Acceptance of costs under protest creates estoppel, preventing the accepting party from subsequently challenging the correctness of the order associated with those costs.

JUDGMENT :

HARKESH MANUJA, J.

1. By way of present revision petition, challenge has been laid to an order dated 05.05.2023 passed by the ld. First Appellate Court-cum- Additional District Judge-V, Jalandhar, whereby, an application preferred under Section 5 of the Indian Limitation Act, 1963, at the instance of respondents (appellants before the Court below) was allowed, subject to payment of costs of Rs.20,000/-.

2. Learned counsel for the respondents submits that the amount of costs was accepted by the petitioners (respondents before the ld. First Appellate Court), and in such circumstances, the present petition cannot be entertained on merits.

3. Having heard learned counsel for the parties and upon perusal of the subsequent order dated 31.05.2023 passed by the Court of ld. Additional District Judge, Jalandhar, it can be discerned that the cost of Rs.20,000/- was accepted by the petitioners herein (respondents before the First Appellate Court) and as such, in view of the aforesaid fact, the present revision petition cannot be entertained on merits. The aforesaid view can be derived from the Division Bench judgment of this Court passed in case of “ Amar Singh vs. Perhlad and others ”, 1989 AIR (P&H) (Page-229). Relevant paragraph thereof is extracted hereunder:-

“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 If the petitioner had withdrawn the costs from the Court unilaterally stating that the withdrawal would be under protest, he could not approbate and reprobate, that is accepting benefit of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 at the time of 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 decision of the suit. Likewise the defendant could not say while accepting the costs that he would challenge the order in appeal or revision or that he would return the costs withdrawn if the order of amendment of plaint is set aside. The crux of the matter to be seen is as to what the petitioner did and not what he said. By acceptance of costs, he accepted the order as correct. He has taken benefit of the order. He cannot now turn around and say he will also challenge the order. By allowing him to challenge the order would amount to nullifying the effect of acceptance of costs. In such circumstances, he cannot approbate and reprobate. His own