- (1.) THIS is a revision by Maniram who was defendant in a suit pending in the court of the Civil Judge, Ganganagar and has arisen in the following circumstances.
(2.) THE suit was filed by Beharidas and issues were framed on the 25th of July, 1951. THEreafter, there were a number of hearings on many of which the plaintiff and witnesses were present, but the evidence could not be recorded for various reasons. Eventually, on the 21st of July, 1952, the plaintiff and his witnesses were not present. His counsel was called, but he stated that he had no instructions. THEreupon, the court closed the case for the plaintiff as he had been given many opportunities to produce his evidence. THE court then proceeded to examine the defendant, and thereafter heard arguments of defendant's counsel, and dismissed the suit. THEn followed an application by the plaintiff for restoration. This application was allowed on the 17th of December, 1952, and the present revision is against that order. The main argument on behalf of the defendant applicant is that the court had decided the suit on merits under O. XVII, r. 3 on the 21st of July, 1952, and therefore it had no jurisdiction to allow the application for restoration and set aside the order dismissing the suit. It was urged that the only remedy open to the plaintiff in the circumstances was to file an appeal, and this Court should, therefore, set aside the order of the Civil Judge restoring the suit, A preliminary objection has, however, been raised on behalf of the plaintiff, opposite party. It is said that the defendant applicant accepted the costs awarded by the court by its order of the 17th December, 1952 as the condition for the restoration of the suit, and therefore it was no longer open to the defendant to maintain the present revision inasmuch as the defendant could not approbate and reprobate the order of the 17th of December, 1922, at the same time. We may in this connection mention what happened after the 17th of December, 1952. The case was fixed for hearing on the 22nd of December, 1952, and on that date the plaintiff was prepared to pay the costs, but the counsel for the defendant stated that a revision would be filed in the High Court, and he was therefore not prepared to accept the costs. It was also prayed that time might be allowed to file a revision. The counsel concerned was Shri Brijlal whose signature appears on the order-sheet of the 22nd of December, 1952. Thereupon, the case was adjourned to the 29th of January, 1953, and the order-sheet of that date says that no revision had been filed, and Rs. 25/- as costs had been paid to defendant's counsel, and the suit was restored. This order-sheet is also signed by Shri Brijlal, and it is on the acceptance of the costs on this date that the opposite party bases his preliminary objection It may be added that the revision was filed in this Court on the 2nd of February, 1953. There is authority for the view that if a party accepts the benefit of one part of an order, which consists of various parts dependant on each other, he must be held to have accepted the entire order on the principle that the order being one cannot be approbated and reprobated at the same time. The first case on the point to which we may refer is (Gadde) Venkatarayudu vs. (Anumolu Chinna) Ram Krishnayya (1 ). The judgment of Venkatasubba Rao J. in that case, if we may say so with respect, is very illuminating and traces the history of the principle behind the rule. It appears that in England the point is settled beyond doubt, and there is a string of authorities in favour of it, of which two may be mentioned here, namely Pearce vs. Choplain (2) and Tinkler vs. Hilder (3 ). The principle behind the rule is given in these words by Venkatasubba Rao J, at page 270 - "what is the principle underlying these decisions ? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives the costs, his act is tantamount to adopting the order. In other words, payment of costs is, as it were, consideration for the suit being restored; so that the defendant cannot accept the costs and still object to the order. According to Halsbury, this rule is an application of the doctrine "that a person may not approbate and reprobate. " The other learned Judge concurred with the principle laid down though he said that if the facts shows that receipt of the money was not inconsistent with the reservation of the right to question the order by way of appeal or otherwise, the party receiving the money would not be barred from questioning the order. The next case, to which reference may be made, is Puttu Singh vs. Vidya Ram (4 ). In that case also the principle that if a party accepts costs for restoration, it cannot maintain an application in revision against the order was accepted, but it was said that there was nothing on the record to show that it costs were taken by the plaintiff's pleader in taken of acceptance of the validity of the order, and that the conduct of the plaintiff in filing a revision as soon as the High Court re-opened showed that he never desired to acquiesce in the order. With all respect we must say that this is accepting the principle in one breath and denying it in the next. If the principle is that if a party accepts the costs, he cannot challenge the thing for which the costs were made payable, it would be wrong to take into account the subsequent action of the party after accepting costs as showing his intention at the time the costs were accepted. The next case to which reference may be made is G. V. Narayanaswami Ayyar vs. Subramania Pillai (5 ). There a distinction was drawn between Venkatarayudu's case (1) and the facts of that case, thought the principle was accepted that a party who accepts the costs ordered for restoration or for setting aside an Ex Parte decree cannot challenge that order later. The distinction that was drawn was based on the Limitation Act In that case, the court held that the application for setting aside the Ex Parte decree was filed beyond time, but in spite of that it set aside the decree on the ground that the defendant was claiming that he had a good defence. It was held that, in such a case, the court had no jurisdiction to set aside the Ex Parte decree, and merely because costs were accepted by the party that would not preclude him from challenging an order without jurisdiction. This case is, in our opinion, of a peculiar nature, inasmuch as the court was disregarding the mandatory provisions contained in sec, 3 of the Limitation Act which specifically provides Inter Alia that an application made after the period of limitation shall be dismissed even though limitation has not been set up as a defence. The duty of the court under