SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:
R.N. GOSAIN A

Vs.

RESPONDENT:
YASHPAL DHIR

DATE OF JUDGMENT23/10/1992

BENCH:
[K. JAYACHANDRA REDDY AND S.C. AGRAWAL, JJ.]
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ACT:
Constitution of India, 1950-Article 136-Special leave
petition- Whether entertainable, when petitioner (tenant)
avails protection from eviction on the basis of undertaking
East Punjab Urban Rent Restriction Act, 1949-Section 13A-
Eviction of tenant High Court’s order Protection from
eviction availed by tenant under an undertaking-Invoking
Supreme Court under Article 136 of the Constitution
assailing High Court’s judgment-Legality of.

HEADNOTE:
A residential house was let out to the petitioner by
the respondent. The respondent was initially employed as
Accounts Officer with the Finance Department of the
Government. In 1969, he went on deputation with the Haryana
Agricultural University. While he was employed on the post
of Comptroller in the University he retired from service
with effect from February 28, 1991.
Claiming to be a "specified landlord" within the
meaning of Section 2(hh) of the East Punjab Urban Rent
Restriction Act, 1949, the respondent moved a petition
seeking eviction of the petitioner under section 13A of the
Act before the Rent Controller.
The petition was dismissed by the Rent Controller on
the view that the respondent did not fall within the ambit
of the definition of "specified landlord", since he failed
to show that he was holding or had held an appointment in a
public service or post in connection with the affairs of the
Union or of the State.
The respondent filed a revision petition before the
High Court under section 18-A(8) of the Act, which was
allowed by the High Court on March, 1992. The High Court
held that the respondent, at the time of his retirement from
the post of Comptroller in the University, was holding an
appointment in connection with the affairs of the State and
hence he was a specified landlord within the meaning of
section 2(hh) of the Act and that the respondent had fully
satisfied the conditions as contained in section 13-A of the
Act and he was entitled to recover the possession of the
premises in dispute from the petitioner. The High Court
allowed one month’s time for the petitioner to vacate the
premises subject to his paying the entire arrears of rent
within 15 days from the date of the order and filing an
undertaking that he would hand over the vacant possession of
the premises on the expiry of the aforesaid period.
On March 16, 1992, the petitioner moved a petition in
the High Court under section 151 CPC seeking three months’
 SUPREME COURT OF INDIA Page 2 of 6
time to vacate the house and for waiving the requirement of
filing of an undertaking. The High Court rejected the
petition.
Thereafter, the petitioner submitted an undertaking
dated March 20, 1992 before the Rent Controller wherein the
petitioner referred to the direction contained in the order
of the High Court dated March 6, 1992.
On March 21, 1992, the petitioner filed the special
leave petition under Article 136 of the Constitution in this
Court and succeeded to get an order staying dispossession on
March 26, 1992.
In response to the notice issued on the Special Leave
Petition, the respondent filed a counter-affidavit raising
an objection that in view of the undertaking given by the
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petitioner, the jurisdiction of this Court under Article 136

