Bombay High Court
SANJANABAI KISAN SHINDE AND OTHERSversusBALU AJINATH SHINDE
- Disposal
- DISPOSED OFF
Holding
A commissioner under Order 26 Rule 9 CPC may be appointed only for admeasurement and map preparation, not for fixing boundaries or collecting evidence, and such appointment must be made at an appropriate stage of the trial.
Summary
The respondent filed a suit for perpetual injunction against the petitioners and, during trial, applied under Order 26 Rule 9 of the CPC for the appointment of a commissioner to admeasure and demarcate the suit land before his evidence was completed. The trial court appointed a commissioner and directed him to fix boundaries, prompting the petitioners to challenge the order via a writ petition under Article 227, arguing that the application was premature and that a commissioner cannot be appointed for evidence collection or boundary fixing. The High Court examined the propriety of appointing a commissioner at that stage and clarified that the commissioner’s role is limited to admeasurement and preparation of a map, not to fixing boundaries or gathering evidence. Consequently, the court set aside the trial court’s order and allowed the writ petition in part, granting the respondent liberty to file a fresh application at an appropriate time. The court made no determination on the merits of the underlying injunction suit.
Issues considered
- Whether an application under Order 26 Rule 9 CPC can be filed before the plaintiff's evidence is completed.
- Whether a commissioner can be appointed for the purpose of fixing boundaries or collecting evidence.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 26 Rule 9
Subjects
- perpetual injunction
- Order 26 Rule 9
- commissioner appointment
- admeasurement
- evidence collection
- Article 227
- Civil Procedure
Judgment
2026:BHC-AUG:37558
25-sr38-wp15300.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 15300 OF 2023
SANJANABAI KISAN SHINDE AND OTHERS
VERSUS
BALU AJINATH SHINDE
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Mr.Sushant Chaudhari, Advocate for petitioner
Mr.G.S.Khande, Advocate h/f. Mr.N.L.Jadhav, Advocate for respondent
----
CORAM : AJIT B. KADETHANKAR, J.
DATE : AUGUST 17, 2026
ORDER :-
In a suit instituted by the present respondent against the
petitioners seeking a decree of perpetual injunction, the
respondent/plaintiff invoked the provisions of Order 26 Rule 9 of the
Code of Civil Procedure thereby seeking appointment of Commissioner
to admeasure the suit land. This step was taken by the
respondent/plaintiffs even before his evidence could be completed.
Contending that the application was filed at a premature stage and
also for collection of evidence, the petitioner/defendant has
approached this court under Article 227 of the Constitution of India.
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2. Mr.Sushant Choudhari, learned advocate invites my
attention to the order dated 13.08.2026 passed by this court which
reads as follows:-
. The respondent has filed suit for perpetual
injunction against the present petitioner. In the suit,
the temporary injunction is clamped against the
present petitioner. The issues are framed. The plaintiff
has entered his examination-in-chief during the trial in
support of his claim.
2. During this procedure before the Cross
examination could be concluded, the plaintiff filed an
order under Order 26 Rule 9 of the CPC for
appointment of commissioner. The said application
came to be allowed by appointing DSLR as Court
Commissioner to measure the land, demarcate and fix
its boundaries and prepare a map and produce the
same before this Court. As against this, the petitioner
is before this Court.
3. Mr.S.B.Choudhari has two-fold objections
against the impugned order. Firstly, he submits that the
application is filed at premature stage i.e. before
completion of the evidence of the plaintiff. Secondly,
he submits that the commissioner cannot be appointed
for the purpose of collecting evidence.
4. Mr.H.S.Khande h/f Mr.N.L.Jadhav, learned
Advocate for the respondent seeks some time to take
instructions from his client as to when the he shall
make him available before the Trial Court for cross-
examination by the other side.
5. Stand over to 17.08.2026. Interim relief if any,
to continue till then.
3. Learned advocate for the petitioner would further fairly
submit that the request of the respondent/plaintiff can be placed into
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service only after completion of his evidence and if a case is made
out for appointment of Commissioner. He further submits that in no
case, the Commissioner can be appointed for collection of evidence.
4. Mr.G.S.Khande holding for Mr.N.L.Jadhav, learned
advocate for the respondent submits that he has taken instructions
from his client/plaintiff and submits that on any given date, the
plaintiff would be present in the civil court for facing the cross-
examination.
5. In view of this, this Writ Petition can be conveniently
disposed of setting aside the impugned order with liberty to file such
application afresh as and when occasion arise. I have some
reservations on the findings of learned Civil Judge, Junior Division,
Patoda by which learned Judge has appointed the Commissioner and
the Commissioner was directed to fix the boundaries after
admeasuring the suit property.
6. It is trite law that the Commissioner cannot be appointed
for fixing the boundaries. The Commissioner/authority is supposed
to admeasure the land of the suit property to prepare a map and
produce the map with his report before the civil court. On the basis
of that report, the parties can lead their evidence. This proposition
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needs to be remembered while considering an application under
Order 26 Rule 9 of C.P.C.
7. Hence, the Writ Petition is partly allowed. The impugned
order dated 01.11.2023, passed by learned Civil Judge, Junior
Division, Patoda, below Exh.27/D is quashed and set aside. The
respondent/plaintiff shall have right to file an application afresh
under Order 26 Rule 9 of the Code of Civil Procedure for appointment
of Commissioner at appropriate time by making out a case. It is
clarified that this court has not observed anything on merits of the
application that was filed by the plaintiff.
[AJIT B. KADETHANKAR, J.]
………..
KBP
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