AMAR SINGH Vs. PERHLAD

JUDGEMENT

(1.) This revision petition was admitted to D.B., in view of divergent views expressed in two cases by this court on the point. The revision petition was filed challenging order dated March, 6, 1987, passed by Subordinate Judge Ist Class, Mohindergarh, whereby an application filed under O.VI, R.17 of the Code of Civil Procedure, for amendment of the plaint was allowed subject to payment of Rs. 500/- as costs. The suit was filed by Perhlad for the grant of injunction restraining Gopal from alienating land measuring 112 Kanals 15 Marlas, which was joint Hindu family property as well as coparcenary property, without consideration or legal necessity. When notice of motion in the revision petition was issued, on behalf of the respondent it was pointed out that the costs imposed by the impugned order were accepted. though under protest, on behalf of the petitioner and thus the petitioner after accepting the correctness of the impugned order could not file the revision petition. J.V. Gupta. J., in Baba Padam Gir Chela v. Murti (Deity,) Shri Paras Nath Digamber Jain, 1981 Cur LJ (Civil) 411, held in similar circumstances where the appellant had accepted the costs under protest, that he could not be allowed to agitate against the order allowing amendment of the plaint. C.S. Tiwana, J., in Randhir Singh v. Kamalesh, AIR 1980 Punj and Har 70, held that when costs were accepted under protest it showed that the person concerned had not acquiesced in the order and thus he could challenge at the subsequent stage such an order. It was not required of the lawyer for such party to make specific statement that he was reserving his right to challenge the order of amendment of the plaint in appeal or revision. Thus, the question for determination in this revision petition is as to whether the petitioner after he accepted costs as awarded by the Court while allowing application for amendment of the plaint under protest, could challenge such an order.

(2.) The question involved relates to estoppel, that is, when the party, had accepted a benefit under the order he could not subsequently challenge the same. Section 115 of the Indian Evidence Act deals with the question of estoppel and reads as under : -

(3.) Reference may be made to two other cases wherein costs were accepted but without reserving any right to challenge such orders. It was held that after acceptance of costs without reserving such rights, orders could not be challenged. Those cases are Abdul Rahmankhan v. Failkus Mohamadkhan, AIR 1934 Nagpur 163 (1), and Mani Ram v. Beharidas, AIR 1955 Raj 145. H.G. Krishna Reddy and Co. v. M.M. Thimmiah, AIR 1983 Mad 169, was a case where in a suit for specific performance of contract, the vendor defendant refunded the earnest money, which was accepted by the plaintiff " without prejudice'' to his rights, the Division Bench held that the plaintiff waived his right to contract. It was observed as under :-