Rakesh Kumar Jain, J.@mdashThis order shall dispose of Review Application No.60-CII of 2008 which has been filed to review the order dated 05.11.2007 passed by this Court in Civil Revision No.5687 of 2007, which is reproduced as under:-
The petitioner has filed the present revision under Article 227 of the Constitution of India for setting aside the impugned order dated 19.10.2007 passed by the Civil Judge (Junior Division), Chandigarh.
Counsel for the petitioner submits that the only amendment sought in the plaint is that the plaintiff be described as Shirdi Sai Samaj (Registered) instead of Shirdi Sai Baba Mandir (Registered) and that this mistake had taken place inadvertently due to ignorance. He further submits that no evidence is to be led by the petitioner/plaintiff before the trial Court.
Taking into consideration the aforesaid submissions and after going through the documents placed on the file, this Court feels that no notice is required to be issued to the respondents at this stage.
In the given facts and circumstances, the aforesaid amendment sought by the petitioner/plaintiff is allowed, subject to payment of Rs.2,000/- as costs. Petition stands disposed of.
2. Review Application was filed along-with three Misc. Applications, namely CM No.12283-CH of 2008, where in prayer has been made u/s 151 CPC seeking exemption from filing the certified copies of Annexures Rl and R4; CM No. 12284-CII of 2008 for placing on record Annexures Rl to R4 and CM No.12285-CII of 2008, for condonation of delay of 209 days in filing the review application.
3. On 10.07.2008, notices of applications was ordered. The aforesaid Misc.Applications were not decided. Reply to the review application was taken on record which was filed on 03.12.2009.
4. Learned counsel for the review petitioner has argued that the order dated 05.11.2007 has been passed without issuing notice to the review petitioner, therefore, the same deserves to be reviewed.
5. On the other hand, learned counsel for the non-applicant has submitted that the aforesaid order dated 5.11.2007 was subject to payment of Rs.2000/- as costs which has been accepted by the learned counsel for the review petitioner before the Court below, therefore, he cannot agitate about the order having been passed in his absence. He has relied upon an decision passed by this Court in the case of Balbir Singh v. Lal Singh 1995(2) CCC 324 (P&H) : 1995(3) RRR 649 in this regard.
6. I have heard the learned counsel for the parties and have perused the record.
7. No doubt, order dated 05.11.2007 was passed by this Court dispensing with issuance of notice subject to payment of Rs.2000/- as costs per order dated 08.11.2007, which has been produced with the reply filed by the non-applicant and is attached as Annexure RA/1. The cost was accepted by the learned counsel appearing on behalf of the review petitioner before the Court below. The order dated 08.11.2007 is reproduced below:-
Reply to application for preponement filed. Copy supplied.
It is informed that the order of this Court whereby the amendment application was dismissed, stood has been set aside by Hon''ble High Court subject to costs of Rs.2000/-.
But the copy of order is not available. However, counsel for defendant conceded the resistance of such order and states that he is ready to accept costs. Same is accordingly paid.
However, the copy of order shall be produced on next date.
The amended plaint is already on file. Copy is already with defendant. So W/S be filed on 21.11.2007.
8. On the adjourned date i.e. 21.11.2007, learned Court below passed the following order (Annexure RA/2):-
Present: Counsel for the parties.
Order from the Hon''ble High Court regarding amendment received. No amended written statement filed. Instead counsel for defendant suffered statement that he is not to file any W/S. W/S already filed should be relied upon. In response to the application of plaintiff for production of document for cross examination, it is ordered that defendant shall produce the documents as mentioned in the list if any in their power and possession. With the mutual consent of the parties, cross examination adjourned to 30.11.2007 as last chance
9. In view of the aforesaid orders, the review petitioner had accepted the order under review by accepting costs even without protest.
10. In the case of Balbir Singh (supra), the facts were that vide order dated 14.11.1994, the Court had allowed the plaintiff to adduce evidence on payment of Rs.600/ - as costs. The cost was accepted under protest by the other side and it was argued by the learned counsel in that case that after acceptance of the costs, the other side was precluded from challenging the impugned order on the principle of estoppel, even if cost was accepted under protest. He relied upon a Division Bench judgment of this Court passed in the case of Amar Singh v. Perhlad & Ors., AIR 1989 P&H 29.
11. This Court in Balbir Singh''s Case (Supra) held that once cost is accepted whether under protest or not, it amounts to accepting the order as correct.
12. No judgment to the contrary has been cited by learned counsel for the review petitioner.
In view of the above, I do not find any merit in the present Review Application and the same is hereby dismissed, though without any order as to costs.
