Bombay High Court

PARSAPPA MURGYAPPA KALMADI AND ORS.versusBIRAPPA PANDURANG DAINGADE AND ORS.

Disposal: Disposed Off

Holding

Applications under Order XXVI Rule 9 of the CPC may be entertained only after the recording of evidence, not at the pre‑trial stage.

Summary

The petitioners Uday Parsappa Murgyappa Kalmadi and others filed a writ petition challenging two orders dated 01.12.2025 and 22.12.2025 passed in RCS No. 166 of 2024. Both orders were applications made under Order XXVI Rule 9 of the Civil Procedure Code at the pre‑trial stage. The Court examined whether such applications could be entertained before the recording of evidence. Relying on its earlier decisions in Sitaram Sukhlak Patil v. Vasudev Sukhlal Patil and Sarjerao Nathu Bangar v. Namdeo Keru Bangar, the Court held that Order XXVI Rule 9 is to be invoked only after evidence has been recorded. Consequently, the petition was dismissed but the petitioners were granted liberty to file a fresh application under Order XXVI Rule 9 after the evidentiary stage. The trial court was directed to consider any such application on its own merits without being influenced by the impugned orders.

Issues considered

Whether an application under Order XXVI Rule 9 of the CPC can be entertained at the pre‑trial stage.
Whether the trial court must disregard the impugned orders if a fresh Order XXVI Rule 9 application is filed after evidence is recorded.

Legislation cited

Code of Civil Procedure, 1908 — s. Order XXVI Rule 9

Subjects

Order XXVI Rule 9
pre‑trial stage
Civil Procedure Code
evidence
trial court
writ petition

Judgment

908-WP-746-2026=.doc

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

WRIT PETITION NO. 746 OF 2026
Digitally
signed by
UDAY
Parsappa Murgyappa Kalmadi And Ors. … Petitioners
UDAY SHIVAJI
SHIVAJI JAGTAP
Vs.
JAGTAP Date:
2026.09.28
10:06:41
+0530 Birappa Pandurang Daingade And Ors. … Respondents
………….
Mr. Ramdas Shelke a/w Vaishnovi Shelake for the Petitioners
Mr. Amit Sale a/w Shreyas Karagar, Twinkal Kotawadekar for the
Respondents
………….
CORAM : SHAILESH P. BRAHME, J.

DATE : 23rd SEPTEMBER, 2026.
P. C. :

. Heard both sides.

2. The petition is directed against the order dated 01.12.2025 passed

below Exh.26 and order dated 22.12.2025 passed below Exh.33 in

RCS No. 166 of 2024.

3. After hearing both sides for some time, it transpires that both

applications are made under Order XXVI Rule 9 of CPC at pretrial stage. I

prefer to follow consistent view of this Court in entertaining the

applications under Order XXVI Rule 9 after recording of evidence and not

at pretrial stage. Reliance can be placed upon the judgments in the case

of Sitaram Sukhlak Patil vs. Vasudev Sukhlal Patil in Writ Petition No.

Uday S. Jagtap 1 of 2
908-WP-746-2026=.doc

9626 of 2016, decided on 31.07.2017 and Sarjerao Nathu Bangar & Ors.

vs. Namdeo Keru Bangar & Ors. in Writ Petition No. 13441 of 2019,

decided on 07.11.2019.

4. It would be open for the petitioner to take recourse to Order XXVI

Rule 9 after recording of evidence which is proper stage of the

proceedings.

5. The Writ Petition is disposed of with liberty to take recourse of

Order XXVI Rule 9, if so required after recording of evidence and the trial

Court shall consider the application on its own merits without being

influenced by the impugned order.

( SHAILESH P. BRAHME, J. )

Uday S. Jagtap 2 of 2

Continue reading with your account

Checking your session…