Devi Chand vs Lal Chand and Others

R.S. Mongia, J.—Learned counsel for the respondents relies on a judgment of the Supreme Court in Bijendra Nath Srivastava (Dead) through LRs. Vs. Mayank Srivastava and others, , to contend that vide the impugned order of the trial Court the respondents were allowed additional evidence subject to payment of costs and the costs having been accepted by the petitioner, he cannot challenge the impugned order allowing additional evidence.

After going through the impugned order dated January 22, 1994 and the zimini order of the same day, wherein it has been recorded that "vide my separate order of the even date application under Order 41, Rule 27 C.P.C. has been accepted subject to payment of Rs. 500/- as costs. For Payment of costs and statement of Narinder Chand to come up on December 18, 1994,". I am of the view that the order allowing of the additional evidence to the respondents was a conditional order subject to payment of costs. In the above referred to judgment of the Apex Court, it was held that if such a conditional order is passed and the costs are accepted, then the party accepting the costs cannot challenge the order allowing the additional evidence or the amendment as the case may be. On an earlier occasion, I dealt with a similar point in Civil Revision No. 22 of 1995 (Balbir Singh v. Lal Singh), decided on May 8, 1995, and held that if a party accepts costs when such a conditional order is passed, he cannot be permitted to file a revision petition against the conditional order.

Learned counsel for the petitioner, however, contended that there cannot be any estoppel against statute. He has cited 1995 Suppl (2) 539 (Prashant Ramachandra Deshpande v. Maruti Balaram Habibatti), I am of the view that this judgment has no bearing on the facts of the present case. The authority cited by the respondents is directly on the point dealing with the proposition in hand. That being so, I find no merit in the submission made by the learned counsel for the petitioner.

For the foregoing reasons, I do not find any infirmity in the order passed by the trial Court. Dismissed.