RANDHIR SINGH Vs. KAMLESH

JUDGEMENT

(1.) Randhir Singh who is one of the defendants in a suit instituted by his stepsister in the Court of Shri N. C. Nahata, Subordinate Judge, II Class, Narwana, has filed this revision against an order dated April 21, 1975, whereby permission to the plaintiffs had been granted for the amendment of plaint on payment of Rs. 40/as costs. The main ground of attack against the order is that the plaintiffs got introduced contradictory pleas through the amendment.

(2.) Relationship of the parties, inter se is like this. Chhailu has a wife named Rampati. He had a son named Randhir from his first wife. From Rampati he has a son named Subhash and four daughters who are being referred to as the plaintiffs. The suit had been filed by the plaintiffs for avoiding a previous declaratory decree dated November 6, 1971, which had been obtained by the defendants in a collusive manner by practising fraud upon the Court. By virtue of that decree land in dispute measuring 414 Kanals 10 Marlas situated at a certain village was to be owned by Chkailu Rampati and Randhir Singh in equal shares to the exclusion of the plaintiffs and their brother. This was the specific plea taken by the plaintiffs to the present suit that the previous decree had been obtained so as to defeat their rights of inheritance. The plaintiffs through the amendment have introduced this plea that the previous decree had been obtained in pursuance of an agreement which had taken place between all the parties to the present suit. All of them were afraid of this fact that some part of the land would be declared surplus and for that reason it was divided into three parts. This was said to be the agreement that subsequently whole of the property after amalgamation would be divided into eight equal shares and in that manner all the parties to the present suit could get one share each. For supporting that kind of case permission was also asked for alleging the land to be ancestral and then allowing the plaintiffs to make this further allegation that all the parties to the suit were members of the joint Hindu family and that some members out of them could not secure a partition of the ancestral land by excluding the rest of them. Furthermore, it was required to be introduced that the ancestral land could not be alienated by some of the members without the consent of all the members of the family. The amendment was said to be essential for the determination of the dispute between the parties.

(3.) It was objected by the learned counsel for the respondents to this revision petition that the petitioner who has already accepted the costs as levied by the trial Court could not challenge the amendment through a revision. From the attested copy of an interlocutory order of the Court dated April 26, 1979, it transpires that the costs had been accepted under protest by the counsel for the defendants and thereafter the amended plaint was allowed to be filed. The case was then adjourned to April 30, 1979 for the filing of written statement to the amended plaint. Thus, the preliminary point for determination is whether the receiving of costs even under protest debarred the petitioner from filing the revision. There is a divergence of judicial opinion in this regard. On the one hand is this extreme view taken in Shriram Sardarmal Didwani v. Gourishanker, AIR 1961 Bom 136, that in addition to the acceptance of costs under protest the party concerned should also reserve its right to challenge the order at a subsequent stage. Ori the other hand is the view taken by one of the Hon'ble Judges in Ramendra Mohan v. Keshab Chandra, AIR 1934 Cal 554, that the receipt of cots simpliciter did not operate as an estoppel preventing the defendant from. raising the question of the validity of the amendment. However, the other Hon'ble Judge in that authority took; the view that as the costs were not accepted under protest nor was the defendant under any obligation or compulsion to receive them, he could not be heard on his objection that amendment ought not to have been allowed. We have a ruling of our own High Court to guide us in the matter and the same is reported as Mewa Singh v. Brahma Nand, 1972 Punj LJ 157. This ruling even though does not directly apply but lays down a principle which can be reproduced as follows: