TaxTMI 
TaxTMI 
2016 (8) TMI 1595
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....hereby the learned Civil Judge had dismissed the petitioner's application under Section 43 of the Act. 2. Briefly the facts of the case are that the petitioner is a tenant in a suit property bearing Door No. 14-3-240, admeasuring 120 Sq.Ft., situated in Manar Complex, Balmatta New Road, Mangaluru. The Manar complex was constructed by M/s. Manar Builders, a partnership firm. The partners of the firm were the family members of one Mr. A.M. Moosa Haji. In the year 2006, the wife of A.M. Moosa Haji, namely Mrs. Aysha Moosa Haji, instituted an eviction suit against one Mr. Subhash Chandra Kini, and Mr. Surendra Nayak, the petitioner before this court. In the said suit, the petitioner took a categorical stand that in fact, he had obtained th....
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....by him. However, by order dated 28.01.2011, the learned Civil Judge dismissed the said application filed by the petitioner. 5. Since the petitioner was aggrieved by the order dated 28.01.2011, he filed a revision petition before the learned Judge. However, by order dated 27.06.2016, the learned Judge has also dismissed the revision petition. Hence, the present petition before this court. 6. Mr. Sachin B. S., the learned Counsel for petitioner, has raised the following contentions before this court: firstly, the learned Judge was not justified in concluding that the petitioner had made "an admission", in the first suit, filed by Mrs. Aysha Moosa Haji, that "his landlord was Mr. Mohammad Shafi". Further, the Judge was unjustified in reading....
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.... justified in rejecting the petitioner's application under Section 43 of the Act, nor the learned Judge was justified in rejecting the revision petition under Section 46 (2) of the Act. 7. Heard the learned counsel for the petitioner and perused the impugned order. 8. The moot question before this court is whether the previous statement made by the petitioner that Mrs. Aysha Moosa Haji was not his landlady, but, in fact, Mr. Mohammad Shafi was his landlord, can be read against the petitioner in the present case where he has denied Mr. Mohammad Shafi as being his landlord or not? 9. In the case of Suma Gouda @ Anitha @ Vasanti (supra) this court had observed as under: "Admission made by a party in pleadings is conclusive but admissi....
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....the oath. Under judicial estoppel a party to a litigation cannot be permitted to take contradictory stand and to change its position from the previous litigation to the subsequent one. For, a litigant cannot be permitted to take a court out for a ride by his shifting stand. 13. According to the Supreme Court of United States, the doctrine of judicial estoppel can be applied if three conditions are satisfied: i) the party's later position must be clearly inconsistent with its earlier position; ii) whether the first court had accepted the earlier position; iii) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. [Ref. to New Ham....
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....though the learned counsel has argued that the petitioner has given an explanation for changing his position, but the explanation cannot be accepted at the initial stage as it is subject to proof. Therefore, the learned courts below are justified in not considering the petitioner's alleged explanation at this juncture of the trial. 17. Even otherwise, the petitioner's stand that Mr. Mohammad Shafi is not his landlord is against the tenor of law. For, Section 3 (e) of the Act defines the word "landlord" as meaning "a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardia....