KBP 1170-09.sxw + 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1170 OF 2009 IN WRIT PETITION NO. 1276 OF 2009 Saikumar Vijay Potdar and ors. ..Applicants Vs. Unity Builders and Developers and ors. ..Respondents ......... Mr.Rahul P.Walvekar, for applicants. ....... CORAM : A.S.OKA, J.. DATE : 23 rd SEPTEMBER, 2009. P.C. : 1] Heard learned advocate appearing for the applicants. 2] In view of the averments made in the application, the same is allowed in terms of prayer clause (a). ( A.S.OKA, J. ) KBP 1170-09.sxw + 1 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1276 OF 2009 Saikumar Vijay Potdar and ors. ..Petitioners Vs. Unity Builders and Developers and ors. ..Respondents ......... Mr.Rahul P.Walvekar, for petitioners. ....... CORAM : A.S.OKA, J.. DATE : 23 rd SEPTEMBER, 2009. P.C. : 1] Heard learned advocate appearing for the petitioners. 2] The petitioners are the original plaintiffs. One of the issues involved in the suit is whether the antenna/mobile tower erected on the suit property has been activated. The stand taken by the respondents is that the said antenna/tower has been activated. The prayer in the suit is for removal of the said antenna/tower. 3] A prayer was made by the petitioners by filing of an application under Section 75 read with Rule 9 of Order XXVI of the Code of Civil Procedure, 1908, for appointment of the Court Commissioner for the purpose of ascertaining whether the antenna/mobile tower and network system have been activated. By the impugned order, the said application has been rejected. 4] After having heard the learned counsel for the petitioners, I find that no case for interference is made out as the impugned order is purely interlocutory in nature. The respondents will have to prove their case that the mobile tower has been already activated as on today. The application for temporary injunction is KBP 1170-09.sxw + 1 3 pending. Notwithstanding the impugned order, if the trial court deems it necessary, at any stage, a recourse can be taken to the provisions of the Rule 9 and 10­A order XXVI of the Code of Civil Procedure, 1908, for appointment of the Court Commissioner. 5] Subject to what is observed above, the Writ Petition is rejected. ( A.S.OKA, J. )