Tag Archives: Accept

Principle of – Approbate and Reprobate

The law does not permit a person to both approbate and reprobate. The principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 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 around and say that it is void for the purpose of securing some other advantage.

In the case of Zila Dastavej Lekhak Association v. State of U.P., (1996) 8 SCC 441, while considering the challenge to the validity of Rule 6(2) of the U.P. Document Writers License Rules, 1977 by the licencees, it was held as under:

“The members of the petitioner-Association, having become the licensees under the Rules, are bound thereby. Firstly, the petitioner – Association being consisting of the members who obtained license under the Rules, cannot challenge the Rules under which they come to operate. The very source under which they come to operate either survives or perishes under the Rules. They cannot challenge that part of the Rules which is unfavourable to them while at the same time, respecting the favourable part thereof since they have no independent right de hors the Rules. They cannot challenge the power of the Inspector General of Registration in making the rules regulating conditions of the document writers and the conditions under which they become eligibile to be document writers.”

In the cases of NCTE v. Shyam Babu Maheshwari, (2011) 2 SCC 412 and Krishna Kumar v. Union of India, (1990) 4 SCC 207 and Union of India v. Kailas, (1998) 9 SCC 721, Hon’ble Supreme Court held that once an employee has opted for the Contributory Provident Fund Scheme, his exercise of option was final and he is not entitled to change over to the pension scheme because the two schemes are entirely different. Janki Prasad v. State of U.P., 2017 (135) RD 525.

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Word “Entertain” – Means to “proceed to consider on Merits”

In Lakshmiratan Engineering Works Ltd. v. CST¸AIR 1968 SC 488 the meaning of the expression “entertain” in the context of a provision in Uttar Pradesh Sales Tax Act, 1948 wherein it was held that, the expression has the meaning of “admitting to consideration”. It was held thus:
“The word “entertain” is explained by a Division Bench Judgment Kundan Lal v. Jagan Nath Sharma, AIR 1962 All 547 of the Allahabad High Court as denoting the point of time at which an application to set aside the sale is heard by the Court. The expression “entertain”, it is stated, does not mean the same thing as the filing of the application or admission of the application by the court. A similar view was taken in Dhoom Chand Jain v. Chaman Lal Gupta, AIR 1962 All 543 in which it was observed that the word “entertain” in its application bears the meaning “admitting to consideration”, and therefore when the court cannot refuse to take an application which is backed by deposit or security, it cannot refuse judicially to consider it. In Bawan Ram v. Kunj Behari Lal, AIR 1962 All 42 the deposit had not been made within the period of limitation and the question had arisen whether the court could entertain the application or not. It was decided that the application could not be entertained because Proviso (b) debarred the court from entertaining an objection unless the requirement of depositing the amount or furnishing security was complied with within the time prescribed. In Haji Rahim Bux v. Firm Sanaullah & Sons, AIR 1963 All 320, a Division Bench interpreted the words of Order 21 Rule 90, CPC by saying that the word “entertain” meant not “receive” or “accept” but “proceed to consider on merits” or “adjudicate upon”. Axis Bank v. SBS Organics Private Limited, (2016) 12 SCC 18.

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