1 jpc/­ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3743 OF 2009 Uttam Sakharam Kadam and another .. Petitioners Vs. Mahadeo Limbaji More .. Respondents Shri Nitin . Killedar, for the petitioner CORAM : SMT. MRIDULA BHATKAR, J. DATE : 13th July, 2009. ORAL ORDER : 1. The petitioners/original plaintiffs have preferred this petition against the order passed by the learned Civil Judge, Junior Division on 26th February, 2009 allowing the Application (Exh. 18 in RCS No. 73/2008) made by the Respondent/Original defendant for appointment of Commissioner. 2. It is contended by the learned counsel appearing for the petitioners that the learned Trial Judge should not have entertained the application which was preferred under Order 26 Rule 9 of the Civil Procedure Code and that the application should have made under Order 39 Rule 7 of the Civil Procedure Code when the application for interim relief is pending. It is submitted by the learned Counsel that the Trial Court cannot and should not have allowed the application leading to the collection of evidence through commissioner. It is further submitted that the application ought not to have been considered at the stage when the interim relief application of the 2 plaintiff was not decided. The learned counsel has submitted that the Trial Judge, at the time of framing issue determines what is the matter in dispute and only thereafter such application would have been entertained. It is further submitted by the learned counsel that the evidence pertaining to the fact of the access would have been brought on record through evidence /documentary proof by the defendant. 3. The Plaintiff has filed the suit against the defendant for declaration and injunction in respect of the suit. The respondent/ defendant has filed the written statement opposing the Suit land. The access to his land was through the land of the petitioner/plaintiff. To bring certain facts on record, the defendant has applied for the appointment of commissioner under Order 26 Rule 9 of the Civil Procedure Code. The learned Trial Judge has rightly allowed the said application as it has found that the investigation of certain facts is necessary; and the facts in respect of the existence of the road and existence of water channel was to be placed before the Court. 4. The commissioner can be appointed by the Court under order 26 Rule 9 of the CPC to elucidate the matter in dispute. The submissions of the learned counsel for the petitioners that only when the issues are framed or only at the stage of framing of the issue the Court can determine the matter in dispute, are not correct. The Court, even at the interim stage or at any stage of the proceedings determines what is the matter in dispute and accordingly can deal with the matter. In the present case, existence of road 3 and existence of water channel is the matter in dispute and, therefore, the order passed by the Ld. Trial Judge cannot be said to be illegal or incorrect and I do not find any merit in this petition. 5. In the result, the petition stands dismissed in limine with no order as to costs. (MRIDULABHATKAR, J.)