1. Tenant in RCOP No. 143 of 1995 on the file of Rent Controller/XIV Small Causes Court, Madras is the revision petitioner.

2. Eviction petition was filed by landlord under section 14(1)(b) of Tamil Nadu Buildings (Lease and Rent Controller) Act alleging that the scheduled building is required for immediate demolition and reconstruction. Tenant filed counter stating that the claim is not bona fide.

3. On 22.2.1996, the case was posted for evidence on which date PW 1 was examined and petitioner's witness was called absent and consequently he was declared exparte and an order of eviction was also passed. Tenant moved an application to set aside the ex parte order with an application to condone delay of 267 days as per M.P No. 780 of 1996. In the affidavit in support of the application tenant said that they along with other members of family went to their native village where they met with an accident on 20.2.1996 and consequently they could not appear in court when the case was called. They could return to Madras only during second week of October and they came to know that an exparte order has been passed. Tenant stated that in view of the “accident they could not file application in time and the delay occasioned in filing application is to be condoned.

4. Landlord filed detailed counter affidavit disputing the allegations made in the affidavit.

5. Rent Controller as per order dated 23.4.1999 held that the application will stand allowed on payment of cost of Rs. 500 on or before 29.4.1999 Rent Controller also found that interest of justice also require that opportunity should be given to tenant to substantiate their case and they also made out case to have the delay condoned. But since there was delay, they must be put on terms. It is not disputed that landlord accepted the cost though under protest.

6. Against the order allowing the application, landlord filed R.C.A No. 361 of 1999 on the file of Appellate authority/Vll Small Causes Court, Chennai. Appellate authority reconsidered the matter and set aside, the order of Rent Controller. Appellate authority was of the view that tenant has not explained satisfactorily the reasons to have the delay condoned under Section 5 of Limitation Act. Various decisions of Honourable Supreme Court and other High Courts were also taken into consideration to hold that tenant, has not explained sufficient cause for condoning the delay. The application was dismissed.

7. It is against the said finding of appellate authority, tenants have come to this Court with this revision petition.

8. Since caveat was entered, I heard the revision at the admission stage itself with consent of parties.

9. Learned counsel for petitioner made two submissions. Firstly, landlord has accepted the cost and the same precludes him from challenging the order before appellate authority. Landlord cannot approbate and reprobate and by his conduct he is precluded from questioning the order of the Rent Controller. Further argument is that even if the cost is received under protest, that will not make difference. Secondly, Rent Controller has exercised his discretion and that discretion is not liable to be interfered with by the appellate authority unless it is a case of perverseness or patent illegality. Even if a different view is possible, the discretion exercised by subordinate authority is not liable to be interfered with.

10. As against the said contentions, learned counsel for respondent submitted that in cases where cost is received under protest. Landlord is not precluded from challenging the order. Reliance was placed on the decisions reported in Randhir Singh v. Kamlesh, AIR 1980 P & H 70 and Ram Gopal v. Man Chand, AIR 1981 All. 352. Learned counsel also submitted when the discretion exercised by Rent Controller is against the settled legal position, appellate authority will be justified in interfering with the same in appeal even though it is discretionary order.

11. I heard the counsel on both sides.

12. Rent Controller allowed the application on terms. Relevant portion of the order read thus,

It is not disputed by counsel for respondent that the cost was received in time, but the same was without prejudice to her right of challanging the same in appeal.

13. The question to be considered is whether receipt of cost under protest will bar landlord from questioning the correctness of the order before appellate authority.

14. In one of the earlier decisions of our High Court reported in Ramaaswami v. Chidambaram, AIR 1927 Mad. 1009 (2), amendment application was allowed on condition of defendant paying plaintiff Rs. 150 by way of cost. Defendant paid the same which was taken by plaintiff's counsel under protest, whereby plaintiff intended to challenge the order before High Court. When the revision was filed against that order by plaintiff, a preliminary objection was raised contending that having received the cost, though under protest, revision cannot be maintained. Accepting the preliminary objection, learned Judge of this Court held thus,

“Respondent raises a preliminary point whether the plaintiff having taken the money although under protest is not estopped from questioning the order.

It has long been recognized that where a party accepts costs under a Judge's order which, but for the order, would not at that time be payable, he cannot afterwards object that the order was made without jurisdiction. King v. Simmonds (1) and Tinkler V. Hilder (2). This ruling was followed in Banku Chandra Bose v. Marium Begum (3) in circumstances similar to those of the present case. But the petitioner relies upon an obiter dictum in that case of the Chief Justice:

Personally I cannot help thinking that defendants would have been in a much better position if they had said: “We intend appealing against this order and we only accept this sum under protest.

