Sushil Kumar vs The Panchayat Samiti, Kaithal

J.V. Gupta, J.—This petition is directed against the order of the trial Court dated 10.11.1987, whereby the application for setting aside the ex-parte decree dated 20-3-1985 was allowed on payment of Rs. 500/- as costs.

A preliminary objection has been raised on behalf of the Respondent that since the Petitioner has accepted the cost of Rs. 500/-, he is estopped from challenging the impugned order in this petition. In support of his contention, he referred to Prithvi Singh Azad Vs. Ajaib Singh Sindhu and Others, Dr. Sewak Parshad v. Gram Panchayat Raipur Rani 1972 Rev L.R. 319 and Nagubai Ammal and Others Vs. B. Shama Rao and Others, .

On the other hand, learned Counsel for the Petitioner submitted that even if the costs were accepted, these were accepted without prejudice to his rights to challenge the impugned order and, therefore, it was of no consequence. In support of his contention, he referred to M. Abdul Rasheed Khan Vs. Pt. Balli Ram

After hearing the learned Counsel for the parties, I find force in the preliminary objection raised on behalf of the Respondent As regards this Court, the matter was settled in Dr. Sewak Parashad v. Gram Panchayat (supra), in which many authorities were cited, including the Supreme Court judgment in Naqubai Ammal v. B Shama Rao''s case (supra). In that case, amendment of written statement was allowed on payment of costs. The Plaintiff accepted the cost and, therefore, it held that he was precluded from challenging the order after accepting the cost. In Pirthvi Singh Azad''s case (supra), as well it was held that when the Tribunal allowed amendment of election petition on payment of costs and the costs were accepted, the amendment of the petition is no longer open to be challenged by the party in appeal against dismissal of election petition. As regards the judgment of the Allahabad High Court in Puttu Singh v. Vidya Ram''s case (supra), it does not give any reasons and, therefore, was no precedent. Consequently, this petition fails and is dismissed with costs.

Since further proceedings were stayed by this Court at the time of motion hearing, the parties are directed to appear before the trial Court on 24-3-1989.

However, in order to expedite the proceedings of the suit, it is directed that the parties will lead their evidence at their own responsibility. Dasti summons may be given, if so advised, as contamplated under Order 16, Rule 7A, Code of Civil Procedure. Each party will be given one opportunity to conclude their evidence.