IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 OP(C).No. 835 of 2011(O) ------------------------ OS.272/2005 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): ------------------------------ M/S.SURYA CONSTRUCTIONS, PALACE ARCADE STATUE JUNCTION, TRIPUNITHURA-682 301, REP. BY ITS MANGING PARTNER, MATHEW KALARICKAL, KALARICKAL HOUSE, KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.BABU THOMAS SMT.MARYKUTTY BABU RESPONDENT(S): --------------- 1. KERALA POLICE HOUSING AND CONSTRUCTION CORPORATION LTD., WHEEL HOUSE, THYCAUD P.O., TRIVANDRUM-695 014, PRESENTLY CHANDRASEKHARAN NAIR STADIUM, PALAYAM TRIVANDRUM-695 033, REP. BY ITS MANAGING DIRECTOR. 2. THE SUPERINTENDING ENGINEER, KERALA POLICE HOUSING AND CONSTRUCTION CORPORATION LTD., CHANDRASEKHARAN NAIR STADIUM, 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.V.J.JOSEPH FOR R1 & R2 SMT.M.V.LIGI FOR R1 & R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, ALONG WITH OP(C) NO. 2860 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.835/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF FINDING ON ISSUES EXT.P2 TRUE COPY OF AGREEMENT AND RELEVANT CONDITIONS OF CONTRACT EXT.P3 TRUE COPY OF PLAINT IN OS 272 OF 2005 ON THE FILE OF SUB COURT, TRIVANDRUM EXT.P4 TRUE COPY OF WRITTEN STATEMENT OF THE 1ST RESPONDENT EXT.P5 TRUE COPY OF THE JUDGMENT IN WP(C) NO.2776/2006 OF THIS COURT EXT.P6 TRUE COPY OF IA NO.5254/2008 IN OS 272/2005 EXT.P7 TRUE COPY OF JUDGMENT IN WPC 32630/2008 OF THIS COURT EXT.P8 TRUE COPY OF THE ISSUES FRAMED IN OS 272/2005 RESPONDENTS' EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) Nos.835 & 2860 of 2011 -------------------------------------- Dated this the 19th day of December, 2011. JUDGMENT These Original Petitions arise from a preliminary finding entered by learned Additional Sub Judge-I, Thiruvananthapuram in O.S.No.272 of 2005 obviously pursuant to a direction contained in Ext.P5, judgment dated 29.10.2008 in W.P.(C) No.2776 of 2006. Parties are referred as petitioner and respondents as in O.P.(C) No.835 of 2011. 2. Petitioner filed the suit for recovery of damages including unpaid price for the construction it claimed to have done on behalf of respondents pursuant to a work contract. Petitioner alleged that there was breach of contract on the part of respondents and that on account of that, completion of work was delayed and it suffered damages. Respondents inter alia, contended that breach was on the part of petitioner in not completing the work within the stipulated time. Petitioner filed application for the appointment of a commission to assess the work done by it. That application was dismissed by the learned Sub Judge which petitioner challenged in this Court in W.P.(C) No.2776 of 2006. This Court remitted that application to the learned Sub Judge for fresh decision by Ext.P5, judgment. Based on Ext.P5, judgment, learned Sub Judge conducted an enquiry into the allegation of breach regarding which issue Nos.2, 7 and 8 were raised and entered a finding (Ext.P1). Learned Sub Judge found that there OP(C) Nos.835 & 2860/2011 2 was breach on the part of petitioners and respondents though the degree varied. Both sides are aggrieved and have challenged the finding against them in the respective Original Petitions. 3. It is contended by learned counsel for petitioner that finding of learned Sub Judge against petitioner regarding breach is not correct. According to the learned counsel, on the materials on record learned Sub Judge ought to have found that the breach was entirely on the part of respondents. Learned counsel for respondents contended othewise. 4. In Ext.P5, judgment while considering correctness of dismissal of I.A.No.3898 of 2005 (filed by petitioner for appointment of commission) this Court, referring to the judgment dated 12.08.2008 in W.P.