Jagat Singh vs Sri Jaidev & Others
2021 Latest Caselaw 682 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                   Writ Petition (M/S) No. 523 of 2021

Jagat Singh                                            .......Petitioner
                                          Vs.

Sri Jaidev & others                                   .....Respondent

Mr. Pankaj Kumar, Advocate for the petitioner.

Hon'ble Sharad Kumar Sharma, J (Oral)

The petitioner before this Court, is a tenant in a suit, which has been instituted by the respondent no.1, wherein, by virtue of the impugned order, which is the subject matter of challenge in the present writ petition, the learned trial court of 3rd Additional Civil Judge (Senior Division), Dehradun, had allowed the plaintiff application paper no.159 (1) (2) and has rejected the defendant's, objection, paper no.161 (c) (2) and as a consequence thereto, the learned trial court has accepted the "Will" dated 24.05.1985 to be taken on record, which was in fact the basis of the suit.

2. The contention of the learned counsel for the petitioner is that the said acceptance of the document on record of suit at a highly belated stage, particularly when, it is the foundation of the suit, would not be sustainable for reasons itself, that the suit was instituted in the year 2004, and it remained pending, because since it entails an aspect of declaration and the grant of decree of permanent injunction, the determination of the vitalities of the "Will" dated 24.05.1985, would have played a pivotal role in deciding the inter se rights between the parties to the suit. Considering the aforesaid aspect by the impugned order, the said "Will" was directed to be taken on record on payment of the cost of Rs.1,000/-. Admittedly the record shows that the said cost has been accepted by the learned counsel, for the petitioner.

3. The aspect pertaining to the acceptance of the document on record in a civil proceedings is contemplated under the provisions contained under Order 7 Rule 14 of the CPC and as per the logical interpretation given to sub-rule (3) of Rule 14 of Order 7 of the CPC,

it is not creating or intended to create an absolute bar for the plaintiff, particularly, to preclude him from placing on record the documents, which he wants to place reliance in support of the case and the logic and the intention of the legislation by incorporating sub-rule (3) of the Rule 14 Order 7 of the CPC, is for the purposes, that the parties to a proceedings may be able to substantiate their case on merits and there may be an adjudication of the lis after providing ample opportunity to the parties to the proceedings.

4. Since the law itself is not creating, an absolute bar on acceptance of the document at a later stage of the proceedings of suit, as provided under Order 7 Rule 14 sub-rule (3) of the CPC, taking the said document on record by the impugned order, no perversity has been committed by the learned trial court; as it would rather only facilitate in proper adjudication of the case. Admittedly the provisions of Order 7 Rule 14 of the CPC, are not appeallable under Order 43 to be read with Section 104, of the CPC. In such an eventuality, any consequential decision which in case if it is taken in the suit would obviously be the subject matter of consideration under Section 96. In an appeal preferred by the either of the parties, who is aggrieved by the decision of the learned trial court and that is why yet again the Legislature has provided the provisions in Section 105 of CPC, which is quoted hereunder:-

"105. Other orders-- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness"

5. In that eventuality, if any order is passed during the proceedings of a case, and it affects or prejudice the rights, such an

interlocutory, order could always be left open to be a subject matter of consideration in the appeal, and its impact on the decision, which is finally rendered by the court.

6. On the issue of acceptance of the cost as directed, the learned Counsel for the petitioner, has argued that acceptance of cost may not be treated as to be a waiver against him, to incapacitate to put a challenge to the impugned order dated 28.01.2021 as was passed by the court of learned 3rd Additional Civil Judge (Senior Division), Dehradun in Suit No.350 of 2004 "Jaidev Vs. Jagat Singh & others" ,allowing the application Paper No.159C (2) for the said purposes. He has made a reference to the judgment of the Hon'ble Apex Court, which was rendered in the matters of "Bijendra Nath Srivastava v. Mayank Srivastava" reported in AIR 1994 Supreme Court 2562, where the aspect of waiver and consequence of acceptance of cost has been dealt with in paragraph nos.20 and 21 of the said judgment, which are extracted hereunder:-

"20. 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. The decision of the Andhra Pradesh High Court in Metal Press Works Ltd., Calcutta v. G.M. Cotton Press Co., AIR 1976 Andh Pra 205, on which reliance has been placed by the High Court, proceeds on the basis that awarding of costs was, in fact and substance, a part of the entire order allowing amendment in written statement and the said order was a conditional one. The decision of the Madras High Court in Prayag Dossjee v. Venkat Perumal, AIR 1933 Madras 419, and the decisions of the Patna High Court in Ramcharan v. Custodian of Evacuee Property, AIR 1964 Patna 275, and M. Kapura Kaur v. Narain Singh, AIR 1949 Patna 49, on which reliance has been placed in the said judgment of the Andhra Pradesh High Court also emphasise that the orders under challenge were conditional orders and payment of costs was a condition precedent to

allowing the petition. In Devaiah v. Nagappa, AIR 1965 Mysore 102, the order allowing amendment of the election petition contained a direction regarding payment of costs. It was held that the application was allowed without any condition and that the order was not a conditional order and principle of estoppel was held inapplicable.

