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2014 DIGILAW 3920 (MAD)

Universal Construction Builders, Chitlapakkam, Chennai v. K. Jothilakshmi

2014-10-17

P.R.SHIVAKUMAR

body2014
JUDGMENT P.R. SHIVAKUMAR, J. 1. Heard both sides. 2. The plaintiff in the original suit O.S. No. 39 of 2009 pending on the file of the Principal Subordinate Judge, Chengalpattu, is the petitioner in the present revision. The respondent herein/defendant is the land owner for whom the revision petitioner/plaintiff undertook to put up a construction at an agreed rate. According to the revision petitioner, a sum of Rs. 2,16,904/- was due from the respondent herein/defendant towards the balance of cost of construction and the additional work done in the suit property. The same is disputed by the respondent herein/defendant on the ground that certain works remain incomplete and the quality of work is also not in accordance with the agreed terms. The respondent herein/defendant also contends that there are many defects in the execution of the work carried out by the revision petitioner/plaintiff, to deny her liability to pay the amount claimed in the suit. Under the said circumstances, the revision petitioner herein/plaintiff filed a petition in I.A. No. 169 of 2009 for appointment of an Advocate-Commissioner to make local inspection of the suit property with the help of a qualified licensed Civil Engineer to note down the size, nature of construction, the additional features provided to the building and also deficiency, if any, in the construction work done by the revision petitioner herein/plaintiff that might be pointed out by the respondent herein/defendant and to value the cost of the additional provisions made by the revision petitioner herein/plaintiff in the building and also the cost of the deficiency in terms of money. 3. As the respondent herein/defendant expressed no objection for appointment of an Advocate Commissioner, the said petition, after enquiry came to be allowed by an order dated 24.07.2009 and one Mr. R. Thairiyanathan, advocate was appointed as Advocate Commissioner to inspect the property along with a qualified licensed Civil Engineer approved by PWD to note the construction carried out in the property with regard to its quality and measurement. It was also specifically directed in the said order that the Commissioner should inspect the property after giving notice to both sides in advance. Thereafter, the said Commissioner inspected the property along with a licensed Civil Engineer and submitted a report annexing the report of the engineer. 4. It was also specifically directed in the said order that the Commissioner should inspect the property after giving notice to both sides in advance. Thereafter, the said Commissioner inspected the property along with a licensed Civil Engineer and submitted a report annexing the report of the engineer. 4. The respondent herein/defendant filed an objection to the Commissioner's Report and prayed for rejection of the said report and for appointment of a new Commissioner to inspect the property with the help of the qualified licensed Civil Engineer. The said objection was raised pointing out the fact that the warrant issued to the Commissioner was not in tune with the order passed by the trial court in so far as the warrant did not refer to the noting of the quality of the construction made by the revision petitioner herein/plaintiff in the suit property and that the engineer, who assisted the Commissioner, showed bias in listing out the defects pointed out by the respondent herein/defendant and making an observation that the said defects would be rectified by the contractor after receiving the balance payment from the respondent herein/defendant. As the said objection did not result in the rejection of the report or re-issuance of the warrant, the respondent herein/defendant filed a petition for scrapping it pointing out the defect in the warrant and also biased observation in the report of the Engineer and also paragraph 6 of the Commissioner's Report, which reads as follows:- "6. I submit that the respondent and her counsel were objecting for taking measurements and issued a memo of inspection, which reflected the fault of petitioner in existing construction. Since the scope of warrant is to ascertain the additional construction, I instructed the civil engineer to furnish a report for the same." 5. The learned trial judge by the impugned order dated 27.10.2010 allowed the petition for eschewing the report of the Commissioner dated 06.11.2009 and re-issuance of the warrant to the very same Commissioner for fresh inspection and submit a report regarding the constructions carried out in the suit property with its quality and measurements. As against the said order, the present civil revision petition has been filed. 6. As against the said order, the present civil revision petition has been filed. 6. As pointed out by the learned counsel for the respondent herein/defendant, the said part of the report of the Commissioner showed that the Commissioner was of the view that it was not within the scope of the warrant to note the quality of the construction and the defects pointed out by the respondent herein/defendant. The same was the reason why the learned trial judge chose to eschew the earlier report of the Commissioner dated 06.11.2009 and issued a fresh warrant, which shall be in accordance with the order dated 24.07.2009 made in I.A. No. 169 of 2009, which is almost reproduced in the order dated 27.10.2010 made in I.A. No. 308 of 2010. Upon considering the above said aspects, this court does not find any defect or infirmity in the said order passed by the learned trial judge. This court does not find any reason to interfere with the same in exercise of its power of revision of this court. In the result, the civil revision petition is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.