Telangana High Court

Mohd. Abdul Basithalias Amir vs Mohd. Nazeer Ali on 3 September, 2024

                   THE HONOURABLE SRI JUSTICE SUJOY PAUL


                      CIVIL REVISION PETITION No.1698 of 2024


ORDER:

This petition filed under Article 227 of the Constitution

assails the common order dated 04.04.2024, whereby

I.A.Nos.1179 and 1180 of 2023 filed by respondent No.1 under

Section 151 of Civil Procedure Code (CPC) in O.S.No.49 of 2023

were allowed on costs of Rs.500/- payable to other side.

2. Sri Vikar Ahmed Siddiqui, learned counsel for the petitioner

submits that the aforesaid applications filed under Section 151 of

CPC were pregnant with a prayer to modify certain averments of

two counter affidavits filed by the other side. In fact, amendment

is sought for under the garb of two applications under Section 151

of CPC. By placing reliance on the judgment of Supreme Court in

the case of State of U.P. vs. Roshan Singh 1 and the judgment of

this Court in M.V.Prasad vs. New India Assurance Co.Ltd. 2, it is

submitted that when an express provision i.e., Order III Rule 17 of

CPC, is available in the statute book, Section 151 of CPC cannot

be pressed into service. Thus, on this score alone the impugned

order may be set aside. The procedure followed by the Court is

1 Civil Appeal Nos.453-455 of 2008, dated 16.01.2008

2005 (5) ALT (S.B.)

SP, J CRP_1698_2024

not known to law and the correct procedure is to file the

application for amendment, if the other side intends to

modify/substitute/alter its pleadings, even in the counter

affidavit.

3. Sri Ashok Reddy Kanathala, learned counsel for the

respondent No.1 submits that the change in averments sought for

through impugned interlocutory applications is almost innocuous

in nature. In obedience of the order passed by the trial Court,

respondent No.1 has also paid costs, which has been accepted by

the other side. After having accepted the costs, it is no more open

to the petitioner to challenge the impugned order. Reliance is

placed on the judgment of Supreme Court in the case of Bijendra

Nath Srivastava vs. Mayank Srivastava 3, which is followed by

this Court in C.R.P.No.1288 of 2023.

4. In rejoinder submission learned counsel for the petitioner

submits that a plain reading of the impugned order shows that the

interlocutory applications were allowed by directing to pay costs

and the said order cannot be said to be an order of allowing those

applications subject to payment of costs. In support of said

3 (1994) 6 SCC 117

SP, J CRP_1698_2024

submissions, reliance is placed on the judgment of Punjab and

Haryana High Court in the case of Harbir Singh vs. Lal Singh 4, in

which judgment of Supreme Court was followed.

5. The parties confined their arguments to the extent indicated

above.

6. At the outset, I deem it proper to deal with the objection of

the learned counsel for respondent No.1 that after having taken

the amount of costs, whether it is open to the petitioner to

challenge the order in the present Civil Revision Petition. The

Apex Court in Bijendra Nath Srivastava (supra) at paragraph

No.18 opined as under:

"18. That apart the principle of estoppel which precludes a party from assailing an order allowing a petition subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed and costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order..."

(Emphasis Supplied)

C.R.P.No.22 of 1995, dated 08.05.1995

SP, J CRP_1698_2024

7. A plain reading of aforesaid paragraph makes it clear that a

litigant is estopped or precluded to assail an order only when

payment of costs was based on a conditional order or in other

words, a condition precedent for getting a relief.

8. In this backdrop, it is required to see the nature of the order

at hand. The relevant portion of the order of trial Court reads as

under:

"23. Result

In the result, I.A.No.1179 of 2023 and I.A.No.1180 of 2023 in O.S.No.49 of 2023 are allowed on costs of Rs.500/- to other side. For payment of costs call on 16.04.2024."

9. In the opinion of this Court, the order is not conditional in

nature. The interlocutory applications were allowed by imposing

costs of Rs.500/- to other side. Had it been a conditional order, it

would have been worded in a different way. The Court would have

clearly stated that interlocutory applications are allowed subject to

deposit of costs. In this view of the matter, it cannot be said that

after having accepted the costs, the order cannot be subject

matter of challenge in the present petition. Thus, this argument

deserves to be rejected.

SP, J CRP_1698_2024

10. Learned counsel for the petitioner by placing reliance on

judgment of Supreme Court in the case of Roshan Singh (supra)

and judgment of this Court in M.V.Prasad (supra) rightly stated

that the application under Section 151 of CPC can be entertained

when for the same purpose no other express provision is available

in CPC. In the impugned order, the trial Court recorded as under

at paragraph Nos.18 to 20:

"18. POINT:

The contention of the petitioner is that due to oversight he got mentioned that the respondent filed a claim petition in E.P.No.653 of 2022 on the file of XXV Additional Chief Judge, City Civil Court, Hyderabad. In fact, the same was filed by the brother of the respondent. As such he intended to file additional counter. The respondent herein contend that the petitioner has to seek an amendment for the said relief, he cannot invoke the inherent powers of the court to correct the same. Therefore, contend that the petition is not maintainable.

19. It is observed that the petitioner herein is not seeking amendment to note the fact that it was not the respondent herein who got filed the claim petitions but the brother of the respondent got filed the claim petition in E.P.No.653 of 2023. To note the said fact, he got filed additional counter and the same may be received in that place but the respondent herein state that the petitioner intended to seek amendment of the said fact.

20. On perusal of the petition, the petitioner only to note the said facts that it was not the petitioner who got filed the claim petition, but it was the brother of the petitioner who got filed the said claim petition in the E.P, he intended to file additional counter. So, at times there is every likelihood of committing mistakes due to various proceedings. So, the party should be given an opportunity to correct the same as

SP, J CRP_1698_2024

they intended to rectify the same at the initial stage itself. Accordingly, the petitioner is entitled to correct the said mistake by way of additional counter as he did not seek any relief or amendment of the said petitions. As he does not want to delete any word and insert any words as held by the respondent herein. Hence, there is no need of any amendment to the petition as the petitioner intended to correct the said mistake by way of filing additional counter."

11. The findings of the trial Court shows that through the

interlocutory applications, the other side was not seeking any

amendment. The only thing which they intended to show was that

claim petition in E.P.No.653 of 2023 on the file of City Civil Court,

Hyderabad, was in fact filed by brother of respondent No.1. This

was the only aspect which was sought to be brought on record

through I.A.Nos.1179 and 1180 of 2023.

12. In this peculiar fact situation, the trial Court allowed the

applications. Since the applications were not in the nature of

amendment applications, the judgment of Supreme Court in the

case of Roshan Singh (supra) and the judgment of this Court in

M.V.Prasad (supra) cannot be pressed into service.