JAGAT NARAYAN, J. - (1.) THIS is a revision application by the defendant against an appellate order of the District Judge, Jhunjhunu, purporting to confirm an order of the Civil Judge allowing an amendment of the plaint.
(2.) THE brief facts of the case relevant for the disposal of this revision application are these. THE defendant took 4 properties on lease on 1-1-66 from a joint Hindu family consisting of 3 brothers Ramkumar, Durgadutt and Magraj of whom Ramkumar was the Karta. Ramkumar filed the present suit as Karta for ejectment on 6-3-67 on the ground of personal necessity of himself and other members of the joint family. During the pendency of this suit a partition took place amongst the brothers as a result of which two of the properties in suit fell to the share of Durga Dutt and the other two fell to the share of Magraj. Durga Dutt and Magraj therefore applied for permission to continue the suit after suitable amendment of the plaint. This application was opposed by the defendant but was allowed by the trial court on 20-2-68. The order of the trial court is written on the order-sheet. In the order it is mentioned that the application was being allowed on payment of Rs. 10/- as costs and that the costs were paid. In the margin the learned counsel for the defendant made the following endorsement : "received Rs. 10/- subject to objection. " On behalf of the defendant-applicant it was contended that the above endorsement was made by the learned counsel for the defendant before the order had been written on the order-sheet. No such mention has been made in the memo of revision. A perusal of the order-sheet goes to show that the above endorsement was made to wards the end of the order sheet. The order-sheet covers more than 2 pages. The counsel for the defendant could not have known where the order-sheet would end and if he had made the above endorsement before the order-sheet was written then it would have appeared on the first page of the order-sheet and not on the third page towards the end of it. It is therefore clear that the order-sheet was written first and the endorsement was made by the counsel for the defendant after it had been written. This matter is of importance in this case, as the appeal of the defendant was dismissed by the appellate court on the ground that the benefit under the order having been accepted by the defendant he could not challenge it. The learned District Judge relied on Maniram vs. Beharidas (1 ). On behalf of the defendant it was contended before him that the costs were accepted subject to objection and hence it was open to him to challenge the order in revision. This contention was overruled. On behalf of the defendant it is contended that the decision of the appellate court is erroneous. I have heard the learned counsel for the parties at length and am satisfied that it is no longer open to the defendant to challenge the order of the trial court. In Shriram Sardarmal vs. Gourishankar (2) it was held that if the costs were accepted under protest and the right to challenge the order was reserved at the time of accepting the costs, it would be open to challenge the order notwithstanding that the costs ordered at the time were accepted. In the above case the decision of a Division Bench of the Madras High Court in Venkatarayudu vs. Rama Krishnayya (3) was followed. That decision may be taken to be a leading case on the point. Venkatasubba Rao J. observed in this case as follows : "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. . . . . . . . . . . . it is clear that if a party receives the benefit reserving his right to object to the order, he will not in that case be precluded from attacking it. . . . . . . . . the significance of the expression "under protest" must be clearly borne in mind. As pointed out by Langdale, M, R. these words : "have no distinct meaning by themselves and amount to nothing unless explained by the proceedings and circumstances. . . . . . . . . . . . . . . . . . . . . " If, for example, the costs are paid into Court and the opposing party draws them out stating that he does so under protest, these words would then be meaningless. . . . . . . . . . . . . . . . . . . . . . . . To take another example, if the party liable under the order personally hands over the amount to his opponent, who, while insisting on keeping it, asserts that he receives it under protest, in such a case again, his so called protest cannot in the least avail him. " Ramesam, J. observed - "the facts may show that receipt of the money is not inconsistent with reservation of the right to question the order by way of appeal or otherwise. The protest, to have the effect of such reservation must give the opposite party an opportunity to withdraw the offer. If at the time of paying the costs, the party to whom the amount is offered, states that he wishes to appeal and therefore the offeror need not pay him the amount but may deposit it in Court and if still he offers the amount the receipt of it does not amount to approbation of the order. " I am of the opinion that in a particular case where a party has accepted costs it can still challenge the order provided it is able to show that before accepting the costs it had stated that it wished to appeal against the order and therefore the offeror need not pay him the amount, but may deposit it in court and it accepted the costs when the offer was repeated despite intimation of an intention to challenge the order. The burden of proof will be on the party accepting the costs under protest. In the present case it appears that after the costs had been accepted the learned counsel for the defendant noted on the order-sheet that they were being accepted subject to objection. This note is meaningless. Firstly, because it does not indicate that any objection was raised before accepting the costs. Secondly, because it is not clear what the objection was. It may be that the objection merely was that the costs were inadequate. I accordingly hold that the defendant has no right to challenge the order in the circumstances of the present case and dismiss the revision application. I leave the parties to bear their own costs of this revision application. .;