The Single Bench of Justice Rajnesh Oswal dismissed a writ petition under Article 226 of the Constitution while impressing upon the principle that a party cannot approbate and reprobate in the same case.

In the case at hand, the Petitioners were challenging an order passed by the Deputy Commissioner/Respondent whereby, inter-alia, the Petitioners weredeclared as unauthorized occupants of the property of a Migrant (Private Respondent No. 7 before the Court) (hereinafter referred to as ‘demised property’). The case of the Petitioners, as per the rejoinder, was that the that initially the property was taken on rent by them but subsequently the respondent No.7 agreed to transfer the property by way of sale and the petitioners agreed to buy the same, and also made the payment to that extent by way of cheques/drafts.

The Court, while rejecting the case of the Petitioners observed that the petitioners right from the beginning were defending their possession of the house on the basis of agreement of sale, and now, after finding the least chance of success, they made a tectonic shift in their defence to protect their possession of the migrant property on the ground of tenancy. It held, “Once the petitioners claimed to be in possession of the house of the basis of agreement of sale, then they cannot claim to be in possession thereof as tenants.”

The Court relied upon the pronouncements of the Supreme Court in Suzuki Parasrampuria Suitings (P) Ltd. v. Official Liquidator, [(2018) 10 SCC 707], and Amar Singh vs. Union of India [(2011) 7 SCC 69], wherein the Apex Court held that a litigant can take different stands at different times but cannot take contradictory stands in the same case and that a party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. 

Ultimately, the Court, while denying interference in the case at hand heldthat extraordinary remedy of writ of certiorari under Article 226 is a discretionary remedy and cannot be issued on the mere asking of the petitioner. It further observed that when the petitioner approaches the court with distorted facts and unclean hands, the court can refuse to exercise its jurisdiction under Article 226 of the constitution of India.