Ravindra Pandurang JadhavversusLaxman Maruti Kashid

                                                          61 WP 3377 OF 2026.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIRCUIT BENCH AT KOLHAPUR
                    CIVIL APPELLATE JURISDICTION

                   61 WRIT PETITION NO. 3377 OF 2026

               RAVINDRA PANDURANG JADHAV AND ANR.
                                   VERSUS
                  LAXMAN MARUTI KASHID AND OTHERS
                                      ...
Advocate for Petitioners : Mr. Dighe Satyajeet Prakashb a/w Mr. Paras Yadav
                                      ...
                      CORAM               : SHAILESH P. BRAHME, J.
                        DATE              : 27.07.2026

PER COURT :

       Heard.

2.    The writ petition is preferred against order dated 12.11.2025 passed
below Exh. 31 in Regular Civil Suit No. 217/2025.

3.    Learned counsel for the petitioners submits that there is no legal
impediment in taking recourse to Order XXVI Rule 9 of the Code of Civil
Procedure at pre-trial stage. He places reliance on the judgment of
coordinate bench in the matter of Pandit Vithal Landage Vs. Vishnu Govind
Pawar and anr; in Writ Petition No. 5158/2024, decided on 30.04.2025, to
corroborate the submissions. It is further pointed out that the position of
the petitioners is helpless because during pendency of the suit, application
for measurement was submitted but no measurement was conducted due to
pendency of the suit.

4.    In the present case, Regular Civil Suit No. 217/2025 is preferred for
mandatory and perpetual injunction. Application Exh. 5 was allowed. But
the order of is modified in Misc. Civil Appeal No. 57/2025. At the pre-trial
stage, application Exh. 31 is submitted by the petitioners for appointment of
the Commissioner for measurement of City Survey No. 654, 707, 708 along
with allied purposes. The said application is rejected by the impugned order.

                                                                            1/2
                                                              61 WP 3377 OF 2026.odt

5.      I have gone through the impugned order as well as the order cited by
the learned counsel for the petitioners passed by the Coordinate Bench in
Writ Petition No. 5158/2024. There is no legal impediment for resorting to
Order XXVI Rule 9 of the C.P.C. at pre-trial stage. In the given facts and
circumstances, no case is made out to point out that Order XXVI Rule 9 of
CPC is the only recourse left to the petitioners. It would always be open for
the petitioners to go for appointment of Court Commissioner during post
trial stage. I do not find any perversity or illegality in the impugned order.

6.      The practical difficulty faced by the petitioners is that their application
for measurement was not entertained by the authorities on the ground that
the matter is sub judice before the Court. It is made clear that the
application submitted by the litigant for measurement, survey, inspection,
demarcation, to the competent authorities cannot be discarded just because
pendency of some litigation. If the applicant is ready to pay the fees and
bear the expenses, there can be no hurdle in entertaining the application.

7.      The writ petition is disposed of without causing interference in the
impugned order. But, simultaneously, permitting the petitioners to take
recourse to Order XXVI rule 9 of CPC at the appropriate stage of the
proceedings.

8.      It is clarified further that if the application for measurement is
submitted to the competent authorities, the same shall be dealt with in
accordance with law and as per the observations recorded herein above.


                                         ( SHAILESH P. BRAHME, J.)

mkd/-




                                                                                 2/2