arrears of rent under Section 29(1)
of the Karnataka Rent Control Act, 1961 would arise only after the Court
determines the amount to be paid .under Section 29(3). H
1079
1080 SUPREME COURT REPORTS (1998] 3 S.C.R.

A The appeal came up for consideration before a Two-Judges Bench of
this Court and was referred to a Three-Judges Bench. .,
Dismissing the appeal on merits, this Court

HELD: I.I. Appeal filed under Article 136 of the Constitution by
special leave cannot be dismissed as not maintainable on the mere ground
B
that appellant has given an undertaking to the High Court on being so
directed, in order to keep the High Court's order in abeyance for some time.
[1085-B)
~
1.2. The doctrine of election is based on the rule of estopple. The
principle that one cannot approbate and reprobate inheres in it. Doctrine of
c 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. However, the principle
of estoppel has no application when statutory rights and liabilities are involved.
It cannot impede right of appeal and particularly the constitutional remedy.
D
[1083-F-G)
1.3 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
E 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 obtaining stay he cannot be presumed to communicate to the
other party that he is thereby giving up his statutory remedies to challenge
F the order. No doubt he is bound to comply with his undertaking so long as
~
the order remains alive and operative. However, it is open to such superior
court to consider whether the operation of the order or judgment challenged
before it need be stayed or suspended having regard to the fact that the
concerned party has given undertaking in the lower court to abide by the
G decree or order within the time fixed by that court. [1084-F-H)

R.N. Gawain v. Yashpal Dhir, [1992) 4 SCC 683; Virdhi Sanker v.
Heera Lal, [1987) Supp. SCC 200; Ramchandra Jai Ram Randive (since
deceased) v. Chandmal Rupchand and Ors., [1987) Supp. SCC 254 and .:r:--
Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker and Ors., (1989)
H Supp. SCC 655, overruled.
P.R. DESHPANDE v. MARUTI BALARAM HAIBATTI [THOMAS. J.] 1081

P.R. Deshpande v. Maruti Bairam Haibatti, 119551Supp.2 SCC 539, A
rrlied on.
l
Halsbwy's laws of England 4th edn. Para 1508 in Vol. 16; Black's
Laiv Dictionat)' 5th Edn.; Evans v. Bait/am, 1193712 All E.R. 646, referred
to.
B
2. It is not open to the appellant now to contend that he did not make
the deposit along with filing of revision petition due to want of an order from
the court under sub-section (3) of Section 29 of Karnataka Rent Control
Act. The contingency under that sub-section would arise only where there
is a dispute as to the amount of rent to be paid or to be deposited. In this case
the appellant filed revision petition on 20.4.1991 but did not deposit the rent C
on 20.4.1991 when the revision petition was filed. 11086-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4587 of
1995.

From the Judgment and Order dated25.7.94 of the Karnataka High Court D
in H.R.R.P. No. 780of1994.

~ Uday Sinha, Bhawani Shanker, V. Gadnis and H.R. Raichura for the
Appellant.

V.A Mohta, S.M. Sereen and M.K. Dua for the Respondent. E
The Judgment of the Court was delivered by

THOMAS, J. When this appeal came up for consideration on 7-4-1995
before R. M. Sahai and N. Venaktachala, JJ, learned Judges ordered this to
be listed before a larger Bench, in view of the preliminary objections raised F
by the landlord -respondent regarding maintainability of the appeal the
reference order is reported in [ 1995] Suppl. 2 SCC 539.

This appeal by special leave is against the order of the High Court of
Karnataka dismissing a revision petition filed by the appellant-tenant under G
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 H
1082 SUPREME COURT REPORTS [1998] 3 S.C.R.
"'--
A premises within six months. .,
The preliminary objection raised by the learned counsel for the
.l
respondent is that the tenant is precluded from approaching this Court under
Article 136 of the Constitution of India after giving the aforesaid undertaking
b~fore the High Court. In support of the said objection learned counsel cited
B the decision of a two Judge Bench of this Court (K. Jayachandra Reddy and
S. C. Agrawal, JJ) in R. N. Gosain v. Yashpal Dhir, [1992] 4 SCC 683
wherein it was held as follows:

