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Lehri and ors. Vs. Mirchu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 48 of 1972
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Section 35 - Order 6, Rule 17
AppellantLehri and ors.
RespondentMirchu and anr.
Appellant Advocate O.P. Sharma, Adv.
Respondent Advocate P.N. Nag, Adv.
DispositionPetition dismissed
Cases ReferredState of Madras v. Muniyappa Chetty
Excerpt:
- .....and thereby permitting the amendment the defendants waived their right to object to the order. learned counsel for the defendants has relied upon komaraswami pillai v. venkataramana rao, air 1956 mad 105. that was a case where the order awarding the costs was distinct and independent of the order permitting the amendment. it was not a conditional order as is the one in the present case. reliance has also been placed on state of madras v. muniyappa chetty, air 1956 mad 679. in that case the court relied entirely upon the decision in the aforesaid case and the facts were also similar.4. learned counsel for the defendants urges that as the costs have been received by counsel for the defendants in the court below and not by the defendants personally the principle laid down above cannot,.....
Judgment:
ORDER

R.S. Pathak, J.

1. This is a defendants' revision petition directed against an order dated September 4, 1972, of the learned Subordinate Judge 1st Class, Kangra, at Nurpur permitting an amendment of theplaint.

2. On July 27, 1970, the learned Additional District Judge, Kangra at Dharamsala allowed an appeal and remanded the case to the trial Court with the direction that it should consider the application filed by the plaintiffs under Order 6, Rule 17 of the Code of Civil Procedure. The case came up for consideration before the learned Subordinate Judge, and by an order dated September 4, 1972 he allowed the application subject to payment of costs in the sum of Rupees 10/-. It appears from the order that the costs were paid by the plaintiffs and received by counsel for the defendants. The defendants now pray for relief against that order.

3. It seems to me that the revision petition cannot be allowed. The order permitted amendment of the plaint sub-jeer to payment of costs. It was a conditional order. The plaintiffs paid the costs and the costs were received by the defendants. In the circumstances it must be taken that by accepting the costs and thereby permitting the amendment the defendants waived their right to object to the order. Learned Counsel for the defendants has relied upon Komaraswami Pillai v. Venkataramana Rao, AIR 1956 Mad 105. That was a case where the order awarding the costs was distinct and independent of the order permitting the amendment. It was not a conditional order as is the one in the present case. Reliance has also been placed on State of Madras v. Muniyappa Chetty, AIR 1956 Mad 679. In that case the court relied entirely upon the decision in the aforesaid case and the facts were also similar.

4. Learned Counsel for the defendants urges that as the costs have been received by counsel for the defendants in the court below and not by the defendants personally the principle laid down above cannot, apply. He contends that counsel had no authority to accept the costs on behalf of the defendants. The terms of the Vakalatnama executed by the defendants and filed in the court below have been placed before me. While there is no specific provision authorising counsel to receive the costs awarded for amendment of the plaint, nonetheless there is a provision empowering counsel to execute a decree or order for costs and to recover the costs. In my opinion, the authority is wide enough to cover a case where an order has been made awarding costs and the costs are received by counsel

5. The revision petition is, therefore, dismissed but in the circumstances there is no order as to costs


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