IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 OP(C).NO. 257 OF 2010(O) ------------------------------------- AGAINST THE ORDER IN IA 1103/2010 IN OS.576/2008 OF PRL.M.C.KOZHIKODE-I .................... PETITIONER: -------------------- S.M.GULSAR ALAM,AGED 43 YEARS, S/O.P.V. MUHAMMED KOYA, GATE WAY RESIDENCY,FLAT NO.A1, CIVIL STATION,NEDUNGOTTUR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S): ------------------------ 1. M.V.ABDUL RASAQU, AGED 35 YEARS, S/O.P.V.MUHAMMEDKOYA, "DELATE",CHALAPPURAM,NEAR ESI,KASABA AMSOM,DESOM, KOZHIKODE TALUK-680001. 2. S.M.HASSAN JOHAR, AGED 35 YEEARS,S/O.P.V.MUHAMMEDKOYA "SOUDA MANZIL",FRANCIS ROAD, NAGARAM AMSOM DESOM, KOZHIKODE TALUK RESIDING AT 13/151,ZAMIYAS, KUTTICHIRA,CALICUT-1. ADV. SRI.JACOB ABRAHAM FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.576 OF 2008 ON THE FILE OF THE PRINCIPAL MUNSIFF-I, KOZHIKODE. EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT IN O.S. NO.576 OF 2008 ON THE FILE OF THE PRINCIPAL MUNSIFF-I, KOZHIKODE. EXHIBIT P3 TRUE COPY OF THE PETITION AND AFFIDAVIT IN SUPPORT OF I.A. NO.1103 OF 2010 SUBMITTED BY THE PETITIONER IN O.S. NO.576 OF 2008 ON THE FILE OF THE PRINCIPAL MUNSIFF-I, KOZHIKODE. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 7.7.2010 IN APPLICATION NO.576 OF 2008 ON THE FILE OF THE PRINCIPAL MUNSIF-I, KOZHIKODE. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== O.P(C) No.257 of 2010 ==================================== Dated this the 19th day of October, 2010 J U D G M E N T Plaintiff in O.S. No.576 of 2008 of the court of learned Principal Munsiff-I, Kozhikode is the petitioner before me challenging Ext.P4, order dismissing I.A. No.1103 of 2010. That was an application filed by petitioner to appoint an Advocate Commissioner to determine value at current market rate to purchase two rooms having same dimension and convenience as room No.12/181. That application was dismissed by the learned Munsiff vide Ext.P4, order. Learned counsel contends that fact that petitioner had as relief (B) prayed for damages in case respondent No.1-defendant failed to comply with the agreement was lost sight of while passing Ext.P4, order. Learned counsel for respondent No.1 contends that respondent No.1 has no liability to pay damages as pleaded, no question of payment of damages is involved and that the damages payable according to the petitioner, not even estimated in the plaint, not to say that no court fee also was paid for such amount. Counsel for respondent No.2-plaintiff No.2 supported petitioner. O.P(C) No.257 of 2010 -: 2 :- 2. The suit as framed is one for mandatory injunction, in effect to direct respondent No.1 comply with an agreement dated 02.08.2005 and recovery of damages. According to the petitioner as per the said agreement respondent No.1 was bound to purchase two shop rooms near Room No.12/181 referred to in the agreement in favour of petitioner and respondent No.2. Respondent No.1 has denied the liability to perform the agreement and pay damages. It is in the above circumstances that petitioner filed I.A. No.1103 of 2010 to appoint an Advocate Commissioner to determine value at current market rate to purchase two rooms near room No.12/181 and having same dimension and convenience as that room. That application was dismissed. Learned Munsiff observed that the suit is for mandatory injunction to direct respondent No.1 to get two rooms having same dimension and convenience as that of room No.12/181 purchased in favour of petitioner and respondent No.2 and hence it is not necessary to ascertain value of similar building in the vicinity. But it is seen that vide relief (B) in the plaint petitioner has also claimed damages for alleged non- performance of the agreement as per which according to the petitioner, respondent No.1 was bound to purchase two rooms O.P(C) No.257 of 2010 -: 3 :- having same dimension and convenience as that of room No.12/181. It is the case of petitioner that since respondent No.1 has failed to comply with that agreement petitioner and respondent No.2 have suffered loss and to quantify that loss, it is necessary to appoint an Advocate Commissioner to ascertain value of similar shop rooms at the current market rate in the locality. 3. I have gone through copy of plaint and it is seen that though relief (B) for recovery of damages is made, petitioner has not given his estimate of damages nor has he paid court fee for any amount. Section 21 of the Specific Relief Act (for short, “the Act”) deals with the power of court to award damages and sub- section (4) of the Act states that in determining any amount of damages to be awarded court shall be guided by the provisions of Section 72 of the Indian Contract Act, 1872. Sub-section (5) of Sec.21 of the Act states that no damages shall be awarded unless plaintiff has claimed such damages in the plaint. But the proviso says that court may allow plaintiff to amend the plaint on such terms to include a claim for damages. It follows that at any stage of the proceeding it is within the power of the court to allow petitioner to incorporate a prayer for damages assuming O.P(C) No.257 of 2010 -: 4 :- that prayer (B) was not incorporated in the plaint. Here prayer for recovery for damages is already made in the plaint but petitioner has not estimated the damages he and respondent No.2 have suffered. Mere fact that at this stage petitioner or respondent No.2 has not paid court fee is also not a reason that petitioner and respondent No.2 should not be permitted to collect evidence regarding damages if any payable to them on the principle under Section 72 of the Contract Act. I find from the order under challenge that learned Munsiff while disposing of I.A. No.1103 of 2010 has not adverted to relief (B) in the plaint and under the impression that suit is one for a decree for mandatory injunction (alone) has disallowed the application. Having regard to these aspects I am inclined to think that learned Munsiff ought to have allowed I.A. No.1103 of 2010. Hence the order under challenge cannot be sustained and it is liable to be set aside. Resultantly, this Original Petition is allowed in the following lines: (i) Exhibit P4, order dismissing I.A. No.1103 of 2010 in O.S. No.576 of 2008 of the court of learned Principal Munsiff-I, Kozhikode is set aside and that application is allowed. O.P(C) No.257 of 2010 -: 5 :- (ii) Learned Principal Munsiff-I, Kozhikode shall appoint an Advocate Commissioner to ascertain the market value as prayed for in I.A. No.1103 of 2010 at the expense of petitioner and respondent No.2. (iii) Issue regarding court fee for the claim for damages if any incorporated by amendment shall be decided by the learned Munsiff at the appropriate stage. THOMAS P. JOSEPH, JUDGE. vsv