Allowed

N.Amulu v. O.I.Co.Ltd and Anr.

Orissa HC21 Mar 2023WP(C)/5087/2013

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging the rejection of an amendment application under CPC Order 6 Rule 17. The Court held that the lower tribunal erred in not applying the 'due diligence test' and set aside the impugned order, permitting the amendment subject to costs and a waiver of interest during the writ pendency.

What did the court decide?

Impugned order dated 31.1.2012 set aside; amendment to claim petition allowed subject to cost paid by opposite party; interest waived for writ pendency period.

N.Amulu Vs O.I.Co.Ltd and Anr. — Execution and Attachment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.5087 of 2013

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N. Amulu

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…. Petitioner Mr. J.R. Dash, Advocate

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-versus-

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The Oriental Insurance Co. Ltd. …. Opp. Parties and another Mr. Surath Roy, Advocate (For O.P. No.1)

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CORAM:

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JUSTICE A.K. MOHAPATRA

ORDER

Order No.

21.03.2023

1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard the learned counsel for the Petitioner and the learned counsel appearing for the Opposite Party No.1-Insurance Company. Perused the writ petition as well as the documents annexed thereto.

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The present writ petition has been filed by the Petitioner with the following prayers:-

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“It is therefore prayed that your lordships may graciously be pleased to admit the writ petition and issue notice of Rule NISI, calling upon the opp. parties to show cause as to why the Annexure-1 i.e. order dated 31.1.2012 passed by the learned 3^rd M.A.C.T., Puri shall not be quashed/set aside and upon their showing no cause or insufficient cause make the said rule absolute and/or pass any other appropriate order(s) for ends of justice.”

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It is submitted by Mr. J.R. Dash, learned counsel appearing

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for the Petitioner that challenging the order dated 31.1.2012 passed by the 3^rd M.A.C.T., Puri in M.A.C.T. No.139 of 2009, the present writ petition has been filed. He further contended that the Petitioner as a claimant filed the above noted claim case claiming compensation for the vehicular accident in which the claimant has sustained injuries. Mr. Dash further contended that in the claim application, instead of left leg, it has been mentioned inadvertently as right leg. Subsequently, the same came to the notice of the counsel conducting the case on behalf of the Petitioner. Therefore, an application has been filed under Order-6 Rule-17 of C.P.C. for amendment. The application under Order-6 Rule-17 of C.P.C. for amendment was objected to by the learned counsel appearing for the Insurance Company on the ground that the same has been filed at a belated stage while the trial has commenced and the witnesses were being examined. The learned court below vide order dated 31.1.2012 rejected the application filed by the Petitioner seeking amendment in the claimant petition principally on the ground that the after commencement of the hearing no such application is to be entertained.

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Learned counsel appearing for the Insurance Company supported the impugned order dated 31.1.2012 by submitting that an application for amendment is not maintainable once the hearing of the case has commenced.

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Considering the submissions made by the learned counsels for the parties and the contentions raised, this Court is of the view that filing of an application under Order-6 Rule-17 of C.P.C. is not an absolute bar after the C.P.C. was amended in the year 2002,

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however, by virtue of an amendment in the year 2002, an additional test has been incorporated, i.e., known as due diligence test. The amended provision provides that while considering the application under Order-6 Rule-17 of C.P.C., the court below has to examine as to whether the Petitioner was diligent while filing the original application and the facts which are sought to be incorporated by way of amendment are within the knowledge of the claimant. On perusal of the impugned order dated 31.1.2012, this Court observes that such due diligence test has not been resorted to while considering the application under Order-6 Rule17 of C.P.C. for amendment of the claim petition filed by the Petitioner.

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On the analysis of the facts of this case, it also appears that the claimants are uneducated and illiterate persons. Therefore, in such cases, they usually rely upon the wisdom of the counsels who conducts the case on their behalf. Therefore, this Court is of the view that the blame for such mistake cannot be put on the claimant, although the mistake committed in the present case is so fundamental that it can be said that the Petitioner is absolutely free from the blame of not being diligent.

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On consideration of the factual background of the present case and in view of the settled legal position and as well as keeping in view the larger interest of justice, this Court is also of the considered view that unless the amendment is permitted, then the Petitioner is likely to suffer and, therefore, this Court deems it proper to set aside the impugned order dated 31.1.2012 and, accordingly, the same is hereby set aside. Further, the amendment

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sought for is allowed subject to adequate cost to be paid by the Opposite Parties. So far the cost component is concerned, this Court deems it proper that the Petitioner shall not claim interest in the event the award goes in his favour for the period for which the writ petition was pending before this Court.

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Before parting with the order, this Court would also like to observe that as the matter is pending since 2009, the 3^rd M.A.C.T., Puri shall do well to dispose of the M.A.C.T. Case No.139 of 2009 as expeditiously as possible, preferably within a period of four months from the date of production of certified copy of this order.

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With the aforesaid observation and direction, this writ petition stands disposed.

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( A.K. Mohapatra)
Judge

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Debasis

N.Amulu v. O.I.Co.Ltd and Anr.

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N.Amulu v. O.I.Co.Ltd and Anr.

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