IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 WP(C).No. 3355 of 2009(Y) ------------------------- O.S.NO.163/05 OF I ADDL. SUB COURT, THIRUVANANTHAPURAM PETITIONER(S): --------------- CHRISTIAN THOMAS, S/O.THOMAS, RESIDING AT ARCADE APARTMENT, TC 27/513, THAMPURANMUKKU, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV RESPONDENT(S): --------------- RAJAGOPALAN PILLAI, S/O.NARAYANA PILLAI, NAKSHATRA, TC 7/1188(2), VATTIYOORKAVU P.O., KOLLAMVILA ROAD, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 3355/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT ALONG WITH THE COUTNER CLAIM AND THE STATEMENT OF ACCOUNT EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PLAINTIFF TO THE COUNTER CLAIM DATED 12.6.2007. EXT.P3: COPY OF THE I.A.NO.3843/2008 FILED BEFORE THE SUB COURT, THIRUVANANTHAPURAM. EXT.P4: COPY OF THE STATEMENT OF OBJECTION FILED BY THE PLAINTIFF DATED 27.9.2008. EXT.P5: COPY OF THE ORDER DATED 9.1.2009 IN I.A.NO.3843/2008 IN O.S.NO.163/2005 ON THE FILE OF THE FIRST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.3355 of 2009 --------------------------------------------- Dated this the 20th day of February, 2009 JUDGMENT The petitioner is the defendant in O.S.No.163/05 on the file of the court of I Additional Sub Judge, Thiruvananthapuram. The respondent entrusted the construction work of a house to the petitioner. The respondent filed the suit for realisation of a sum of Rs.2,43,420.12 from the plaintiff. The respondent alleged that the petitioner did not complete the work. The respondent has also a case that the petitioner has overcharged for the construction already made by him. The petitioner contested the suit. He also filed a counter claim for a sum of Rs.1,70,407/-. According to the petitioner, the construction was almost completed and payments are due to him. 2. Both the parties filed applications for appointment of Commissioner. The applications were allowed. But, they were not interested in taking out the Commission. When the suit was to be listed, the petitioner filed I.A.No.3843/08 to appoint a Commissioner for the purpose of inspecting the house with the WPC No.3355/2009 2 assistance of an expert to ascertain the matters mentioned in the application. The court below dismissed the application as belated. It was noticed by the court below that the construction was made in the year 2003-2004 and there is no point in making an inspection now, after the lapse of several years. The court below also thought that the application for issue of Commission was filed by the petitioner to protract the trial of the suit. 3. It is relevant to note that the court below was pleased to allow the prayer made by the parties to appoint a Commissioner on an earlier point of time. It is true that the parties were not very keen on getting the order implemented by taking out the Commission. Now the petitioner has filed an application to appoint a Commissioner. Whatever may be the worth of the Commissioner’s report, the prayer made by the petitioner need not be rejected. If the Commissioner visits the property and some useful data are collected, that could be made use of by both the parties during trial of the case. Evidence need not be shut down. I am of the view that the court below should have allowed the application. The order passed by the court below is, therefore, set aside. I.A.No.3843/08 is allowed. The WPC No.3355/2009 3 court below shall appoint a Commissioner for inspection of the house with the help of an expert for ascertaining the matters mentioned in the application. Both parties will be entitled to file work memo before the Commissioner. It is made clear that the entire expenses of the Commission shall be met by the petitioner. The petitioner shall deposit the Commissioner’s batta and expert's batta as fixed by the court within two weeks from the date of the order and shall take out the Commission without delay. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE csl