IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 17010 of 2008(Y) -------------------------- AGAINST THE ORDER DATED 15/03/2008 IN IA 3819/07 IN OS.429/2005 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER: ------------ SATHEES, S/O VELLANNUR SREEDHARA MENON, KALADY DESOM, MELUR VILLAGE/PO, MUKUNDAPURAM TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENTS: ------------- VARGHESE, S/O VAZHAPPILLY DEVASSY, CHERUVALUR DESOM /P.O, KALLUR VADAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.17010 of 2008 ------------------------------- Dated this the 9th June, 2008. J U D G M E N T Petitioner is the defendant in O.S.No.429/2005, on the file of the Sub Court, Irinjalakuda. In the suit, petitioner filed I.A.No.3819/2007, an application for appointing an expert Commissioner to assess the remaining portion of the work, which was completed later. Under Ext.P7 order, learned Sub Judge dismissed the application. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioner was heard. The argument of the learned counsel is that he has already preferred a counter claim, and if ultimately it is found that petitioner is entitled to the amount claimed in the counter claim, there should be evidence to prove the quantum of work carried out by the petitioner, and in such circumstances, the application should have been allowed. The learned counsel further argued that in any case, court should have deferred consideration of the application till a finding is arrived, W.P.(C) No.17010/2008 2 on the entitlement of the petitioner for the amount claimed. 3. On hearing the learned counsel and on going through Ext.P7 order, I do not find any illegality or irregularity in the impugned order. Petitioner is entitled to adduce evidence in support of his claim. If ultimately after evidence, court finds that evidence on the quantum of work should be there, this order will not preclude the court from appointing the expert Commissioner. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.