IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 FAO.No. 219 of 2009() --------------------- I.A.NO.781/09 IN OS.147/2009 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/DEFENDANT/COUNTER-PETITIONER ---------------------------------------------------------- P.SUBASH CHANDRAN, PROPRIETOR, NOBLE CONSTRUCTIONS, PKR BUILDINGS, ATTINGAL. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT: PLAINTIFF/PETITIONER ----------------------------------- SHYAMKUMAR, SON OF RAGHAVAN, SREEMANGALAM, VALIAKUNNU, ATTINGAL, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SUDHARSANA SHYAMKUMAR, DAUGHTER OF SARASWATHY, SREEMANGALAM, VALIAKUNNU, ATTINGAL. BY ADV. SRI.M.SREEKUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No. 219 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of October, 2009 JUDGMENT Joseph, J. This appeal is directed against the order passed in I.A.No.781 of 2009 in O.S.No. 147 of 2009. That I.A. was filed by the respondent herein seeking an interim injunction to restrain the appellant from trespassing into the plaint schedule property or causing any obstruction in completing the construction of the building situated therein or committing any act detrimental to the peaceful possession and enjoyment of the respondent over the plaint schedule property. The suit is one for damages and for permanent prohibitory injunction. 2. The case of the appellant/plaintiff is that the parties have entered into an agreement for construction of a F.A.O.No. 219 of 2009 2 commercial building. Payment was to be made in stages. There was a supplementary agreement, under which the appellant had to complete the remaining work within three months from the date of the said supplementary agreement. 3. According to the respondent, the work was not completed and there was over payment and hence the suit for damages. The respondent took out an expert commission. A report has been submitted by the Assistant Executive Engineer, which is produced as Annex.R1. The court below has granted injunction sought for and thereby the appellant and his men were injuncted from causing any obstruction for the completion of the building by the respondent. Of course, the appellant is permitted to remove his building materials and machineries from the premises. 4. We heard the learned counsel for the appellant and the learned counsel for the respondent. 5. The learned counsel for the appellant would submit that the order reaches injustice to him in so far as he has a case that he F.A.O.No. 219 of 2009 3 has done considerable work. According to him, Annex.R1 report of the Commissioner does not reflect the quantum of work actually carried out by him and if the impugned order is put into effect, it will reach irreparable damage to him as he would be without means to establish the quantum of work and the present stage of the work. He took us through the report. He would point out that he had filed objections to the report also. 6. The learned counsel for the appellant pointed out that it is without deciding on his objection that the court below has allowed the respondent to carry out the work, which, as already noticed, according to him, will result in the appellant being left without any means to establish his case at a later stage. The learned counsel would further submit that the appellant may be permitted to take out an expert commission to get a report and he would submit that thereafter he would not have any objection if the respondent is permitted to carry out the work by himself. F.A.O.No. 219 of 2009 4 7. Per contra, the learned counsel for the respondent would submit that the report as such encompasses all aspects and no ground is made out for appointment of another commissioner. He would also point out that even going by the report of another expert, the amount of work done by the appellant is in the region of Rs. 36 lakhs. But, at the same time, he would submit that his party has no objection in an expert commission being taking out at the instance of the appellant, on condition that a time limit is fixed for applying and the inspection being made by an Expert commissioner and thereafter the impugned order taking effect. 8. After having heard the arguments of both counsel, we are inclined to take the view that the interests of justice would be sub- served if we allow the appellant to take out an expert commission for ascertaining the nature and quantum of work done by the appellant. In such circumstance, we issue the following order. 9. The appellant will apply before the court below on 5.10.2009 seeking appointment of an expert commission. In view F.A.O.No. 219 of 2009 5 of the agreement of the respondent to the appointment of an expert commission at the instance of the appellant, an expert commissioner will be appointed from among the panel of expert Engineers to be presented by the appellant. The said Commissioner will conduct the inspection on or before 12.10.2009. The impugned order will be kept in abeyance till 14.10.2009. 10. The appeal is disposed of as above. 11. The learned counsel for the appellant submits that the appellant will remove his materials stored at the site in the presence of the Commissioner when he visits the site. We record the said submission. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm