1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1839 OF 2009 Prabhavati wd/o Ranba Dadge, Age: 47 years, Occ: Household., R/o. Yelamwadi, Tq. Chakur, District Latur & Ors. .. Petitioners Versus Yeshwant s/o Limbaji Dadge, Age: 69 years, Occ: Agriculture, R/o. Yelamwadi, Tq. Chakur, District Latur & Ors. .. Respondents ... Mr. A.W. Kshirsagar, Advocate for petitioners. Mr. A.V. Patil, Advocate holding for Mr. V.D. Gunale, Advocate for respondent No.1 to 15. ... CORAM : K.K. TATED, J. DATE : 10TH AUGUST, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By this Writ Petition under Article 227 of 2 the Constitution of India, the petitioners - original plaintiffs are challenging the order dated 31-12-2008 passed by the 2nd Joint Civil Judge, Senior Division, Latur below Exhibit-70 in Special Civil Suit No. 64 of 2002. 3. The petitioners are the original plaintiffs, who filed application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint. It is the case of the petitioners that they filed Special Civil Suit No. 64 of 2002 in the Court of Civil Judge, Senior Division, Latur for recovery of damages and compensation under Fatal Accident Act, 1855. In the said suit, the respondents - original defendants filed their Written Statement dated 31-12-2002. In the said Written Statement, the defendants specifically raised objection about the maintainability of the suit under Fatal Accidents Act, 1855. Para 32 of the said Written Statement reads as under. 3 "32. That, as regards the contents of para No.33 of the plaint it is submitted that as stated by the plaintiffs have no cause of action to file this suit against the defendants. Therefore, their suit is liable to be dismissed. Moreover the suit of the plaintiffs claiming damages and compensation under the provisions of Fatal Accidents Act, 1855 is not maintainable in Law and the same is liable to be dismissed in limine on this legal ground." 4. Thereafter, the respondents - original defendants filed application for framing preliminary issue about the maintainability of the suit under Fatal Accidents Act, 1855. On the basis of said application, the trial Court has framed preliminary issue about maintainability of suit. In the meanwhile, the petitioners filed application for amendment of plaint on 11-08-2008. It is the case of the petitioners that they filed suit for recovery of damages and compensation but by mistake, it is written in the title of suit that "suit for 4 recovery of damages and compensation under Fatal Accidents Act, 1855". It is the case of the petitioners that they filed suit for recovery of damages and compensation and not under Fatal Accidents Act, 1855 and therefore, the portion "under the Fatal Accident Act, 1855" to be deleted. Said amendment was opposed by the original defendants. 5. Learned Counsel appearing on behalf of the respondents submitted that the trial Court already framed issues. Not only that, preliminary issue about the maintainability of suit is framed and suit is kept for hearing and at this stage, the petitioners should not be allowed to amend the plaint. In support of his contentions, learned Counsel for the respondents relied on the authority in the matter of Vidyabai and others vs. Padmalatha and another, reported in 2009(1) ALL MR 471. In this authority, the Apex Court held that the 5 amendment cannot be allowed after commencement of the trial. Para 11 (internal para 43) and 14 of this judgment read as under. "11(43). Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order since Rule 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment,however, with certain limitation which is contained 6 in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief." The ratio in Kailash (supra) was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence." "14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed." 6. In the present case, issues are already framed. The petitioners filed affidavit of evidence and now, the matter is kept for hearing under Order 14 Rule 2(2) of the Code of Civil 7 Procedure. 7. On the other hand, learned Counsel appearing on behalf of the petitioners state that pleadings can be amended at any time, in the interest of justice, as held by the Apex Court in the matter of State of A.P. and others vs. M/s. Pioneer Builders, A.P. reported in 2007(2) ALL MR 435. He relied on Para 20 of this judgment, which reads as under. "20. Principles governing amendment of pleadings are well-settled. Order VI Rule 17 C.P.C. deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a 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. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and 8 can be exercised at any stage of the proceedings in the interest of justice. It is equally well-settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the Court should adopt liberal approach and not a hyper- technical approach particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings (See: L.J. Leach & Co. Ltd. & Anr. Vs. M/s. Jardine Skinner & Co., AIR 1957 SC 357, Smt. Ganga Bai Vs. Vijay Kumar & Ors., (1974) 2 SCC 393 and B.K. Narayana Pillai Vs. Parmeswaran Pillai & Anr. (2000) 1 SCC 712. Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shewe Mya Vs. Maung Mo Hnaung, AIR 1922 Privy Council 249 succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings: "All rules of court are nothing but provisions intended to secure the proper administration of justice, and 9 it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit." . In this authority, the Apex Court held that under Order 6 Rule Rule 17 of the Code of Civil Procedure, Court can allow at any stage of the proceedings either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as it is necessary for the purpose of determining the real question in controversy between the parties. 8. In the present case, the petitioners filed Special Civil Suit No. 64 of 2002 in the year 2002, whereas the respondents filed their 10 Written Statement on 31-12-2002. The respondents in their Written Statement specifically raised objection about maintainability of suit under the provisions of Fatal Accidents Act, 1855. After six years, the petitioners filed application for amendment of pleadings, that also after framing issues and filing affidavit of evidence by them. The trial Court considered all these facts and dismissed the application preferred by the petitioners for amendment. I do not find any substance in the present Writ Petition to interfere with the order passed by the trial Court dated 31-12-2008, under Article 227 of the Constitution of India. Therefore, Writ Petition is dismissed with no order as to costs. Rule discharged. [ K.K. TATED, J.] sut/AUG09/wp1839.09