(C) No.18629 of 2008 which also was between the same parties and seeking similar reliefs, held that learned Sub Judge has to consider the request of petitioner for appointment of expert commission after a finding is entered as to who committed the breach. It was directed that if the finding is in favour of petitioner, learned Sub Judge has to appoint the expert commission to fix quantum of work done and other relevant matters as would be decided by the learned Sub Judge. It is based on the above direction that learned Sub Judge conducted enquiry and has come out with Ex.P1, finding that there was breach on the part of petitioner and respondents. OP(C) Nos.835 & 2860/2011 3 5. Having heard counsel on both sides I am inclined to think that a finding on the issue as to who was at breach could not have been entered by the learned Sub Judge as if it is a preliminary issue under Rule 2(2) of Order XIV of the Code of Civil Procedure (for short, “the Code”). For, an issue could be decided as a preliminary issue for the disposal of the suit only when it relates to a question of law relating to the jurisdiction of court or a bar to the suit created by any law for the time being in force. Question as to who committed the breach involves questions of fact and hence could not have been decided as a preliminary issue under Rule 2(2) of Order XIV of the Code. 6. But, the enquiry was conducted by the learned Sub Judge in the light of directions contained in Ext.P5, judgment. What was meant by Ext.P5, judgment though it was not specifically stated therein (this Court should have specifically mentioned that in Ext.P5, judgment) is that learned Sub Judge has to form a prima facie satisfaction as to who committed the breach so that I.A.No.3898 of 2005 could be decided. In that view of the matter, the finding entered by the learned Sub Judge as to who committed breach of contract can only be taken as for a prima facie satisfaction for deciding I.A.No.3898 of 2005 and that finding shall stand confined to the disposal of I.A.No.3898 of 2005. 7. I make it clear that the question as to who committed breach has to be decided in the course of trial after considering the evidence that may be let in by the parties and that Ext.P1, finding shall be confined to the disposal of OP(C) Nos.835 & 2860/2011 4 I.A.No.3898 of 2005. Since it is found that respondents (in O.P.(C) No.835 of 2011) were also at fault it is open to the learned Sub Judge to decide I.A.No.3898 of 2005 on merit and pass appropriate orders so that all required materials sought to be ascertained by the expert commission could be brought in. In O.P.(C) No.835 of 2011, I had by order dated 05.09.2011 modified the order of stay passed by this Court on 28.02.2011 to the effect that the stay order will not prevent learned Sub Judge from disposing of the application for commission (I.A.No.3898 of 2005). 8. In the light of what I have stated above, these Original Petitions are disposed of as follows: i. It is directed that the finding entered by the learned Additional Sub Judge-I, Thiruvananthapuram as regards breach of contract shall not be treated as a finding on preliminary issues as falling under Rule 2(2) of Order XIV of the Code and that the said finding shall stand confined for the disposal of I.A.No.3898 of 2005. ii. On the question as to who was at breach, it is open to the parties to adduce evidence in support of the relevant issues raised by the learned Sub Judge, notwithstanding Ext.P1, finding and learned Sub Judge shall decide the issue after considering the evidence that may be let in by the parties in the trial. OP(C) Nos.835 & 2860/2011 5 iii. Since learned Sub Judge has found (as aforesaid, prima facie) that there was breach on the part of respondents as well, learned Sub Judge shall pass orders on I.A.No.3898 of 2005 so that necessary materials as pleaded by petitioners and required for decision of the case could be brought in. iv. If respondents want to ascertain any matter relevant for decision of the case, it is open to them to file work memo before learned Sub Judge who shall pass orders on that work memo casting liability on respondents also to share the batta payable to the Advocate Commissioner and/or expert Commissioner v. Learned Sub Judge shall expedite the proceeding including decision on the application for commission since the suit is of the year, 2005. THOMAS P.JOSEPH, Judge. cks