Created by Fuzzy Cloud

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

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

                                              ----
            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.
                                            2                             25-sr38-wp15300



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
                                      3                               25-sr38-wp15300



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
                                      4                   25-sr38-wp15300



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


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.