JUDGMENT :

C. JAYACHANDRAN, J.

1. The question, which arise for consideration in this Original Petition, is whether an interlocutory application for issuance of Commission, that too at the instance of the defendants in the suit, can be allowed before grant of leave under Section 92 of the Code of Civil Procedure.

2. The plaintiffs filed an application under Section 92 of the Code seeking leave to file the instant suit. While so, the defendants sought for issuance of a Commission, apparently to disprove the allegations in the plaint. The same was allowed by the learned Sub Judge by Ext.P6 order, which is under challenge herein.

3. Sri. B. Krishna Mani, learned counsel for the petitioners relied upon the following judgments to canvass the proposition that a commission application cannot be allowed before grant of leave under Section 92 of the Code:

(i) Achuthan Pillai vs. Mohanan Unnithan, 1979 KLT SN 53 (Case No. 116)

(ii) Mathew vs. Thomas, 1982 KLT 493

(iii) Sulaiman vs. Chunakara S.M. Jama Ath, 1982 KLT 790

(iv) Govindan vs. Koovalasseri S.M.K. Trust, 2001 (2) KLT 907

4. Per contra, it was argued by Sri. G. Sreekumar Chelur, learned counsel for the respondents that the prima facie correct