Bombay High Court

BALU NARAYAN PATILversusEKNATH TUKARAM PATIL

Disposal: Disposed Off
Bench: NITIN B SURYAWANSHI

Holding

An application for appointment of a Court Commissioner must be filed after the commencement of recording of evidence; the writ petition is dismissed.

Summary

The petitioner filed a writ petition challenging the civil judge's order that rejected his application under Order 26, Rule 9 of the Civil Procedure Code for the appointment of a Court Commissioner to measure suit land. The application was made before the commencement of recording of evidence. The High Court, relying on its earlier decisions in Mahadeo Kondiba Shinde v. Nitin Sakharam Shinde and Shantaram Dattatray Kekan v. Bhausaheb Karbhari Kekan, held that such an appointment is premature if sought before evidence recording begins. Consequently, the court dismissed the writ petition as lacking merit, but allowed the petitioner to re‑file the application after evidence commences. The trial court is directed to consider any fresh application on its merits.

Issues considered

Whether an application for appointment of a Court Commissioner under Order 26, Rule 9 CPC can be filed before the commencement of recording of evidence.

Legislation cited

Code of Civil Procedure, 1908 — s. Order 26 Rule 9

Subjects

Court Commissioner
Order 26 CPC
measurement of land
writ petition
civil procedure
commencement of evidence

Judgment

                                         {1}                       912-WP-10421-2023

                   IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                            CIRCUIT BENCH AT KOLHAPUR
                           CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 10421 OF 2023

Balu Narayan Patil                                                 ...Petitioner

         Versus

Eknath Tukaram Patil                                               ...Respondent

Mr. Yuvraj Gharal, Advocate for the petitioner
                                  .......

                                       CORAM : NITIN B. SURYAWANSHI, J.

                                       DATE : 08th JANUARY, 2026

ORDER :

1.                 By this petition, the petitioner challenges order passed by

the learned Civil Judge, Junior Division, Kagal below Exhibit-18 in

Regular Civil Suit No. 154 of 2018, thereby rejecting the application

filed by the petitioner/plaintiff under Order 26, Rule 9 of the Civil

Procedure           Code,   for   appointment     of     Court   Commissioner,     for

measurement of the suit land.


2.                 Admittedly,    in   the     present     case,     application   for

appointment of Court Commissioner is filed before commencement of

recording of evidence.


3.                 In Mahadeo Kondiba Shinde Vs. Nitin Sakharam Shinde


Bhagyawant Punde
                                          {2}                     912-WP-10421-2023

(2022) 2 ALL MR 593 (Bom), learned Single Judge of this Court has

held       that     appointment      of   Court     Commissioner      prior   to   the

commencement of evidence of suit is premature and hence, set aside

the said appointment. Similar view is taken by the learned Single

Judge of this Court in Shantaram Dattatray Kekan and Others Vs.

Bhausaheb Karbhari Kekan and Another (Writ Petition No. 14046 of

2021).


4.                 In view of above, this Court has consistently taken a view

that application for appointment of Court Commissioner has to be filed

after commencement of recording of evidence. In that view of the

matter, this Court is not inclined to entertain the petition under

extraordinary writ jurisdiction and the writ petition being devoid of

merit is dismissed.


5.                 Petitioner   is   at   liberty   to   file   application   seeking

appointment of Court Commissioner after commencement of recording

of evidence. If such application is filed, Trial Court to consider the

same on its own merits, without being influenced by the order

impugned in the present writ petition.



                                                (NITIN B. SURYAWANSHI, J.)




Bhagyawant Punde

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