Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Hazari Lal vs Ganga Charan on 3 February, 1913
Equivalent citations: 18 Ind Cas 525
Bench: Tudbell, Rafique


1. This appeal arises out of the following circumstances: The plaintiff-respondent brought a suit against the present appellant in the Court of the Munsif. The case was submitted to arbitration and on the 22nd of January 1912, the arbitrator filed his award in Court. On the 2nd of February 1912, the plaintiff filed objections to the award. The Munsif, although the objections had been filed beyond time, for reasons which it is unnecessary to discuss, set aside the award and proceeded to hear the suit. Certain account books were produced by the plaintiff and he was ordered to file copies of the relevant entries. He failed to do so and the Munsif dismissed the suit on the ground of default. The plaintiff appealed and the lower Appellate Court passed an order on the 22nd of June decreeing the appeal and remanding the suit conditional on the plaintiff paying to the defendant a sum of Rs. 10 as compensation. Apparently, the Court thought that the plaintiff should have further opportunity of doing what the Munsif had ordered him to do and Rs. 10 should be paid to the defendant to cover the extra expense which would be incurred by reason of the re-hearing.

2. This sum of money was to be paid within a week. It was not paid and on the 2nd of July 1912, the lower Appellate Court dismissed the suit by reason of non-fulfillment of the condition. On the 24th of July, the plaintiff made an application to the lower Appellate Court explaining the reason why the money was not paid within the time allowed. Thereupon, the Court set aside its order of the 2nd of July 1912, allowed the appeal and remanded the suit for decision on the merits conditional on the plaintiff’s paying a sum of Rs. 15 to the defendant. Apparently, the defendant’s Pleader accepted the order without any protest for the money was paid and taken by him on the same day. In spite of this election, however, the defendant has come to this Court in second appeal. The trial of the suit appears to us to be well permeated with error but, in our opinion, as the defendant accepted the order of remand and took the amount of compensation ordered by the lower Appellate Court, he, having made his election, cannot now be allowed to came here on appeal and urge that the order of remand is bad. It was open to him either to refuse to receive the amount of compensation awarded to him and appeal against the order or to accept it and the remand order. In the former case, he clearly would have been justified in coming to this Court on appeal, but he has not done this. He has accepted the benefit given by the order of the Court below and also seeks the benefit of an appeal to this Court. In our opinion, he is equitably estopped from coming to this Court. We dismiss this appeal. The respondent will have his costs of this appeal in any event.

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