Ohrien Global Immigration And Another v. Northern Broadcasting News Agency Privae Limited And Others

    
      
 

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 " '= #0 "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 If the petitioner had withdrawn the costs from the Court unilaterally stating that the withdrawal would be under protest, he could not approbate and reprobate, that is accepting benefit of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.

 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say while accepting the costs that he would challenge the order in appeal or revision or that he would return the costs withdrawn if the order of amendment of plaint is set aside.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 act would estop him. At the most it can be said that the petitioner had two options, one to accept the costs and to treat the order as correct, the other not to accept the costs and to challenge the same in revision. He having elected to accept the costs, he exercised his choice in accepting the order as correct. His lodging the protest in such circumstances is meaningless. Reference here may be made to the decision of Madras High Court in R. Samudra Vijayam Chettiar v. Srinivasa Alwar. AIR 1956 MP 301 . laying down the following principle : 55 "Where a man is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other which after the first choice is by reason of the inconsistency no longer open to him.

Similar view was taken by the Madras High Court in K. Shanmugham Pillai and Others Vs. S. Shanmugham Pillai and Others, .

The view expressed by the Madras High Court in S. K. Veeraswami Pillai Vs. Kalyanasundaram Mudaliar and Others, appears to be correct. The said High Court reiterated the view subsequently in H.G. Krishna Reddy and Co. Vs. M.M. Thimmaiah and Another, . The view expressed in Randhir Singh Vs. Kamlesh and Others, , thus, cannot be accepted."

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-@*0-+-.&  "Ashok Kumar and others vs. Ohrin Global Immigration"

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