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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

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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