- (1.) The present application has been filed by the plaintiff- respondent. In the application, it has been prayed that the judgment and decree of the first Appellate Court be set aside and the matter be remitted back to the first Appellate Court to re-decide the same in accordance with law after taking into consideration the application for additional evidence filed by the defendant- appellant. Notice of the application was issued to the learned counsel for the non-applicant/ appellant, Mr. D.R. Bansal, Advocate. Mr. D.R. Bansal, Advocate has put in appearance.
(2.) Learned counsel for the parties have been heard. During the course of arguments, Mr. D.R. Bansal, the learned counsel appearing for the appellant has pointed out that in pursuance to the directions issued by this Court vide order dated October 4, 2004, the plaintiff was required to appear before the Divisional Manager of the appellant Insurance Company and an order was to be passed by the aforesaid competent authority after hearing the plaintiff. Consequently, the order dated November 9, 2004 has been passed by the Divisional Manager, Chandigarh, rejecting the claim of the plaintiffappellant once again. In these circumstances Mr. Bansal rightly points out that unless and untill the plaintiff challenges the aforesaid subsequent order, he cannot be heard to claim any relief in the suit or in the present appeal. Even no relief could be granted by the first Appellate Court, even if the matter is remanded back to the first Appellate Court, in the face of the aforesaid order dated November 9, 2004. Faced with the aforesaid difficulty, Mr. Raman Sharma, the learned counsel appearing for the plaintiff- respondent, on instructions from Mr. Vinod Chopra, who is present in Court, states that the judgments and decree of both the Courts be set aside and the matter be remitted back to the Trial Court itself for a fresh decision, with a liberty to the plaintiff- respondent to amend his suit. Mr. D.R. Bansal, the learned counsel appearing for the defendantappellant has no objection to the aforesaid prayer of the plaintiff- respondent being granted.
(3.) Consequently, on an agreement between the learned counsel for the parties, the present appeal is allowed. The judgments and decree of the Courts below are set aside. The matter is remitted back to the learned trial Court for fresh decision. The plaintiff would be at liberty to seek an amendment of the plaint filed by him originally before the learned trial Court. Through the amendment, the plaintiff would be entitled to make a challenge to the order dated November 9,2004 passed by the Divisional Manager, Chandigarh. On filing of the aforesaid application, the learned trial Court shall allow the aforesaid application forthwith and take the amended plaint on record. The defendants would be granted an opportunity to file an amended written statement. The plaintiff would be also entitled to file a replication, in accordance with law.;