Harish Chandra, J.
(1) This is a regular second appeal under Section 100 of the Code of Civil Procedure against the decree and judgment dated 24th May, 1979 in R.C.A. No. 40/79 passed by the Additional District Judge whereby he affirmed and upheld the decree and judgment passed by a Sub-Judge, First Class, Delhi in Suit No. 318/77 dated 22nd September, 1978, decreeing the eviction' of the appellant.
(2) The memorandum of appeal sets out as many as eight questions claimed- to be 'substantial questions of law'. The' only point at issue is whether or not the suit property is 'premises' within the meaning of Section 2(i) of the Delhi Rent Control Act, 1958 because on that will depend whether the bar of Section 50 of the Act comes into play and the jurisdiction of the Civil Courts is barred. At the time of admission, Yogeshwar Dayal J. had formulated the substantial question of law as the interpretation of the allotment order Ex. Public Witness 2/1 dated 28th March, 1949.
(3) The relevant facts briefly stated are that a certain evacuee property was allotted to the appellant by the Custodian Evacuee Property on 28th March, 1949. Ex. Public Witness 2/1 is the communication making the allotment. It reads as under :
'WITHreferesce to your application dated I have to inform you that Industrial Establishment known as open compound at Hamilton Road (Portion of Jai Head Motor Works) with 25 Front and 50 deep together with all the machinery and accessories kept therein has been allotted to you. Possession of the factory/workshop/lndustrial establishment will be delivered to you immediately after your fulfillling the following conditions namely.
1.Delivering at this office a communication addressed to the Custodian undertaking to pay such deposit and rent as may be assessed and required to be paid to execute the lease on the prescribed form.
2.Filling a duly attested affidavit as per form 'A' attached herewith.
POSSESSIONof stocks of consumable goods and other stores and material if any, will be given to you for safe custody as care taker until disposal thereof.
ASSISTANTCustodian Industrial is hereby required deliver the possession of factory/workshop/industrial Establishment and other moveable property kept there in the above named allottee after satisfying himself that he has fulfillled conditions laid down above. If necessary, the enforcement section will help the Assistant Custodian and the allottee of the property in accordance with the procedure prescribed under law.'
(4) Subsequently the property was auctioned on 15th July, 1960 and Dina Nath purchased the same. On 20th December, 1962, Dina Nath filed an eviction petition under Section 14(l)(g) against the appellant. He failed to establish the ground and by judgment dated 16th January. 1967, Shri P. K, Bahri, then Additional Rent Controller, dismissed the petition.
(5) In 1964, the appellant filed a Suit No. 292 of 1964, against the respondent seeking permanant injunction against interference in enjoyment of the property. In the written statement of Shri Dina Nath, it was averred that the suit was not maintainable as the property in suit was 'premises' within the meaning of Section 2(i) of the Rent Control Act. Thereafter, Dina Nath filed a Suit No. 64 of 1967 against the appellant in the Court of the Additional Rent Controller. for injunction.
(6) Eventually the appellant filed an application against the respondent being Suit No. 169-M of 1968-69. This application was filed under Section 44 of the Delhi Rent Control Act and tried by the Additional Rent Controller. The respondent Dina Nath preferred a preliminary objection to the maintainability of this application on the ground that the property in question was an open plot of land and was not 'premises' within the meaning of Section 2(i) of the Act.
(7) By judgment dated 9th March, 1971, the Additional Rent Controller held as follows :
'Ialso find it established on record that the petitioner society is a tenant only with respect to an open site and the structure thereon, the shed is self-constructed by the tenant.'
The application was, thereforee, dismissed. This judgment dated 9th March, 1971 has become final.
(8) This background may not be exhaustive about all the litigation that parties had against each other but has been recalled' and mentioned only to point out that at one time, starting from 20th December, 1962 when the respondent filed an eviction petition against the appellant under section 14(l)(g) to about 1967 when the respondent filed another proceedings against the appellant before the Additional Rent Controller, the respondent was proceeding on the basis that the property which had been let outallotted by the Custodian of Evacuee Property to the appellant and which he purchased in 1960 was 'premises' within the meaning of section 2(i) of the Delhi Rent Control Act.
(9) This position on the part of the respondent had already been changed as far back as 1969 when the respondent preferred a preliminary objection to the maintainability of an application under Section 44 of the Act on the ground that the property in question was not premises under the Act. This then isthe background to the filing of Suit No. 40,71 on 7th January, 1971 from which the present second appeal has arisen.
(10) On the issue whether the property under tenancy is 'premises' or not, the evidence of the appellant is primarily to the effect that there was a tin shed on the plot of land when it was allotted to the appellant. Apart from the oral testimony this case of the appellant is also evidence from the statement of its Secretary. Ajit Singh Sahni on 4th May, 1962, to the effect that there was a shed built in the premises but the other portion was an open plot when it was allotted.
