IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 36428 of 2009(O) -------------------------- I.A.NOS.3887/2004 & 3872/2004 IN OS.84/1999 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONERS: --------------- 1. FR.THOMAS VEMPALA, FORMER PRINCIPAL, CHRIST NAGAR SCHOOL, KOWDIAR P.O., THIRUVANANTHAPURAM. 2. FR.MATHEW CHAKKALAKKAL, MANAGER, CHRIST NAGAR SCHOOL, KOWDIAR P.O., THIRUVANANTHAPURAM. 3. FR.E.C.JOHN, ENGINEER INCHARGE OF CONSTRUCTION OF CHRIST NAGAR PUBLIC SCHOOL, THIRUVANANTHAPURAM. 4. CHRIST NAGAR EDUCATIONAL & CHARITABLE TRUST HAVING ITS OFFICE AT CHRIST NAGAR SCHOOL, KOWDIAR P.O., THIRUVANANTHAPURAM. BY ADV. MR.R.S.KALKURA MR.M.S.KALESH MR.HARISH GOPINATH MR.V.VINAY MENON MR.KVP.JAYALEKSHMY RESPONDENT: --------------- ELSAMMA THOMAS, KOTTUKAPPALLY PUTHUMANA, MOADS LANE, PALAYAM, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.36428 of 2009 - O --------------------------------- Dated this the 21st day of December, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari quashing or setting aside Ext.P25 as grossly illegal and wrong.” 2. The disputes canvassed giving rise to the writ petition relate to the construction of a building for a school which is run by the present petitioners, of which the fourth petitioner is stated to be a private educational agency. Three suits, all in respect of the above disputes, filed more than a decade ago, O.S.Nos.58 of 1999, 84 of 1999 & 194 of 1999 continue their lethargic pace despite specific directions given by this Court fixing time limit for completion of the trial and disposal of the cases, that too nearly five years ago. O.S.No.58 of 1999 was a suit for money filed by the first petitioner as the sole plaintiff, but, later continued with impleading the second petitioner also as a second plaintiff, against the respondent, and the claim was based on a promissory W.P.(C).No.36428 of 2009 - O 2 note. Respondent resisted the claim contending that there were several transactions between the parties relating to purchase of land, construction of building etc. and the pronote produced by the plaintiffs was created by coercion and undue influence and it is void. Ext.P1 is the copy of the plaint in the above suit and Ext.P2, the written statement of the respondent/defendant. The respondent as plaintiff has filed O.S.No.84 of 1999 which was also a suit for recovery of money towards damages for breach of contract and for rendering account in respect of the construction work of a building for a school managed by the petitioners. Ext.P3 is the copy of the plaint in that suit. Petitioners/defendants in that suit filed Ext.P4 written statement resisting the suit claim. O.S.No.194 of 1999 is another suit filed against the respondent and two others by a religious institution, as represented by the second petitioner in the writ petition. That suit also related to the construction of the building for the second plaintiff in respect of which the respondent has raised her claim in O.S.No.84 of 1999. The plaintiff in O.S.No.194 of 1999 claimed recovery of money and damages against the respondent alleging W.P.(C).No.36428 of 2009 - O 3 that on account of default committed in the construction work undertaken by the respondent, the plaintiffs have suffered damages. Ext.P5 is the copy of the plaint in that suit and Ext.P6 the written statement filed by the respondent resisting the claim. 3. For disposal of the present writ petition the rival claims set up by the parties in the respective suits with reference to the pleadings in such cases and also what had transpired during the pendency of the suits in which evidence had already been recorded and completed years before is not called for. Challenge raised in the writ petition is against Ext.P25 order passed by the learned Sub Judge accepting the report filed by the structural engineer, negativing the objections raised by the petitioners to that report, preliminarily before the disposal of the suit. In the suits jointly tried, an advocate commissioner had been appointed to ascertain the matters sought for by both sides with respect to the construction of the school over which rival claims for damages are set up by the parties. An expert engineer was appointed to assist the advocate commissioner. Later, a structural engineer was also appointed by the court to determine W.P.