Additional Evidence--Once the petitioners have accepted the costs even though under protest, they are estopped from challenging the order allowing additional evidence

JUDGMENT

Mr. B.S. Walia, J.: (Oral)- Challenge in the revision petition is to order dated 02.08.2016 (Annexure P-5) passed by the learned Additional Civil Judge (Sr. Div.), Dera Bassi partly allowing the application for additional evidence as filed by the respondent/plaintiff.

2. At the very outset, learned counsel for the respondent/plaintiff contended that application for additional evidence was allowed in part and respondent/plaintiff-applicant was permitted to examine Krishan Latava, resident of Gali No.1, Jujhar Nagar, Patiala i.e. attesting witness of agreement to sell Ex.PA only subject to payment of costs of Rs.5000/-.

2. Per contra, learned counsel for the petitioners by relying upon a decision of this Court in Shamsher Singh and others v. Joginder Singh and another, [2012(3) Law Herald (P&H) 2599] : 2012 (1) PLR 205 contended that the acceptance of costs was under protest, therefore, there was no bar to the petitioners challenging the impugned order. Para 9 of the decision in Shamsher Singh’s case (Supra) is reproduced as under:-

“9. It may be made clear at the outset that acceptance of costs under protest is different from acceptance of costs without any such protest. Acceptance of costs without any protest would estop the party accepting the costs from challenging the order, but acceptance of costs under protest would not estop a party from challenging the order. Therefore, the ratio of Raj Kumar’s case (supra) would not apply to the facts of this case.

4. I have considered the submissions of learned counsel for the parties and am of the view that the plea on behalf of the respondent/plaintiff is liable to succeed and the petitioners are estopped from challenging the impugned order on account of having accepted the costs even though the same was accepted under protest in view of decision of the Division Bench of this Court in Amar Singh v. Perhlad and others decided on 04.10.1988 in CR No.845 of 1987 followed by a Single Bench of this Court in Sandeep and others v. Surender and others, 2010 (1) Law Herald(P&H) 259.

Relevant extract of the Division Bench of this Court in Amar Singh’s case (Supra) is reproduced as under:-

5. 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 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 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 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 of 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 decis