MATHUR, J. - (1.) BY this petition for writ a challenge is given to the order dated 19. 2. 2005 passed by learned Civil Judge (Senior Division), Sojat City in Civil Original Suit No. 62/1990 (51/2001), Gautam Raj & Anr. vs. Ugam Raj. BY the order impugned dated 19. 2. 2005 the Court below decided issues No. 1, 11-A, 11-B and 11-C framed while adjudicating the suit for eviction from premises filed by the respondent plaintiffs.
(2.) THE plaintiffs respondent No. 2 and 3 preferred a suit in the year 1990 before the competent civil Court seeking decree against the petitioner defendant for eviction from premises rented and for recovery of rent. After filing of written statement by the petitioner defendant the Court adjudicating the suit framed 12 issues. Three additional issues numbered as 11-A, 11-B and 11-C were framed by the Court below as a consequence of acceptance of an application preferred by the petitioner defendant under Rule 17 Order 6 CPC for making amendment in the written statement. THE additional issues so framed read as under: Vk;k dkuwuu uksfvl ds vhkko esa nkok [kkfjt fd;s tkus ;ksx; gs\ 11-ch Vk;k oknh }kjk nksjkus okn U;k;ky; }kjk fu/kkzfjr fdjk;k izkir dj ysus ls /kkjk 113 Vh-i- ,dv ds rgr uksfvl dk osoj gks x;k gs\ 11-lh Vk;k fdjk;snkjh vf/kfu;e ds vurxzr is'k fd;k x;k ;g nkok la'kksf/kr izko/kkuksa ds vuqlkj pyus ;ksx; ugha gs\ &izfroknh** The Court by order impugned decided all the three additional issues and issue No. 1. By this petition for writ challenge is given to the findings given by the Court below with regard to issues No. 11-A, 11-B and 11-C, however, while arguing the case the Counsel for the petitioner pressed into service challenge to finding pertaining to issue No. 11-C only. The Court below while deciding issue No. 11-C in favour of plaintiff and against defendant held that provisions of Sub- section (3) of Section 32 of the Rajasthan Rent Control Act, 2001 (hereinafter to as ``the Act of 2001'') does not apply in the case in hand. Further, the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as ``the Act of 1950'') stood repealed and, therefore, is having no application in the city of Sojat. The Court below accordingly ordered that eviction of premises proceedings in the city of Sojat can be taken only in accordance with the provisions of Transfer of Property Act. The contention of Counsel for the petitioner to challenge the finding given for issue in question is that the Court below misread the provisions of Sub-section (3) of Section 32 of the Act of 2001, and, therefore, committed an error patent while holding that the suit in hand is required to be decided in accordance with the provisions of Transfer of Property Act only. It is contended by the Counsel for the petitioner that according to Clause (a) of Sub-section (3) of Section 32 of the Act of 2001 all suits under the repealed Act i. e. , the Act of 1950 pending on the date of commencement of the Act of 2001 shall be continued and disposed of in accordance with the provisions of the Act of 1950 if not withdrawn within a period of 180 days of coming into force of the Act of 2001 with liberty to file fresh proceedings under the Act of 2001, as such finding given by the Court below, according to the Counsel for the petitioner, is patently erroneous and, therefore, deserves to be quashed.
(3.) NO reply to the writ petition is filed by the respondents plaintiff. However, a preliminary objection is raised to the effect that the petitioner defendant cannot be permitted to maintain the writ petition on the principle that a person cannot both approbate and reprobate. It is contended by Shri Vikas Balia, Counsel appearing on behalf of the respondents NO. 2 and 3 that issues NO. 11-A, 11-B and 11-C were framed as a consequence of an application preferred by the defendant to amend written statement and it was the case of the petitioner defendant that the Act of 1950 would not apply and the suit is required to be decided by application of the provisions of Transfer of Property Act. The petitioner by present writ petition is challenging the order which he himself sought by way of filing an application. To substantiate the contention Shri Vikas Balia placed reliance upon a judgment of Hon'ble Supreme Court in the case of Nagubai Ammal & Ors. vs. B. Shama Rao & Ors. , reported in AIR 1956 SC 593, wherein their Lordships held as under: `` (23) But it is argued by Shri Krishnaswami Ayyangar that as the proceedings in O. S. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in O. S. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate. It is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. vs. Hull and Netherlands Steamship Co. Ltd. , 1921 (2) KB 608 (D), and in particular, the observations of Scrutoon, L. J. At p. 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser of price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two beliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankers, L. J. : ``having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be approbate and reprobate the same act. '' The observations of Scrutton, L. J. on which the appellants rely are as follows: ``a plaintiff is not permitted to `approbate and reprobate'. The phase 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 vs. Wauchope 1819 (1) Bligh 1 (21) (E): Doughlas-Menzies vs. 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. '' I have heard Counsel for the parties. ;