The writ petition is filed seeking the following reliefs:

"i) To call all records relating to Exhibit P7 to this Honourable Court and an order passed setting aside Exhibit P7 order.

ii) To pass an order staying all further proceedings of the commissioner appointed as per Exhibit P7 order."

2. Petitioner is the defendant in O.S.No.52/2003 on the file of the Sub Court, Thiruvananthapuram and the respondent, the plaintiff. Suit is one for recovery of money for the work allegedly done by the plaintiff pursuant to a contract between them. Challenge raised in the petition is against an order passed by the learned Sub Judge in the application moved by the plaintiff for appointing an advocate commissioner to ascertain the matters sought for with the assistance of an expert. Ext.P7 is the copy of the order passed by the court below allowing that commission application. Correctness and propriety of Ext.P7 order is challenged by the defendant in the petition invoking the W.P.(C).No.20763 of 2009 - O 2 supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

3. I heard the counsel on both sides.

4. Admittedly, an agreement was entered into between the parties for construction of internal roads, tow walls, side drains, external water supply and sewerage etc. at KAP III Battalion, Adoor. Where as the plaintiff imputes of breach of contract, after considerable work was done, in terms of the contract by the fault of the defendant the contra is raised by the defendant contending that on account of the breach committed and failure to do the work by the plaintiff the contract was terminated and entrusted to another agency on 12.2.2001 and the work was completed on 11.9.2004. While the new agency was doing the work, the suit was laid claiming the sum covered by the plaint and an application for appointment of a commission was also moved to assess the work done by the plaintiff. As the summer holidays of the court intervened, plaintiff filed an original petition as O.P.No.13783/2003 before this Court in which pursuant to orders passed, a commission was appointed to W.P. (C).No.20763 of 2009 - O 3 ascertain the matters sought for with the assistance of an expert. After obtaining a commission report, the original petition was disposed of. The expert, who assisted the commissioner in preparing the report later passed away. Acceptability of that report prepared with the assistance of the expert, who is no more in the suit was disputed by the defendant mainly canvassing that the report prepared in another proceeding can be received in evidence, only after examining the commissioner. Since the expert is no more, the defendant contended the report prepared with his assistance cannot be admitted and proved in the case. Challenge being so raised by the defendant on the acceptability of the report, the plaintiff moved a new application for appointing another commissioner to prepare a fresh report with the assistance of an expert over the matters set out in his application. That application was also objected to by the defendant, on various grounds, including an objection that no purpose would be served as the entire work had been subsequently carried out and completed by a new agency. At this stage, it is practically impossible to ascertain what part of W.P. (C).No.20763 of 2009 -O 4 contract was done

by the plaintiff before this contract was terminated, according to the defendant. Measurement books and relevant documents are sufficient to ascertain the work performed by the plaintiff and it has no right to get a report prepared by a commission was another objection raised by the defendant. Learned Sub Judge after hearing both sides, negativing the objections, allowed the commission application by Et.P7 order.

5. After hearing the counsel on both sides at length with reference to Ext.P7 order passed by the learned Sub Judge, I find some of the observations made in that order presumably on the objections ra