Bishnu Banerrjee v. State — 1986 DIGILAW 466 (CAL)

JUDGMENT 1. THE plaintiff/opposite party filed Title Suit no. 21 of 1972 in the Fifth Court of the learned Munsif at Alipore, 24-Parganas against the petitioner for eviction and recovery of possession of the entire one storeyed building being portion of premises no. 12a. Hern Chandra Street', Calcutta on the ground of default in making payment of rent since May, 1971. The said suit was contested by the petitioner by filing written statement denying and disputing the material allegation made in the plaint. In the said suit the petitioner also made an application under section 17 (2) read with section 17 (2a) of the West Bengal Premises Tenancy Act, 19. 56 inter alia, denying and disputing the relationship of landlord and tenant between the parties. Subsequently a petition of compromise was filed signed by both the parties on or about August 6, 1974 in the said suit. In the said petition of compromise it was stated inter alia, that the petitioner had admitted that he was a tenant in respect of the entire 12 A, Hem Chandra Street, Calcutta, that the petitioner also admitted that he was a defaulter in payment of rent since May, 1971; that the opposite party was entitled to get a decree for eviction of the entire premises No. 12 A, Hem Chandra Street, Calcutta, the petitioner would deliver vacant and peaceful possession of the said entire premises No. 12 A, Hem Chandra Street, Calcutta to the opposite party by the last day of the month of March, 1975; that during the continuance of the petitioner's possession under the terms of the said compromise none was to disturb the petitioner in his peaceful possession and enjoyment of the said premises and that the opposite party would give up his claim for arrears of rent and damages if the petitioner had complied with the terms of the said compromise. On February 2, 1975 the petitioner filed an objection to the recording of the said compromise questioning inter alia the legality of the terms of the said compromise and prayed that the said compromise should not be recorded and the suit should not be decreed on the basis of the said compromise petition. On February 2, 1975 the petitioner filed an objection to the recording of the said compromise questioning inter alia the legality of the terms of the said compromise and prayed that the said compromise should not be recorded and the suit should not be decreed on the basis of the said compromise petition. The petitioner also filed an application for permission to withdraw the said compromise petition inter alia on the ground that no order had yet been passed regarding recording of the said compromise and that the application under section 17 (2)read with section J 7 (2 A) of the West Bengal Premises Tenancy Act was not disposed of till then and he was not aware of the legal position that if he had complied with the provisions of section 17 (2) and 17 (2a)of the said Act he was to get protection under section 17 (4) thereof and there could be no estoppel against the statute. By an order dated june 9, 1973 the learned Munsif allowed the said application of the petitioner for withdrawal of the compromise petition inter alia, on the ground that the final compromise petition that was filed in court incorporates extraneous matters and the lawfulness of the compromise petition was doubtful and that the said compromise petition did not reflect the free will and consent of the petitioner. Against the said order the opposite party preferred an appeal being Misc. Appeal No. 434 of 197 5 and the learned Fifth Additional District Judge, Alipore, 24-Parganas by his Order dated April 26, 1976 allowed the said appeal setting aside the order of the learned Munsif and remanded the matter to the trial court with the direction to dispose of the said application under Order XXI11 Rule 3 of the Code of Civil Procedure afresh after giving the parties opportunity to adduce fresh evidence. Being dissatisfied with the said order of the lower appellate court the petitioner moved a revisional application in this court. and obtained a Civil rule which was disposed of by the Hon'ble Mr. Justice Chittatosh mookerjee (as His Lordship then was) on January 31, 1976 directing the lower appellate court to decide whether the compromise in question was lawful or not and whether the same should be recorded. The said Misc. and obtained a Civil rule which was disposed of by the Hon'ble Mr. Justice Chittatosh mookerjee (as His Lordship then was) on January 31, 1976 directing the lower appellate court to decide whether the compromise in question was lawful or not and whether the same should be recorded. The said Misc. Appeal No. 434 of 1975 again came up for hearing before the lower appellate court according to the said direction of this court and the learned Fifth Additional District Judge at Alipore, 24-Parganas by his Order dated 29th March, 1986 allowed the said appeal and decreed the suit on compromise holding inter alia, that there was no bar to accept the petition of compromise to be a "lawful agreement made between the parties. Being aggrieved by the said order of the lower appellate court the petitioner has come up in revision in this Court. 