P.R. DESHPANDE versus MARUTI BALARAM HAIBATTI

Citation: [1998] 3 S.C.R. 1079 · Decided: 11-08-1998 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

~ 
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 c 
Leave petition preferred against order of High Court-Maintainability 
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 
G 
the Special Leave Petition after having filed the undertaking before the 
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 
B special leave cannot be dismissed as not maintainable on the mere ground 
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 
c 
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) 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. 
D It cannot impede right of appeal and particularly the constitutional remedy. 
[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 
E 
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 obtaining stay he cannot be presumed to communicate to the 
F 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 
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. 

Excerpt shown. Read the full judgment & AI analysis in Lexace.