Bombay High Court
Mario Shaw vs Martin Fernandez And Another on 11 October, 1995
Equivalent citations: AIR1996BOM116, (1996)98BOMLR233, AIR 1996 BOMBAY 116, (1996) 2 ICC 878, (1996) 1 MAH LJ 564, (1996) 2 BOM CR 536
Author: A.P. Shah
Bench: A.P. Shah
ORDER
1. This petition takes exception to an order passed by the Competent Authority, Pune, directing delivery of possession of the licenced premises to the respondents.
2. Ms. Purohit, learned counsel for the petitioner, raised before me a two-fold sub-mission. Firstly, Ms. Purohit submitted that the application of the respondents is barred under O.23 R.1 of the C.P.C. Alternatively, she submitted that the application must be held to be barred by the provisions of S.31H of the Bombay Rent, Hotel and Lodging Houses Rates Control Act, 1947. Before I deal with the submissions of Ms. Purohit, I would briefly state the factual background.
3.Under an agreement of leave and licence dated February 4, 1984, the respondents inducted the petitioner in Flat No.9 in building called Manashree Apartments, situate at Fatima nagar, Pune. The agreement of leave and licence was for a period of 11 months and there is no dispute that the said agreement has come to an end by efflux of time. Initially, the respondents aproached the Co-operative Court by filing a dispute under S. 91 of the Maharashtra Co-operative Societies Act, 1960 claiming possession of the premises. The petitioner contested the dispute by filing a written statement. It is not necessary to deal with the various contentions raised in the written statement, but suffice it to say that the petitioner challenged the maintainability of the dispute on the ground that the Co-operative Court has no jurisdiction to try the dispute. On December 1, 1994, the respondents made an application for withdrawal of the dispute with a liberty to file appropriate proceedings. The Co-operative court, however, passed an order permitting only unconditional withdrawal without granting any liberty for institution of fresh proceedings. Therefore, the respondents filed the present proceedings before the Competent Authority under Part 2A of the Act for recovery of possession. By the impugned order, the Competent Authority has granted the application.
4. Turning then to the submission raised by Ms. Purohit, it is necessary to mention at the outset that S. 31H of the Act has no application to the facts of the present case, which contemplates withdrawal of the proceedings pending in the other Courts at the time on the date of commencement of the Amending Act of 1986. Admittedly, the dispute in the present case was filed after the Amending Act came into force and, therefore, S. 31H is not attracted.
5. No I will deal with the other part of the submission of the learned counsel. Ms. Purohit says that the order of the Co-operative Court clearly shows that the dispute was withdraw unconditionally and if that is so, the initiation of the present proceedings on the same cause of action is barred by sub-rule (4) of Rule 1 of Order 23. The submission must be rejected for more than one reason. In the first place, it is not permissible for the petitioner to approbate and reprobate at the same time. Before the Co-operative Court, the petitioner specifically contended that the Co-operative Court has no jurisdiction to try the dispute. If the Co-operative Court has no jurisdiction, then, surely, the bar under O,23, R.1 of the C.P.C. will not operate. It is an age old principle that a party shall not at the same time affirm and disaffirm the same transaction - affirm it as far as it is for his benefit, and disaffirm it as it is to his prejudice. In shah Mukhun Lall v. Baboo Sree Kishen Singh (1867-69) 12 Moo Ind App 157, Lord Chemlsford observed:
"A man cannot both affirm and disaffirm the same transaction, show its true nature for his own relief, and insist on its apparent character to prejudice his adversary. This principle, so just and reasonable in itself, and often expressed in the terms, that you cannot both approbate and reprobate the same transaction, has been applied by their Lord-ships in the Committee to the consideration of Indian Appeals, as one applicable also in the Courts of that country, which are to administer justice according to equity and good conscience. The maxim is founded, not so much on any positive law, as on the broad and universally applicable principles of justice."
Once having questioned the jurisdiction of the Co-operative Court, it is not now open for the petitioner to say that the dispute before the Co-operative Court was maintainable and, therefore, the present proceedings, which are instituted without the leave of the Co-operative Court, are not maintable.
6. There is one more reason for rejecting the petitioner's contention. Admittedly, the application made by the respondents before the Co-operative Court was for withdrawal of the dispute with a liberty to file fresh proceedings. If that is so, the Co-operative Court was clearly in error in passing an order of withdrawal without granting permission to initiate fresh proceedings. It is well settled and if an application is made for withdrawal of the suit with liberty to file a suit, it is not open for the Court to grant only permission for withdrawal without liberty to institute the proceedings, though it is open for the Court to reject such application. Thus I do not find any merit in this petition and the same is dismissed summarily.
7. Ms. Purohit says that her client is prepared to abide by the orders passed by this Court. She says that in view of the fact that the petitioner's children are still studying, the petitioner requires some time to search for the alternative premises. In my opinion, the ends of justice will be served if the petitioner is granted sufficient time to vacate the premises. Accordingly, the petitioner is granted time to vacate till the end of April, 1996 subject to filing his written undertaking in this Court within two weeks from today that the petitioner and his family members are in exclusive possession and no one else is in possession; that he will not create any third party interest or part with possession of the suit premises till the vacant possession thereof is handed over to the landlord; that he will deliver the vacant and peaceful possession to the landlord on or before April 30, 1996; that he will pay all the arrears as per the order of the Competent Authority within four weeks from today and he will go on paying compensation as per the rate fixed by the Competent Authority.
8. Civil revision application is disposed of accordingly. No order as to costs.
9. Revision dismissed.