# Union of India v. Bhagwari Prasad and

- **Citation:** (2013) 3 ILRA 1448
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-23
- **Case number:** Writ Petition No.1516 (M/S) of 2006
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-v-bhagwari-prasad-and-42723
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-read with
order VI Rule 17 C.P.C.-Amendment in
written statement-after framing issuesdated fixed for evidence-trail court rejected
with finding the trail started-Revisional
Court set-a-side the order with specific
findings that after issues no evidence filed by
either parties-hence-trail yet to commencewrit court declined to interfere.

Held: Para-11
In the light of the principles for amendment
of the written statement as above when I
considered the facts of the present case, I
find that in the case at hand the issues have
been framed and the date was fixed for
production of evidence. Meanwhile, the
respondent/defendant moved an application
for amendment of written statement. The
Hon'ble Supreme Court in the cases of
Baldeo Singh (supra) and Major General
Madan Lal Yadav (supra) has clearly held
that
the
trial
commences
with
an
examination of the facts or law put in issue
in a cause for the purpose of determination
of such issue.

Case Law discussed:
AIR 2004 Delhi 99; Civil Appeal No. 7251 of
2008; (2006) 6 SCC 498.

## Text

1448 INDIAN LAW REPORTS ALLAHABAD SERIES
formula basis.-(1) Notwithstanding anything
contained in this Act or in any other law for
the time being in force or instrument having
the force of law, the owner of the motor
vehicle or the authorised insurer shall be liable
to pay in the case of death or permanent
disablement due to accident arising out of the
use of motor vehicle, compensation, as
indicated in the Second Schedule, to the legal
heirs or the victim, as the case may.

Explanation.-For the purposes of this subsection, "permanent disability" shall have the
same meaning and extent as in the Workmen's
Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation
under sub-section (1), the claimant shall
not be required to plead or establish that
the death or permanent disablement in
respect of which the claim has been made
was due to any wrongful act or neglect or
default of the owner of the vehicle or
vehicles concerned or of any other person.

(3) The Central Government may,
keeping in view the cost of living by
notification in the official Gazette, from
time to time amend the Second Schedule."

19. In the present case, it was the specific
case of the respondents-claimants, which has
also not been disputed by the present appellant,
that there were sufficient pleadings before the
Tribunal that there was negligence on the part
of driver of the motor vehicle as well as railway
administration and the learned Tribunal has
come to conclusion that there was negligence
on the part of Railway Administration as well
as driver of the motor vehicle and the train, as
such, I am of the view that in view of the law
laid down by the Apex Court in the case of
Union of India Vs. Bhagwari Prasad and
Others (supra) the claim petition filed by the
claimants was fully maintainable.

20. So far as the judgments relied by
learned
counsel
for
appellants
is
concerned, they do not relate to the
question involved in the present appeal, as
such, they are of no help to the appellants.

21. The appeal as such having no
force is dismissed.

22. The judgment dated 31.8.2010
passed by the Motor Accident Claims
Tribunal in Claim Petition No. 44/2008 (Shiv
Nath Singh & Others Vs. Ram Charan Singh
and Others) is affirmed. The appellant shall
comply the judgment of the learned Tribunal
and pay the compensation as awarded by the
learned Tribunal.

23. It is informed by learned counsel
for appellant that the liability to pay
compensation as fastened by the learned
Tribunal on the present appellant was
only to the tune of 40% of the awarded
amount i.e. 3,21,500/-. The entire amount
has been deposited before the Tribunal.

24. The amount so deposited shall be
released in favour of the respondentsclaimants.

25. The statutory amount deposited
before this Court at the time of filing of the
appeal shall be remitted back to the Tribunal
forthwith for the aforesaid purpose.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No.1516 (M/S) of 2006

Smt. Sahnaz Parveen

 ...Petitioner
3 All] Smt. Sahnaz Parveen Vs. Addl. District Judge & Ors.
1449
Versus
Addl. District Judge & Ors. ...Opp.Parties

Counsel for the Petitioner:
Sri Surya Kant

Counsel for the Respondents:
C.S.C., Sri A.R. Khan, Sri Aasif Razzaque
Khan, Sri Ravi Nath Tihari

Constitution of India, Art.-226-read with
order VI Rule 17 C.P.C.-Amendment in
written statement-after framing issuesdated fixed for evidence-trail court rejected
with finding the trail started-Revisional
Court set-a-side the order with specific
findings that after issues no evidence filed by
either parties-hence-trail yet to commencewrit court declined to interfere.

Held: Para-11
In the light of the principles for amendment
of the written statement as above when I
considered the facts of the present case, I
find that in the case at hand the issues have
been framed and the date was fixed for
production of evidence. Meanwhile, the
respondent/defendant moved an application
for amendment of written statement. The
Hon'ble Supreme Court in the cases of
Baldeo Singh (supra) and Major General
Madan Lal Yadav (supra) has clearly held
that
the
trial
commences
with
an
examination of the facts or law put in issue
in a cause for the purpose of determination
of such issue.