of the Constitution could not be invoked.
The respondent-landlord submitted that in view of
petitioner-tenant’s having taken the benefit of direction
contained to the order of the High Court allowing him one
month’s time to vacate the premises on his filing an
undertaking that vacant possession of the premises would be
handed over on the expiry of the period and his having
submitted a written undertaking in accordance with the
direction, the petitioner was precluded from assailing the
judgment of the High Court by invoking the jurisdiction of
this Court under Article 136 of the Constitution.
The petitioner-tenant submitted that he did not take
any undue advantage by giving the undertaking; that prior to
the undertaking, he had moved an application for extension
of time before the High Court wherein he had clearly
indicated that he intended to file a special leave petition
in this Court against the order of the High Court dated
March 6, 1992 and that it was also expressly stated in the
undertaking filed in the Court wherein it is mentioned that
the undertaking was subject to his right to file the special
leave petition in this Court against the order of eviction.
Dismissing the special leave petition, this Court,
HELD: 1.01 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. [263-F] 1.02 The
petitioner, having given an undertaking in pursuance to the
directions given by the High Court in the judgment dated
March 6, 1992 and having availed the protection from
eviction on the basis of the said undertaking, cannot be
permitted to invoke the jurisdiction of this Court under
Article 136 of the Constitution and assail the said judgment
of the High Court. [264-H]
1.03 The statement in the undertaking, that it was
subject to the rights of the petitioner to file special
leave petition in this Court against the order of eviction,
does not have any effect on the legal consequencew flowing
as a result of the filing of the undertaking by the
petitioner. [263-D]
Verschures Creameries Ltd. v. Hull and Netherlands
Steamship Co. E Ltd., 1921 (2) K.B. 608 at p. 612; Thacker
Hariram Motiram v. Balkrishan Chatbrabhu Thacker & Ors.,
[1989] Supp. 2 SCC 655 and Vidhi Shanker v. Heera Lal 1987
Supp. SCC 200; Ramchandra Jai Ram Randive v. Chandanmal
Rupshand & Ors., [1987] Supp. SCC 254, referred to.
Halsbuly’s Laws of England, 4th Edn. Vol. 16, para
1508, referred to.
 SUPREME COURT OF INDIA Page 3 of 6
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(C) No. 4325 of 1992.
From the Judgment and Order dated 6.3.1992 of the
Punjab and Haryana High Court in Civil Revision No. 2830 of
1991.
Dr. A.M. Singhvi and Ms. Kirti Misra for the Appellant.
D.V. Sehgal, S.M. Sarin, P.N. Puri, Ranbir Singh Yadav
and G.K. Bansal for the Respondent.
The Judgment of the Court was delivered by
S.C. AGRAWAL, J. This petition for special leave to
appeal arises out of proceedings for eviction initiated by
the respondent (landlord) against the petitioner (tenant)
under section 13A of the East Punjab Urban Rent Restriction
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Act, 1949 (hereinafter referred to as ‘the Act’), as amended

by Act No. 2 of 1985.
The proceedings relate to a residential house in
Chandigarh which was let out to the petitioner by the
respondent. The respondent was initially employed as
Accounts Officer with the Finance Department of the
Government of Haryana. In 1969, he went on deputation with
the Haryana Agricultural University (hereinafter referred
to as ‘the University’). His services were transferred to
the University by the Government of Haryana with effect from
November 1, 1975, and while he was employed on the post of
Comptroller in the University he retired from service with
effect from February 28, 1991. Claiming to be a ‘specified
landlord’ within the meaning of section 2(hh) of the Act,
the respondent moved a petition seeking eviction of the
petitioner under section 13A of the Act before the Rent
Controller, Chandigarh. The said petition was dismissed by
the Rent Controller by order dated August 5, 1991 on the
view that the respondent did not fall within the ambit of
the definition of ‘specified landlord’ since he had failed
to show that he was holding or has held an appointment in a
public service or post in connection with the affairs of the
Union or of the State. The respondent filed a revision
petition before the High Court under section 18-A(8) of the
Act which was allowed by the High Court by judgment dated
March 6, 1992. The High Court held that the respondent, at
the time of his retirement from the post of Comptroller in
the University, was holding an appointment in connection
with the affairs of the State and hence he is a specified
landlord within the meaning of section 2(hh) of the Act. The
High Court further found that the respondent had fully
satisfied the conditions as contained in section 13-A of the
Act and he was entitled to recover the possession of the
premises in dispute from the petitioner. Allowing the
revision, the High Court set aside the order of the Rent
Controller and accepted the petition filed by the respondent
under section 13-A of the Act for ejectment of the
petitioner. The High Court further directed as under:
"However, the respondent is allowed
one month’s time to
vacate the premises provided he
pays the entire arrears of rent
within 15 days from today, and also
files an undertaking with the Court
of the Rent Controller to the
effect that he shall hand over the
vacant possession of the premises
on the expiry of aforesaid period."
On March 16, 1992, the petitioner moved a petition in
the high Court under section 151 CPC seeking three months,
time to vacate the house and for waiving the requirement of
 SUPREME COURT OF INDIA Page 4 of 6
filing of an undertaking. The said petition was rejected by
the High Court by order dated March 18, 1992. Thereafter,
the petitioner submitted an undertaking dated March 20, 1992
before the Rent Controller wherein the petitioner after
referring to the direction contained in the order of the
High Court dated March 6, 1992 gave the following
undertaking:
"That the respondent hereby gives
undertaking that he will vacate the
premises and shall handover the
vacant possession of the premises
on the expiry of one month from
6.3.92 as per the order of Hon’ble
High Court, subject to his rights
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for filing SLP in the Hon’ble

