Bombay High Court
SHOBA SURESH KADLAGversusARUNA JAGANNATH KADLAG AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The trial court erred; appointment of a Court Commissioner under Order XXVI Rule 9 cannot be entertained at the preliminary stage of a simpliciter injunction suit before evidence is led.
Summary
The petitioner challenged a February 2023 order of the 4th Civil Judge, Junior Division, Sangamner, which appointed a Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure in a suit for simpliciter injunction. The petitioner argued that such appointment should not be entertained at the preliminary stage before any evidence was led, citing settled principles that a commissioner is generally appointed only after evidence is taken. The respondents contended that the petitioner’s written statement expressly consented to the appointment, negating the need to wait for evidence. The Court examined the submissions and noted that the application for a commissioner was indeed filed before the trial commenced, and the nature of the suit did not justify early appointment. Consequently, the Court set aside the trial court’s order and allowed the writ petition, while permitting the respondents to file a fresh application after evidence is led.
Issues considered
- Whether an application for appointment of a Court Commissioner under Order XXVI Rule 9 CPC can be entertained at the preliminary stage of a simpliciter injunction suit before evidence is led
- Whether the petitioner’s admission in the written statement waives the requirement to wait for evidence before appointing a Court Commissioner
- Whether the trial court erred in appointing a Court Commissioner at such a stage
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XXVI Rule 9
Subjects
- injunction
- court commissioner
- Code of Civil Procedure
- preliminary stage
- simpliciter injunction
- writ petition
- quash order
Judgment
2026:BHC-AUG:780
919-WP-3810-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
919 WRIT PETITION NO. 3810 OF 2023
Shoba Suresh Kadlag
VERSUS
Aruna Jagannath Kadlag And Others
…..
Mr. Dixit Satyajeet S, Advocate for the Petitioner
Mr. U. A. Sayyad h/f Mr. K. N. Shermale, Advocate for Respondent
No.10
Mr. A. N. Nagargoje, Advocate for Respondent No.8
…..
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 08.01.2026
PER COURT :
1. Heard the learned Counsel for the respective parties.
2. By way of the present petition, the Petitioner assails the order
dated 07.02.2023 passed by the learned 4 th Civil Judge, Junior
Division, Sangamner below Exhibit – 34 in R.C.S. No.316/2019,
whereby the learned Trial Court allowed the application filed by the
Original Plaintiffs / Respondents for appointment of Court
Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure.
3. The learned Counsel for the Petitioner submits that the suit is for
simpliciter injunction and therefore, the learned Trial Court ought not
to have entertained the Application for appointment of a Court
Commissioner at such preliminary stage. He submits that along
immediately after the filing of suit, within a short span of time, the
application for appointment of Court Commissioner was moved, even
before commencement of trial and before any evidence was led. He
1
919-WP-3810-2023.odt
further submits that the learned Trial Court committed an apparent
error, contrary to the settled principles governing appointment of a
Court Commissioner that appointment is generally required only after
the parties have led the evidence.
4. Per contra, the learned Counsel for the Respondents / Original
Plaintiffs supports the impugned order and invited my attention to the
written statement filed by Original Defendant No.1 / Petitioner,
contending that in the written statement itself, there is a specific
averment made therein that Original Defendant No.1 / Petitioner has
no objection for the appointment of a Court Commissioner. He,
therefore, submits that in view of such admission, there was no
necessity to wait until the parties have led evidence and that
considering the nature of the dispute, the learned Trial Court has
rightly appointed the Court Commissioner.
5. I have gone through the order passed by the learned Trial Court,
the written statement as well as the submission advanced by both the
sides. It is an undisputed position that, when the application for
appointment of a Court Commissioner was filed, the evidence had not
commenced. The suit is for simpliciter injunction and at such a
preliminary stage, the application for appointment of a Court
Commissioner ought not to have been entertained. Therefore, I am
inclined to allow the present petition by setting aside the order dated
07.02.2023 passed by learned Trial Court.
6. In view thereof, the writ petition is allowed. The order dated
07.02.2023 passed by the learned 4 th Civil Judge, Junior Division,
Sangamner below Exhibit – 34 in R.C.S. No.316/2019 is quashed and
set aside.
2
919-WP-3810-2023.odt
7. However, liberty is granted to the Respondents to file a fresh
application for appointment of a Court Commissioner after the parties
lead the evidence.
[SIDDHESHWAR S. THOMBRE, J.]
Sameer/January-2026
3
Checking your session…