1 fa647-88 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO. 647 OF 1988 ALONGWITH CROSS OBJECTION STAMP NO. 15358 OF 2002 The State of Maharashtra Through District Collector Nashik .. Appellant At Nashik (Orig. Defendant) V/s. M/s. Shelar Friends Circle, .. Respondent Nashik (Orig. Plaintiff) .... Mr. Bharat Mehta, AGP for the State of Maharashtra. Mr. V. Z. Kankaria for the respondent. .... CORAM : A. S. OKA, J. DATE : FEBRUARY 10, 2011. JUDGMENT :- The Appellant State of Maharashtra has taken an exception to the Judgment and decree dated 2nd May, 1986, passed by the learned Joint Civil Judge Senior Division, Nashik, in a suit filed by the Respondent. 2. According to the Respondent-Plaintiff, the work of construction of a particular section of a road was entrusted by the State Government to him. According to the case of the 2 fa647-88 Respondent, the estimated cost of the work was Rs.4,87,406/-. Initial security deposit to be paid by Respondent was Rs.7288/- and equal amount of security deposit was to be recovered from running bills. It is stated that total amount of Rs.14,575/- was recovered as security deposit. According to the Respondent, there was no rate specified in the contract about the utilisation of excavated material. However, the Respondent was asked to use the excavated material for embankment. Correspondence was made in that behalf by the Respondent. The Respondent has stated in the plaint as to how the work progressed. On the basis of the bills submitted by the Respondent-Plaintiff, the suit for recovery of a sum of Rs.4,27,104/- with interest thereon at the rate of 6 % per annum was filed. The suit was contested by the Appellant by filing written statement. By the impugned decree, the Appellant was directed to pay a sum of Rs. 2,58,419/- to the Respondent with interest @ 6% p.a. on the decretal amount from the date of filing of the suit till the realization. There is a cross objection filed by the Respondent for grant of the balance amount claimed in the plaint. There is a challenge to the interest part of the decree. 3 fa647-88 3. It must be stated here that when the Appeal was heard finally on 20th March, 2006, this Court was of the view that it was necessary to get the measurements submitted by the plaintiff alongwith affidavit dated 31st August, 2005 verified and the verification will have to be done on the basis of the voluminous documents produced on record of the suit. This Court, therefore, observed that this exercise can be done only by a retired Executive Engineer who can be appointed as a Court Commissioner. By further order dated 11th April, 2006, this Court appointed Mr. D. A. Sahastrabudhe as the Court Commissioner to verify the measurements submitted by both the Appellant as well as the Respondent and to submit the report. Accordingly, a report has been submitted by the Court Commissioner. Objections in writing to the said report have been submitted by the Appellant. One of the contentions raised therein is that the Commissioner has not prepared the said report on the basis of the original documents on record. By order dated 11th January, 2010, the Commissioner was ordered to remain present in the Court so that the matter could be verified. 4. It is not necessary to go into the merits of the Appeal. In 4 fa647-88 view of Rule 10 of order XXVI of the Code of Civil Procedure, 1908, the report of the Court Commissioner will have to be read in evidence. As the Appellant has raised an objection to the report, the Commissioner will have to be examined in person. Order dated 11th January, 2011, passed by this Court shows that examination of the Court Commissioner on oath will be necessary. Apart from examination of the Commissioner, after the evidence of the Commissioner is recorded, the parties may be required to apply for leading additional evidence as the report of the Commissioner has been brought on record during the pendency of the Appeal. Hence, only order which can be passed today is an order of remand. 5. Hence, I pass the following order : :: O R D E R :: i. The impugned Judgment and decree dated 2nd May, 1986 is quashed and set aside. ii. Special Civil Suit No. 51 of 1982 is remanded to the Court of Joint Civil Judge Senior Division at 5 fa647-88 Nashik. iii. Parties are directed to appear before the learned Judge on 13th April, 2011 at 11.00 a.m. for fixing the schedule of hearing. iv. It will be open for the Appellant-State of Maharashtra to examine the Commissioner in accordance with Sub Rule 3 of Rule 10 of Order XXVI of the Code of Civil Procedure, 1908. v. After the evidence of the Commissioner is recorded, it will be open for the parties to apply to the trial Court for leading further evidence. If such application is made, the trial Court shall decide the same in accordance with law. vi. The suit shall be decided a fresh after considering the evidence which is already on record and the evidence which may be adduced after order of remand including the report of the Court Commissioner and the evidence of the Commissioner. 6 fa647-88 vii. Registry is directed to forthwith transmit the record of the suit alongwith the Commissioner's report as well as the objections filed to the Commissioner's Report and the reply filed by the Court Commissioner to the Trial Court. The record shall be transmitted as expeditiously as possible and in any event, on or before 1st April, 2011. viii. The Trial Court shall proceed to decide the suit as expeditiously as possible and preferably before the end of September, 2011. ix. Appeal and Cross Objection are partly allowed in the above terms with no order as to costs. x. The trial Court to act upon an authenticated copy of this Judgment. JUDGE