K.T. Sankaran, J.

The question involved in this Writ Petition is whether under Rule 9 of Order XXVI of the Code of Civil Procedure the court has power to appoint a Commissioner for local inspection of the property in dispute before the written statement is filed by the defendant.

2. The Writ petitioners filed O.S.No.60 of 2009 before the Munsiff’s Court, Kochi, against the respondents for a permanent prohibility injunction restraining the defendants from trespassing upon the plaint A schedule property or causing any obstruction “in the gap on the eastern side of A schedule item numbers 1 and 2, by putting up any structures in the gap on the south western sides of plaint A schedule item No.1, north eastern portion of A schedule item No.2, i.e, in between the compound wall of the plaint A schedule and the western compound wall of the plaint A schedule and the western compound wall of the first defendant”. The property of the plaintiffs lies on the western side of the property belonging to the defendants. The plaintiffs filed an application for temporary injunction. The court below granted interim injunction. The defendants entered appearance. They filed an application for appointment of a Commissioner for local inspection of the property. In the affidavit filed in support of the application, the defendants stated that while constructing the compound wall on the western side of their property, they had left out a portion having a width of 1.5

.mtrs. For the purpose of providing a way to the northern property. It would appear that this small piece of land is the disputed property. The defendants contended that it is necessary to measure out the properties of the parties with reference to their title deeds in order to find out whether the disputed portion belongs to the plaintiffs or the defendants. According to the defendants, the properties are to be measured with reference to the title deeds and survey records. The application was opposed by the plaintiffs. They denied the contention that while constructing the compound wall, the defendants left out a portion of land having a width of 1.5 mtrs. On the western side of the compound wall. The plaintiffs, however, contended that they have no objection to measure out the properties. But, for the purpose of collecting evidence, the Commissioner cannot be appointed, even before filing the written statement by the defendants.

3. Thecourt below allowed the application for appointment of Commission. The decision of this Court in John Vs. Kamarunnissa (1987 (2) KLT 249) was relied on by the court below. The order passed by the court below appointing the Commissioner is under challenge in this Writ Petition filed by the plaintiffs.

4. Thelearned counsel for the petitioners contended as follows:

Rule 9 of Order XXVI provides for appointment of a Commissioner for the purpose of elucidating any matter in dispute. A matter in dispute is a matter where the dispute arises on the pleadings, which is capable of being considered for framing an issue. For that purpose, it is necessary to file a written statement. The counsel referred to Rule 1 of Order VI of the Code of Civil Procedure which states that “pleading” shall mean plaint or written statement.

5. The learned counsel appearing for the respondents/defendants contended that they have filed a detailed counter affidavit in the application for temporary injunction in which their defence is clearly disclosed. The counsel submits that the application for appointment of Commissioner is not to fish out evidence. He submits that if on proper measurement, it is made out that the property belongs to the plaintiffs, the defendants need not contest the suit unnecessarily.

6. Rule 9 of Order XXVI reads as follows:

“In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or dama