RATHORE, J. - (1.) PETITIONERS defendant filed this writ petition against the order dated 26. 5. 2004 (Annex. 10) by which the application field on behalf of the plaintiff respondents dated 5. 7. 99 was allowed and the application moved on behalf of the petitioners defendant dated 24. 11. 2000 (Annex. 7) was dismissed.
(2.) LEARNED counsel for the petitioners submits that this suit is not maintainable on several counts. First of all amendment in the suit, which has been allowed by the Trial Court is after expiry of the limitation. In support of his submissions he referred Art. 56 of the Limitation Act wherein the limitation of 3 years is prescribed. He submits that herein the instant case after decade the suit is amended, therefore, the suit should be dismissed on the point of limitation. Second objection with regard to the impugned order has been raised by a the petitioner that the amendment, which has been allowed by the court below is without jurisdiction and this amendment after expiry of the limitation cannot be allowed. In such case of action the respondents plaintiff can file a separate suit. Since the limitation is expired, therefore, the same relief has claimed through amendment, which has been allowed, is contrary to the ratio decided by this court and the Hon'ble Supreme Court. In support of his submissions he placed reliance on the judgments reported in Laduram vs. Sheodev (1), Ratan Singh & Anr. vs. Ram Prasad & Ors. (2), Radhika Devi vs. Bajrangi Singh & Ors. (3), 2001 (8) SCC 115 (4), AIR 1985 SC 817 (5), and T. N. Alloy Foundry Co. Ltd. vs. T. N. Electricity Board & Ors. By placing reliance on the aforesaid judgments learned counsel for the petitioners defendant submits that here in the present case the amendment, which has been allowed by the Court below is not only contrary to the ratio decided by this Court and Hon'ble Supreme Court but also contrary to the provisions of CPC. He referred the provisions of CPC, Order 6 Rule 17 as well as Order 1 Rule 10. Learned counsel for the petitioners further submits that merely because he has accepted the cost, which has been awarded by the court below and filed reply to the amendment, it does not mean that the right of challenge of such amendment is taken away. By raising aforesaid objections learned counsel for the petitioners submits that the court below in any case cannot proceed with the suit as the suit itself is not maintainable.
(3.) PER contra learned counsel for the plaintiff respondents Mr. Mahendra Goyal submits that so far as the order passed on Order 6 Rule 17 CPC by the Court below, this relief becomes infructuous as the petitioner has accepted the cost and filed the reply to the amendment. In support of his submissions he placed reliance on the judgment reported in Amar Singh vs. PERhlad & Ors. (7), wherein Punjab and Haryana High Court has held that on accepting the cost the defendant cannot challenge order notwithstanding that cost was accepted under protest. He further submits that herein the instant case the petitioners defendant have accepted the cost without any protest and also filed the reply to the amendment. He further submits that since the civil court while passing the order impugned has clearly mentioned in the order that the issues are framed to resolve the controversy in the suit and the limitation point as well as the amendment point will be decided in the suit. ;