The defendant's vakil himself in that case when questioned by the Court said that receipt under protest would have been of no avail, and cited Croft v. Lumley (4). I think, with all respect to the Chief Justice, that he was right, That ruling is based on the broad principle that what is done, not what is said, is the all-important matter. The petitioner obtained money which he could not otherwise have got, and although he protested he enjoyed that benefit, he must be taken to have admitted that the order was within jurisdiction.” (Italics supplied)

15. The above said decision was considered by a Division Bench of this Court in the decision reported in Venkatarayudu v. Chinna, AIR 1930 Mad 268. The question before Division Bench was, ‘when an order consists of two parts embodying directions, one against, and the other in favour of a party, can the latter after taking advantage of that part which confers a benefit on him, object to the other part on the ground that he is not bound by it? The case referred before Division Bench was dismissed for default and plaintiff applied for restoration. Learned Judges held that there is no ground for restoration, but restored it as a matter of grace on plaintiff paying defendant cost. Defendant after receipt of cost filed revision objecting the order. After extracting various English and Indian decisions, their Lordships posed the question what is the principle underlined in these decisions and explained the decision reported in Ramaaswami v. Chidambararam, AIR 1927 Mad. 1009 (2), which read thus,

“What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives the costs, his act is tantamount to adopting the order. In other words payment of costs is, as it were, consideration for the suit being restored; so that, the defendant cannot accept the cost and still object to the order. According to Halsbury, this rule is an application of the doctrine “that a person may not approbate and reprobate” (13 Halsbury. Para. 508). In Broom's Legal Maxims, it is treated as an illustration of the maxims:

“that no man shall be permitted to blow hot and cold with reference to the same transaction. (Edn. 9, p. 118)”

In other words, to allow a party, who takes a benefit under such an order, to complain against it would be to permit a breach of faith. From this statement, it is clear that if a party receives the benefit reserving his right to object to the order, he will not in that case be precluded; from attacking it. It is in regard to this that I dissent with respect from the observation of Jackson, J, in Ramaswami v. Chidambaran, AIR 1927 Mad. 1009(2) already referred to. That learned Judge thinks that it makes no difference that the party accepts the benefit under protest. In this connexion, of course, the significance of the expression “under protest” must be clearly borne in mind. As pointed out by Langdale, M.R these words:

“have no distinct meaning by themselves and amount to nothing unless explained by the proceedings and circumstances. Re. Massey (10), cited in Stround's Jud., Dic. Edn. 2, Vol. 3, P. 2118.”

If, for example, the costs are paid into Court and the opposing party draws them out stating that he does so under protest, these words would then be meaningless. To such a case, the observation of Jackson, J, would properly apply. This would be analogous to what happened in Croft v. Lumley. The party receiving the rent there said that he did so under protest; but, in the circumstances, the addition of the words was idle and meant nothing in fact. As Baron Channel said what the man did not what he said was the all important matter.”

16. In R.S Vijayam v. Srinivasa, AIR 1956 Mad. 301, in para 10 of the judgment it is held thus,

“On the other hand, if a man is entitled to one of two inconsistent rights it is fitting that when with full knowledge he has done an unequivocal act showing that he has chosen the one he cannot afterwards pursue the order, which after the first choice is by reason of the inconsistency no longer his to choose.”

17. In Division Bench of our High Court in the decision reported in K. Shanmugham v. S. Shanmugham, AIR 1968 Mad. 207 in para 17 it is held thus.

“The doctrine of election on which the defence is substantially rested is the principle that the exercise of a choice by a person left to himself of 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 inconstent with it. The court exercising jurisdiction in equity will bind him to his election and preclude him from going behind the same “

18. H.G Krishna Reddy & Co. v, M.M Thimmiah, AIR 1983 Mad 169 was a case for suit for specific performance. In that case, vendor refunded the amount and the same was received by plaintiff plaintiff accepted the same without prejudice to his right to sue. The question was whether plaintiff is precluded from suing for specific performance. In paragraphs 30 to 36 of the Judgment, the Division Bench held thus,

“30. In Surajmull Nagoremull v. Triton Insurance Co. Ltd.., 1925 (49) MLJ 136: AIR 1925 PC 83, the question was whether a contract for sea insurance was valid even though it was not expressed in a sea policy as provided under S. 7 of the Stamp Act, 1899. The section had not been pleaded by the defendant in the suit. It was only during the hearing of the appeal before the Privy Council it was discovered that that S. 7 of the Stamp Act provided that no contract of sea insurance would be valid unless the same was expressed in policies of sea insurance. It was argued by the plaintiff that it was too late to plead as an answer to the plaintiff's claim. Lord Summer observed thus.

