1. This petition filed under Article 227 of the Constitution of India challenges the order passed by the appellate Court in MCA No. 32/2018 dated 27.8.2018, whereby the appeal preferred by the respondent No. 3 against the order refusing injunction by the trial Court in Civil Suit No. 31- A/2018 dated 18.5.2018 is allowed and the learned appellate Court set aside the said order dated 18.5.2018 and remitted the matter back before the trial Court with certain directions.

2. Mr. Akhilesh Jain, learned counsel for the petitioner submits that respondent No. 3/plaintiff filed a suit for declaration and permanent injunction along with an application under Order 39 Rules 1 and 2 CPC. The trial Court rejected the injunction application by order dated 18.5.2018 (Annexure P-7). Aggrieved, the respondent No. 3 preferred an appeal under Order 43 rule 1(r) of CPC. After hearing the parties, the appellate Court, by order dated 27.8.2018, set aside the impugned order and directed to undertake certain exercise as mentioned in para 13 of this order and, thereafter, decide the injunction application afresh.

3. Criticizing this order, Mr. Jain, learned counsel for the petitioner cont- ended that: (i) as per Order 26 rule 9, CPC, the power to appoint Commissioner cannot be exercised at the initial stage of the suit; (ii) while deciding the appeal under Order 43 rule 1(u), the lower appellate Court cannot exercise power under Order 41 rules 23, 23A and 25, CPC. Reliance is placed on AIR 1988 Rajasthan 26, Nand Lal and others v. Purshottam and other; (iii) in absence of availability of any exceptional circumstance, there was no occasion for the lower appellate Court to remit the matter back to the trial Court with certain directions; (iv) the necessary ingredients for invoking powers under Order 26 rule 9, CPC were not available; (v) the Municipal Corporation was not impleaded by the plaintiff in the instant suit, and (vi) the impugned order gives an opportunity to the plaintiff to collect evidence which is impermissible and beyond the scope of Order 26 rule 9 CPC.

4. Percontra, Mr. Sankalp Kochar, learned counsel for the respondent No. 3/plaintiff supported the impugned order. He placed reliance on 2010 (3) MPLJ 345, Prem Bai v. Ghanshyam. Mr. Kochar submits that in order to elucidate the disputed facts, the question of encroachment and allocation/identity of the land, the trial Court itself should have exercised the said power. Moreso, when there was no agreed map between the parties. The map issued by the Municipal Corporation was cancelled. Although there exists an interim order against such cancellation in a writ petition filed by the present petitioner, fact remains that the said order is only an interim order because of which the cancellation of map will not vanish in thin air. Mr. Kochar further submits that there exist three enabling provisions in CPC for the purpose of demarcation/investigation etc., which can be seen under Order 26 rule 9, Order 39 rule 7 and Order 18 rule 18 of CPC. He submits that there is no jurisdictional error in invoking power under Order 26 rule 9, CPC. Reliance is placed on (2004) 8 SCC 488, Maharwal Khewaji Trust (Reg.), Faridkot v. Baldev Dass to contend that in a matter of this nature, no fault can be found in the impugned order. Lastly, Mr. Kochar urged that Order 41 rules 23, 23A and 25 of CPC are applicable when appeal is preferred under Order 43 rule 1(u) against the judgment and decree. Against an interlocutory order, no appeal is tenable under Order 43 rule 1(u), CPC and, therefore, power of remand mentioned in said three provisions have no relevance in the present case.

5. No other point is pressed by the learned counsel for the parties.

6. I have heard the parties at length and perused the record.

7. The first point raised by petitioner is that power under Order 26 rule 9 CPC cannot be exercised at initial stage of the suit. A plain reading of said provision shows that it does not indicate any stage in