IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 WP(C).No. 2776 of 2006(E) ------------------------- ORDER IN IA NO.3898/2005 IN OS 272/2005 OF SUB COURT, THIRUVANANTHAPURAM. PETITIONER(S): --------------- M/S. SURYA CONSTRUCTIONS, PALACE ARCADE STATUE 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 RESPONDENT(S): --------------- 1. KERALA POLICE HOUSING AND CONSTRUCTION CORPORATION LTD., PRESENTLY CHANDRASEKHARAN NAIR STADIUM, VIKAS BHAVAN P.O., TRIVANDRUM-695 033, REP. BY ITS MANAGING DIRECTOR. 2. THE SUPERINTENDING ENGINEER, KERALA POLICE HOUSING AND CONSTRUCTION CORPORATION LTD., CHANDRASEKHARAN NAIR STADIUM, VIKAS BHAVAN P.O., TRIVANDRUM-695 033. 3. M/S. THOMAS PANICKER AND ASSOCIATES, ARCHITECTS, C.C.13/1850, NO.V., AVITTOM ROAD, KUMARAPURAM, MEDICAL COLLEGE, TRIVANDRUM-695 011. ADV. SRI.G.S.REGHUNATH FOR R1,R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF LETTER OF THE PETITIONER REQUESTING TO PAY THE FINAL BILL EXT.P2 TRUE COPY OF PLAINT IN OS NO.272/2005 OF THE SUB COURT,THIRUVANANTHAPURAM. EXT.P3.TRUE COPY OF IA NO.3898/2005 IN OS 272/2005 OF THE SUB COURT, THIRUVANANTHAPURAM EXT.P4 TRUE COPY OF ORDER IN IA NO.3898/2005 IN OS 272/2005 OF SUB COURT, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE PROCEEDING DATED 3.10.2005 OF THE FIRST RESPONDENT EXT.R1(b) TRUE COPY OF THE OBJECTION TO THE COMMISSION APPLICATION FILED BY THIS RESPONDENT IN OS 272/2005 BEFORE THE SUB COURT, TRIVANDRUM. EXT.R1(c) TRUE COPY OF THE AGREEMENT AND THE CONDITIONS OF THE CONTRACT AND THE DOCUMENTS FORMING PART OF THE CONTRACT. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.2776 of 2006 E -------------------------------------- Dated this the 29th day of October, 2008. JUDGMENT Petitioner/plaintiff in I.A.No.3898 of 2005 in O.S.No.272 of 2005 of First Additional Sub Court, Thiruvananthapuram is aggrieved by Ext.P4, order dated 3.12.2005 and seeks to invoke the power of this Court under Article 227 of the Constitution. 2. Heard both sides. 3. Petitioner sued the respondents for recovery of sum of Rs.95,96,509/- together with interest and costs towards unpaid value of works carried out by it for respondents/defendants. Petitioner prayed for declaration that the respondents committed breach of contract under agreement No.25/1998-1999 dated 2.7.1998 and for recovery of money. Claim was disputed by the respondents/defendants. They contended that there was no breach of the contract on their part. While so, petitioner filed I.A.No.3898 of 2005 (Ext.P3) for appointment of an Expert Commissioner for local, technical and scientific investigation of the works and such other matters as stated in the application. Application was contested by the respondents and learned Sub Judge, vide Ext.P4 order dated 3.12.2005 dismissed the application. Counsel for petitioner submits that it is necessary to depute an Expert Commissioner to report on the matters sought for in I.A.No.3898 of 2005 which is essential for just WP(C) No.2776/2006 2 and proper decision of the suit. Counsel for respondents referring to Ext.R1(a) filed along with counter affidavit contended that breach was on the part of the petitioner and that to escape from Ext.R1(a) order dated 3.10.2005, the suit has been instituted. 4. Petitioner has produced additional Ext.P5, judgment dated 12.8.2008 in W.P.(C) No.18629 of 2008 which was also between the same parties and concerning similar reliefs claimed by the petitioner. There, trial court allowed the application for issue of expert commission but, as per judgment dated 12.8.2008 referred supra, that order was quashed. It was directed that before learned Sub Judge decided upon whether the Expert Commissioner is to be appointed, the court has to decide on the question of breach. It was also held that appointment of Commissioner at that stage was not necessary. Learned Sub Judge was directed to decide the issue relating to the declaration sought for in the suit (regarding the alleged breach) first and thereafter consider the question of appointment of Commissioner. In paragraph 5 of the judgment, it is observed that learned Sub Judge is to appoint a commission. 5. On of the main questions involved in the suit is whether respondents have committed breach as pleaded by the petitioner/plaintiff. Question of liability of respondents arises only if it is found that breach was on the part of the respondents. At that stage, learned Sub Judge need to have considered the request of the petitioner for appointment of Expert Commissioner. If the finding is in favour of the petitioner, learned Sub Judge is to appoint a WP(C) No.2776/2006 3 commission to fix the quantum of the work carried out and other relevant matters as would be decided by the learned Sub Judge. In the above circumstances, the order under challenge is liable to be quashed. This Writ Petition is accordingly allowed in the following lines:- (1) Order under challenge (Ext.P4) is set aside. (2) I.A.No.3898 of 2005 is remitted to the learned Sub Judge for consideration after entering finding on the issue regarding breach and thereafter consider the question of appointment of commission. THOMAS P.JOSEPH, JUDGE. cks