CR No.2979 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.2979 of 2011 (O&M) Date of decision: 6.12.2011 Krishan Lal son of Sh. Mast Ram ......Petitioner(s) Versus Usha Rani and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Amardeep Singh Gill, Advocate for the petitioner. Mr. Vikas Bahl, Advocate for respondent No.1. Rakesh Kumar Garg, J.(Oral) This is tenant's revision petition challenging the order dated 8.3.2011 of the Appellate Authority, Shaheed Bhagat Singh Nagar whereby the application for amendment of the ejectment application filed by the respondent-landlord was allowed by the Appellate Authority subject to payment of costs of Rs.2,000/-. Noticing the contentions of the learned counsel for the petitioner, this Court passed the following order on 19.5.2011: “Notice of motion for 02.06.2011. Dasti only. Learned counsel for the petitioner states that after the amendment has been allowed by the learned Appellate Authority, the case has been remanded back to the learned Rent Controller. In view of the above, in the meantime, the learned Rent Controller is directed to adjourn the case pending before it beyond the date given by this Court.” It is not in dispute that after passing of the impugned order on CR No.2979 of 2011 (O&M) 2 8.3.2011, the petitioner-tenant accepted the cost under protest on 15.4.2011 and thereafter, even filed amended written statement on 30.4.2011 to the amended ejectment petition which was already on record as allowed by the Appellate Authority. Even thereafter, on 3.5.2011, the respondent-landlord also filed application. The respondent put in appearance through counsel. On 12.10.2011, learned counsel appearing on behalf of the respondent had cited a Division Bench judgment of this Court reported as Amar Singh Vs. Perhlad, 1989 PLJ 496, to contend that once the cost has been accepted, even under protest, the impugned order cannot be challenged and thus, has raised a preliminary objection with regard to maintainability of the instant revision petition. It is relevant to refer to relevant para of the Division Bench judgment of this Court in Amar Singh's case (supra) which reads thus:- “In the present case, the petitioner having accepted costs awarded in the order while allowing amendment of the plaint further mentioned that he was accepting the amount under protest. This was a unilateral act on the part of the petitioner. Even if he had not accepted the costs, the same would have been deposited in the Court by the plaintiff. If the petitioner had withdrawn the costs from the Court unilaterally stating that the withdrawal would have be under protest, he could not approbate and reprobate, that is accepting benefit of the order and at the same time objecting to the passing of the order. He had to accept the order as a whole. What he did was that he accepted the costs and thereby acquiesced in the correctness of the order passed. Although at the time of acceptance of the costs the petitioner stated that he was doing so under protest, that will not make any difference as the opposite party had not consented to the statement of the petitioner in this respect. If in fact CR No.2979 of 2011 (O&M) 3 the petitioner wanted to challenge the order of amendment of the plaint, there was no compulsion for him to accept the costs. The costs would have remained deposited in the Court. The right to the petitioner to the costs imposed by the Court on the plaintiff while allowing amendment of the plaint was not based on any right of the petitioner in the suit. The costs were ordered by the Court to compensate the petitioner for the inconvenience caused during the pendency of the suit till the plaint was amended. Such an order regarding costs was made on term or condition for amendment of the plaint in view of Order 6 Rule 17, Civil Procedure Code. Such an order could not be accepted in part by either of the party while denouncing the other part. The plaintiff could not file amended plaint stating that he could pay costs at the time of final decision of the suit. Likewise the defendant could not say while accepting the costs that he would challenge the order in appeal or revision or that he would return the costs withdrawn if the order of amendment of plaint is set aside. The crux of the matter to be seen is as to what the petitioner did and what he said. By acceptance of costs, he accepted the order as correct. He has taken benefit of the order. He cannot now turn around and say he will also challenge the order. By allowing him to challenge the order would amount to nullifying the effect of acceptance of costs. In such circumstances, he cannot approbate and reprobate. His own act would estop him. At the most it cannot be said that the petitioner had two options, one to accept the costs and to treat the order as correct, the other not to accept the costs and to challenge the same in revision. He having elected to accept the costs, he exercised his choice in accepting the order as correct. His lodging the protest in such circumstances is meaningless. Reference here may be made to the decision of Madras High Court in R. Samudra Vijyam Chettiar v. Srinivasa Alwar and CR No.2979 of 2011 (O&M) 4 others, AIR 1956 Madras 301, laying down the following principles:- “Whether a man is entitled to one of two inconsistent rights and he has with fully knowledge done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other which after the first choice is by reason of the inconsistency no longer open to him. Such cases do not require detriment to the other party as foundation of their application.” Similar view was taken by the Madras High Court in K. Shanmugham Pillai and others v. S. Shanmugham Pillai and others, AIR 1968 Madras 207. The view expressed by the Madras High Court in Ramaswami Chettiar v. Chidambaram Chettiar's case appears to be correct. The said High Court reiterated the view subsequently in H.G. Krishna Reddy v. M.M. Thimmiah's case . The view expressed in Randhir Singh v. Kamlesh's case, thus, cannot be accepted.” Learned counsel appearing on behalf of the petitioner could not dispute the aforesaid proposition of law as settled by a Division Bench judgment of this Court and was unable to cite any judgment of this Court contradicting the aforesaid view. It may also be relevant to refer to a judgment of the Hon'ble Supreme Court in the case of Brijendra Nath Srivastava (Dead) through LRs. Versus Mayank Srivastava, 1994 AIR (SC) 2562. Paragraph 20 of the aforesaid judgment reads thus: “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 condition precedent to the petition being allowed. In such a case it is open to the party not to CR No.2979 of 2011 (O&M) 5 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 The Metal Press Works Ltd. Calcutta v. G.M. Cotton Press Co., AIR 1976 Andhra Pradesh 205, 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 Prayag Dassjee v. Venkat Perumal, AIR 1933 Madras 410, and the decisions of the Patna High Court in Ramcharan v. Custodian of Evacuee Property, AIR 1964 Patna 275, and M. Kepur Kumar v. Narain Singh, AIR 1949 Patna 491, on which reliance has been placed in the said judgment of the Andhra Pradesh High Court also emphasises that the orders under challenge were conditional orders and payment of costs was a condition precedent to allowing the petition. In Devaiah v. Nagappa, AIR 1965 Mysore 102, 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 conditional order and principle of estoppel was held inapplicable.” A perusal of the aforesaid judgment would also show that wherever an order is passed subject to payment of costs and the other CR No.2979 of 2011 (O&M) 6 party accepts the costs in pursuance of the said order, the principle of estoppel precludes such a party from assailing such an order. Thus, in view of the aforesaid settled proposition of law, the instant revision petition is not maintainable before this Court. It may also be noticed that the petitioner has challenged the impugned order by filing this revision petition initially on 2.4.2011 but was returned by the registry on the same date It was refiled on 4.5.2011 and was listed for preliminary hearing for the first time on 5.5.2011 but was not argued and was adjourned on request and the preliminary hearing has taken place only on 19.5.2011 i.e. after the impugned order was completely implemented. Not only this, once the petitioner has already filed the instant revision petition on 2.4.2011, challenging the impugned order, there was no occasion for him to accept the costs even under protest on 15.4.2011. His lodging the protest in such circumstances is meaningless. Thus, for the reasons recorded above, this petition is dismissed. December 6, 2011 (RAKESH KUMAR GARG) ps JUDGE