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Bombay High Court

SUMANBAI DNYANESHWAR BHOITE AND OTHERSversusKARBHARI BAPURAO BHOITE AND OTHERS

Disposal
DISPOSED OFF

Holding

The High Court held that it will not entertain the petition at the nascent stage and allowed the petitioners to withdraw it with liberty to re‑apply later.

Summary

The petitioners filed a writ petition under Order XXVI Rule 9 of the Code of Civil Procedure seeking the appointment of a Court Commissioner, even though the trial in the underlying civil suit had not yet commenced. The trial court rejected the application on the ground that the matter was at a nascent stage. The High Court declined to entertain the writ petition at this early stage, agreeing with the trial court's view. The petitioners were permitted to withdraw the writ petition and were given liberty to file a fresh application for a Court Commissioner after the trial begins. Consequently, the writ petition was dismissed as withdrawn and any pending civil applications were also disposed of.

Issues considered

  • Whether a writ petition under Order XXVI Rule 9 CPC for appointment of a Court Commissioner can be entertained when the trial has not yet commenced
  • Whether the petition can be withdrawn with liberty to re‑file the application before the trial court after the trial starts

Subjects

  • Court Commissioner
  • Order XXVI Rule 9 CPC
  • Writ Petition
  • withdrawal
  • trial not commenced

Judgment

2026:BHC-AUG:38552
                                                  1                          907 WP 10820-2026.odt


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                907 WRIT PETITION NO. 10820 OF 2026

                       SUMANBAI DNYANESHWAR BHOITE AND OTHERS
                                            VERSUS
                           KARBHARI BAPURAO BHOITE AND OTHERS
                                                …
             Mr. Govind B. Chate – Advocate for Petitioners
                                                …
                                  CORAM         : MANJUSHA DESHPANDE, J.
                                      DATE            : 25.08.2026

             PER COURT :
             1.       The application filed by the petitioners under Order XXVI Rule 9 of

             the C.P.C. seeking appointment of a Court Commissioner has been

             rejected by the learned Trial Court on the ground that the trial is yet to

             commence and the matter is at nascent stage.

             2.       This Court is not inclined to entertain the present petition at this

             stage. Learned Counsel for the petitioners seeks permission to withdraw

             the present petition with liberty to file an application for appointment of

             a Court Commissioner before the learned Trial Court, after the trial

             commences.

             3.       Permission is granted.

             4.       The Writ Petition stands dismissed as withdrawn, with liberty as

             prayed for.

             5.       Pending civil applications, if any, also stand disposed of.


                                                           [ MANJUSHA DESHPANDE, J. ]

             Pooja Kale/


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