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SCA/4663/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4663 of 2011
=========================================================
CHHANABHAI
SHIVDAS PATEL - Petitioner(s)
Versus
CHETAANSINH
VAJESINH ZALA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
VAIBHAV N SHETH for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 20/04/2011
ORAL
ORDER
1.0 By
way of present petition, the petitioner has challenged the order
dated 08.02.2011 passed by the learned 5th Additional
Senior Civil Judge, Himmatnagar at Sabarkanta below application Exh.
126 in Special Civil Suit No. 96 of 2003 whereby the application Exh.
126 preferred by the present petitioner-original defendant No. 2 came
to be rejected.
2.0 The
facts of the case are that the respondent Nos. 1 and 2 herein, who
are original plaintiffs, filed suit being Special Civil Suit No. 96
of 2003 before the trial court against the petitioner and respondent
No. 3 for claiming compensation of Rs. 4,00,000/- towards the death
of one Ranjitsinh Chetansinh Zala being their son in the course of
employment under respondent No. 3 herein due to electrocution while
carrying out the work of installation of electric pole and electric
lines. The respondent No. 3 and petitioner filed written statement
vide Exh. 9 and Exh. 12 respectively. The respondent No. 1- original
plaintiff No. 1 gave deposition vide Exh. 18 by way of affidavit in
the aforesaid suit. The deposition of Ishwarbhai Ramabhai Patel who
is witness came to be recorded vide Exh. 84. He referred to a letter
dated 02.09.2002 alleging grant of sub-contract by the present
petitioner to Jilusinh @ Jitendrasinh Zala for carrying out the work
of installation of Electric lines in the concerned area under the
signature of the petitioner. The advocate of the original plaintiffs
cross-examined the aforesaid witness and then further
cross-examination was adjourned from time to time. As the aforesaid
witness Ishwarbhai did not turn up at the relevant point of time for
cross-examination, the stage of leading evidence on behalf of the
original defendant came to be closed and the said witness could not
be cross-examined. The said letter was exhibited as Exh. 110. The
petitioner filed application Exh. 126 in the Special Civil Suit No.
96 of 2003 for carrying out amendment in his written statement filed
vide Exh 12. The respondent No. 3 objected the said application by
filing reply vide Exh. 130. The learned 5th Additional
Senior Civil Judge, Himmatnagar at Sabarkantha rejected the
application vide order dated 08.02.2011. Hence, this petition.
3.0 As
a result of hearing and perusal of the documents on record it is
found that the amendment was sought at the stage of evidence. The
amendment which was sought by the petitioner was well within the
knowledge of him while filing the written statement in the year 2004.
The amendment sought for is not new points or facts which were not
within the knowledge of the defendant No.1. It appears that the
petitioner wants to substitute the new facts/fresh facts by
cancelling or setting aside or deleting the earlier admission made in
a written statement at Exh. 14. Learned advocate for the petitioner
relied upon the decision in case of Raghu Thilak D. Joh versus
Rayappan and others reported in 2001 (2) GLH 209 and in case of Hind
Mosaic and Cement Works and another versus Shree Sahjanand Tranding
Corporation and another reported in 2009 (2) GLH 55 and in case of
Shobhnaben S. Rathod versus the President, Savrkundala Municipality
and others reported in 2003 (1) GLH 381. The ratio laid down in the
aforesaid cases will not be applicable to the facts of the present
case. Hence, as the petitioner was well within the knowledge of the
statement made on 02.04.2002 before filing the written statement, the
trial Court has rightly rejected the application preferred by the
petitioner. The petition is devoid of merits and the same is
dismissed.
(K.S.JHAVERI,
J.)
niru*
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