Case Law discussed:
AIR 2004 Delhi 99; Civil Appeal No. 7251 of
2008; (2006) 6 SCC 498.

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1. Heard Mr Surya Kant, learned
counsel for the petitioner as well as Mr A.R.
Khan, learned counsel for the respondents.

2. This writ petition is directed against
the order dated 1.3.2006, passed by the
Additional District Judge, Lucknow in Civil
Revision No.374 of 2005. By means of order
impugned the petitioner's revision filed
against the order dated 6th July, 2005, passed
by the Civil Judge ( Senior Division ) has
been rejected with the direction to the trial
court to dispose of the application for
amendment A-30 as per direction issued by
the revisional court.

3. The facts of the case, in brief, are
that the petitioner filed a regular suit no. 573
of 2004 for declaration and mandatory
injunction on 21/23.8.2004 in the court of
Civil Judge ( Senior Division), Lucknow.
The respondent-defendant filed written
statement on 13.10.2004. Thereafter the
petitioner-plaintiff filed replication on 29 th
November,2004. Thereafter on 24 th
January, 2005 after hearing the learned
counsel for the parties the trial court framed
five issues for determination and fixed the
matter to lead the evidence by the parties on
28.2.2005.

4. On the next date fixed on 28.2.2005
the respondent no.1/ defendant no. 1 filed an
application under Order 6 Rule 17 read with
Section 151 C.P.C. for amendment of the
written statement on the ground that
inadvertently due to incidental slip he could
not mention the facts of the proposed
amendment in his written statement. The trial
court by means of order dated 6.7.2003
rejected the application for amendment
saving certain clerical amendments on the
ground that the application for amendment
was presented after commencement of trial.
Further the respondent/ defendant no. 1 has
failed to establish that he was diligent but
could not raise these pleas before the
commencement of trial due to inadvertent
mistake. The trial court further observed that
in the matter the issues have been framed and
thus the trial has commenced. Aggrieved
defendant challenged the order of the trial
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
court before the Court of the District Judge,
Lucknow through Civil Revision No.374 of
2005.

5. Learned revisional court allowed
the same on the ground that since the
defendant had moved the application for
amendment before the date fixed for
evidence the same shall be treated as moved
before commencement of trial court. He
relied upon the decision of Delhi High
Court rendered in the case of Mrs Suneel
Sodhi and others Vs. M.L. Sodhi and others
reported in AIR 2004 Delhi 99.

6. The petitioner/ plaintiff has
challenged the said order before this
Court by referring the definition of trial in
certain dictionaries. The legal Glossary
published by the Ministry of Law
Government of India defines it as under;

" Trial" (1) A judicial examination in
accordance with law, of a cause either
civil or criminal of the issues between the
parties, whether of law or fact, before a
court that has jurisdiction over it.

(2)These subjugation of a person or
thing to test or examination.

Law Lexicon

(1)
A
judicial
examination
in
accordance with law, of a cause either
civil or criminal, of the issues between the
parties, whether of law or fact, before a
court that has jurisdiction over it. ( S.407
(1) (C) (iii) Cr.P.C. (2) The subjugation of
a person or thing to test or examination.

Chamber's Dictionary

Examination by a Court to determine
a question of law or facts.

In support of his submission he also
cited some decisions as under;

(1)Union of India and others Vs.
Major General Madan Lal Yadav ( Retd.)
1996 Supreme Court 1340.

7. In this case Hon'ble the Supreme
Court has considered the meaning of word
" trial commenced". Relevant paragraphs
are extracted below;

14.According to Ballentine's Law
Dictionary ( 2nd ed.)' trial means:

" an examination before a competent
tribunal, according to the law of the land,
of the facts or law put in issue in a cause,
for the purpose of determining such issue.
When a Court hears and determines any
issue of fact or law for the purpose of
determining the right of the parties, it may
be considered a trial."

15.In Block's Law Dictionary ( sixth
edition) Centennial Edition, the word "
trial is defined thus:

"
A
judicial
examination
and
determination of issues between parties to
action, whether they be issues of law or of
fact, before a Court that has jurisdiction... A
judicial examination, in accordance with law
of the land, of a cause, either civil or
criminal, of the issues between the parties,
whether of law or facts before a court that
has proper jurisdiction.

16.In
Webster's
Comprehensive
Dictionary - International Edition at page
1339, the word" trial is defined thus:

... "The examination, before a Tribunal
having assigned jurisdiction, of the facts or
law involved in an issue in order to
3 All] Smt. Sahnaz Parveen Vs. Addl. District Judge & Ors.
1451
determine that issue. A former method of
determining guilt or innocence by subjecting
accused to physical tests of endurance, as by
ordeal or by combat with his accuser.... in the
process of being tried or tested... made or
performed in the course of trying or testing. "

17.The word' commence' is defined
in Collins English Dictionary to mean," to
start or begin ; come or cause to come
into being, operation etc." In Black's Law
dictionary, it is defined to mean:

" To initiate by performing the first act or
step. To begin, institute or start. Civil Action in
most jurisdiction commenced by filing a
complaint with the court... Criminal action is
commenced within statute of limitation at time'
preliminary complaint or information is filed
with Magistrate in good faith and a warrant
issued thereon.... A criminal prosecution is"
commenced".(1) when information is laid
before Magistrate charging commission of
crime, and a warrant of arrest is issued or (2)
when grand jury has returned an indictment.