2. IT was contended by Mr. Mukherjee, learned Advocate appearing on behalf of the petitioner with. Mr. Tarun Chatterjee that 'lawful agreement in the present context should be taken to mean an agreement which is lawful within the meaning of the Indian Contract Act and other Jaws governing substantive rights of the parties to the agreement and reference was made to Section 23 of the Indian Contract Act. It was also contended by Mr. Mukherjee that the ejectment suit being one, governed entirely by the provisions of the West Bengal Premises tenancy Act, 1956, the legality of the agreement is to be examined in the context of the sprit or letters of. that Act and in view of the fact that the Rent Control Act being a piece of welfare legislation for the protection of the tenant whom the legislature considered to be the weaker of two parties to the contract of tenancy, a decree for possession either with consent or on contest, cannot be passed on any ground de hors the Act or ultra vires the Act. in such a case there is a prohibitionary mandate to the court that is shall not travel beyond the statutory grounds mentioned in the Rent Act and also to the parties that they shall not contract out of those statutory grounds. Reference was made to the case of Nagin Das v. Dal Path ram, reported in AIR 1974 SC 471 . According to Mr. Reference was made to the case of Nagin Das v. Dal Path ram, reported in AIR 1974 SC 471 . According to Mr. Mukherjee, in such a case for the purpose of effecting the compromise, the court must come to a satisfaction of its own that one or other of the different statutory grounds exists on the materials and/or admission placed before the Court and the court is also to see whether the compromise in question is a lawful one. References were made to the cases in Roshaalal and Anr. v. Madan Lal and Ors. reported in AIR 197. 5 SC 2130 and Smt. Nai Bahu v. . Lala Ram Narayan and Ors. reported in AIR 1978 SC 22 . Mr. Mukherjee further contended that without disposing of the application under Section 17 (2) of the West Bengal Premises Tenancy act the Court can not pasu even a consent decree and if it does so, it would be without jurisdiction and a nullity and' in support of his said contention Mr. Mukherjee referred to the cases in Mahendra dutta and Co. (P)Ltd. v. Lima Charran Law. reported in 68 CWN 179 and Dr. D. N. Mukherjee v. Jatindra Nath Bhaduri reported in 69 cwn 199. Relying on the aforesaid decisions. Mr. Mukherjee contended that whether be it a contested or a compromise decree, the court is to see that a ground under Section 13 (1) of the West Bengal Premise tenancy Act, 1956 exists and for that purpose if application under Section 17 (2) of the said Act is -pending, it has to dispose of the same before passing such a decree and he also - cited the' decision in putin Kumar Chowdhury v. Sadbindra Mohan Rose arid Anr. reported in 1978 (1) CLJ 645 in support of his sale contention. Mr. Mukherjee also contended that there cannot be a waiter of any statutory of right and submitted that there cannot be any waiver of the right under Section 17 (2) of the West Bengal Premises Tenancy Act and no question of waiver does arise when the Court fails to discharge its statutory duties. Mr., Mukherjee further referred to the draft compromise petition (Ext. Mr., Mukherjee further referred to the draft compromise petition (Ext. A) to prove that there were marked differences between the clauses of the said draft compromise and those of the compromise petition that was filed in Court and since the said draft compromise petition was proved without objection and the opposite party also in cross-examination did not challenge the said document, it should be presumed that the compromise petition that was filed in Court was not a lawful compromise petition. Mr. Mukherjee lastly submitted that since the disputed Compromise petition was filed prior to the coming into force of the Code of Civil Procedure (Amendment) Act, 1976 extraneous facts could not be incorporated in the said compromise petition, although such incorporation was allowed to be made under the provisions of Order XXII Rule 3 of the said Amendment Act. 3. MR. Das Gupta, learned Advocate appearing on behalf of the opposite party with Mr. Ashok Ganguli, however, referred to Clause (ii) of the compromise petition that was filed in court and submitted that since the petitioner had admitted therein that he had defaulted in payment of rent since May. 1971 it could not be said that there existed no ground for eviction of the petitioner under the West Bengal premises Tenancy Act, 1956. Mr. Das Gupta also submitted that a party could waive a statutory right if it was for his benefit and as such it cannot be said as a general proposition of law that there can not be any waiver against the statute and in support of his said contention Mr. Das Gupta referred to the decision in Birendra Nath garai and Ors. v. Sudhir Chandra Ghosh and Ors. reported in AIR 1964 sc 1300 . Mr. Das Gupta further contended that if there are sufficient material before the Court and if it has been proved to the satisfaction of the Court that the compromise is lawful, the Court is free to record such a compromise and that would. be a lawful act on the part of the court and in support of his such contention Mr. Das Gupta referred to the decision in Nagin Das's case (Supra) and also Roson lai's case (Supra) and Smt. Nai Bahu's case (Supra), Mr. be a lawful act on the part of the court and in support of his such contention Mr. Das Gupta referred to the decision in Nagin Das's case (Supra) and also Roson lai's case (Supra) and Smt. Nai Bahu's case (Supra), Mr. Das Gupta also contended that as the petitioner had ample opportunity to read the contents of the compromise petition that was filed in Court before he had signed the same, he was bound to accept the same and no allegation of fraud could be made subsequently, when he had actually signed the said compromise petition. Reference was also made to the case in Martin Cashin and ors. v. pitter. J. Cashin, reported in air 1938 PC 103. 