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TMI Blog1995 (10) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 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 approached the Co-operative Court by filing a dispute under S. 91 of the Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiate 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 vaca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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