LexPRASHANT RAMACHANDRA DESHPANDE versus MARUTI BALARAM HAIBATTI
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A PRASHANT RAMACHANDRA DESHPANDE v. MARUTI BALARAM HAIBATTI APRIL 7, 1995 B [R.M. SAHA! AND N. VENKATACHALA, JJ.] Rent and Evictiolt-Kamataka Rent Control Act, 1961: Tenant-Dismissal of Revision Petition-Undertaking to vacate C premises with in six months-Held filing of undertaking does not preclude tenant from filing a special Leave Petition-Principle of 'Approbate and Reprobate' and Doctrine of Election held inapplicable-Constitution of India, 1951>-Artic/e 136. The appellant-tenant whose revision was dismissed by Karnataka D High Court for non compliance with sub·section(l) of Section 29 of the Karnataka Rent Control Act, 1961 gave an undertaking to vacate the premises within six months. However, be filed a Special Leave Petition before this Court. Relying on the decision of this Court in R.N. Gosai v. ) Yashpal Dhir, [1992) 4 SCC 683 it was contended by the landlord that since law does not permit a person to approbate and reprobate which E principle was founded on doctrine of election, the tenant was precluded from filing a petition under Article 136. Directing the matter to be listed before a larger Bench, this Court HELD: 1. Remedy under Article 136 is a constitutional right. It F cannot be taken away by legislatim1 much less by invoking principle of election or estoppel. The jurisdiction exercised by this Court under Article 136 is an extraordinary juri_sdiction. It is not hedged with any restrictions or any exception as is normally found In the provisions conferring juris· diction. The principle of 'approbate and reprobate' or the law of election G cannot be applied appropriately to preclude this Court from exercising its jurisdiction under Article 136. [257-B, CJ 2. The doctrine of election cannot be extended to shut out or preclude a person from invoking the constitutional remedy provided to him under .• Article 136. It cannot be applied to deprive a person of his statutory right H to appeal much less a constitutional right of invoking extraordinary juris· 254 . ( ~- P.R. DESHPANDE v. M.B. HAIBAT!l 255 diction of this Court as he having undertaken to vacate the premises was A 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 guaran· tee and against law. There is no estoppel against statute. (256-E) 3. Even the equitable principle of'approbate and reprobate' cannot be B applied. Taking time to vacate is appealing to the court to protect him so that he may make arrangements in the meantime. At the worst the intention might be to gain time to approach the higher court. Grant of time in either case is in the discretion of the court. Its violation may amount to dis· obedience of the order of the court and the person may be proceeded against C in contempt. But no other fetter arises. Otherwise in the system prevalent the tenant may be on the road by the time he is able to approach this Court. This would be rendering the tenant remediless. [256-G-H, 257-A] R.N. Gosai v. Yashpal Dhir, [1992) 4 SCC 683, dissented from. Halsbury's Laws of England, 4th Ed.Vol.16 Para 1507, referred to . CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4587 of 1995. D From the Judgment and Order dated 25.7.94 of the Karnataka High E Court in H.R.R.P.No. 780 of 1994. U day Sinha, Bhawanishankar Gadnis and H.A. Raichura for the Appellant. Gobind Mukhti, R. Jagannath Gowdy and M.K. Dua for the Respon- F dent. The following Order of the Court was delivered : In this tenant's appeal directed against the order dismissing his revision for non-compliance of sub-section (1) of Section 29 of the Kar- G nataka 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, (1992] 4 SCC H 256 SUPREME COURT REPORTS [1995] 3 S.C.R. A 683 and it is urged that since law does not permit a person to approbate and reprobate and this principle is founded on doctrine of election, this petition is liable to be dismissed on this ground. Election is a defence available affecting 'property and, 'considers that as done which ought to have been don
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