(C).No.36428 of 2009 - O 4 the technical matters connected with the construction after having inspection of the structure. Acceptability of the report filed by the structural engineer had been challenged by the present petitioners. Whereas the petitioners moved for setting aside the report (C4) filed by the structural engineer as vitiated on various grounds respondent applied for its consideration preliminarily. Both the applications after hearing both sides were disposed vide Ext.25 order accepting C4 report dismissing the application of the petitioners and allowing that of the respondent. Previously the court below has relegated consideration of the acceptability of that report at the final disposal dismissing the applications moved by both sides. That order was challenged by the respondent by way of a writ petition before this Court and vide Ext.P24 judgment the order of the learned Sub Judge was modified to the extent directing him to take up and pass orders afresh on I.A.No.3872 of 2004 filed by the respondent for considering the acceptability of the C4 report preliminarily before proceedings further with the trial of the case. In the light of Ext.P24 order I.A.No.3887 of 2004 filed by the petitioners herein W.P.(C).No.36428 of 2009 - O 5 which had been dismissed earlier by the learned Sub Judge did not at all arise for consideration as the direction given was only for considering the other application, the application of the respondent alone is I.A.No.3872 of 2004. So much so, Ext.P25 common order passed by the learned Sub Judge reconsidering both the interlocutory applications, 3887 of 2004 & 3872 of 2004 was not proper and correct. Petitioners who have submitted to the orders dismissing their application, I.A.No.3887 of 2004 earlier by the learned Sub Judge cannot canvass any further challenge before that court taking advantage of the directions in Ext.P24 judgment. P25 common order was passed by the learned Sub Judge overlooking the directions in Ext.P24 judgment. 4. Learned counsel for the petitioners realising the limited scope of challenge that can be raised in the writ petition against Ext.P25 order in view of Ext.P24 judgment rendered by this Court earlier attempted to impeach that order contending that C4 report should have been tested on the basis of the evidence of the structural engineer who was examined as PW6 in W.P.(C).No.36428 of 2009 - O 6 the case. Though the learned Sub Judge has adverted to the evidence of PW6 there is no proper appreciation or scrutiny of his evidence in evaluating C4 report is the grievance canvassed by the learned counsel for the petitioner for invoking the visitorial jurisdiction of this Court to challenge Ext.P25 order. Considering the submissions and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. Taking note of the facts and circumstances presented, I am satisfied that the petitioners are not entitled to invoke the visitorial jurisdiction of this Court to examine the correctness and propriety of the conclusion formed by the learned Sub Judge on the acceptability of C4 report filed by the structural engineer. A commission report, whether it be by the advocate commissioner or an expert commissioner, is after all a piece of evidence, the value of which has to be considered with reference to other materials tendered in the case. Commissioner who prepared C4 report was examined as PW6. Learned Sub Judge after scrutiny of the report with reference to the materials available has found that the report is acceptable. Challenge W.P.(C).No.36428 of 2009 - O 7 raised by the petitioners by filing the application I.A.No.3887 of 2004 had been dismissed earlier. They have been given a further opportunity to raise their objections on the acceptability of C4 report prepared by the structural engineer. If at all they have any further grievance over C4 report which was found acceptable by the court the remedy is to challenge the finding so made in the appropriate forum in case an adverse decision is rendered against them in the final disposal of the suits. This Court in exercise of its visitorial jurisdiction cannot be expected to sit in judgment over the acceptability of a commission report collected in the suit or proceedings by evaluating its merit with reference to evidence tendered by examining the commissioner and producing other materials. However, I make it clear that Ext.P25 order passed by the learned Sub Judge holding that the report is acceptable will not preclude the petitioners from pointing out any infirmity in that report with reference to evidence of PW6, structural engineer at the final hearing of the case. Infirmities to C4 report if any pointed out by the petitioners in the final hearing shall also be taken note of by the learned Sub Judge in placing W.P.(C).No.36428 of 2009 - O 8 reliance on that report though it has been found the report is acceptable. However, I make it clear that pointing out of infirmities, if any, in the report as to its evidentiary value by the petitioners will not confer on them any right to impeach the correctness or question the acceptability of the report under Ext.P25 order passed by the learned Sub Judge. Learned Sub Judge is directed to dispose the suits, as expeditiously as possible, at any rate, before closing of the courts for the mid summer vacation. Writ petition is disposed as above. Send a copy of the judgment to the court concerned forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-