4. MR. Das Gupta further contended that even prior to the passing of the code of civil Procedure (Amendment) Act, 1976 extraneous facts could be incorporated in the compromise petition and there was no bar for recording the said compromise petition as lawful even on that ground but the executability of the said compromise decree would depend upon those facts but for that so far as the compromise petition was concerned it could not be said to be illegal and the cited the decision in Ram Janam Tewari and Anr. v. Bindeshwari Bai, reported in AIR 195 Patna, 199 in support of his said contention. So far as the draft compromise petition (Ext. A) is concerned, Mr. Das Gupta submitted that neither in the objection filed by the petitioner against the disputed compromise petition nor in the supplementary objection to the same there was any whisper about the said draft compromise petition and it was entirely an after thought. Mr. das Gupta further contended that the draft compromise petition could at best be termed as a suggestion but not the exact terms which were to be incorporated in the final compromise petition that was filed in Court. Mr. Mukherjee in reply has contended that there is a marked difference between an ejectment suit under the General Law of the land i. e. under the Transfer of Property Act and under the Rent act. In the latter case, in order to pass a decree in favour of the plaintiff-landlord, the court has to see that one of the grounds as stated in the Rent Control Act does exist. Mr. Mukherjee further contended that waiver is purely contractual. In the latter case, in order to pass a decree in favour of the plaintiff-landlord, the court has to see that one of the grounds as stated in the Rent Control Act does exist. Mr. Mukherjee further contended that waiver is purely contractual. It is an agreement to release or not to assert a right, but in the present case there cannot be any question of waiver as the disputed compromise was contrary to the spirit of the West Bengal Premises Tenancy Act, 1956 itself and the party affected i. e. the tenant-defendant-petitioner had no precise knowledge of his statutory right under Section 17 (4) of the said Act and in such a case it cannot be said that by the disputed compromise the petitioner agreed to release or not assert any known right. Reference was made to the decision in Dawson's Bank Ltd. v. Nippon Menkwas Kabushiki Kaisha, reported in 62 Indian Appeals, 100 and P. Dasa Muni Reddy v. . P. Appa Rao, reported in AIR 1974 sc 2089 . Mr,. Mukherjee also contended that the essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right. The voluntary choice is an essence of waiver, some mistake or misapprehension as to some facts which is to constitute the underline assumption without: which parties would not have made a contract. may be sufficient to justify the court in saying that there was no consent or waiver in the matter. In order to construe waiver there must be the meeting of the minds. It is a matter of mutual intention. According to Mr. Mukherjee taking into consideration the objection against recording the disputed compromise petition and the said compromise petition itself, it cannot be said that there was a meeting of the minds of both the parties in the present case in. making the disputed compromise so that the opposite party could take the plea of waiver. Mr. Mukherjee also, referred to the decision in Supdt. of Taxes, Dhubri and Ors. v. M/s. Onkarmal Nathmal Trust, reported in AIR 1975 SC 2065 in support of his said contention. Mr. Mukherjee lastly concluded his reply by saying that the principle of 'estoppel' as contemplated by Section 115 of the Evidence Act also cannot be applied in the present case against the petitioner and submitted that there cannot be any 'estoppel by waiver'. v. M/s. Onkarmal Nathmal Trust, reported in AIR 1975 SC 2065 in support of his said contention. Mr. Mukherjee lastly concluded his reply by saying that the principle of 'estoppel' as contemplated by Section 115 of the Evidence Act also cannot be applied in the present case against the petitioner and submitted that there cannot be any 'estoppel by waiver'. Reference was also mad into the decisions in Supdt. of Tax Case's (Supra) and dawson's Bank Ltd. Case's (Supra) in support of his contention. 