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Sewak Parshad Vs. Gram Panchayat Raipur Rani - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 302 of 1971
Judge
Reported inAIR1972P& H272
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17; Punjab Courts Act, 1918 - Sections 44; Evidence Act - Sections 115
AppellantSewak Parshad
RespondentGram Panchayat Raipur Rani
Appellant Advocate P.N. Aggarwal, Adv.
Respondent Advocate J.S. Chawla, Adv.
Cases ReferredRamcharan Mahto v. Custodian of Evacuee Property
Excerpt:
.....appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further..........to the written statement was allowed by the trial court two years after the original written statement was filed and the plaintiff withdrew the cost that was given as a condition precedent for allowing the amendment: held, in an appeal challenging the order of the trial court, that the plaintiff could not raise any objection against the amendment as he accepted the cost allowed by the court in that respect. the plaintiff having availed the benefit of the cost awarded must be taken to have admitted that the order allowing the amendment was within the jurisdiction of the court below'. 10. no decision taking a contrary view was cited before me. 11. following the rule of law laid down in the above mentioned authorities, i reject this revision petition but with no order as to costs. 12......
Judgment:

1. This is a plaintiff's revision petition against an order passed by the trial Judge allowing the defendant to amend the written statement.

2. A preliminary objection has been raised by the learned counsel for the respondent that the plaintiff cannot file this petition, because in the impugned order it had been stated that the proposed amendment was allowed subject to the payment of Rs.20/- as conditional costs and the plaintiff had accepted the said costs and thereby precluded himself from challenging this order.

3. After hearing the counsel, I find that there is merit in the preliminary objection. This matter has been settled by a number of decisions both of this Court and other High Courts. A Division Bench of this Court in Prithvi Singh Azad v. Ajaib Singh Sindhu, AIR 1965 Punj 463, observed:--

'Where however, the amendment of election petition was allowed by the Tribunal on payment of costs which were duly received by the respondent, the costs having been accepted, the amendment of the petition is no longer open to be challenged by him in appeal against dismissal of election petition'.

4. In Ghulam Qadar v. Musammat Fateh Bano, 156 Ind Cas 342=(AIR 1934 Lah 974). Agha Haidar, J. observed that when amendment had been allowed subject to payment of costs to the defendant, who accepted the amount, he could not turn round and attack the amendment.

5. A Division Bench of the Nagpur High Court in Baliram Narayan v. Bapurao Walalaji, AIR 1955 Nag 222, took the same view and observed that as the defendant accepted the costs, it was not open to him to object to the amendment.

6. In the Supreme Court decision in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 the learned Judges at page 602 approved para No. 512 of Halsbury's Laws of England. Vol. 13 page 454, where it was stated--

'On the principle that a person may not appropriate and reprobate a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs) be heard to say that it is invalid and ask to set it aside or to set up to the prejudice of persons who have relied upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it'.

7. Sir James Addison J. in S. Burden & Co. v. Army Canteen Board, India, Simla, AIR 1926 Lah 637, held:

'Where an order setting aside an ex parte decree has been passed and the plaintiff accepts costs and his pleader appears in Court thereafter, the plaintiff should be deemed to have accepted the order setting aside decree and the order will not be interfered with in revision'.

8. Similar view was taken by the same learned Judge in Firm Rup Chand Prithi Chand v. Hardayal Mal, AIR 1927 Lah 55 and Bhide, J. in Sohan Lal v. Dhari Mal Ishar Das, AIR 1928 Lah 813(2).

9. A Division Bench of the Patna High Court in Ramcharan Mahto v. Custodian of Evacuee Property, Bihar, AIR 1964 Pat 275, observed:--

'Where an amendment to the written statement was allowed by the trial Court two years after the original written statement was filed and the plaintiff withdrew the cost that was given as a condition precedent for allowing the amendment:

Held, in an appeal challenging the order of the trial Court, that the plaintiff could not raise any objection against the amendment as he accepted the cost allowed by the Court in that respect. The plaintiff having availed the benefit of the cost awarded must be taken to have admitted that the order allowing the amendment was within the jurisdiction of the Court below'.

10. No decision taking a contrary view was cited before me.

11. Following the rule of law laid down in the above mentioned authorities, I reject this revision petition but with no order as to costs.

12. Revision dismissed.


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