IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 109 of 2011 Decided on: 06.09.2011 Bachan Singh …Petitioner. Versus Rattan Singh & another …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Neeraj Gupta, Advocate. For the respondents: Mr. Ajay Kumar, Advocate. Deepak Gupta, J. (Oral) By means of this petition, the petitioner (hereinafter referred to as the plaintiff) has challenged the order dated 16th March, 2011, passed by the learned Civil Judge (Senior Division), Bilaspur, whereby defendant No. 1 was permitted to step into the witness box. The said application was allowed subject to payment of ` 2,000/- as costs. 2. A preliminary objection has been raised on behalf of the respondents that the present petition itself is not maintainable and the petitioner is estopped from filing the present petition since he has received the costs of ` 2,000/-. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- 3. A perusal of the record shows that on the date next fixed, the Court has recorded “costs paid”. This indicates that the costs have been received by the other side. Once costs have been received, then the other side is deemed to have waived off its right to challenge the order. 4. Reference in this behalf may be made to the judgment of the Apex Court in Bijendra Nath Srivastava (dead) through LRs versus Mayank Srivastava and others, (1994) 6 Supreme Court Cases 117, wherein the Apex Court culled out the legal position in the following terms: “That apart the principle of estoppel which precludes a party from assailing an order allowing a petition subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open tot he party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed and costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order. The decision of the Andhra Pradesh High Court in Metal Press Works Ltd. v. Guntur Merchants Cotton Press Co. Ltd. on which reliance has been placed by the High Court, proceeds on the basis that awarding of costs was, in fact and substance, a part of the entire order allowing amendment in written statement and the said order was a conditional one. The decision of the Madras High Court in Sree Mahant Prayag Dossjee Varu v. Raja Venkata Perumal and the decision of the Patna High Court in Ramcharan Mahto v. Custodian of Evacuee Property and Kapura Kuer v. Narain Singh on which reliance has been placed in the -: 3 :- orders under challenge were conditional orders and payment of costs was a condition precedent to allowing the petition. In J. Devaiah v. Nagappa, the order allowing amendment of the election petition contained a direction regarding payment of costs. It was held that the application was allowed without any condition and that the order was not a conditional order and principle of estoppel was held inapplicable.” 5. It is, thus, apparent that when an order is passed granting relief to the other side and such order is made subject to payment of costs, then the party which accepts the costs is estopped from challenging the correctness of the order and is deemed to have accepted the validity of such order. 6. In view of the aforesaid position of law, the petition is not maintainable and is accordingly rejected. It is made clear that in case, the burden to prove any issue is on the defendants, then the plaintiff shall be entitled to lead rebuttal evidence. No order as to costs. (Deepak Gupta) Judge September 06, 2011 (rajni)