Bombay High Court

AJAY RAJKUMAR SHUKLAversusRUPCHAND BHAGCHAND KASLIWAL AND OTHERS

Disposal: DISPOSED OFF
Bench: S G CHAPALGAONKAR

Holding

Amendment of the plaint to withdraw a prayer is permissible at the preliminary stage and the district judge’s order is affirmed.

Summary

The petitioners challenged an order of the District Judge, Shrirampur, which allowed the plaintiff in a commercial summary suit to amend the plaint by withdrawing a specific prayer concerning a refund of Rs.2,29,95,660. The plaintiff sought the amendment after the defendant raised an objection to the maintainability of the suit on the ground that it could not be treated as a commercial suit. The petitioner argued that the amendment was a tactic to defeat the defence, while the respondents contended that amendment is permissible at the preliminary stage. The High Court held that a plaintiff, as the master of the suit, may amend the plaint to withdraw a prayer before the framing of issues, provided it does not alter the nature of the suit. Citing the Supreme Court’s liberal approach to amendments, the Court affirmed the district judge’s order and dismissed the writ petitions, leaving the maintainability objections open for consideration in the suit.

Issues considered

Whether the district judge erred in permitting amendment of the plaint to withdraw a prayer after the defendant raised an objection to the suit's maintainability.
Whether such amendment defeats the defendant's defence and should be barred.
Whether the writ petitions challenging the amendment order are maintainable.

Subjects

Amendment of plaint
Summary suit
Maintainability
Commercial suit
Civil Procedure
Writ petition
Withdrawal of prayer

Judgment

2026:BHC-AUG:1545
                                              (1)                       901-903.odt



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                               WRIT PETITION NO. 12396 OF 2025

                                  AJAY RAJKUMAR SHUKLA
                                            VERSUS
                    RUPCHAND BHAGCHAND KASLIWAL AND OTHERS
                                               ...
               Mr. Ashwin Vinayak Hon, Advocate for the Petitioner.
               Mr. G. P. Darandale, Advocate for Respondent No.1.
               Mr. Ujwal Patil, Advocate for Respondent Nos.5 to 15.
                                               ...
                                              AND
                            WRIT PETITION NO. 12397 OF 2025
                                              AND
                            WRIT PETITION NO. 12415 OF 2025

                                          CORAM : S. G. CHAPALGAONKAR, J.
                                          DATED : 13th JANUARY, 2026.
               P.C.:-

               1.       The present Writ Petitions takes exception to order dated

               08.08.2025 passed below Exhibit-33 by District Judge, Shrirampur

               in Commercial Summary Suit No.2/2025.


               2.       The respondent/plaintiff instituted Summary Suit with

               multiple prayers.     First prayer is to put charge on property of

               respondent no.1.     Second prayer is for injunction from creating

               third party right and interest over suit property. Third prayer is

               regarding mandatory injunction for supply of 4000 quintal sugar.

               Fourth prayer is an alternate prayer, by which plaintiff sought

               relief that in case defendant failed to supply sugar to plaintiff, then

               amount of Rs.2,29,95,660/- shall be directed to be refunded by
                               (2)                        901-903.odt



defendant alongwith interest @ 24% per annum. The other prayers

are regarding compensation and damages.


3.    The petitioner/defendant appeared in suit and raised

objection as to maintainability of suit. At this stage, plaintiff filed

application below Exhibit-33 seeking amendment of plaint,

particularly to withdraw one of the relief as claimed in plaint. The

aforesaid application was opposed by petitioner on ground that

plaintiff is withdrawing prayer only after petitioner/defendant

raised objection as to maintainability of suit and wants to wipe off

defence/objection raised by petitioner/defendant.


4.    The   learned    District      Judge   after   considering        rival

submissions allowed application holding that plaintiff is master of

plaint and entitle to withdraw any prayer in plaint. It is observed

that proposed amendment is technical in nature and plaintiff

cannot be precluded from making such amendment.


5.    Mr. Ashwin Hon, learned Advocate appearing for petitioner

vehemently submits that plaintiff is trying to frustrate defence

that was raised on behalf of petitioner/defendant.         The specific

objection was raised that suit cannot be treated as Commercial

Suit. However, instead of arguing on objection raised by petitioner,

application for withdrawal of one of the claim in suit has been filed.

Such course could not have been allowed.
                               (3)                      901-903.odt




6.    Per contra, learned Advocates appearing for respondents

supports impugned order.


7.    Having    considered    submissions   advanced     by     learned

Advocates appearing for respective parties, it can be observed that

Commercial Suit is at preliminary stage. It has not reached to

stage of framing of issues. Although defendant raised objection as

to maintainability of suit, plaintiff appears to have taken corrective

steps to withdraw one of the prayer, so that Summary Suit can be

maintained.    The law do not prevent plaintiff from seeking

amendment in plaint atleast prior to framing of issues and

commencement of trial.       Only bar is that such amendment shall

not be inconsistent with pleadings or shall not take away

admission incorporated in plaint or change nature of suit.


8.    Learned District Judge is right in observing that plaintiff is

master of suit and can withdraw prayer/claim in suit. In present

case, plaintiff wants to maintain other prayers in suit and

withdraw one of the prayer, whereby he sought refund of amount

in case of failure to supply sugar as agreed between parties. In this

background, only because petitioner/defendant had raised objection

as to maintainability of suit based on such prayer, plaintiff cannot

be precluded from withdrawing such prayer by appropriate

amendment in plaint.
                               (4)                     901-903.odt



9.      The Supreme Court in case of Life Insurance Corporation

of India Vs. Sanjeev Builders Private Limited and Anr. 1 has

observed that amendment shall be liberally construed and unless

aforesaid fetters are brought to notice of Court, it shall be granted

without demure. In present case, nothing is brought to notice of

this Court to show that amendment to withdraw one of the prayer

cannot be granted for any reason.


10.     In that view of matter, there is no merit in Writ Petitions.

Hence, Writ Petitions stand dismissed.


11.     Needless to state here that all objections and contentions

regarding maintainability of suit raised on behalf of petitioner are

kept open and shall be considered in accordance with law.



                                      (S. G. CHAPALGAONKAR)
                                               JUDGE
Devendra/January-2026




1    AIR 2022 SC 4256.

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