IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 18629 of 2008(P) ----------------------------------------- (I.A.NO.3899/2005 IN O.S.273/2005 OF SUB COURT, TRIVANDRUM) PETITIONER: --------------------- KERALA POLICE HOUSING AND CONSTRUCTION CORPORATION LTD., CHANDRASEKHARAN NAIR STADIUM, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, REP. BY ITS MANAGING DIRECTOR. BY ADV. SRI.G.S.REGHUNATH RESPONDENT: ---------------------- M/S. SURYA CONSTRUCTIONS, PALACE ARCADE, STATUS JUNCTION, TRIPUNITHURA-682 301, REGISTERED PARTNERSHIP, REP. BY ITS MANAGING PARTNER, MATHEW KALARICKAL, KALARICKAL HOUSE, KIZHAKAMBALAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.BABU THOMAS - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.18629/2008 P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.273 OF 2005 ON THE FILE OF THE SUB COURT, TRIVANDRUM. EXT.P2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.273 OF 2005 on the FILE OF THE SUB COURT, TRIVANDRUM. EXT.P3: COPY OF THE COMMISSION APPLICATION I.A.3899/2005 IN O.S.NO.273 OF 2005 ON THE FILE OF THE SUB COURT, TRIVANDRUM. EXT.P4: COPY OF THE OBJECTION TO THE COMMISSION APPLICATION. EXT.P5: COPY OF THE ORDER IN I.A.3899/2005 IN O.S.NO.273 OF 2005 ON THE FILE OF THE SUB COURT, TRIVANDRUM. EXT.P6: COPY OF ORDER IN I.A.NO.3899/05 DTD. 10/04/2008 IN O.S.NO.273 OF 2005 ON THE FILE OF THE SUB COURT, TRIVANDRUM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.18629 of 2008 ------------------------------- Dated this the 12 th August, 2008. J U D G M E N T First defendant in O.S.No.273 of 2005, on the file of Sub Court, Thiruvananthapuram, is the petitioner. First respondent is the plaintiff. First respondent instituted the suit for declaration that defendants committed breach of contract under agreement No.24/1998-99 dated 2.7.1998, for the reasons alleged and also for realisation of Rs.1,28,32,231/= being the unpaid value of work allegedly carried out by the first respondent between 7.7.1999 and 10.5.2003, and Rs.11,37,450/= towards unpaid cost of cut brick masonry work carried out and Rs.5,85,000/= towards unpaid last bill amount for value of work carried out and also to release the bank guarantee of Rs.5 lakhs. First respondent filed I.A.No.3899 of 2005 for appointing a commission. Sub Judge originally allowed the application W.P.(C) No.18629/2008 2 under Ext.P5 order on 29.11.2007. That order was challenged before this Court in W.P.(C) No.37278 of 2007. As per judgment dated 17.12.2007, this Court set aside that order holding that Ext.P5 is not a non-speaking order and directed the Sub Court to re-consider the petition and pass fresh orders. Sub Judge thereafter passed Ext.P6 order appointing Chief Engineer, PWD (Retired) as the expert Commissioner. This petition is filed under Article 227 of the Constitution of India challenging Ext.P6 order. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Learned counsel appearing for the first respondent argued that to fix the quantum of work carried out by the first respondent, appointment of an expert Commissioner as done by the trial court under Ext.P6 order is absolutely necessary, and, therefore, there is no reason to interfere with Ext.P6 order. W.P.(C) No.18629/2008 3 4. Learned counsel appearing for the petitioner submitted that the work allegedly carried out by the first respondent is not under agreement No.24/1998-99, as alleged in the plaint, but agreement No.25/1998-99. Learned counsel also argued that appointment of a Commissioner is not necessary and the points sought to be ascertained by the Commissioner are facts which are to be proved before the court independently by producing relevant records, and, therefore, Ext.P6 order is to be quashed. 5. On hearing the learned counsel on both sides, it is clear that a finding on the claim for realisation of the amount, depends the finding on the contention of the first respondent that defendants committed breach of contract. If that finding is against the plaintiff, question of fixing the quantum of the amount due to respondent will not arise. In such circumstances, it is not necessary to appoint a Commission at this stage, as has been done by learned Sub Judge under Ext.P6 order. Ext.P6 order is therefore W.P.(C) No.18629/2008 4 quashed. Learned Sub Judge is directed to record the evidence with regard to the question whether defendants committed breach of contract as alleged by the plaintiff. If that finding is in favour of the plaintiff, Sub Judge is to appoint a Commission to fix the quantum of the work carried out and the cost of the work and the amount to the plaintiff, on the basis of the record and other evidence. Without prejudice to the appointment of Commission at that stage, writ petition is disposed quashing Ext.P6 order. Sub Judge, Thiruvananthapuram, is directed to decide the issue relating to the declaration sought for in the suit first expeditiously and thereafter consider the question of appointment of Commission. M.SASIDHARAN NAMBIAR, JUDGE nj.