Bombay High Court
MADHAV TUKARAM PHADversusVIKAS RAMKISHAN RENGE AND ANOTHER
- Disposal
- DISPOSED OFF
Holding
An application under Order XXVI Rule 9 CPC cannot be entertained at the preliminary stage before the trial court has framed issues.
Summary
The petitioner filed a writ petition challenging an order of the 2nd Joint Civil Judge, Junior Division, Parbhani, which allowed the respondent's application under Order XXVI Rule 9 of the Code of Civil Procedure to appoint a commissioner. The civil suit involved a claim for declaration and injunction, and the trial court had not yet framed any issues. The petitioner argued that at such a preliminary stage, the appointment of a commissioner was unwarranted. The High Court agreed, holding that the trial court should first allow the parties to lead evidence and frame issues before considering a commissioner. Consequently, the order allowing the commissioner was set aside, and the respondent was directed to file any appropriate application after evidence is led. The writ petition was allowed and the impugned order quashed.
Issues considered
- Whether an application under Order XXVI Rule 9 of the Code of Civil Procedure can be entertained at the preliminary stage before the trial court has framed issues in a suit for declaration and injunction.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XXVI Rule 9
Subjects
- CPC
- Order XXVI
- Commissioner
- preliminary stage
- declaration and injunction
- writ petition
- civil suit
Judgment
2026:BHC-AUG:10130
1 45 WP 12694-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
45 WRIT PETITION NO. 12694 OF 2016
MADHAV TUKARAM PHAD
VERSUS
VIKAS RAMKISHAN RENGE AND ANOTHER
…
Mr. Sanjay V. Mundhe – Advocate for Petitioner
Mr. V.D. Salunke – Advocate for Respondent No.1
…
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 09.03.2026
PER COURT :
1. Heard learned Counsel for the petitioner and learned Counsel for
respondent No.1.
2. By way of the present petition, the petitioner challenges the order
dated 28.03.2016 passed below Exhibit-44 in Regular Civil Suit No.273 of
2015 by the learned 2nd Joint Civil Judge, Junior Division, Parbhani,
whereby the application filed by respondent No.1 under Order XXVI Rule
9 of the Code of Civil Procedure came to be allowed.
3. Learned Counsel for the petitioner submits that the suit is filed for
declaration and injunction and the learned Trial Court has not even
framed the issues. At such a preliminary stage, the application under
Order XXVI Rule 9 of the Code of Civil Procedure ought not to have been
allowed.
2 45 WP 12694-2016.odt
4. Learned Counsel for respondent No.1 supports the order under
challenge.
5. Upon perusal of the impugned order, it appears that the suit is filed
for declaration and injunction. The issues are yet to be framed by the
learned Trial Court. In such circumstances, appointment of a
Commissioner at a preliminary stage is not warranted. The parties are
required to lead evidence and if such necessity arises thereafter, an
appropriate application may be considered. In view thereof, I am inclined
to allow the present petition by setting aside the impugned order.
6. In view of the above, the Writ Petition stands allowed. The order
dated 28.03.2016 passed below Exhibit-44 in Regular Civil Suit No. 273
of 2015 by the 2nd Joint Civil Judge, Junior Division, Parbhani, is quashed
and set aside.
7. The respondent No.1/plaintiff is at liberty to file an appropriate
application after parties lead evidence and the learned Trial Court shall
decide the same on its own merits.
8. Pending Civil Applications, if any, also stand disposed of.
[ SIDDHESHWAR S. THOMBRE ]
JUDGE
Pooja Kale/
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