“The suggestion may be at once dismissed that is too late now to raise the section as an answer to the claim. No court can enforce as valid, that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by a consent of the parties or by a failure to plead or to argue the point at the outset Nixon v. Albion Marine, 1867 LR 2 Exe 338. The enactment is prohibitory. It is not confined to affording a party a protection, of which he may avail himself or not as he pleases. It is not framed solely for the protection of the revenue and to be enforced solely at the instance of the revenue officials, nor is the prohibition limited to cases, for which a penalty is exigible. The expression for an agreement for sea insurance, otherwise than in a policy, is a thing forbidden in the public interest, and the statutory insistence on a policy is no mere collateral requirement or prescription of the proper way of making such an agreement. To allow the suit to proceed in defiance of S. 7 would defeat the provisions of the law laid, down therein.”

31. We are not Impressed with the submission of Mr. Ramachandran the learned counsel for the first respondent that a finding should be called for on the issue whether the first respondent was ready and willing to perform his part of the contract and that the first respondent should be given a further opportunity to let in his evidence on the question we have already pointed out that the question of the first respondent's readiness and willingness to perform his part of the contract has been clearly taken in the written statement. The second respondent has clearly averred that the first respondent had received back the advance amount of Rupees 13, 000 and that his past conduct had allowed the property to be sold to the appellant. Issue No. 4 relates to the question whether the first respondent is entitled to a decree for specific performance. In the circumstances, it was the duty of the first respondent to have gone into the box and given evidence that notwithstanding the acceptance of Rs 13,000 he has willing and ready to perform his part of the contract. To give a further opportunity to the first respondent at this stage to let in evidence over again before the trial Judge would be to permit him to fill up the lacuna in the evidence at the expense of the appellant. The point raised by Mr. Kesava lyengar is a pure question of law and can be decided on the materials avail able on the records. We therefore reject the prayer of Mr. Ramachandran for remand for the trial Judge for a finding on this question after giving the first respondent an opportunity to let in evidence.

32. Point No. 3: This point relates to the legal effect to be attached to the conduct of the first respondent in receiving back the advance amount of Rs 13, 000 from the second respondent. Under Ex. P13 dated 28.3.1974, while receiving the cheque for Rs. 13, 000 the first respondent stated that he was receiving the same without prejudice to his right under the agreement to sell Ex. P. 1. The contention of Mr. Kesava lyengar was that inasmuch as the first respondent had received back the advance amount of Rs. 13, 000 he could not enforce the agreement and that the words ‘ without prejudice’ used by the first respondent in Ex. P13 would not take away the effect of the first respondent having accepted the cancellation of the contract by the second respondent. On the other hand, Mr. T.R Ramachandran argued that inasmuch as the cheque was accepted without prejudice to the first respondent's right under the contract for sale his right to specifically enforce the contract would not be adversely affected. The effect of the acceptance of the amounts under protest have come up for consideration in cases relating to forfeiture of leases.

19. In George Henry Davenport v. Her Majesty the Queen, 1878 (3) AC 115, a lease of Crown Lands for eight years having been granted by the respondent under 31 Vict. No. 46. subject to the terms and conditions contained in the Agricultural Reserves Act of 1863 and the Leasing Act of 1866, the lessee failed to perform his covenant to cultivate one-sixth of the said lands within a year from the allotment thereof. Rent, however, for the whole term of year was subsequently received by the Government, the latest being in 1873 with full knowledge of the above breach of covenant, but after notification in the Gazettes of 1869. 1870 and 1871. that the same would be received conditionally and without prejudice to the rights of the Government. Thereafter, the Government brought a suit in ejectment on the ground that a forfeiture had accrued. After quoting the case of House of Lords in Croft v. Lumley, 1858 (6) HLC 672 the Privy Council observed thus-

“Without finding it necessary to invoke this opinion to its full extent in the present case, it is enough for their Lordships to say that where money is paid and received a rent under a lease, a mere protest that it is accepted conditionally and without prejudice to the right to insist upon a prior forfeiture, cannot contervail the fact of such receipt.”

32-A. The Privy Council took the view that “assuming a forfeiture had accrued, it was waived by the receipt of rent, notwithstanding the conditional acceptance.”

33. This case was followed by the Calcutta High Court in Kali Krishna Tagore v. Fuzle Ali Chowdhry, 1883 ILR 9 Cal. 843, where payments made by the lessee were accepted by the lessor as rent but were kept in suspense subject to payment by the lessee of the remaining amount, it was held that such a qualification did not make the payments anything else than payments of rent, and that the lessor had waived his right to insist on re-entry on the lessees' failure to measure the lands, or execute a kubillat when called on to do so.

