Approbate and Reprobate

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 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".[1]

            According to Halsbury's Laws of England[2] , "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".

 In Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker[3], 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 undertaking the petitioner could not invoke the jurisdiction of this Court under Art. 136 of the Constitution and he should abide by the terms of the undertaking, and it was observed[4] :

"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. 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 Art. 136 of the Constitution."

Similarly in Vidhi Shanker v. Heera Lal[5] and Ramchandra Jai Ram Randive v. Chandanmal Rupchand[6] the Supreme Court declined to exercise its discretion under Art. 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.

            In R. N. Gosain, Petitioner v. Yashpal Dhir[7] the High Court passed following order:

"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."

The tenant gave undertaking in following terms :

"That the respondent hereby gives undertaking that he will vacate the premises and

shall hand over 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 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 SLP, the Supreme Court after considering earlier decisions held 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 Art. 136 of the Constitution and assail the said judgment of the High Court.





[1] Verschures CreameriesLtd. v. Hull and Netherlands Steamship Co. Ltd., (1921) 2 KB 608, at p. 612, Scrutton, L.J.

[2] 4th Edn., Vol. 16, para 1508.

[3] (1989 Supp (2) SCC 655)

[4] At P. 655.

[5] 1987 Supp SCC 200

[6] 1987 Supp SCC 254

[7] AIR 1993 SC 352


Published in Civil Law
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