1 45 WP 12694-2016.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 45 WRIT PETITION NO. 12694 OF 2016 MADHAV TUKARAM PHAD VERSUS VIKAS RAMKISHAN RENGE AND ANOTHER … Mr. Sanjay V. Mundhe – Advocate for Petitioner Mr. V.D. Salunke – Advocate for Respondent No.1 … CORAM : SIDDHESHWAR S. THOMBRE, J. DATE : 09.03.2026 PER COURT : 1. Heard learned Counsel for the petitioner and learned Counsel for respondent No.1. 2. By way of the present petition, the petitioner challenges the order dated 28.03.2016 passed below Exhibit-44 in Regular Civil Suit No.273 of 2015 by the learned 2nd Joint Civil Judge, Junior Division, Parbhani, whereby the application filed by respondent No.1 under Order XXVI Rule 9 of the Code of Civil Procedure came to be allowed. 3. Learned Counsel for the petitioner submits that the suit is filed for declaration and injunction and the learned Trial Court has not even framed the issues. At such a preliminary stage, the application under Order XXVI Rule 9 of the Code of Civil Procedure ought not to have been allowed. 2026:BHC-AUG:10130 2 45 WP 12694-2016.odt 4. Learned Counsel for respondent No.1 supports the order under challenge. 5. Upon perusal of the impugned order, it appears that the suit is filed for declaration and injunction. The issues are yet to be framed by the learned Trial Court. In such circumstances, appointment of a Commissioner at a preliminary stage is not warranted. The parties are required to lead evidence and if such necessity arises thereafter, an appropriate application may be considered. In view thereof, I am inclined to allow the present petition by setting aside the impugned order. 6. In view of the above, the Writ Petition stands allowed. The order dated 28.03.2016 passed below Exhibit-44 in Regular Civil Suit No. 273 of 2015 by the 2nd Joint Civil Judge, Junior Division, Parbhani, is quashed and set aside. 7. The respondent No.1/plaintiff is at liberty to file an appropriate application after parties lead evidence and the learned Trial Court shall decide the same on its own merits. 8. Pending Civil Applications, if any, also stand disposed of. [ SIDDHESHWAR S. THOMBRE ] JUDGE Pooja Kale/