34. Again in Satyanarayana v. Venkataramamurthy, AIR 1935 Mad. 454 the question arose before a Bench of this Court whether the receipt of rent by the lessor amounted to a waiver of a prior right of forfeiture of the lease. It was held that a conditional acceptance of rent by the lessor after default involving a forfeiture is nonetheless a waiver.

35. In Chotu Mia v. Mt. Sundri, AIR 1945 Pat. 260, a Full Bench of the Patna High Court held where after the forfeiture of the lease the lessee remits certain amounts to the lessor as rent and intends it as payment of rent and the landlord accepts it only as damages for use and occupation, the acceptance of payment by the landlord must be deemed to be as rent and operates as a waiver of the forfeiture. “

36. We are of the view that the same principles applies to the case on hand. The second respondent had already stated that he was not intending to execute the draft contract for sale and that the contract was no longer in existence. Assuming that Ex. P. 1 amounted to a concluded contract for sale, the first respondent has accepted the refund amount of Rs. 13, 000 knowing full well that the second respondent has cancelled the contract. In the context, therefore, the; mere conditional acceptance by the use of the words ‘without prejudice’ to his rights under the contract for sale cannot in any manner derogate from the fact that he had acquiesced in the breach of the contract committed by the second respondent. As was observed in Doe d. Morecraft v. Meux, 1824 (1) Car and P 347. what was of importance was what the first respondent did and not what he said. The first respondent had received the money back and the effect of it cannot be taken away by the words ‘ without prejudice’ which he said.” (Italics supplied)

19. Learned counsel for respondent relied on the decision reported in Randhir Singh v. Kamlesh, AIR 1980 P & H 70 wherein learned Judge of Punjab & Haryana High Court took a different view. In para 5 of the judgment learned Judge has referred to the Division Bench decision in Venkatarayudu v. Ramakrishnayya, AIR 1930 Mad. 268, but refused to follow the same. In para 5, learned Judge held thus,

“Whenever costs are accepted,. under protest, it always shows that the person concerned has not acquiesced in the order. His non-acquiescence is only for showing that the order could be challenged at a subsequent stage as otherwise there can be hardly any purpose for raising a protest before receiving the payment, it cannot be ascertained from the interlocutory order of the Court dated April 26. 1979 as to what were the exact words spoken by the counsel accepting the costs. He may have uttered something more than what is shown by the words “under protest”. It cannot be considered to be the requirement of law that the lawyer concerned should also get his statement recorded to the effect that he was reserving his right to challenge the order of amendment of the plaint in appeal of revision. Thus, my conclusion is that in the circumstances of the present case, the petitioner is not debarred from challenging the order of, amendment in spite of the fact that his counsel in the lower Court accepted the costs.”

In that case, learned single Judge referred to a Bench decision of that Court in Mewa Singh v. Brahma Nand, 1972 Punjab Law Journal 157, herein it was held thus,

“Where the plaintiffs were allowed to amend their plaint under the provisions of Order 6. Rule 17, Code of Civil Procedure, subject to payment of costs to the defendants, the costs were paid and accepted by the defendants; held, after the acceptance of the costs without protest a party is estopped from challenging the order. The defendants, after having accepted the costs paid by the plaintiffs to them, are estopped from questioning the order allowing amendment of the plaint.”

Learned Judge took the view if the acceptance of cost is under protest, the principle of estoppel will not apply in view of the observation made by the Division Bench.

20. Both the above decisions came for consideration before Punjab & Haryana High Court and the same is reported in Amar Singh v. Perhlad, AIR 1989 P & H 229. Wherein entire law has been considered. In para 5 of the judgment, the Division Bench considered that question, which reads thus,

“5. In the present case, the petitioner having accepted costs awarded in the order while allowing amendment of the plaint further mentioned-that he was accepting the amount under protest. This was a unilateral act on the part of the petitioner. Even if he had not accepted the costs, the same would have been deposited in the court by the plaintiff.

If the petitioner had withdrawn the costs from the Court unilaterally stating that the withdrawal would be under protest, he could not approbate and reprobate, that is accepting benefit of the order and at the same time objecting to the passing of the order. He had to accept the order as a whole. What he did was that he accepted the costs and thereby acquiesced in the correctness of the order passed. Although at the time of acceptance of the costs the petitioner stated that he was doing so under protest, that will not make any difference as the opposite party had not consented to the statement of the petitioner in this respect. If in fact the petitioner wanted to challenge the order of amendment or the plaint, there was no compulsion for him to accept the costs. The costs would have remained deposited in the Court. The right of the petitioner to the costs imposed by the Court on the plaintiff while allowing amendment of the plaint was not based on any right of the petitioner in the suit.

