IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.51414 OF 2016 (GM-AC) BETWEEN:
BASHA KHAN AGED ABOUT 74 YEARS S/O LATHIF KHAN, R/O #77, MADANI PALYA MAIN ROAD, SHIVAMOGGA 577 201. … PETITIONER (By Mr. CHIDAMBARA G S , ADV.) AND:
1. HAFFEZ ULLA S/O RAFEEK @ MOHAMMED RAFEEK SINCE MINOR REPRESENTED BY HIS GUARDIAN-FATHER RAFIK @ MOHAMMED RAFEEK, S/O HASSAN SAB, AGED ABOUT 47 YEARS R/O GAGRI, SHIKARIPURA TOWN, SHIKARIPURA TLAUK, SHIVAMOGGA DISTRICT-577 427.
2. THE ORIENTAL INSURANCE COMPANY LTD. SAGARA, SHIVAMOGGA DISTRICT-577401 REPRESENTED BY ITS MANAGER. … RESPONDENTS (By Mr. R-1 SERVED & UNREPRESENTED Mr. K SURESH, ADV., FOR R2 (ABSENT)) - - -
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order Dtd. 12.8.2016, vide Annex-A passed by the court of The Senior Civil Judge & JMFC at Soraba in M.V.C No.19/2014 on I.A. No.8 and pass appropriate consequential orders allowing said application in I.A. No.8 and etc.
This Petition coming on for Preliminary Hearing in ‘B’ group this day, the Court made the following:-
ORDER Sri.Chidambara G.S., learned counsel for the petitioner.
None for the respondent No.2.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 12.08.2016 passed by the Trial Court by which application for amendment of the written statement has been rejected.
4. I have heard the learned counsel for the petitioner and perused the record. The respondent No.1 filed a claim petition seeking compensation for the injuries sustained by him in a road accident. The petitioner filed an objection to the claim petition on 08.01.2016. Thereafter, on 11.03.2016, after the cross-examination of PW-1 was over, the petitioner filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking amendment of his objections for raising certain additional defense. By the proposed amendment, the petitioner wanted to incorporate the plea in paragraph 5 that the petitioner as well as other coolie workers namely, Sahil, Sameer Khan and Gafar @ Rafeek were proceeding in the vehicle belonging to petitioner and the respondent No.1 had the driving license on the aforesaid date. The aforesaid application has been rejected by the Trial Court inter alia on the ground that the same is belated and certain admissions made are sought to be taken away and in case the application for amendment is allowed, the same would amount to introduction of a new case.
5. From perusal of the application for amendment as well as the original pleading, it is evident that the proposed amendment was sought on the ground that the aforesaid plea could not be incorporated initially in the objections on account of inadvertence. The respondents shall have the right to file an application seeking consequential amendment to rebut the averments made by the petitioner by way of the proposed amendment. The proposed amendment appears to be necessary for fair and complete adjudication of the controversy involved between the parties. Undoubtedly, the application for amendment was made with some delay as the evidence of PW-1 had commenced. However, it is well settled in law that mere delay cannot be a ground for rejection of the application for amendment. The application for amendment filed by the petitioner is allowed subject to payment of cost of `2,500/- which shall be payable to the respondent No.1 who is the claimant before the Trial Court. Needless to state that the respondents shall have the liberty to file an application for consequential amendment.
Accordingly, the petition is disposed of.
Sd/- JUDGE RV