this section is clear, and that was the reason why the principle was not applied in this particular case. The court had found as a fact that the application was made beyond time and in spite of that did not dismiss it. The facts of the case before us are different. Hence the question whether the court had jurisdiction or not to restore the suit is a very complicated one and in the circumstances this authority cannot help the applicant. The next case is Seth Kunjjlal Manak-chandji Bhawasar vs. Shankar Nanuram (6 ). The principle was accepted in that case also, namely that if costs are ordered as consideration for restoration or for setting aside an Ex Pare decree, and are accepted the order cannot be challenged thereafter. But in view of the particular circumstances of that case, it was held that the order would not apply to it. Those facts were that the costs were ordered to be paid on the 10th of April, 1942, and were actually received by defendant's counsel on the 22nd of June, 1942. On that very day, namely 22nd of June, 1942, a revision was filed in the High Court. The court was also satisfied that counsel in the High Court had been instructed in May, 1942, to file the revision, and the delay in finding the revision was due to the fact that the High Court re opened after the vacation on the 22nd of June, 1942 In those circumstances, it was held that the costs were accepted behind the back of the defendant, and therefore the defendant was not bound by the principle. That case, therefore depends upon its own peculiar facts, but recognises the principle. The last case to which reference may be made is Federal India Assurance Co. Ltd. , vs. Anandrao Pandurangrao Dixit (7 ). This is a Singal Judge decision. In that case costs were accepted by counsel on the 23rd of December, 1942. Evidence was however produced to show that counsel was not authorised to accept. The principle was accepted in that case also, thought it was not applied on the ground that the facts were different. Learned counsel for the applicant however relies on certain observations in that case to this effect: - "unless a conscious decision to aban-done the plaintiff company's right of filing the application for revision had been taken by Mr. Deshmukh (this was the gentle man who had accepted the costs) after a full comprehension of all the facts, the mere fact of his receiving costs mechanically would not have the effect of concluding the plaintiff company. " With all respect we must say that it is difficult to understand what the learned Judge meant by this sentence. Having come to the conclusion that Mr, Deshmukh had no authority to accept the costs,! the learned Judge could have decided the case in favour of the company. But we find it very difficult to draw a distinction between receiving costs mechanically and receiving them after a full comprehension of all the facts. A consideration therefore of these authorities establishes that where there is a conditional order and a party accepts one part of the order which benefits him, as for example about cost, he cannot reprobate the other part of the order which is against him, and maintain a revision or an appeal to get it set aside. It is, of course, always open to the party, where the benefit has been accepted by counsel, to show that the counsel was not authorised to do so. In such a case, the party will not be bound by the act of the counsel in accepting the benefit, and would be entitled to maintain an appeal or revision against the order. Let us n6w to the facts of this case, and see whether the principle applies, and the applicant is barred from maintaining this revision. We have already set out above what happened after the 17th of, December, 1952, when the condition of order restoring the suit was passed, the condition being that the suit would be restored on payment of Rs. 25/- as costs. On the 22nd of December, the plaintiff was ready to pay the costs, but the defendant's counsel did not accept it because he stated that revision would be filed against the order in the High Court. It is clear, therefore, that the defendant's counsel knew that if he wanted to challenge the order he should not accept the costs. Then we come to the 19th of January, 1953. The same counsel, who had stated on the 22nd of December that a revision would be filed and he would therefore not accept the costs, was present on this date. The order-sheets shows that the information given to the court was that no revision had been filed, and further the counsel accepted the costs; thereupon the court restored the suit. The costs having been accepted, and the benefit having been taken by the defendant thought his counsel, he could not maintain the revision against the order, unless he showed that the counsel, who accepted the costs on the 19th of January,1953, had no such authority. His Vakalatnama shows that he had ample authority to accept the costs on behalf of the defendant, and when he did so he knew full well that the defendant would thereafter not be able to file, a revision. If on the 19th of January, 1953, the intention still was to file a revision there was no reason why the counsel should not have declined to accept costs on that day also as he had done earlier on the 22nd of December, 1952.
(3.) LEARNED counsel for the applicant appearing before us has told us that he was instructed in January, 1953, to file this revision and it was actually filed on the 2nd of February, 1953. LEARNED counsel, however, was not sure on what date he received instruction, and whether this was on the 19th of January, 1953, or sometime thereafter. He certainly did not receive instruction before the 19th of January, 1953. He also showed us a letter dated 17th January, 1953, written by some counsel in Ganganagar other than Shri Brij Lai who had accepted the money on the 19th of January, instructing him to file the revision. But we are not satisfied that Shri Brijlal's authority had been withdrawn before the 19th January, 1953; nor do we known how this other counsel came to instruct the learned counsel appearing in this court. Nor can we sure that the letter was not antedated in order to avoid the application of the principle, which appears to have been known in Ganganagar. The fact remains that the revision was not filed till the 2nd of February, 1953, well after the money had been accepted by Shri Brijlal. We are, therefore, of opinion that on the fact of this case the principle applies and the defendant having accepted the costs through his counsel cannot maintain this revision. We therefore, uphold the preliminary objection, and dismiss the revision. Considering the circumstances of the case, we order parties to bear their own costs. .;