1. Randhir Singh who is one of the defendants in a suit instituted by his step-sister 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:
'Where the plaintiffs were allowed to amend their plaint under the provisions of Order 6, Rule 17, Code of Civil Procedure, subject to payment of costs to the defendants. the costs were paid and accepted by the defendants; held, after the acceptance of the costs without protest a party is estopped from challenging the order. The defendants, after having accepted the costs paid by the plaintiffs to them, are estopped from questioning the order allowing amendment of the plaint.'
Prior to the above authority the same position was accepted as correct in Sohan Lal v. Dhari Mal, AIR 1928 Lah 813(2). It lays down that a party who had adopted an order of the Court and acted under it cannot after he has enjoyed a benefit under the order contend that it is valid for one purpose and invalid for another. The facts and the holding can be made clear with the following quotation from the head note:
'Defendants resisted the suit for rendition of accounts filed by the plaintiffs, pleading inter alia that no suit for accounts was maintainable on the facts alleged, The trial Court upheld that plea and dismissed the suit. On appeal the Court agreed with trial Court that a suit for accounts was not maintainable on the facts alleged, but allowed the plaintiffs to amend the plaint on payment of Rs. 150/- as costs to the defendants and remanded the case for retrial. The defendants took the costs but filed a second appeal from the order of remand.
Held: that the appeal was not competent as the defendants acquiesced in the order passed by the trial Court by accepting the costs awarded to them,' It was observed in this authority that there was no protest of any kind on the part of the appellants in accepting the costs meaning thereby if there had been a protest the finding could be otherwise.
4. In Mani Lal v. Hareridra Lal Roy, (1910) 8 Ind Cas 79, Calcutta High Court has taken the same view as our own High Court. It says that where the party accepts the order under protest, he is not debarred from appealing against it.
5. In Venkatarayudu v. Ramakrishnayya, AIR 1930 Mad 288, a view contrary to our own High Court was taken. It was remarked that if a party liable under the order personally hands over the amount to his opponent, who, while insisting on keeping it, asserts that he receives it under protest, in such a case, his so called protest cannot in the least avail him. For the sake of consistency I do not agree with this view. It is also difficult to follow the law laid down in Shriram Sardarmal Didwani's case (supra). Whenever costs are accepted under protest, it always shows that the person concerned has not acquiesced in the order. His non-acquiescence is only for showing that the order could be challenged at a subsequent stage as otherwise there can be hardly any purpose for raising a Protest before receiving the payment. it. cannot be ascertained from the interlocutory order of the Court dated April 26, 1979 as to what were the exact words spoken by the counsel accepting the costs. He may have uttered something more than what is shown by the words 'under protest', It cannot be considered to be the requirement of law that the lawyer concerned should also get his statement recorded to the effect that he was reserving his light to challenge the order of amendment of the plaint in appeal or revision. Thus, my conclusion is that ' the circumstances of the present case, he petitioner is not debarred from challenging the order of amendment in spite of the fact that his counsel in he lower Court accepted the costs.
6. By the amendment got introduced by the trial Court the whole complexion of the litigation has changed Previously it was being said that what had been done for obtaining the decree in the year 1971 was based on fraud and collusion of the parties, to that suit. It implies that the plaintiffs had no knowledge of what was being done in that litigation. Through the amendment this fact has been introduced that it was in pursuance of an agreement between all the parties to the present suit that a declaratory decree had been obtained and it is because the defendants refused to fulfil the promise for transferring back the land to the plaintiffs that need for the second litigation arose. There is one more aspect of the matter. The new plea is such that the previous agreement was aimed at avoiding the provisions of law relating to surplus land. Such a kind of agreement cannot be recognised to be legal by a Court as it would be opposed to public policy. The Court should not grant permission for alleging something which is against law. The learned trial Subordinate Judge made this remark that Court should be liberal in allowing amendments. That does not mean that no principles should. be followed for permitting a plaintiff to amend the plaint.
7. For the reasons given above the trial Court was in error in allowing the amendment prayed for by the plaintiffs. The order allowing amendment is set aside and the case shall now proceed on the original plaint and the written statement filed thereto. The revision is, thus, accepted in these terms. The costs in this revision shall be the costs in the suit itself.
8. Revision allowed: