Bombay High Court

Shridhar Arjun MulikversusRamchandra Rajaram Mulik AND ORS

Disposal: Disposed Off

Holding

An application under Order 26 Rule 9 must be filed after oral evidence is adduced, and the trial court’s rejection was proper.

Summary

The petitioner, who is the original plaintiff in Civil Suit No. 22/2017, filed an application under Order 26 Rule 9 of the CPC after submitting an affidavit for his first witness, but the trial court rejected it. The petitioner sought a writ of certiorari challenging that order. The court noted that Order 26 Rule 9 is intended for post‑trial evidence collection and is not appropriate before oral evidence is recorded. Consequently, the trial court’s rejection was deemed proper. The writ petition was disposed of without interfering with the trial court’s order, but the petitioner was given liberty to file a fresh application under Order 26 Rule 9 at the appropriate stage, which will be decided on its own merits.

Issues considered

Whether an application under Order 26 Rule 9 of the CPC can be filed before the recording of oral evidence.
Whether the trial court’s rejection of such an application can be set aside by a writ petition.

Legislation cited

Code of Civil Procedure — s. Order 26 Rule 9

Subjects

Order 26
CPC
post‑trial evidence
writ petition
civil procedure

Judgment

                                                               42 WP 4934 OF 2026.odt

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

                     42 WRIT PETITION NO. 4934 OF 2026

                            SHRIDHAR ARJUN MULIK
                                     VERSUS
                  RAMCHANDRA RAJARAM MULIK AND ORS
                                        ...
       Advocate for Petitioner : Mr. Mahesh Rawool a/w Adv. Neeraj Lavte
     Advocate for Respondent No. 1 : Mr. Bharat N. Prabhu a/w Mr. Anup M.
                                     Kulkarni
                                        ...
                        CORAM               : SHAILESH P. BRAHME, J.

                        DATE                 : 07.10.2026


PER COURT :

         Heard.

2.      The petition is directed against the order dated 04.04.2025, passed
below Exh. 80 in Regular Civil Suit NO. 22/2017.

3.      The petitioner is original plaintiff, who is prosecuting Regular Civil
Suit No. 22/2017 for declaration and injunction. He preferred application
Exh. 80 immediately after filing affidavit in lieu of examination in chief of
his first witness. The Trial Court rejected the application.

4.      It is trite law that recourse to Order 26 Rule 9 of the Code of Civil
Procedure can be had during the post trial and specially after the oral
evidence is adduced.       It would be too early to go for appointment of
Commissioner. If such application is filed before recording of evidence, the
Trial Court is likely to infer that the application is actuated for collection of
evidence.

5.      Learned counsel for the petitioner, on instructions of his client is ready

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                                                         42 WP 4934 OF 2026.odt

to file application at appropriate stage.

6.      Writ petition is disposed of without causing any interference in the
impugned order but granting liberty to the petitioner to take recourse to
Order 26 Rule 9 of C.P.C., as is permissible in law.     In case, any such
application is filed, it shall be considered on its own merits without being
influenced by present impugned order.



                                       ( SHAILESH P. BRAHME, J.)




mkd/-




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