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Jiwan Das Vs. Smt. Sarla Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 740 of 1975
Judge
Reported inAIR1976All216
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Evidence Act, 1947 - Sections 3; Evidence Act, 1872 - Sections 115
AppellantJiwan Das
RespondentSmt. Sarla Devi and ors.
Appellant AdvocateG.D. Srivastava, ;J. Sarup and ;K.C. Saxena, Advs.
Respondent AdvocateG.P. Verma, ;S. Trivedi and ;S.K. Kacaker, Advs.
DispositionRevision dismissed
Excerpt:
.....- high court observed that permission was highly unsatisfactory - landlord served valid notice and filed second suit for eviction and arrears of rent - plea of res judicata - held, observation that permission was highly unsatisfactory can not operate as res judicata. - - herself applied for the modification of that permission without any success. act iii of 1947 was perfectly valid and the court had jurisdiction to try the suit. the trial court further held that the plaintiff's suit was not barred by res judicata and the notice of ejectment was perfectly valid. shall fail to vacate the upper portion of the house in dispute the permission under section 3 of act iii to file an ejectment suit shall be deemed to have been granted to the applicant from the entire house''both the courts..........the defendant-applicant's application.3. on the basis of the above permission, the plaintiff o. p. filed suit no. 501 of 1961 in the court of the city munsif, bareilly for the recovery of arrears of rent and ejectment against the applicant. the defendant applicant filed written statement in that suit vide (ex. 7). the additional munsif by his judgment dated 30-3-1963 (ext. 9) repelled all the pleas of the defendant applicant including his plea that the permission obtained by the plaintiff o. p. was invalid and the notice of ejectment served on him was also illegal. the defendant applicant then filed first appeal no. 163 of 1963 but that too was dismissed on 7-2-1964 vide ex. 10. the defendant applicant then preferred second appeal in the high court being appeal no. 1233 of 1964, which.....
Judgment:
ORDER

Chandra Prakash, J.

1. This is a defendant's application in revision against the judgment and decree dated 21-7-1975 of Sri R.C. Varma, III Additional District Judge Bareilly dismissing the applicant's revision against the judgment and decree of the trial Court.

The facts leading to this application in revision are not disputed and may be reproduced as follows:--

2. The defendant applicant was the tenant of the plaintiff O. P. in the premises hi suit on a monthly rent of Rs. 40/-. The plaintiff O. P. applied for permission of the District Magistrate under Section 3 of the U. P. Act III of 1947 in 1959 for filing a suit for ejectment against the defendant applicant. The plaintiff O. P. moved an application dated 11-10-1959 (Ext. 1). The Defendant applicant filed objection against it (Ex. 2). By his order dated 23-12-1960 (Ex. 3) the Rent Control and Eviction Officer granted the permission sought by the plaintiff for evicting the defendant applicant. The defendant applicant then filed a revision application (Ex. 4) before the Commissioner, Rohelkhand Division, but the Commissioner rejected that revision by his order dated 30-3-1961 (Ex. 5). The defendant applicant then moved the State Government under Section 7-F of the U. P. Act III of 1947 but the State Government by its order dated 24-11-1961 (Ex. 6) rejected the defendant-applicant's application.

3. On the basis of the above permission, the plaintiff O. P. filed Suit No. 501 of 1961 in the Court of the City Munsif, Bareilly for the recovery of arrears of rent and ejectment against the applicant. The defendant applicant filed written statement in that suit vide (Ex. 7). The Additional Munsif by his judgment dated 30-3-1963 (Ext. 9) repelled all the pleas of the defendant applicant including his plea that the permission obtained by the plaintiff O. P. was invalid and the notice of ejectment served on him was also illegal. The defendant applicant then filed First Appeal No. 163 of 1963 but that too was dismissed on 7-2-1964 Vide Ex. 10. The defendant applicant then preferred second appeal in the High Court being Appeal No. 1233 of 1964, which was partly allowed by the High Court's order dated 30-5-1966 (Ex. 11). The decree of ejectment was set aside while rest of the decree was confirmed. In that second appeal, the High Court observed that the form of the permission by the plaintiff O. P. was highly unsatisfactory.