Supreme Court against the order of
eviction. The respondent has
already sent draft for the rent for
the month of March 1992 to the
petitioner and he is not in arrears
of rent."
On March 21, 1992, the petitioner filed the special
leave petition under Article 136 of the Constitution in this
Court. On the said petition the following order was passed
on March 26, 1992:
"To come up in normal course. In
the meantime, no dispossession to
be effected."
On April 9, 1992, an order was
passed in the following terms:
"Issue notice returnable within two
weeks. In the meantime, stay of
eviction to continue." .
In response to the said notice, the respondent filed a
counter affidavit on April 18, 1992 wherein an objection has
been raised that in view of the undertaking given by him the
petitioner cannot invoke the jurisdiction of this Court
under Article 136 of the Constitution. Shri D.V. Sehgal,
the learned senior counsel appearing for the respondent, has
submitted that in view of his having taken the benefit of
direction contained in the order of the High Court allowing
him one month’s time to vacate the premises on his filing an
undertaking that he shall hand over vacant possession of the
premises on the expiry of aforesaid period and his having-
submitted a written undertaking in accordance with the said
direction, the petitioner is precluded from assailing the
judgment of the High Court by invoking the jurisdiction of
this Court under Article 136 of the Constitution. Shri
Sehgal has urged that the fact that the petitioner has
qualified his undertaking by using the words "subject to his
rights for filing SLP in the Hon’ble Supreme Court against
the order of eviction" would not alter the position. In
support of his aforesaid submission Shri Sehgal has placed
reliance on the decisions of this Court in Thacker Hariram
Motiram v. Balkrishan Chatbrabhu Thacker & Ors., [1989]
Supp. 2 SCC 655; Vidhi Shanker v. Heera Lal, [1987] Supp.
SCC 200 and Ramchandra Jai Ram Randive v. Chandanmal
Rupchand & Ors., [1987] Supp. SCC 254.
Dr. A.M. Singhvi, the learned counsel appearing for the
petitioner, has, however, laid stress on the fact that the
undertaking had to be given by the petitioner in the
peculiar circumstances arising on account of this Court
being closed due to vacations from March 16, 1992 to March
20, 1992. Dr. Singhvi has submitted that the petitioner has
not taken any undue advantage by giving the undertaking
 SUPREME COURT OF INDIA Page 5 of 6
inasmuch as before giving the under taking, he had moved an
application for extension of time before the High Court
wherein he had clearly indicated that he intended to file a
special leave petition in this Court against the order of
the High Court dated March 6, 1992 and this was also
expressly stated in the undertaking filed in the Court
wherein it is mentioned that the undertaking was subjected
to his right to file the special leave petition in this
Court against the order of eviction. Dr. Singhvi has urged
that in view of the aforesaid facts and circumstances the
decisions on which reliance has been placed by Shri Sehgal
would have no application to the present case.
In view of the judgment of the High Court allowing the
petition for eviction filed by the respondent, the
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petitioner was liable to be evicted from the premises