The costs were ordered by the Court to compensate the petitioner for the inconvenience caused during the pendency of the suit till the plaint was amended. Such an order regarding costs was made on term or condition for amendment of the plaint in view of O. 6, R. 17, Civil Procedure Code. Such an order could not be accepted in part by either of the party while denouncing the other part. The plaintiff could not file amended plaint stating that he could pay costs at the time of final decision of the suit. Likewise the defendant could not say while accepting the costs that he would challenge the order in appeal or revision or that he would return the costs withdrawn if the order of amendment of plaint is set aside. The crux of the matter to be seen is as to what the petitioner did and not what he said. By acceptance of costs, he accepted the order as correct. He has taken benefit of the order. He cannot now turn around and say he will also challenge the order. By allowing him to challenge the order would amount to nullifying the effect of acceptance of costs. In such circumstances, he cannot approbate and reprobate. His own act would estop him. At the most it can be said that the petitioner had two options, one to accept the costs and to treat the order as correct, the other, not to accept the costs and to challenge the same in revision. He having elected to accept the costs, he exercised his choice in accepting the order as correct. His lodging the protest in such circumstance's is meaningless “ (Italics supplied)

The decision in Randhir Singh v. Kamalesh, AIR 1980 P & H 70 was overruled in that decision and the Division Bench held that the observation if any in Mewa Singh v. Brahma Nand, 1972 Punj. LJ 157 is only obitter and not the law declared by Court.

21. Reference was also made to the decision reported in Ram Gopal v. Man Chand, AIR 1981 All 352. In that case the cost was received without any protest and hence it was observed that defendant cannot challenge the amendment.

22. Merely receiving cost under protest also will not change the position, is clear from the above decisions.

23. Mere insertion of the word “without prejudice to challenge the order” will not make any difference and the principle of estoppel will apply in such cases.

24. In view of the above settled legal principle, first submission made by learned counsel for petitioners that appeal itself should not have been entertained by appellate authority is only to be accepted.

25. Regarding the second submission that appellate authority is not justified in interfering in the discretionary remedy, the decision reported in N. Balakrishnan v. N. Krishnamurthy, 1998 (7) SCC 123 supports the case of petitioners. Power of the appellate authority or revisional ‘court in interfering with the discretionary remedy under Section 5 of the Limitation Act was considered in that case in para 9 of the Judgment, which reads thus,

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such, discretion can be exercised only if the delay is within a certain limit. Lengh of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shorter range may be uncondonable due to a want of acceptable explanation, whereas in certain other cases, delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.” (Italics supplied)

26. I have already extracted the reason given by Rent Controller in accepting the explanation. Rent Controller held that taking into consideration the interest of justice explanation offered by petitioners is accepted. Rent Controller has not held that the application is filed to protract the litigation or filed with mala fides. It believed the case of petitioners that they were prevented from appearing in Court in view of the accident. Such exercise of jurisdiction can never be said as illegal or perverse. When Rent Controller exercises discretion that the delay in filing application has to be condoned, merely because superior court can take a different view may not be sufficient to interfere with the discretion unless it is a case of perversity or patent illegality.

27. Appellate authority has relied on various decisions to hold as to what is ‘sufficient cause’ and how it has to be explained. Rent Controller once accepts the explanation means, sufficient cause is made out. Before this Court also learned counsel for respondent relied on all those decisions relied by appellate authority and hence I am not extracting those decisions. In most of the decisions, it has been held that Section 5 of the Limitation Act will have to be interpreted liberally in favour of litigant and merely because he came little late, doors of the Court shall not be closed unless the Court is of the view that the application itself filed without bona fides or to prolong the litigation. Mala fides in filing such applications alone is considered as not sufficient cause and Court will not encourage such conduct on the part of applicant., In all other cases, liberal view is taken and the inconvenience caused to opposite party is compensated by costs. In fact, this view was already declared by Honourable Supreme Court in the decision reported in N. Balakrishnan v. N Krishnamurthy, 1998 (7) S.C.C 123. In para 13 of the judgment their Lordships have held thus,

“It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then this Court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to Laches on the part of the appellant, the court shall compensate the opposite party for his loss,” (Italics supplied)

28. In the result, I set aside the impugned order of appellate authority and restore the order of Rent Controller by allowing this revision petition. There will be no order as to costs. Consequently CMP. No. 22186 of 1999 is closed.