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2026 Supreme(Online)(Ker) 34084
IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R.Ravi, J
Sasi – Appellant
Versus
Vijayan V.K – Respondent
OP(C) NO. 1706 OF 2024
For the Appellants/Petitioners: Roy Thomas, K.K.Subeesh
For the Respondents: C.Dilip, Jijo Joseph, P.N.Vijayan Nair
An interlocutory application for an expert commission should not be dismissed solely on the ground of delay if the evidence is relevant and necessary for the effective adjudication and disposal of the suit.
Headnote:The case involves a challenge to an order dismissing an application for an Advocate Commissioner and an expert to determine parameters for lateral support in a civil suit. The lower court dismissed the application on the ground of delay and perceived lack of prosecutorial interest. This Court found the lower court’s reasoning unsustainable, observing that the presence of previous reports does not preclude the necessity of expert evidence for specific technical determinations. The main issue raised was whether an interlocutory application for expert evidence can be dismissed on the basis of trial readiness when the application is pertinent to the final adjudication of the suit. The court reasoned that since the application is necessary to identify the specific area required for lateral support, it should be allowed to facilitate a comprehensive trial, regardless of the timing of the application’s press. The final outcome was that the order of the lower court was set aside, the interlocutory application was allowed, and the lower court was directed to proceed with appointing an expert.
JUDGMENT
The petitioner has challenged Ext.P9 order whereby IA No.1/2021 in OS No.566/2018, praying for appointment of an Advocate Commissioner with the assistance of an expert has been dismissed. The reason stated in the order is that though the petition was filed on 10.12.2021 and the objections were filed on 04.03.2022, the petitioner pressed for hearing the petition only when the case was listed for trial. It is further stated that there are 3 commission reports available with photographs. It is also stated that it would appear that the petitioner is not genuinely interested in prosecuting the interlocutory application.
2. The reasoning of the court below is unsustainable.
It cannot be presumed that the person is not interested in prosecuting an interlocutory application when admittedly the application had been filed on 10.12.2021 and objections were filed on 04.03.2022. Before listing for trial, all the interlocutory applications could have been heard and decided. The case is relating to a right for natural lateral support and what the petitioner wants to ascertain through an expert is the area that would be required for providing the lateral support. The said particulars will be useful for the final disposal of the suit.
In the above circumstances, Ext.P9 is set aside. IA No.1/2021 is allowed. The Munsiff Court, Muvattupuzha is directed to appoint an expert from the panels submitted by both sides, along with the Advocate Commissioner who had earlier inspected the property, and call for a report from them and proceed with the trial thereafter.