18.In the " Words and Phrases" (
Permanent Edition ) vol. 42 A at page 171,
under the head" commencement" it is stated
that" A ''trial' commences at least from the
time when work of empaneling of a jury
begins."

19.It would, therefore, be clear that
trial means act of proving or judicial
examination determination of the issues
including its own jurisdiction or authority in
accordance with law or adjudging guilt or
innocence of the accused including all steps
necessary thereto. The trial commences
with performance of the first or steps
necessary or essential to proceed with trial.

8. Hon'ble Supreme Court in the
case
of
Vidyabai
and
others
Vs.
Padmalatha and another decided on 12 th
December, 2008 in Civil Appeal No. 7251
of 2008 has held that the trial is deemed
to have commenced when the issues are
settled and the case is set down for
recording of the evidence . In the case of
Baldev Singh and others Vs. Manohar
Singh and another reported in (2006) 6
Supreme Court Cases 498 the Hon'ble
Supreme
Court
has
discussed
the
principles applicable to the amendment of
the written statement. Relevant paragraph
17 is quoted below;

" Before we part with this order, we
may also notice that proviso to Order 6 Rule
17 C.P.C. provides that amendment of
pleadings shall not be allowed when the
trial of the suit has already commenced. For
this reason, we have examined the records
and find that, in fact, the trial has not yet
commenced. It appears from the records
that the parties have yet to file their
documentary evidence in the suit. From the
record, it also appears that the suit was not
on the verge of conclusion as found by the
High Court and the trial court. That apart,
commencement of trial as used in proviso to
Order 6 Rule 17 in the Code of Civil
Procedure must be understood in the limited
sense as meaning the final hearing of the
suit, examination of witnesses, filing of
documents and addressing of arguments. A
noted hereinbefore, parties are yet to file
their documents, we do not find any reason
to reject the application for amendment of
the written statement in view of proviso to
Order 6 Rule 17 C.P.C. which confers wide
power and unfettered discretion to the court
to allow an amendment of the written
statement at any stage of the proceedings."

9. In the case of Mrs. Suneel Sodhi (
supra) the trial court on 22.7.2002 the trial
court fixed the dates of trial from 22 nd to 25
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
th October, 2002 and parties were directed to
take steps for filing evidence by way of
affidavit etc. The High Court of Delhi
expressed the opinion that it can safely be
concluded that the actual trial commences
from 22nd October 2002 to 25 th October,
2002. The present application ( application
for amendment) was made on 8 th October,
2002 and hence would not fall within the
prohibition of amended Order VI Rule 17
C.P.C.

10. Order VI Rule 17 reads as under:

"Amendment
of
pleadings:
The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleadings in such manner and on such
terms as may be just, and all such
amendments shall be made as may be
necessary for the purpose of determining
the real questions in controversy between
the parties.

Provided that no application for
amendment shall be allowed after the trial
has commenced, unless the Court comes
to the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of
the trial."

11. In the light of the principles for
amendment of the written statement as
above when I considered the facts of the
present case, I find that in the case at hand
the issues have been framed and the date
was fixed for production of evidence.
Meanwhile,
the
respondent/defendant
moved an application for amendment of
written statement. The Hon'ble Supreme
Court in the cases of Baldeo Singh (supra)
and Major General Madan Lal Yadav
(supra) has clearly held that the trial
commences with an examination of the
facts or law put in issue in a cause for the
purpose of determination of such issue.

12. In the light of the aforesaid
proposition laid down by Hon'ble the
Supreme Court, I am of the considered
opinion that in the case at hand the trial is
yet to commence. Therefore, I do not find
error in the order impugned, passed by the
revisional court.

13. In the result, the writ petition is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.10.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Service Single No. 1605 of 2010

Surendra Singh Thakur ..Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri Ravi Singh, Sri N.C. Upadhyaya

Counsel for the Respondents:
C.S.C.

U.P. Police Officers of the Subordinate
Ranks(Punishment & Appeal) Rules 1991Rule8(2)(a) readwith 14(1)- Punishment
dismissal on account of conviction by
criminal court-appeal pending-conviction
order
suspended-enlarged
on
bailpunishment followed by show cause notice
and reply-without charge sheet without
finding
regarding
moral
turpitudeallegations-on refusal of repair to cycle due
to non payment of Rs. 100/--petitioner
abused by addressing cost-and tried to beat
by can-held penalty of dismissal for such
petty
attractions-wholly
unwarrantedreinstatement with half back wages.-given.