5. HAVING heard the learned Advocate for the respective parties at length and considering the judgments cited at the bar and also the copy of the disputed compromise petition and the objection against recording the said compromise: I find, there is much substance in mr. Das Gupta's contentions. Section 23 of the Contract Act classifies what considerations and objects to an agreement are lawful and it says inter alia, that if the consideration or object is to defeat the provisions of any law or is fraudulent or is opposed to public policy, such consideration or object is said to be unlawful and is void. On a plain reading of the disputed compromise petition it is clear that the petitioner had admitted that he was a defaulter in payment of rent since May, 1971 and this proved the existence of the ground of default for his eviction as contemplated by Section 13 (l) (i) of the West Bengal Premises Tenancy Act, 1956 and as such it cannot be said that the said order recording compromise tended to defeat the provisions of the said Act or any other statute or fraudulent or was opposed to public policy. Neither it can be said that the disputed compromise and/or agreement involved or implied injury to the petitioner so far as his tenancy right was concerned. The disputed compromise petition in my view therefore, is not hit by Section 23 of the Indian Contract Act. 6. THE decisions in Nagin Das's case (Supra), Roshan Lal's case (Supra) and Sm. Neither it can be said that the disputed compromise and/or agreement involved or implied injury to the petitioner so far as his tenancy right was concerned. The disputed compromise petition in my view therefore, is not hit by Section 23 of the Indian Contract Act. 6. THE decisions in Nagin Das's case (Supra), Roshan Lal's case (Supra) and Sm. Nai Bahu's case (supra) all clearly lay down the principle of law that Order XXIII Rule 3 of the Code of Civil Procedure applies to eviction suits governed by special statutes that is, Rent control Acts and the court in order to pass a compromise decree in an ejectment suit governed by any Rent Restriction or Control act, must be satisfied as to whether a staturory ground for eviction has been pleaded which has been admitted by the tenant by the corn-promise. In other words the court can not pass a decree for ejectment even on compromise on any ground de hors the relevant Rent Act. Satisfaction about the fulfilment of the statutory provisions is the prima facie consideration of the court in passing an ejectment decree even on compromise. Nonetheless all the said decisions' are equivocal in saying that if, however, the court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit, the court is bound to record the compromise and pass a decree in accordance therewith If therefore, there was a clear admission in the compromise petition of he essential facts that would constitute a valid ground for eviction under the relevant Rent Restriction or control Act, it would be presumed that the court was satisfied about the existence of such statutory ground and was right in recording the compromise and the decree for eviction, though apparently passed on such a compromise would be valid. From a conspectus of the cases mentioned above the principle that emerges is that if at the time of recording the compromise, there was some material before the court, on the basis of which the court could be prima facie satisfied about the existence of a statutory ground for eviction, it should be presumed that the court wars so satisfied and the compromise was 'lawful' and the recording of such compromise was valid. Such materials may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of admission made in the compromise agreement. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. Such admissions by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as; evidence, are by themselves not conclusive. They can be shown to be wrong. 7. IN Dawson's Bank's case (supra)1 the Privy Council has made a distinction between "estoppel" and "waiver" and has said inter alia that estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. It is a rule of evidence which comes into operation if (a) a statement of the existence of a fact has been made by the defendant or an authorized agent of his to the plaintiff or some one on his behalf, (b) with the intention that the plaintiff should act upon the faith of the statement, and (c) the plaintiff does act upon the faith of the statement. On the other hand, waiver is contractual, and may constitute a cause. On the other hand, waiver is contractual, and may constitute a cause. of action; it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal, agrees to waive his principal's rights, then. (subject to any other question such as consideration) the principal will. be bound, but he will be bound by contract, not by estoppel. There is no such thing as estoppel by waiver. 