forthwith. Under the direclions given by the High Court, the
petitioner could continue in occupation of the premises for
a period of one month on his (i) paying the entire arrears
of rent within 15 days from the date of the judgment; and
(ii) filing an undertaking with the court of Rent Controller
to the effect that he shall hand over the vacant possession
of the premises on the expiry of the period of one month.
The petitioner made an effort to obtain extension of time
for vacating the premises without furnishing the undertaking
and he filed a petition for the purpose before the High
Court. The said petition was, however, dismissed by the High
Court. Having failed in his attempt to obtain extension of
time for vacating the premises without furnishing an
undertaking the petitioner had two options open to him, (i)
to avail the protection from eviction from the premises for
3a period of one month by tiling an undertaking as directed,
or (ii) not to avail the said protection and run the risk of
immediate eviction. The petitioner chose the first option.
In order to avail the protection from eviction from the
premises for a period of one month he filed the requisite
undertaking in the court of the Rent Controller within the
period of 15 days prescribed under the directions of the
High Court. The statement in the undertaking that it was
subject to the rights of the petitioner to file special
leave petition in this Court against the order of eviction,
does not, in our view, have any effect on the legal
consequences flowing as a result of the filing of the
undertaking by the petitioner. By furnishing the said
undertaking the petitioner elected to avail the protection
from eviction from the premises and he enjoyed the said
protection till the passing of the order by this Court on
March 26, 1992, staying dispossession of the petitioner.
Having elected to avail the protection from eviction under
the order dated March 6, 1992 passed by the High Court, by
filing the requisite undertaking, the petitioner cannot be
permitted to assail the said order.
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 any thereby obtain some
advantage, to which he 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".
[See: Verschures Creameries Ltd. v. Hull and Netherlands
Steamship Co. Ltd., (1921) 2 R.B. 608, at p.612, Scrutton,
L.J]. According to Halsbury’s Laws of England, 4th Edn.,Vol.
16, "after taking an advantage under an order (for example
for the payment of costs) a party may be precluded from
saying that it is invalid and asking to set it aside". (para
 SUPREME COURT OF INDIA Page 6 of 6
1508).
In Thacker Hariram Motiram v. Balkrishan Chatbrabhu
Thacker & Ors.(supra), this Court was dealing with a similar
situation. The High (Court, while deciding the second appeal
in an eviction matter gave the appellant (tenant) one year’s
time subject to his giving an undertaking within a period of
three weeks stating that vacant possession would be handed
over within the aforesaid time. The appellant gave an
undertaking in accordance with the said terms wherein he
undertook that he would vacate and give vacant possession of
the suit premises by December 31, 1985, i.e., to say after
one year if "by that time no stay order from the Supreme
Court is received as I intend to file an appeal in the
Supreme Court". It was held that in view of the said
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undertaking the petitioner could not invoke the jurisdiction

of this Court under Article 136 of the Constitution and he
should abide by the terms of the undertaking, and it was
observed
"This undertaking filed by the
appellant in our opinion is in
clear variation with the oral
undertaking given to the learned
Judge which induced him to give one
year’s time. a We do not wish to
encourage this kind of practice for
obtaining time from the court on
one plea of filing the undertaking
and taking the different stand, in
applications under Article 136 of
the Constitution." (p.655)
Similarly in Vidhi Shanker v. Heera Lal (supra) and
Ramchandra Jai Ram Randive v. Chandanmal Rupchand & Ors.
(supra), this Court declined to exercise its discretion
under Article 136 of the Constitution in cases where the
petitioner had given an undertaking in the High Court and
had obtained time to vacate the premises on the basis of
such undertaking.
We are, therefore, of the opinion that the petitioner,
having given an undertaking in pursuance to the directions
given by the High Court in the Judgment dated March 6, 1992,
and having availed the protection from eviction on the basis
of the said undertaking, cannot be permitted to invoke the
jurisdiction of this Court under Article 136 of the
Constitution and assail the said judgment of the High Court.
In that view of the matter, we do not consider it necessary
to deal with the submissions urged by Dr. Singhvi that the
respondent, being an employee of the University at the time
of his retirement, was not a ’specified landlord’ under
section 2(hh) of the Act.
The special leave petition is, accordingly, dismissed but
without any orders as to costs.
V.P.R. Petition dismissed.