Case: City Montessori School Vs. State of Uttar Pradesh &amp; Others

same would lead to a useless formality or that the person concerned, in fact, did not suffer any prejudice. It is trite that a party may waive his right of hearing by his conduct. It is furthermore well settled that a fact admitted need not be proved. Indisputably, the appellant was a party to the decision. The decision was based on the consent of the respondents which, in the facts and circumstances of this case, must be held to have included the appellants herein also. 25. A judgment rendered by a court of law and in particular a consent order, it is trite, must not only be construed in its entirety but also having regard to the pleadings and conduct of the parties. {See N.K. Rajgarhia v. Mahavir Plantation Ltd. [(2006) 1 SCC 502 paragraph 19] 26.Judgment on consent in this case was passed only in view of Section 48(1) of the Act and not on any other premise. Appellant is the only beneficiary of the said order as by reason thereof, the judgment of the High Court in respect of 17,000 sq. ft. of land was set aside. By reason thereof, the possession of the appellant was protected as otherwise it was bound to hand over the vacant possession to the landladies pursuant to the order of eviction. For the aforementioned purpose, thus, the proceedings before this Court assume significance. We have noticed hereinbefore that the question as to whether such a notification can be issued was debated. The State of Uttar Pradesh has been given opportunity after opportunity therefor. The Chief Secretary was also asked to remain personally present. 27. Only thereafter, the notification under Section 48 of the Act was issued. Appellants do not say nor does it appear from the record that at any point of time it raised any protest. In fact, it must be held to have accepted the suggestion whether emanating from this Court or from the State of Uttar Pradesh without any demur whatsoever. It is in the aforementioned situation, the doctrine that a person cannot be permitted to approbate or reprobate at the same time must be invoked. In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. [1956 SCR 451], this Court held: "But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS 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. v. Hull and Netherlands Steamship Company Ltd. and in particular, the observations of Scrutton, L.J., at page 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 for 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 reliefs 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.". 28. Referring to some English decisions, it was observed: "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." 29. In C. Beepathumma & Ors. v. V.S. Kadambolithaya & Ors. [(1964) 5 SCR 836] , this Court held: "In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-2. Having in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through Defendant 8." 30. In Ambu Nair since Deceased v. Kelu Nair, since Deceased [(1932-33) 60 Indian Appeals 266], it was held: "Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt the appellant, their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honeyman J. in Smith v. Baker (1), "at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage." See also per Lord Kenyon C.J. in Smith v. Hodson (1) where the same expression is used." 31. A party consenting to an order cannot be permitted to resile therefrom while retaining the benefit obtained therefrom. {See Union of India v. Krishan Lal Arneja [(2004) 8 SCC 453] . 32.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is now a well settled principle of law that it cannot be put in a straight jacket formula. The Court, despite opining that principle of natural justice was required to be followed, may, however, decline grant of a relief, inter alia, on the premise that the same would lead to a useless formality or that the person concerned, in fact, did not suffer any prejudice. It is trite that a party may waive his right of hearing by his conduct. It is furthermore well settled that a fact admitted need not be proved. Indisputably, the appellant was a party to the decision. The decision was based on the consent of the respondents which, in the facts and circumstances of this case, must be held to have included the appellants herein also.A judgment rendered by a court of law and in particular a consent order, it is trite, must not only be construed in its entirety but also having regard to the pleadings and conduct of the parties.t on consent in this case was passed only in view of Section 48(1) of the Act and not on any other premise. Appellant is the only beneficiary of the said order as by reason thereof, the judgment of the High Court in respect of 17,000 sq. ft. of land was set aside. By reason thereof, the possession of the appellant was protected as otherwise it was bound to hand over the vacant possession to the landladies pursuant to the order of eviction. For the aforementioned purpose, thus, the proceedings before this Court assume significance. We have noticed hereinbefore that the question as to whether such a notification can be issued was debated. The State of Uttar Pradesh has been given opportunity after opportunity therefor. The Chief Secretary was also asked to remain personally present.Only thereafter, the notification under Section 48 of the Act was issued. Appellants do not say nor does it appear from the record that at any point of time it raised any protest. In fact, it must be held to have accepted the suggestion whether emanating from this Court or from the State of Uttar Pradesh without any demur whatsoever. It is in the aforementioned situation, the doctrine that a person cannot be permitted to approbate or reprobate at the same time must be invoked.