4. The plaintiff O. P. on the basis of the judgment Ex. 11 applied for modification of her permission vide her application dated 23-6-1968 (Ex. 12). The defendant applicant filed his objection dated 16-8-1968 (Ex. 13). The application of the plaintiff O. P. was allowed by the Rent Control & Eviction Officer vide his order dated 14-8-1968. Against that order, the defendant applicant filed a revision before the Commissioner. The objection of the defendant applicant was that the permission obtained by the plaintiff O. P. was alright and there was no question of its being modified. The Commissioner allowed the applicant's revision and set aside the order of modification (Ex. 12) by his order dated 16-9-1969 (Ex. 16). The plaintiff O. P. then made a representation to the State Government and the defendant applicant filed objections against it (Ex. 19). The State Government by its order dated 28-11-1970 (Ex. 17) rejected the plaintiff's representation.

5. Thereafter the plaintiff O. P. determined the tenancy of the defendant applicant by her notice dated 27-2-1971 (Ex. 20) and filed Suit No. 139 of 1971 giving rise to this application in revision. During the pendency of the Suit No. 139 of 1971 the present defendant applicant filed Suit No. 70 of 1972 in the Court of City Munsif, Bareilly. In that suit the applicant sought declaration that the permission granted to the plaintiff O. P. dated 23-12-1960 under Section 3 of the U. P. Act III of 1947 was invalid. That Suit No. 70 of 1972 was eventually decided by the Civil Judge, Bareilly who after taking evidence of the parties dismissed it by his judgment dated 16-8-1973 vide Ex. 23. The defendant applicant against the above judgment and decree filed an Appeal No. 173 of 1973 which was dismissed by the Additional District Judge by his order dated 26-11-1973 (Ext. 24). The defendant applicant then filed Second Appeal No. 2573 of 1973 against the above order in the High Court and that appeal was dismissed by the High Court on 14-12-1973 in limine under Order 41, Rule 11, Civil Procedure Code vide copy 75-c/4. Thereafter the tenant applicant filed a Writ Petition No. 8034 of 1973 which was dismissed by the High Court on 30-4-1974.

6. In Suit No. 70 of 1972, the prayer of the plaintiff O. P. was for possession of the disputed premises and recovery of arrears of rent from 1-4-1970 to 1-4-1974 at the rate of Rs. 40/- per month with pendente lite and future mesne profits at the rate of Rs. 100/- per month. The defendant applicant admitted that he was the tenant of the plaintiff O. P. on a monthly rent of Rs. 40/- in the premises in dispute. He resisted the claim on the ground that the permission of the District Magistrate under Section 3 of the U. P. Act III of 1947 relied upon by the plaintiff O. P. was invalid. It was alleged that the plaintiff O. P. herself applied for the modification of that permission without any success. It was further pleaded that the permission in dispute was held to be invalid by the High Court in its judgment in S. A. No. 533 of 1964 and that judgment operates as res judicata. It was also alleged that the defendant applicant had filed Suit No. 173 of 1973 questioning the validity of the permission in dispute and it was prayed that the present suit should be stayed. As already noted above, the Suit No. 173 of 1973 was eventually dismissed and the dismissal order was confirmed by the first appellate court and second appeal preferred by the defendant applicant was also dismissed in limine. This plea, therefore, no longer remained for consideration. It was further pleaded that the defendant was not a defaulter in the payment of rent and notice of eviction served on the defendant was invalid. The jurisdiction of the trial court was further challenged.

7. The trial court framed 7 issues in the case and after taking evidence of the parties came to the conclusion that the permission granted to the plaintiff O. P. under Section 3 of the U. P. Act III of 1947 was perfectly valid and the Court had jurisdiction to try the suit. The trial court further held that the plaintiff's suit was not barred by res judicata and the notice of ejectment was perfectly valid. On the above findings, the trial court decreed the plaintiff's suit for ejectment, possession and recovery of a sum of Rupees 121.33 P. as arrears of rent together with pendente lite and future mesne profits at the rate of Rs. 80/- per month with costs.

8. Aggrieved by the above judgment and decree the defendant applicant filed revision in the court below and the court below after hearing the parties dismissed the applicant's revision.

9. Feeling aggrieved, the defendant applicant has now come up before this Court.

10. I have heard the learned counsel for the parties and have gone through the record of the case. After giving the matter my anxious consideration, I have come to the conclusion that this application in revision has no force at all.

