IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 476 of 2010(O)
1. K.G.SUNIL DUTH,
... Petitioner
Vs
1. REV.FR.K.P.VARGHESE @ REV.FR.GEEVARGHESE
... Respondent
2. LEELAMMA VARGHESE,
3. DENNIS VARGHESE,
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :02/11/2010
O R D E R
THOMAS P.JOSEPH, J.
====================================
O.P(C) No.476 of 2010
====================================
Dated this the 2nd day of November, 2010
J U D G M E N T
Parties before me are in litigation in two suits – O.S. No.381
of 2002 filed by the respondents and O.S. No.372 of 2005 filed by
the petitioner. Both concerned recovery of certain amount
allegedly due to them from the opposite party. It is not disputed
that there was a work contract executed between parties as per
which petitioner has done certain work. Respondents claimed that
the work was not done in accordance with the specifications and
accordingly they have suffered a loss of Rupees thirteen lakhs and
odd which is sought to be recovered by the petitioner. Petitioner
while resisting that suit responded by filing O.S. No.372 of 2005
against respondents claiming that he is entitled to recover Rupees
fifteen lakhs and odd as per the bills approved by the Architect of
the respondents themselves. In O.S. No.381 of 2002 the Advocate
Commissioner inspected the disputed building and submitted
reports. That was followed by an application filed by the
respondents in the same suit for appointment of an Expert
O.P(C) No.476 of 2010
-: 2 :-
Commissioner (I.A.No.3332 of 2004). On that application learned
Sub Judge obtained pannels from both sides and from those
pannels appointed an Expert Commissioner who is a Civil
Engineer and he has submitted his report on 25.05.2006. It is said
petitioner did not prefer any objection to that report and in the
meantime there was an ex parte decision against petitioner which
ultimately was set aside. While this Court setting aside the ex
parte decisions, directed learned Sub Judge to dispose of the
suits as expeditiously as possible. Thereafter things moved faster
and cases are posted in the list on 03.11.2010. In the meantime
petitioner filed I.A. No.1874 of 2010 in O.S. No.372 of 2005 to
appoint an Expert Commissioner. Petitioner has raised various
contentions in the affidavit in support of the application.
Objections are that the Expert Commissioner who submitted
report in O.S. No.381 of 2002 has calculated costs of construction
based on PWD rate and without taking into account bills
approved by the Architect of respondents. It is also contended
that certain work/additional work done by petitioner were not
taken into account by the Expert Commissioner. Application was
resisted by the respondents. Learned Sub Judge by Ext.P13,
order dated October 6, 2010 has dismissed the application
O.P(C) No.476 of 2010
-: 3 :-
observing that attempt of petitioner was to protract proceeding
and that the application is not bona fide. Learned Sub Judge
pointed out that report was already filed in O.S. No.381 of 2002
and that petitioner has not preferred any objection to that
report and no application was also filed to set aside the report and
in the circumstances it is not necessary to entertain I.A. No.1874
of 2010. It is accordingly that by Ext.P13, order application was
dismissed. Learned counsel for petitioner reiterated arguments
advanced in the court below and stated in the affidavit in support
of I.A. No.1874 of 2010. According to learned counsel for a fair
and just disposal of the suits and settlement of controversy
between parties it is necessary that an Expert Commissioner is
appointed as requested in I.A. No.1874 of 2010. Learned counsel
states that the mere fact that no objection was preferred to the
report submitted by the Expert Commissioner in O.S. No.381 of
2002 may not be taken as a ground to deprive petitioner’s right to
establish the claim made by him in O.S. No.372 of 2005.
Application is resisted by learned counsel for respondents. It is
contended that application is highly belated and that in spite of
the Expert Commissioner inspecting every nook and corner of the
construction submitted his report on 25.05.2006 no objection was
O.P(C) No.476 of 2010
-: 4 :-
preferred by the petitioners even now and it is only at the fag end
of the proceedings that petitioner has chosen to file I.A. No.1874
of 2010.
2. I have heard learned counsel on both sides. Portions
of the report already submitted by the Commissioner in O.S.
No.381 of 2002 have been exhibited in this petition as Exts.P9
and P10. Learned counsel for respondents submits that report
of the Expert Commissioner run into 95 pages. I think it will be a
difficult task for me at this stage to compare the report and
coming to the conclusion whether Expert Commissioner has left
out from assessment any portion of the work allegedly done by
petitioner. If any portion of the work actually done by petitioner
has been left out by the Expert Commissioner from measurement
certainly notwithstanding the fact that no objection was preferred
to the report of the Expert Commissioner, I think petitioner must
be given an opportunity to get those matters also ascertained
through the Expert Commissioner. But I do not find reason to go
into the correctness of the report already submitted by the Expert
Commissioner at this stage. So far as the matters he has taken
note of and stated in the report are concerned the trial court
has to decide its correctness after recording evidence. Having
O.P(C) No.476 of 2010
-: 5 :-
heard counsel on both sides I am persuaded to think that
petitioner could be given opportunity in case the Expert
Commissioner has not measured any work actually done by
petitioner, to ascertain such work by the same Commissioner
and in accordance with the specifications as per which he has
already ascertained the work and reported in his report. This
could be done after the Expert Commissioner is examined and
petitioner brings out any inadequacy in the report regarding the
actual work done by him but left out by Expert Commissioner in
his report.
Resultantly, this petition is disposed of in the following lines:
(i) Order on I.A. No.1874 of 2010 in O.S.
No.372 of 2005 is modified to the extent that if in the
course of evidence petitioner brings out that any work
actually done by him was not ascertained and
measured by the Expert Commissioner as per the
report submitted in O.S. No.381 of 2002 it will be open
to the petitioner to request learned Sub Judge to
depute the same Expert Commissioner to ascertain,
measure and report on such work as has been left out
from consideration by the Expert Commissioner.
(ii) The Expert Commissioner shall ascertain
O.P(C) No.476 of 2010
-: 6 :-
and measure such works also in accordance with the
same specifications he has already assessed the work
and stated in the report submitted in O.S. No.381 of
2002.
(iii) If any such report is required, learned Sub
Judge shall depute the same Expert Commissioner to
report on such work at the expense of petitioner.
I make it clear that it will also be open to the petitioner to
adduce evidence in proof of the actual work he is claimed to have
done and allegedly left out by the Expert Commissioner from
measurement.
THOMAS P. JOSEPH, JUDGE.
vsv