8. IN the case of Supdt. of Taxes, Dhupri and Ors. (supra)the Supreme Court, however, has explained inter alia, the meaning of "waiver" and "estoppel" and the difference between the two. "waiver" arises in a situation where the person is entitled to alternative rights inconsistent with one another. if he has knowledge of the facts which give rise in law to the alternative rights and acts in a manner which is inconsistent only with his having chosen to rely on one of those rights, the law holds him to his choice even though he was unaware of what would be the legal consequence of what he did. This is also sometimes described as "election" rather than "waiver". The Supreme Com in that case also said inter alia that another type of waiver debars a person from raising a particular defence to a claim against him it arises when he either agrees with the claimant not to raise true particular defence or so conducts himself as to be estopped from raising it. It is also to be borne in mind that the scope of Order XXIII rule 3 of the Code of Civil Procedure and section 47 thereof are not identical. Under section 47 of the Code of Civil Procedure the judgment-debtor could challenge the executability of the decree on the ground of nudity being without jurisdiction. But under Order xxii Rule 3 of the Code the court is to be satisfied before recording the compromise whether the suit had been adjusted wholly or partly)by any lawful agreement or compromise. Under section 47 of the Code of Civil Procedure the judgment-debtor could challenge the executability of the decree on the ground of nudity being without jurisdiction. But under Order xxii Rule 3 of the Code the court is to be satisfied before recording the compromise whether the suit had been adjusted wholly or partly)by any lawful agreement or compromise. The lower appellate court after discussing the evidence an record at length and also the respective contentions of the parties had allowed the appeal holding inter alia, that the compromise petition filed in court in fact reflected the true intentions of the parties and the petition of compromise was not only intended to be effected, but was also really effected between the parties and the petition of compromise did not suffer from any illegality whatsoever within the meaning of Order XXIII rule 3 of the Code of Civil Procedure. 9. RELYING upon the decisions of the Supreme Court in Birendra nath Garai's case (supra) and Supdt. of Taxes, Dhupri's case (supra)and considering the other judgments cited at the bar, it cannot therefore be said that, there was no meeting of the minds of the parties to the disputed compromise petition in filing the said petition inasmuch as the parties with their eyes open had entered into the disputed compromise and had signed the same and even if it is assumed that petitioner had no knowledge of the effect of the compliance of the provisions of section 1. 7 (2) and 17 (2a) read with section 17 (4)of the west Bengal Premises Tenancy Act, 1956 when he had elected to enter into the compromise instead of contesting the suit, it can be fairly presumed that by entering into the disputed compromise petition he was estopped by conduct and/or set from' challenging the said compromise on the plea that there could not be any waiver against the statute. Whatever statutory right he had to his benefit under the West Bengal Premises Tenancy Act, 1956, by electing to enter into the disputed compromise and admitting therein his default in payment of rent, the petition had waived such right and even waived his right to proceed further with his petition under section 17 (2)read with section 17 (2a) of the aforesaid Act The decision in Mahendra dutta and Co. 's case (supra) and Dr. D. N. Mukherjee's case (supra)cited by Mr. 's case (supra) and Dr. D. N. Mukherjee's case (supra)cited by Mr. Mukherjee are also distinguishable on facts, as those did not deal with any compromise' decree. In the former one, the order under section 17 (3) of the West Bengal Premises Tenancy Act was set aside upon a finding that no final adjudication as to the amount payable under section 17 (1) which clearly attracted section 17 (2)of the said Act was as yet made. In the latter case, the court was called upon to consider only the question whether without deciding the dispute under section 17 (2) as raised by the defendant, any order under section 17 (3) of he aforesaid Act could be made. 10. THE question whether any particular party has agreed or not to the compromise, is a question of fact Reference may be made to the decision reported in. (1942) 202 Indian Case 373 (P. C.. It has been held, however, by the Division Bench decision of this court smt. Sumitra Debi Agarwalla v. Sulekha Kundu and Anr. reported in a. I. R. 1976 Calcutta 196 that although the term 'lawful agreement' under Order XXIII Rule 3 of the Code of Civil Procedure does not include within it any agreement which is vitiated by fraud, undue influence or coercion, even then the court Can make an enquiry regarding the allegations of fraud, undue influence and coercion although the same is not permissible under Order XXI11 Rule 3 of the Code. The court undoubtedly, has the inherent power to investigate about such allegation under section 151 of' the Code because, in order to consider whether or not an agreement has been reached between the parties, the parties, the court will of necessity embark upon the enquiry as to the allegations of the parties that his or their consent to an agreement or his or their signatures on the document containing the terms of compromise had been obtained by fraud, undue influence or coercion. In the present case, the lower appellate court after thorough discussion of the evidence and other materials on record has come to the finding that the parties with their eyes