1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3384 OF 2009 Shivaji s/o. Sonu Shewale and another. .. Petitioner Versus Atmaram s/o. Hari Patil and others. .. Respondents --- Mr. L.V. Sangit Advocate holding for Mrs. M.L. Sangit, Advocate for petitioner CORAM : B.R. GAVAI, J. DATE : 9TH JUNE, 2009. ORAL ORDER :- 1. By way of present petition, the petitioners challenge the order dated 24th March, 2009, passed by the 5th Jt. Civil Judge (Senior Division), Jalgaon, vide which the application filed by the present petitioners for amendment came to be rejected. 2. The petitioners/plaintiffs have filed a suit for permanent injunction. After filing the suit, the issues were framed and the plaintiffs have also filed an affidavit in lieu of examination-in-chief. The plaintiffs have also been cross-examined. After the cross-examination of the plaintiffs, the plaintiffs have filed an application for amendment so as to amend the prayer clauses, seeking the relief of refund of certain amount. The same is rejected. Being aggrieved thereby, the present petition has been filed. 3. Shri Sangit, learned counsel appearing on behalf 2 of the petitioners submits that the learned trial court has grossly erred in rejecting the application. He submits that the courts are required to take a liberal view in grant of amendment. He further submits that in order to avoid the multiplicity of litigation, the learned trial court ought to have allowed the application for amendment. He further submits that the learned trial court has grossly erred in going into the merits of the matter while considering the application for amendment. He relied upon the judgments of the Apex Court in the matter of "South Konkan Distilleries and another Vs. Prabhakar Gajanan Naik an dothers" reported in 2009 AIR SCW 422, "PUran Ram Vs. Bhaguram and another" reported in AIR 2008 SC 1960, "Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) and others", AIR 2007 SC 2577, "North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by LRs, reported in AIR 2008 SC 2139. 4. No doubt, the learned counsel is right in contending that at the stage of grant of amendment, the Courts should not go into the merits of the matter. However, from the impugned order, it can be seen that the trial court has also allowed the application on the ground that the application was filed after commencement of the trial and in view of the proviso to Order VI Rule 17 of C.P.C. the amendment could not be permitted unless the party seeking amendment satisfies that inspite of exercise of due diligence, the matter could not have been brought on record prior to the commencement of the trial. 5. No doubt, the learned counsel is also right in contending that the courts have to take liberal view in 3 grant of amendment. However, in view of the amendment to C.P.C. in 2002, the suit filed after 1st July, 2002 are governed by the amended provisions. The Apex Court, in the matter of "Vidyabai and others Vs. Padmalatha and another" reported in (2009)2 SCC 409, has held that if the amendment is sought to be brought on record after commencement of the trial, a party has to establish that the matter which is sought to be brought on record could not be brought on record prior to commencement of trial in spite of exercise of due diligence. Unless the party seeking amendment satisfies this condition, the amendment after commencement of the trial would not be permissible. In the present case, with the exercise of due diligence, the matter could have been very well brought on record prior to the commencement of trial. 6. In so far as the judgments relied upon by the learned counsel for the petitioners are concerned, it would be clear that in all those judgments, the suits were filed prior to the amendment of C.P.C. In that view of the matter, the ratio laid down in the aforesaid judgments would not be applicable to the facts of the present case. The present case would be squarely governed by the judgment of the Apex Court in the matter of "Vidyabai" (supra). 7. In that view of the matter, no perversity could be found with the approach adopted so as to warrant interference. Hence, the writ petition is rejected. /wp3384.09 [B.R. GAVAI, J.]