25-sr38-wp15300.2023 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 15300 OF 2023 SANJANABAI KISAN SHINDE AND OTHERS VERSUS BALU AJINATH SHINDE ---- Mr.Sushant Chaudhari, Advocate for petitioner Mr.G.S.Khande, Advocate h/f. Mr.N.L.Jadhav, Advocate for respondent ---- CORAM : AJIT B. KADETHANKAR, J. DATE : AUGUST 17, 2026 ORDER :- In a suit instituted by the present respondent against the petitioners seeking a decree of perpetual injunction, the respondent/plaintiff invoked the provisions of Order 26 Rule 9 of the Code of Civil Procedure thereby seeking appointment of Commissioner to admeasure the suit land. This step was taken by the respondent/plaintiffs even before his evidence could be completed. Contending that the application was filed at a premature stage and also for collection of evidence, the petitioner/defendant has approached this court under Article 227 of the Constitution of India. 2026:BHC-AUG:37558 2 25-sr38-wp15300 2. Mr.Sushant Choudhari, learned advocate invites my attention to the order dated 13.08.2026 passed by this court which reads as follows:- . The respondent has filed suit for perpetual injunction against the present petitioner. In the suit, the temporary injunction is clamped against the present petitioner. The issues are framed. The plaintiff has entered his examination-in-chief during the trial in support of his claim. 2. During this procedure before the Cross examination could be concluded, the plaintiff filed an order under Order 26 Rule 9 of the CPC for appointment of commissioner. The said application came to be allowed by appointing DSLR as Court Commissioner to measure the land, demarcate and fix its boundaries and prepare a map and produce the same before this Court. As against this, the petitioner is before this Court. 3. Mr.S.B.Choudhari has two-fold objections against the impugned order. Firstly, he submits that the application is filed at premature stage i.e. before completion of the evidence of the plaintiff. Secondly, he submits that the commissioner cannot be appointed for the purpose of collecting evidence. 4. Mr.H.S.Khande h/f Mr.N.L.Jadhav, learned Advocate for the respondent seeks some time to take instructions from his client as to when the he shall make him available before the Trial Court for cross- examination by the other side. 5. Stand over to 17.08.2026. Interim relief if any, to continue till then. 3. Learned advocate for the petitioner would further fairly submit that the request of the respondent/plaintiff can be placed into 3 25-sr38-wp15300 service only after completion of his evidence and if a case is made out for appointment of Commissioner. He further submits that in no case, the Commissioner can be appointed for collection of evidence. 4. Mr.G.S.Khande holding for Mr.N.L.Jadhav, learned advocate for the respondent submits that he has taken instructions from his client/plaintiff and submits that on any given date, the plaintiff would be present in the civil court for facing the cross- examination. 5. In view of this, this Writ Petition can be conveniently disposed of setting aside the impugned order with liberty to file such application afresh as and when occasion arise. I have some reservations on the findings of learned Civil Judge, Junior Division, Patoda by which learned Judge has appointed the Commissioner and the Commissioner was directed to fix the boundaries after admeasuring the suit property. 6. It is trite law that the Commissioner cannot be appointed for fixing the boundaries. The Commissioner/authority is supposed to admeasure the land of the suit property to prepare a map and produce the map with his report before the civil court. On the basis of that report, the parties can lead their evidence. This proposition 4 25-sr38-wp15300 needs to be remembered while considering an application under Order 26 Rule 9 of C.P.C. 7. Hence, the Writ Petition is partly allowed. The impugned order dated 01.11.2023, passed by learned Civil Judge, Junior Division, Patoda, below Exh.27/D is quashed and set aside. The respondent/plaintiff shall have right to file an application afresh under Order 26 Rule 9 of the Code of Civil Procedure for appointment of Commissioner at appropriate time by making out a case. It is clarified that this court has not observed anything on merits of the application that was filed by the plaintiff. [AJIT B. KADETHANKAR, J.] ……….. KBP