"By furnishing the said undertaking the petitioner elected to avail the
protection from eviction from the premises and he enjoyed the said
c protection till the passing of the order by the Supreme Court on
March 26, 1992, staying dispossession of the petitioner. Having done
so, the petitioner cannot be permitted to invoke the jurisdiction of
the Supreme Court under Article 136 of the Constitution and assail
the said judgment of the High Court."
D ::..
Learned Judges found support to the said view from three decisions of
this Court rendered by two member Benches in Vidhi Shanker v. Heera Lal,
[1987] suppl. SCC 200 Ramchandra Jai Ram Randive (since deceased) v. ~

Chandanmal Rupchand & Ors., [1987] suppl. SCC 254) and Thacker
Hariram Motiram v. Ba/krishan Chatrabhu Thacker & Ors., [1989] supple
E SCC 655. In all those three decisions Sabyasachi Mukherjee, J. (as he then
was), speaking for the Bench, adopted a uniform approach that "whatever be
the merits of the case ............ it would not be proper, after such an undertaking
was given in the High Court and time was taken on the basis of such
undertaking, to interfere with the finding made by the High Court," Appeals
F were dismissed on that score alone.
..
_,..
Relying on those decisions Agrawal, J., speaking for the two Judge
Bench in R. N. Gosain v. Yashpal Dhir, (supra) has observed thus:

"Law does not permit a person to both approbate and reprobate. This
G 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 he could only be entitled on the footing
that it is valid, and then tum round and say it is void for the purpose
H of securing some other advantage."
P.R. DESHPANDE v. MARUTI BALARAM HAIBATTI [THOMAS, J.] 1083
A passage from Halsbury's 'Laws of England was cited by the learned A
~
Judges (vide para 1508 in Vol. 16 of the 4th Edn.).

Learned Judges who referred this matter have expressed in the reference
order that remedy under Atticle 136 is a Constitutional right which cannot be
taken away by legislation, much less by invoking the principles of election
or estoppel. The following observations made in the reference order are B
worthy of quotation here:

~ "The principle of 'approbate and reprobate' or the law of election
which is the basis of the decision in R. N. Gosain's case (supra)
cannot, in our opinion, be applied appropriately to preclude this Court
from exercising its jurisdiction under Ar<icle 136. The doctrine of
c
election is founded on• equitable principle that where a person
persuades another one to act in a manner to his prejudice and derives
any advantage from that then he cannot turn around and claim that he
was not liable to perform his part as it was void. It applies where a
vendor or a transferor of property tries to take advantage of his own D
wrong. This principle cannot, in our opinion, be extended to shut out
or preclude a person from invoking the constitutional remedy provided
.... to him under Article 136. The law that there is no estoppel against
., statute is well settled. Here it is a remedy under the Constitution and
no law can be framed much less the principle of election which can
stand in the way of the appellant from invoking the constitutional
E
jurisdiction of this Court."

The doctrine of election is based on the rule of estoppel - the principle
that one cannot approbate and reprobate inheres in it. Doctrine of estoppel
by election is one of the species of estoppel in pais (or equitable estoppel)
F
-\ 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 G
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 v. Bart/am (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 of a party to put the matter on the rule of election on the premise
that the defendant knew or must be presumed to know that he had the right H
1084 SUPREME COURT REPORTS (1998] 3 S.C.R.

A to apply to set the judgment aside and by asking for and obtaining time he -"
irrevocably elected to abide by the judgment. Lord Atkin, reversing the above
view, has observed thus: •

"My Lords, 1do not find myself convinced by these judgments. I find
nothing in the facts analogous to cases where a party, having obtained
B and enjoyed material benefit from a judgment, has been held precluded
from attacking it while he still is in enjoyment of the benefit. I cannot
bring myself to think that a judgment debtor, who asks for and receives
a stay of execution, approbates the judgment, so as to pw:lude him
thereafter from seeking to set it aside, whether by appeal or otherwise.
Nor do I find it possible to apply the doctrine of election."
c
Lord Russell of Kill owen while concurring with the aforesaid observations
has stated thus:

"My lords, I confess to a feeling of some bewilderment at the theory
that a man who so long as it stands, must perforce acknowledge and
D fow to a judgment of the court regularly obtained),. by seeking and
obtaining a temporary suspension of its execution, thereby binds
himself never to dispute its validity or its correctness, and never to
seek to have it set aside or reversed. If this were right, no defeated
litigant could safely ask his adversary for a stay of execution pending
E an appeal, for the grant of the request 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 list 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
F 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
G because a party has complied with the directions to give an undertaking as
a condition for obtaining stay he cannot be presumed to communicate to the
other party that he is thereby giving up his statutory remedies to challenge
the order. No doubt he is bound to comply with his undertaking so long as 1. -
the order remains alive and operative. However, it is open to such superior
court to consider whether the operation of the order or judgment challenged
H before it need be stayed or suspended having regard to the fact that the
P.R. DESHPANDE v. MARUTI BALARAM HAIBATTI [THOMAS, J.] 1085
concerned party has given undertaking in the lower court to abide by the A
decree or order within the time fixed by that court.

We are, therefore, in agreement with the view of Sahai and Venkatachala,
JJ, that the appeal filed under A11icle 136 of the Constitution by special
leave cannot be dismissed as not maintainable on the :nere ground that
appellant has given an undertaking to the High Court on being so directed, B
in order to keep the High Court's order in abeyance for some time.

On the merits it was contended that dismissal of the revision petition
filed by the tenant, without considering it on merits, was bad in law. The
revision petition was held not maintainable as it was not accompanied by C
deposit of arrears of rent. It was a condition for preferring a revision under
the Act that the tenant should deposit the entire arrears of rent.

Section 29 of the Act reads thus:

"29. Deposit and payment of rent during the pendency of proceedings D
for eviction. - (I) No tenant against whom an application for eviction
has been made by a landlord under 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 E
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 p
the proceedings before the Court or the District Judge or the High
Court, as the case may be.

(2) The deposit of the rent under sub-section (I) shall be made
within the time and in the manner prescribed and shall be accompanied
by such fee as may be prescribed for the service of the notice referred G
to in sub-section (5).

(3) Where there is any dispute as to the amount of rent to be paid
--4
or deposited under sub-section (I), the Court shall, on application
made to it either by the tenant or the landlord and after making such
enquiry as it deems necessary determine summarily the rent to be so H
1086 SUPREME COURT REPORTS [1998] 3 S.C.R.

A paid or deposited.

(4) If any tenant fails to pay or deposit the rent as aforesaid, the
Court, the District Judge or the High Court, as the case may be, shall
unless the tenant shows sufficient cause to the contrary, stop all
further proceedings and make an order directing the tenant to put the
B landlord in possession of the premises or dismiss the appeal or
revision petition, as the case may be.

(5) When any deposit is made under sub-section (1), the Court, the
the District Judge or the High Court, as the case may be, shall cause
notice of the deposit to be served on the landlord in the prescribed
c manner and the amount deposited may, subject to such conditions as
may be prescribed, be withdrawn by the landlord on application made
by him to the Court in this behalf."

The words in sub-section ( 1) "or to prefer or prosecute a revision
D petition under Section 50" encompass two stages. First is at the threshold
when tenant files the petition for revision. Second is a stage when he
prosecutes his revision. On the first stage 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
E 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( I) of the Act would come into operation only after
the court determines the amount to be paid. This argument is based on sub-
F section (3) but the contingency under that sub-section would arise only
where there is a dispute as to the amount of rent to be paid or to be deposited.
In this case the appellant filed revision petition on 20.4.1991. High Court
has noticed that "admittedly, the tenant did not deposit the rent on 20-4-
199 I when the revision petition was filed before the learned District Judge."
G
The admitted position being as above, it is not open to the appellant
now to contend that he did not make the deposit along with filing of revision
petition due to want of an order from the court.

Learned counsel for the appellant made an attempt to raise a contention
H that though the appellant did not deposit the arrears of rent along with filing
P.R. DESHPANDE v. MARUTI BALARAM HAIBATTI [THOMAS, J.] 1087
/. the revision petition he has subsequently paid rent arrears on 27-5-1991 and A
hence the revision must be treated as preferred on that date. We are not
disposed to countenance the said contention in this particular case for two
reasons. Firstly, that the landlord-respondent filed an application under Section
29(4) of the Act, before the District Court and the tenant has not taken up
such a ground in the petition filed by him thereto. Secondly, even in the B
Special Leave Petition he has not adopted any such contention and hence
the landlord, has no occasion to meet the factual situation on the basis of
which the aforesaid contention is raised.

In the result, we dismiss this appeal.

B.K.M. Appeal dismissed. C