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2006 DIGILAW 506 (KER)

Elsamma Thomas v. Father Thomas Vempala

2006-08-08

M.RAMACHANDRAN

body2006
Judgment :- Plaintiff in O.S.No.84/99 on the file of Principal Subordinate Judge, Trivandrum challenges Ext.P7 order passed by the learned Judge in I.A.Nos.3872/04 and 3887/04 dated 17.9.2004. The interim applications had been filed respectively by the plaintiff and defendants, seeking separate reliefs. The Subordinate Judge had dismissed both the applications expressing the view that what was expedient was a disposal of the long pending suits. 2. The counsel, Sri. Parthasarathy submits that although expediency might be of welcome, that should not be at the cost of a proper adjudication. He submits that the stakes involved in the suit were substantial, and relevancy and determination of interim applications were to be examined with reference to the facts of the case. 3. The plaintiff had been engaged by the defendants for construction of a school building, on definite terms. Before the project was completed, the agreement is seen to have been terminated. The suit was for rendition of accounts. An expert commission had been taken, and a report is seen to have been filed. In the course of the report also, commission had been deputed to assess the local situation for assisting the court to come to a final conclusion as regards the compensation and other questions. The claim involved appears to be in the region of Rupees four lakhs. 4. Petitioner submits that the reports were half hearted, though an expert engineer had assisted the advocate commission. Request had been made about, requirement for assistance from a chartered, structural engineer. But, request made by I.A.4649/01 had been rejected. A civil revision petition was thereafter filed as C.R.P.285/04. By judgment, dated 4.10.2002, this Court, held that being a suit for damages, court ought to have permitted the commission to value the work executed. 5. Consequently, it had been directed that on the basis of the previous report, same commissioner with the help of an expert commissioner was to value the work done by the plaintiff. Exts.P2 and P3 has been produced by the petitioner so as to show that in deference to the directions of the High Court, an expert, commissioner had been appointed. He had been directed to make a preliminary report, and a final report. 6. The chartered engineer had submitted a report to the court directly. Exts.P2 and P3 has been produced by the petitioner so as to show that in deference to the directions of the High Court, an expert, commissioner had been appointed. He had been directed to make a preliminary report, and a final report. 6. The chartered engineer had submitted a report to the court directly. The opinions of the two experts however had a wide cleavage, in that when the expert reported about the cost, of a work as around Rs.33 lakhs, according to the chartered engineer, the cost could have been assessable at about Rs.80 lakhs. Understandably, the defendants were alarmed, and they had submitted objections about the report of chartered accountant, especially highlighting that he had no business to submit a report to the court, as his role was to assist the expert engineer and through him the advocate commissioner to the proceedings. 7. I.A.3887/04 is seen to have been filed by the defendants, requesting the Court to reject the report. The connected application is filed by plaintiff, requesting the Court to pronounce upon the acceptability of the report, as the apprehension was that if for technical reason the report is found as not acceptable, there is risk that he will be prejudiced for failure to produce proper evidence. His predicament was that he earlier reports filed as C3 and C3(a) respectively by the advocate commissioner and expert engineer had been set aside by an order in I.A.4626/03. However, the court chose to reject both petitions, pointing out that the direction passed by the High Court in earlier proceedings obliged him to dispose of the suit within a dead line, which was about to be reached. 8. Petitioner points out that a reading of the order would itself indicate that the Subordinate Judge was aware of the necessity to pass order on merits, but was obsessed about the requirement to dispose of the suit finally within the time suggested by the court. Of course there is some amount of reassurance that in the course of hearing if found necessary the matter would be reopened. Mr. Parthasarathy submits that experience always was that once a matter is taken up for final hearing, almost always no further opportunity is given to any party to bring in additional materials and the risk involved therefore is too great to accept. 9. Mr. Parthasarathy submits that experience always was that once a matter is taken up for final hearing, almost always no further opportunity is given to any party to bring in additional materials and the risk involved therefore is too great to accept. 9. Counsel representing the respondents submits that although they had not challenged the order dated 17.9.04, in case there is a remand, the points urged by them in support of the application also necessarily would have to be reconsidered. But I find hardly any justification to allow this request, as they are as at present bound by the order, which has attained finality. 10. Part III of the Code of Civil Procedure, when dealing with incidental proceedings refers to the power of the court, to issue commissions vide Rule 75. When it is found necessary to examine any person, or for making local investigations, or for examining accounts, commissioner can be appointed by the court. The court can also appoint commissioner for making partitions, for conducting sale of perishables, to perform ministerial acts, or to hold scientific, technical or expert investigations. 11. Order XXVI Rule 9 of the Code deals with issues relating to local investigations, and this indicate calling up of experts for assessing damages. An advocate commissioner has already been appointed. He is assisted by an expert engineer. At the request of the expert and as authorised by this Court, one other person has been directed to be involved viz a chartered engineer, and the court has specifically asked him to furnish a report to the court. He is also given the status of a commissioner. Such directions have not been challenged. Although the position available is that three commissioners have been appointed, because of the order passed in I.A.4626/03, multiple reports leading to confusion might not be there. The request therefore was that before final adjudication, the court was to indicate as to whether there was any technically vitiating circumstances available. It would have given the parties an opportunity to rectify the defects and proceed on firm grounds. This was a reasonable request. 12. The discussion as above, compels me to interfere with Ext.P7 order to the prayed for by the petitioner. It would have given the parties an opportunity to rectify the defects and proceed on firm grounds. This was a reasonable request. 12. The discussion as above, compels me to interfere with Ext.P7 order to the prayed for by the petitioner. The Subordinate court is directed to take up and pass orders afresh on I.A.3872/04 independently and depending on the outcome of the order, parties to the suit are to be afforded opportunity to arrange their affairs for a full adjudication in respect of contested issues. The court should strive for an expeditious disposal of the suit thereafter. C.R.P. Is disposed of as above. There will be no order as to costs.