61 WP 3377 OF 2026.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION 61 WRIT PETITION NO. 3377 OF 2026 RAVINDRA PANDURANG JADHAV AND ANR. VERSUS LAXMAN MARUTI KASHID AND OTHERS ... Advocate for Petitioners : Mr. Dighe Satyajeet Prakashb a/w Mr. Paras Yadav ... CORAM : SHAILESH P. BRAHME, J. DATE : 27.07.2026 PER COURT : Heard. 2. The writ petition is preferred against order dated 12.11.2025 passed below Exh. 31 in Regular Civil Suit No. 217/2025. 3. Learned counsel for the petitioners submits that there is no legal impediment in taking recourse to Order XXVI Rule 9 of the Code of Civil Procedure at pre-trial stage. He places reliance on the judgment of coordinate bench in the matter of Pandit Vithal Landage Vs. Vishnu Govind Pawar and anr; in Writ Petition No. 5158/2024, decided on 30.04.2025, to corroborate the submissions. It is further pointed out that the position of the petitioners is helpless because during pendency of the suit, application for measurement was submitted but no measurement was conducted due to pendency of the suit. 4. In the present case, Regular Civil Suit No. 217/2025 is preferred for mandatory and perpetual injunction. Application Exh. 5 was allowed. But the order of is modified in Misc. Civil Appeal No. 57/2025. At the pre-trial stage, application Exh. 31 is submitted by the petitioners for appointment of the Commissioner for measurement of City Survey No. 654, 707, 708 along with allied purposes. The said application is rejected by the impugned order. 1/2 61 WP 3377 OF 2026.odt 5. I have gone through the impugned order as well as the order cited by the learned counsel for the petitioners passed by the Coordinate Bench in Writ Petition No. 5158/2024. There is no legal impediment for resorting to Order XXVI Rule 9 of the C.P.C. at pre-trial stage. In the given facts and circumstances, no case is made out to point out that Order XXVI Rule 9 of CPC is the only recourse left to the petitioners. It would always be open for the petitioners to go for appointment of Court Commissioner during post trial stage. I do not find any perversity or illegality in the impugned order. 6. The practical difficulty faced by the petitioners is that their application for measurement was not entertained by the authorities on the ground that the matter is sub judice before the Court. It is made clear that the application submitted by the litigant for measurement, survey, inspection, demarcation, to the competent authorities cannot be discarded just because pendency of some litigation. If the applicant is ready to pay the fees and bear the expenses, there can be no hurdle in entertaining the application. 7. The writ petition is disposed of without causing interference in the impugned order. But, simultaneously, permitting the petitioners to take recourse to Order XXVI rule 9 of CPC at the appropriate stage of the proceedings. 8. It is clarified further that if the application for measurement is submitted to the competent authorities, the same shall be dealt with in accordance with law and as per the observations recorded herein above. ( SHAILESH P. BRAHME, J.) mkd/- 2/2