11. Paper Ex. 3 contains permission granted by the District Magistrate to the plaintiff O. P. under Section 3 of the U. p. Act III of 1947 on 23-12-1960. The permission was granted in the following terms:--

'Therefore, I allow four months' time to the opposite party to vacate the upper portion and deliver possession to the applicant ...... However, the landlady has proposed to make arrangements for separate entrance in the upper portion that may be complied to avoid inconvenience to the O. P. If the O. P. shall fail to vacate the upper portion of the house in dispute the permission under Section 3 of Act III to file an ejectment suit shall be deemed to have been granted to the applicant from the entire house'' Both the courts below have considered the terms of this permission and have come to the conclusion that the permission granted by the District Magistrate was valid. The first contention raised before me was that the High Court in Second Appeal No. 1233 of 1964 has held that the permission granted to the plaintiff O. P, was invalid and that the judgment and finding of the High Court operates as res judicata. A perusal of the judgment in second appeal show that the first question that arose for determination before High Court was whether there was valid permission under Section 3 of the U, P. Act III of 1947, The High Court then referred the operative portion of the permission which has already been quoted above. The High Court referred to the following words of the permission specifically: 'Permission ......... to file an ejectment suit shall be deemed to have been granted.'

and then proceeded further as follows:--

'The expression 'shall be deemed' is usually introduced for a legal fiction. Section 3 of the Act does not empower the District Magistrate to introduce such a legal fiction. The form of the permission was highly unsatisfactory.'

12. It will thus be seen that the High Court only held that the form of permission was highly unsatisfactory but did not hold that the permission was illegal or invalid. The High Court only expressed dissatisfaction with regard to the form in which the permission was given.

13. The High Court then proceeded further in the following words:--

'The main contention of Mr. Jagdish Swarup, appearing for the appellant, is that there was no valid notice under Section 106, T. P. Act.'

The High Court considered this contention and after considering the terms of the notice terminating the tenancy of the defendant applicant in that case came to the conclusion that it was invalid and in view of this finding, the High Court refused to grant a decree for ejectment to the plaintiff O. P. There is no doubt left that the main contention pressed before the High Court was the invalidity of the notice under Section 106 of the T. P. Act and not the validity of the permission. No doubt the permission was also referred to in a casual manner but the High Court did not hold it to be invalid and that the High Court only held that the form of permission was highly unsatisfactory. The High Court allowed the second appeal and set aside the decree of the trial court on the finding that the notice of ejectment was invalid. This is clear from the following words:--

'I agree with Mr. Jagdish Swarup that Ex. 2 does not satisfy the requirements of Section 106 of the T. P Act. Consequently, the respondent is not entitled to the relief for ejectment'

The relief for ejectment was refused as a consequence of the finding that the notice of ejectment under Section 106 of the T. P. Act was held to be invalid. The decree for ejectment was not refused on the ground that the permission obtained by the plaintiff O. P, was invalid. The High Court nowhere held that the plaintiff was not entitled to a decree for possession on the ground that the permission obtained by her under Section 3 of the U. P. Act III of 1947 was invalid. It is, therefore, Incorrect to say that the High Court in second Appeal No. 1233 of 1964 held that the permission obtained by the plaintiff O. P. under Section 3 of the U. P, Act III of 1947 was invalid or illegal. The form in which the permission was granted may be unsatisfactory but even then it may not be illegal or invalid. It is important to remember that after observations of the High Court in Second Appeal No. 1233 of 1964, the plaintiff O. P. regarding highly unsatisfactory form of permission moved to the Control of Rent and Eviction Officer for making that form satisfactory. That application was vehemently opposed by the applicant himself and it was asserted by the defendant applicant in those proceedings that the High Court never decided the question of the invalidity of the permission obtained by the plaintiff O. P. Although the plaintiff O. P. succeeded in getting an order of permission modified by the Control of Rent and Eviction Officer, the defendant applicant then went in revision before the Commissioner and got it set aside. The representation made by the plaintiff O. P. against the order of the Commissioner to the State Government was rejected by the State Government as the defendant applicant opposed it there also.

14. It has already been noted above that the defendant applicant filed a regular suit No. 139 of 1971 for a declaration that the permission obtained by the plaintiff O. P. was illegal and that suit was eventually dismissed and the decree of the trial court was confirmed by the first appellate court and the second appellate court. If the matter had been decided by the High Court in Second Appeal No. 1233 of 1964 and the matter was res judicata, the defendant applicant would not have indulged in instituting the Suit No. 139 of 1971 at all. This conduct of the defendant applicant himself shows that he was aware that no decision on the question of invalidity of the permission has been passed by the High Court. I am therefore, of the opinion that the High Court did not hold in Second Appeal No. 1233 of 19S4 that the permission relied upon by the plaintiff O. P. for evicting the defendant applicant was invalid and in this view of the matter, the judgment in that appeal does not operate as res judicata at all.

15. It was contended on behalf of the applicant that when the first Suit No. 501 of 1961 failed, the plaintiff O. P. could not file the second suit, namely, Suit No. 139 of 1971 on the basis of the same permission. To this a complete reply is furnished by a Division Bench ruling reported in Pahlad Das v. Ganga Saran, (AIR 1958 AH 774).

16. In the last, it was contended that the plaintiff O. P. herself questioned the validity of the permission under Section 3 of the U. P, Act III of 1947 dated 23-12-1960 by moving an application before the Control of Rent and Eviction Officer for its modification and she is, therefore, estopped from filing the present suit on the basis of that permission on the principle that the plaintiff should not be allowed to approbate and reprobate and a reliance is placed on Nagubai v. B. Shama Rao, (AIR 1956 SC 593). It has been observed in paragraph 23 as follows:--

'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. That is to approbate and reprobate the transaction.

It is clear from the above observations that the maxim that a person cannot approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury's Laws of England, Volume XIII, p. 454, para 512.

On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g., payment of costs) be heard to say that it is invalid and ask to set aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it.'

The above ruling does not help the applicant at all for when the plaintiff O. P. applied for modification of the permission on the basis of the judgment of the High Court in Second Appeal No. 1233 of 1964 the plaintiff was simply trying to get the form rectified which had been held to be unsatisfactory. The plaintiff did not succeed in her attempt as her prayer was vehemently opposed by the defendant applicant himself alleging that the High Court had not decided that the permission obtained by the plaintiff O. P. was invalid. Although the Control of Rent and Eviction Officer modified that permission but that order was set aside by the Commissioner on the filing of the revision by the defendant applicant before the Commissioner. The plaintiff O. P.'s representation before the State Government was also dismissed. The plaintiff O. P. therefore, did not gain advantage by moving an application for its modification. All her attempts failed at the instance of defendant applicant himself. A reference has also been made to ruling of Kuppanna Gounder v. Peruma Gaunder, (AIR 1961 Mad 511) (FB) in which it has been held:--

'The rule that a party to a litigation cannot both approbate and reprobate is a rule essentially of logic rather than of law based on the principle that, where a party to a litigation has deliberately taken a particular position (without being induced so to take it by the opposite party), he must act consistently with it. That principle cannot apply to the person misled. The rule though a species of the law of estoppel, is different from it. In the case of an estoppel, the representee should have altered his position to his detriment for the rule of approbate and reprobate to apply the representator must have obtained an advantage by the representation made or the stand taken by him.'

This ruling is also distinguishable on facts for in the present case the defendant applicant did not suffer any detriment by the plaintiff's moving an application for the modification of the permission. As a matter of fact, the defendant applicant himself got the observations made in Second Appeal No. 1233 of 1964 that the form of the permission was highly unsatisfactory and the plaintiff O. P. moved for its modification in pursuance of that observation. As already noted above, it was the defendant applicant who secured advantage for himself by getting that application of the plaintiff O. P. dismissed alleging that the permission was not held to be invalid at all. It will thus be seen that it was the defendant applicant who in Second Appeal No. 1233 of 1964 set up the defence that the permission of the District Magistrate was invalid but when the plaintiff sought its modification, the defendant applicant alleged that it was not invalid and no finding was given by the High Court that it was invalid. In my opinion, it is the defendant applicant who is approbating and reprobating in this case and not the plaintiff O. P.

17. For the reasons given above, there is no force in this revision application, which is accordingly dismissed with costs.


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