DAYLIBAI Vs. CHHABU ALIAS CHHATARSINGH

JUDGEMENT

(1.) Heard.

(2.) Learned counsel for petitioner submits that impugned order passed by learned tribunal is illegal and deserves to be set aside. It is submitted that right from beginning it was disputed that offending vehicle was insured with respondent No. 3 and liability was avoided on the ground that deceased was travelling in the offending vehicle unauthorisedly while by the proposed amendment after recording of statement of witnesses of respondent No. 3 it is alleged that offending vehicle was insured with respondent No. 3 and it is only one person who was injured of which the liability was covered. It is submitted that at such a belated stage learned tribunal committed error in allowing the application. It is submitted that facts stated in the proposed amendment application have already been stated by the witnesses who were examined on behalf of respondent No. 3. Learned counsel placed reliance on a decision in the matter of Baldev Singh vs. Manohar Singh, 2006 4 MPLJ 1 wherein it was held that "application for amendment of written statement shall not be allowed when trial of suit has already commenced. Commencement of trial as used in proviso must be understood in limited sense as meaning final hearing of suit, examination of witnesses, filing of documents and addressing of arguments." Further reliance is placed on a decision in the matter of Vidyabai vs. Padmalatha, 2009 3 MPLJ 122 wherein it was held that Trial commences on date issues are framed. Amendment of written statement was sought after plaintiff had filed affidavit in lieu of examination-in-chief. It was held that grant of leave by High Court to amend written statement is liable to be set aside. Moreover trial Court's order refusing amendment neither suffered from jurisdictional error nor any error of law and interference with order in writ jurisdiction is improper. Learned counsel submits that learned tribunal committed error of law in allowing the application which is contrary to the, proviso of Rule 17 of Order VI, therefore petition be allowed and impugned order be set aside.

(3.) Mr. R.J. Pandit, learned counsel for respondent No. 3 submits that respondent No. 3 is the Insurance Company. Since the documents were not traceable therefore specific plea could not be taken which has been taken in the amendment application. It is submitted that only because the trial has commenced, the application filed by respondent No. 3 could not have been dismissed. Reliance is placed on a decision in the matter of Usha Balashaheb Swami vs. Kiran Appasao Swami, 2004 1 MPLJ 310, wherein Hon. Apex Court has observed that Court should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. It was further held that in case whether the amendment of written statement is allowed by the trial Court on consideration of the principles of law and material on record, reversing the order of trial Court by High Court is not justified.