Allahabad High Court
Ramashankar Singh Kushwaha And ... vs Ramkewal Yadav And 2 Others on 9 January, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - C No. - 23447 of 2021
Petitioner :- Ramashankar Singh Kushwaha And Another
Respondent :- Ramkewal Yadav And 2 Others
Counsel for Petitioner :- Awadhesh Kumar Singh,Kuwar Ritesh Kumar
Counsel for Respondent :- Archana Singh
Hon'ble Saurabh Shyam Shamshery,J.
Petitioners before this Court are owner of a vehicle which was indulged in an accident. Respondent No. 1 and 2 had filed a claim and later on respondent No.3 also joined as a claimant wherein parawise reply was given as well as specific statements were also submitted by petitioners on 07.02.2020. In paragraph 16 thereof it was mentioned that -:
"?? ?? ??????? ???????? ?? ??? ?? ??????? ?? 2 ??????? ??????? ?? ???? ???????? ??? ???? ???? ???? ???? ?? ??????? ?? ????????????? ????? ??? ? ??? ??? ???? ?? ?? ??????? ?????????? ???? ?? ??? ?? ?????? ???? ? ???????? ?? ????? ??? ? ??? ??? ?? ??????? ?? ???? ???? ????? ???? ? ???????? ?? ????? ??? ?? ??????? ?? ???? ?? ?????? ???? ?????? ??? ??? ?? ?? ?????? ???? ?? ?? ???? ???? ?? ???? ???? ?????? ???? ??? ???? ??? ???? ??? ?? ???? ???? ????? ??? ??? ?? ??? ?? ?? ??? ????? ??? ?????? ???? ?? ????????? ?? ???? ???????? ?? ???????? ???? ???? ????, ?? ????? ??? ??? ????????? ??? ?????? ?????? ?? ????????? ?? ??????? ????? ???? ????? ???".
Sri Kuwar Ritesh Kumar, learned counsel for petitioners submits that on 15.03.2021 i.e. after one year, an amendment application was moved wherein following paragraph was sought to be added as paragraph 16/1 -:
"???? 16/1" ?? ?? ?? ??????? ?????? 03 ??????? ???? ??????? ?? ?????? ??????? ?????? ??? ???? ??? ?? ??? ????? ???? ??? ???? ??? ?? ???? ????????, ????? ? ????? ???????????, ???? ??????? ??? ??????? ?? ???? ??? ?????? ?? ?0??0 48 ???? 0.272 ??0 ??? ??, ?????? ??????? ?????? ?? ????? ??? ??? ???? ?? ???? ???? ?? ??? ??? ?????? ?? ?? ?? ??? ??? (???) ??? ?? ?? ??? ??? ??? ????????? ?????? 03 ????? ??? ?? ???? ????????? ????? ? ????? ??? ???? ??????? ??????? ???? ??? ??? ?? ?? ???? ????? ?? ??? ?? ?? ???????? ???? ???? ?????? ???????? ?? ???? ?? ??? ??? ???????? ?????? ?? ????????? ????? ???? ???? ?? ???? ????? ???? ???? ????? ??? ?? ???? ?? ???? ???? ???? ?? ???? ?? ????? ?? ??? ??? ???? ?????? ?? ????? ??? ?? ??? ?????? ???? ?? ?????? ???? ?????? ??? ???? ?? ?????? ???? ?? ? ??? ???? ?? ???????? ?? ??? ??? ???"
The aforesaid application was rejected by the impugned order dated 26.08.2021 on a ground that the aforesaid facts were in knowledge of the petitioners when they submitted their reply. Therefore, there was no ground for amendment in reply.
Learned counsel for petitioners submits that the amendment sought was necessary for a proper adjudication of the case and placed reliance on a judgment passed by Supreme Court in B.K. Narayana Pillai vs. Parameswaran Pillai and another, (2000) 1 SCC 712 that "The principles applicable to the amendments of the plaint are equally appilcable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. xxxxxx The delay in Filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement."
The aforesaid submissions are opposed by Ms. Archana Singh, learned counsel appearing on behalf of Insurance Company and has submitted that by way of amendment, petitioners want to create a new defence contrary to the stand already taken by them in their written statement.
Heard learned counsel for parties and perused the record.
It is not in dispute that petitioners have filed their written statement wherein they have not even averted that the vehicle in question was not used for commercial purpose and when the insurance company came up with a case that tractor was used for commercial activity, petitioners after more than one year came up with a case that the tractor was not used for commercial purpose, which is nothing but to fill up lacunae left by petitioners which is not within scope of amendment of pleadings to set up a new defence.
The Supreme Court in Life Insurance Corporation of India vs. Sanjiv Builders Private Limited and another, 2022 SCC OnLine SC 1128 has held that a prayer for amendment is generally required to be allowed unless, by amendment, the other side loses a valid defence and where the amendment changes nature of proceedings, so as to set up an entirely new case.
In these circumstances, as the petitioners want to make a new defence belatedly to counter the case set up by respondent i.e. Insurance Company, therefore, the amendment is nothing but an attempt to set up entirely a new case which is not permitted.
Therefore, there is no ground for interference. Accordingly, petition stands dismissed.
However, this will not preclude the petitioners to raise their contentions during cross examination in the trial at appropriate stage.
Order Date :- 9.1.2023
P. Pandey/Nirmal Sinha