open had entered into the disputed compromise and the petition of compromise in fact reflects the true intention of the parties and sitting in revision 1 cannot re-appraise the evidence to consider the said petition over again, even though I may like a different view thereof. In this regard reference may be made to the decision of the supreme Court in the case of Manik. Chand Nandy v. Debdas Nandy and others, reported in A. I. R. 1986 S. C 446 where the Supreme Court discussing the extent of the revisional jurisdiction of the High Court has held inter alia, that the nature, quality and extent of appellate jurisdiction and/or revisional jurisdiction are very different. The limits of revisional application are prescribed and its boundaries defined by section 115 of the Code of Civil Procedure. Under that section, revisional jurisdiction is to be exercised by the High Court only in a case in which no appeal lies to it from the decision of a subordinate court and if it appears to it that the subordinate court has exercised the jurisdiction not vested in it by law or as acted in the exercise of its jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. While in a first appeal the court is free to decide all questions of jaw and facts which arise in the case, in the exercise of its revisional jurisdiction the High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings on facts in place of those by the subordinate court. Now the plea of limitation concerns the jurisdiction of the court which tries the proceeding for a finding on this plea in favour of the party raising it would oust the jurisdiction of the court. In determining the correctness of the decision reached by the subordinates court on such a plea, the High court may at any time have to go into a jurisdictional question of law or fact that is, it may have to decide collateral questions upon the ascertainment of which the decision as to jurisdiction depends. In determining the correctness of the decision reached by the subordinates court on such a plea, the High court may at any time have to go into a jurisdictional question of law or fact that is, it may have to decide collateral questions upon the ascertainment of which the decision as to jurisdiction depends. For the purpose of ascertaining 'whether the subordinate court has decided such a collateral questions rightly, the High Court cannot however, under section 115 of the: Code of Civil Procedure, function as a court of first appeal so far as the assessment of the evidence is concerned and substitute its own findings for those arrived at by the subordinate court unless any such finding is not in any way borne out by the evidence on the record or is manifestly contrary to the evidence or so palpably wrong that if allowed to stand, would result in great injustice to a party. The present case, in my view, does not fall under any of the aforesaid exceptions so as to merit interference under Section 115 of the Code of Civil Procedure. 11. IN the present case, I have already said hereinbefore that the lower appellate court after thorough discussion of the evidence and other materials on record and being satisfied about the statutory requirements has arrived at the finding that the parties to the disputed compromise had entered into the said with their eyes open and the disputed compromise reflects the true intention of the parties. Such finding of the lower appellate court does not touch, in my view, the jurisdiction of the said court in recording the compromise in question and hence cannot be challenged in revision. 12. MOREOVER, from the objection filed by the petitioner against the recording of the disputed ' compromise, it also clearly appears that the petitioner had alleged inter alia therein that the opposite party had violated one of the terms of the said compromise petition inasmuch as he tried to disturb the petitioner's possession in the suit premises before the period, within which the petitioner was to vacate the suit premises as mentioned in the didputed compromise petition was over. This also clearly proves that the petitioner had entered into the disputed compromise freely and therefore it does not lie in the mouth of the petitioner to challenge the law fullness of the disputed compromise petition on the ground of fraud, undue influence or otherwise anymore as he cannot be allowed to blow hot and cold in the same breath. In other words, the petitioner cannot be permitted to approbate and reprobate. From the facts and circumstances of the present case it can, therefore, be safely said that there was clear meeting of the minds of the parties while entering into the disputed compromise and the parties had entered into the said compromise freely and the disputed compromise reflects the true state of minds of the parties to the same and it was not only intended to be effected but was actually effected and the lower appellate court after being satisfied about the statutory requirements, had recorded such compromise as a valid and lawful one and it had rightly done so. In the result, the Revisional Application fails and is rejected without, however, any order as to costs, let this order be communicated to the 5th Court of learned Munsif at Alipore, forthwith. Application rejected.