Acceptance of costs awarded in an order allowing amendment of the plaint estops the party from challenging the order.

A.L.BAHRI, J.

1. This revision petition was admitted to D.B., in view of divergent views expressed in two cases by this court on the point. The revision petition was filed challenging order dated March, 6, 1987, passed by Subordinate Judge Ist Class, Mohindergarh, whereby an application filed under O.VI, R.17 of the Code of Civil Procedure, for amendment of the plaint was allowed subject to payment of Rs. 500.00 as costs. The suit was filed by Perhlad for the grant of injunction restraining Gopal from alienating land measuring 112 Kanals 15 Marlas, which was joint Hindu family property as well as coparcenary property, without consideration or legal necessity. When notice of motion in the revision petition was issued, on behalf of the respondent it was pointed out that the costs imposed by the impugned order were accepted. though under protest, on behalf of the petitioner and thus the petitioner after accepting the correctness of the impugned order could not file the revision petition. J.V. Gupta. J., in Baba Padam Gir Chela V/s. Murti (Deity,) Shri Paras Nath Digamber Jain, 1981 Cur LJ (Civil) 411, held in similar circumstances where the appellant had accepted the costs under protest, that he could not be allowed to agitate against the order allowing amendment of the plaint. C.S. Tiwana, J., in Randhir Singh V/s. Kamalesh, AIR 1980 Punj and Har 70, held that when costs were accepted under protest it showed that the person concerned had not acquiesced in the order and thus he could challenge at the subsequent stage such an order. It was not required of the lawyer for such party to make specific statement that he was reserving his right to challenge the order of amendment of the plaint in appeal or revision. Thus, the question for determination in this revision petition is as to whether the petitioner after he accepted costs as awarded by the Court while allowing application for amendment of the plaint under protest, could challenge such an order.

2. The question involved relates to estoppel, that is, when the party, had accepted a benefit under the order he could not subsequently challenge the same. Section 115 of the Indian Evidence Act deals with the question of estoppel and reads as under : - 115. Estoppel. - When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing." Such a matter was considered as early as 1916 in Banku Chandra Bose V/s. Marium Begum, 37 Ind Cas 804 : (AIR 1917 Cal 546). In that case the suit was dismissed for want of prosecution but subsequently ordered to be restored on payment of costs. The defendants accepted the costs paid by the plaintiff and it was held that they were precluded from appealing against such an order. The reason was given that they had accepted the costs without recording intention to appeal against the said order. Reliance was placed on the decision Tinkler V/s. Hilder,(1849) 4 Exch 187, wherein it was observed that -

"the defendants cannot adopt the order for one purpose and then claim to have it set aside for another purpose."

In S.P.S.A.L. Ramaswami Chettiar V/s. V.C.T.N. Chidambaram Chettiar, AIR 1927 Mad 1009(2), the matter was considered by the Madras High Court. In that case the party accepted the costs under protest. It was held that he could not afterwards object that the order was made without jurisdiction. The amendment of written statement was allowed on the defendant s paying plaintiff Rs. 150.00 as costs. The defendant paid the money which was accepted by the plaintiff s counsel "under protest . When the order was challenged, objection was taken. The decisions in Tinkler V/s. Hilder and Banku Chandra Bose V/s. Marium Begum were referred to. The following observations in Banku Chandra Bose s case