ABDUL RAHMANKHAN Vs. FAILKUS MOHAMADKHAN

JUDGEMENT

(1.) 1. An order for amendment of the plaint in a case pending before the lower Court was passed on 9th October 1933 subject to the plaintiffs paying to the defendants Rs. 50 as costs. These costs were duly tendered in Court on 30th October 1933 and accepted by the contesting defendants the same day. On 15th November 1933 the present application for revision was filed by the contesting defendants challenging the order permitting the plaintiffs to amend the plaint which, it may be noted, was already amended after payment of costs. A preliminary objection has been raised on behalf of the plaintiffs non-applicants that under the circumstances stated above the revisional application filed by the contesting defendants is not tenable. In my opinion this objection is well founded. It was held in Venkatarayuduv Ramakrishnayya A.I.R. 1930 Mad 268, that a party cannot approbate and reapprobate at the same time. If under the terms of an order a party receives the costs subject to which the other party has been allowed a relief the former will not be permitted to challenge the order. Of course a party against whom an order is passed subject to the payment of costs would be entitled to challenge the order provided he either does not accept the benefit accrued to him under the order, or accepts it expressly reserving his right to challenge the order. This has admittedly not been done in the present case.

(2.) IN a more recent case, Prayag Dossjee v. Venkata Perumal A.I.R. 1933 Mad 410, the facts of which are almost identical with those of the present case the principle laid down in the earlier Madras case was followed and the revisional petition of a party aggrieved from the order of amendment of the plaint on payment of costs was rejected on the short ground that before filing the application his Counsel had accepted the costs tendered by the opposite party in pursuance of the order. The result is that on the preliminary objection raised by the non-applicants the present application for revision is untenable and is dismissed with costs. Pleader's fee Rs. 25.