(11) As against this, the case of the plaintiff-respondent was that what was allotted was just an open compound and, thereforee,, not 'premises' within the meaning of the Rent Control Act.
(12) The learned Sub-Judge proceeded to resolve the controversy by interpreting the letter of allotment Ex. Public Witness 2/1. The allotment letter has been quoted in extense above. The words, 'an industrial establishment known as open compound' occurring in the aforesaid document may show that the property in question was called an open compound because it was an open compound but can well mean that having regard to the property being essentially an open compound it was known as open compound even though there were one or two sheds built thereon. I am, thereforee, of the view that the learned Sub-Judge erred in not giving any meaning or significance to 'known as in tins document and in rushing In the conclusion, purely and merely from the document that the property was only an open compound.
(13) The learned Additional District Judge, deciding the appeal from this judgment, did confirm this interpretation of the aforesaid document but at the same time referred to and relied upon a number of other circumstances and documents supporting a finding that what was allotted was merely an open plot of land, I quote paragraphs 10 and 11 of the impugned judgment :
PARA10. 'Besides the above allotment order the respondent has placed on record quite a good number of documents which to a long way to prove and show that the disputed property is nothing but a plot of land. The said documents further reveal that even the appellant considered the disputed property only a plot of land and nothing else. Ex. Public Witness 2/2 is a copy of an order dated 31st May, 1955 passed by Shri H. K. Chaudhary, Authorised Deputy Custodian. A close scrutiny of the said order shows that the appellant applied for fixation of rent during the said proceedings on the ground that the disputed property was a plot. Whatever construction was thereon, was made by them. The Deputy Custodian while taking into consideration the above said facts fixed the rent of the disputed property at the rate of Rs, 35 per month. Ex. Public Witness 2/3 is a survey report wherein the disputed property has been shown only as a plot of land. Ex. PW2/4 is a' letter addressed by the appellant to the Chief Settlement Commissioner, Delhi. A perusal of the said letter shows that the appellant themselves referred to the disputed property as a plot of land. Ex, Public Witness 2/5 is delivery of possession memo. Herein, too, we find that the disputed property has been described as an open plot. Ex. Public Witness 216 is a letter from the Secretary of the appellant to the Managing Officer, Custodian Department. Shri Ajit Singh mentioned in the said letter that the disputed property was only a plot of land. Ex. Public Witness 2/7 is a letter from the Assistant Registrar, Cooperative Societies Delhi to the Custodian of the Evacuee property. He too described the disputed property as a plot of land in the said letter. Ex. Px is a copy of order dated 9th March, 1971 passed by Mrs. Santosh Duggal, Rent Controller, Delhi on an application moved by the appellant under section 44 of the Delhi Rent Control Act. The learned Rent Controller came to the conclusion during the said proceedings that the disputed property was a plot of land and as such the Rent Controller had no jurisdiction to entertain the said petition Ex. PX2 is a copy of an order dated 6th August, 1962 passed by Shri S. W. Shiveshwarkar, Joint Secretary to the Government of India on an application moved by the appellant. A perusal of the said order reveals that the appellant themselves moved a petition before the Joint Secretary alleging therein that they were in possession of an open plot of land. It is further clear from the said order that they themselves erected the temporary structure on the said plot of land.
PARA11. It is abundantly clear from the documents alluded to above that the disputed property is nothing but a plot of land.'
I am of the opinion that no fault can be found with the conclusion of the learned Additional District Judge because even if the language in the letter of allotment is not by itself decisive on the subject, but read in the context of the aforesaid circumstances, it can certainly lead to the interpretation preferred by the learned court below and affirmed by the first appellate court and I am not persuaded to interfere with the same.
(14) Apart from this, even if the case set up by the appellant is taken as correct, all that the appellant seeks to esablish is that when the plot was allotted, there existed a tin shed on the plot of land. Because it has not been argued before me, I am not going into this question but I have no hesitation in saying that it should not be easy to convert a plot of land into a building within the meaning of section 2(i) of the Delhi Rent Control Act by merely erecting or finding a tin-shed thereon.
(15) The only other contention urged by Shri S. N. Chopra, learned counsel for the appellant is that having started legal proceedings in 1962 and- thereafter, against the appellant on the footing that the property in question is 'premises' and the Rent Control Act applied to the same, the respondent cannot now turn around and reprobate by proceeding against the appellant on the basis that the property is not 'premises' within the meaning of section 2(i) of the Act.
(16) In Verschures Creameries Ltd. v. Hull and Netherlands Steam ship Co. Ltd. (1921) 2 Kb 608(D) (1) Scrutton, L. J. observed :
'Aplaintiff is not permitted to 'approbate and reprobate'. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election, namely, that no party can accept and reject the same instrument : Ker v. Wauchope (1819)1 Bligh 1(21)(E) : Douglas-Menzies v. Umphelby 1908 Ac 224(232) (F). The doctrine of election is not however confined to instruments. 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'.
(17) The law on the subject is stated in Halsbury's Laws of England, Volume Xiii, p. 454, para 512, as follows :
'ONthe 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 pair, 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 it 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.'
(18) Both the aforesaid judgments as well as the statement of law were considered by the Supreme Court in the Nagubai's Case and it was held that the plaintiff having obtained no advantage against the appellants by pleading in the suit of 1938-39 that the proceedings in an earlier suit of 1919-20 were collusive, the plaintiff was not estopped on seeking the same relief, i.e., entitlement to the suit properties, on a different ground. The Supreme Court observed as under :
'THEplaintiff obtained no advantage against the appellants by pleading in O.S. No. 92 of 1938-39 that the proceedings in O.S. No. 100 of 1919-20 were collusive; nor did they acting on those pleadings acquire rights to the suit properties. Nor is there any question of election, because the only relief which the plaintiff claimed in O.S. No. 92 of 1938-39 and which he now claims is that he is entitled to the suit properties. Only, the ground on which that relief is claimed is different and, it is true, inconsistent. But the principle of election does not forbid it, and there being no question of estoppel, the plea that the proceedings in O.S. No. 100 of 1919-20 are not collusive is open to the plainliff.'
(19) In K. Shanmugham Pillai and Others v. S. Shanmugham Pillai and others, : AIR1968Mad207 , a Division Bench of the High Court of Madras explained the doctrine of election in para 17 on page 211, as follows :
'THEdoctrine of election on which the defense is substantially rested is the principle that the exercise of a choice by a person left to himself on his own free will to do one thing or another binds him to the choice which he has voluntarily made, and is founded on the equitable doctrine that he who accepts benefit under instrument or transaction of his choice must adopt the whole of it and renounce everything inconsistent with it. The court exercising jurisdiction in equity will bind him to his election and preclude him from going behind the same.'
(20) In Spencer Bower 'Estoppel by Representation', IInd Edition by Turner at page 296, referring to the doctrine of election as applied to instrument, it is stated :
'ITmay happen that none of two parties to an instrument, in the course of his dealings with the other in pursuance of or in relation to, that instrument, finds, or thinks he has found, that it is voidable at his option as against such other party. Thereupon, it is open to him to take up one of two inconsistent attitudes; he may either treat the instrument as Void and not binding on him, or he may think it to his advantage, instead of exercising his right in this respect, to treat it as valid and subsisting; but if, by words or (as is usually the case), by conduct, he leads the other party to believe that he is definitely choosing the one course in preference to the other and, in the belief, to alter his position for the worse, he is estopped, as against the other party, from afterwards approbating what he has thus reprobated, and reprobating what he has thus approbated.
Acreditor who has elected to deal with a deed of composition or arrangement as valid, instead of exercising his right to treat it as an act of bankruptcy, or as void for non-compliance with the bankruptcy law, is precluded from afterwards supporting a bankruptcy petition against the debtor by setting up that the execution of the deed constituted an act of bankruptcy, or from claiming, as against the debtor, that such deed is void.'
(21) The principle of estoppel by election can have no application when the elector has no choice as to the forum. If the property is premises within the meaning of Section 2(i) of the Delhi Rent Control Act, the plaintiff/landlord, i.e., the respondent before me has no choice other than proceeding under the provisions of the Delhi Rent Control Act because a suit would then be barred by Section 50 and if the property is not such premises, no amount of such election or choice or estoppel would confer jurisdiction in respect of the same, on a Rent Controller. If the plea of the appellant were to be accepted, the respondent must seek eviction under the provisions of the Act but if he did so, what is there to stop the appellant to get the application dismissed by showing, that the property is not 'premises'. I need hardly add that the situation is no better even if the appellant does not raise such a jurisdictional preliminary objection because the two parties cannot confer, by agreement, jurisdiction on the Rent Controller, which jurisdiction the Act does not confer.
(22) I have, thereforee, no hesitation in coming to the conclusion that in the facts before me, the plea of estoppel by election is not available to the appellant.
(23) Before parting with the matter I may deal with C.M. 177/80 which was ordered to be considered' at the time of the hearing of the appeal. This is an application under Order 41 Rule 27 by which the applicant prays that a survey report of the Ministry of Rehabilitation and a proforma for residential premises in respect of the property in question and a true copy of the order of the Additional Rent Controller dated 16th January, 1967 be permitted to be brought on record. It is settled law that additional evidence under the aforesaid provision can be allowed to be taken on record if there is satisfactory Explanationn that it was not available for production at the relevant time. No such Explanationn has been given. Even otherwise, in the view I have taken in the matter the aforesaid documents will be of no particular relevance. C.M. No. 177/80 is, thereforee, not allowed.
(24) In the result, I am not persuaded to interfere with the concurrent findings of the two courts below and the appeal is dismissed but in the circumstances of the case, with no order as to costs.