21. A perusal of order dated 8-5-1976 shows that the said order is not a conditional order. The Civil Judge, after considering the merits has allowed the proposed amendments. The costs were awarded not as a condition precedent to allowing the amendment but by way of exercise of the discretionary power of the court to award costs to the opposite party. It may also be mentioned that the appellants did not accept the said order dated 8-5-1976. They assailed the validity of the same at the stage of final hearing before the trial court but, the said contention was rejected by the Additional District & Sessions Judge on the view that the said order had become final as regards the proceedings before him and the same could not be recalled or reviewed. Thereafter, the appellants assailed the correctness of the order dated 8-5-1976 in the appeal filed by Respondents 1 and 3 in the High Court. The principle of estoppel arising from acceptance of costs so as to preclude the appellants from challenging the validity of the order dated 8-5- 1976 cannot, therefore, be invoked in the facts and circumstances of the present case. Since the grounds given by the High Court for upholding the order dated 5-5-1976 cannot be affirmed the amendments allowed by the said order insofar as they relate to insertion of paragraphs 52 and 53 in the objection petition filed by Respondent 14 are set aside."

7. The implication of the above ratio as propounded by the Hon'ble Apex Court, about the acceptance of the cost has always to be laid down and considered in accordance with the facts and circumstances, of a particular case. As per the factual drops in the matter of Bijendra Nath Srivastava v. Mayank Srivastava (Supra), the challenge given therein the said case was emanating from the proceedings of the Arbitration Act, 1940 and then the aforesaid objection was considered, as to whether acceptance of cost would be an estoppel or not, because the cost which was made in the principal award was rendered by the Arbitrator and was not a cost which was contemplated under an interlocutory proceedings as it is in the case at hand, as per the opinion, cost in the circumstances would be only compensatory in nature, to tide the delay in proceedings, because otherwise taking document on record was in the interest of an effective adjudication.

8. Hence with due reverence, I am not in acceptance with the ratio as sought to be applicable in the circumstances of the present case, particularly, when the Legislature itself has protected the rights of the petitioner under Section 105 of CPC.

9. Learned counsel for the petitioner has also made a reference to yet an another judgment rendered in the case of M/s Mayur Packaging Industries Vs. U.P. State Financial Corporation, Noida reported in 2007 (6) ADJ 447 and has drawn the attention of this Court to the findings which have been recorded in paragraph no.16 of the said judgment, which is extracted hereunder:-

"16. In my view, the submission of the learned Counsel for the respondent is bereft of merit. The trial court allowed the application on payment of cost of Rs. 200/-. It was not a conditional order. In a similar matter, the Supreme Court in Bijendra Nath Srivastava (Dead) V. Mayank Srivastava and Ors, held that where the order was in the nature of a conditional order and that the payment of cost was a condition precedent to the petition being allowed, in such a case acceptance of the amount could stop the other party from challenging the impugned order, but where the application was allowed without any conditions am: the order was not a conditional order, the principle of estoppel would not be applicable."

10. In fact, the said principle, would too not apply in the present because it was an order which was contemplated to have been passed in the proceedings under Order 39 of the CPC, which is an appellable proceedings under Order 43 of the CPC and in that case, the remittance of the cost was not a condition precedent for preferring of a miscellaneous appeal, as it was enunciated in the judgment of Bijendra Nath Srivastava (Supra) for the purposes of making a final application enforceable. Since here in the instant case it is an interlocutory order by virtue of which an application has been allowed and a document has been taken on record by the court, which falls in the ambit of Sub-rule (3) of Rule 14 of Order 7 of CPC. The principle of M/s Mayur Packaging Industries Vs. U.P. State Financial Corporation, Noida would not be applicable in the present case.

11. What impact would it have on the lis, by taking the document on record, it would make by taking of the "Will" dated 24.05.1985, by the virtue of allowing of the application paper

no.159C, on the trial itself would depend upon the final judgment, to be rendered and since the petitioners right is preserved by Section 105 of CPC, this Court declines to exercise its extraordinary supervisory jurisdiction under Article 227 of the Constitution of India.

12. Consequently, the writ petition lacks merit and the same is hereby dismissed.

(Sharad Kumar Sharma, J.) 05.03.2021 NR/