IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).NO. 26029 OF 2010(O) --------------------------------------- AGAINST THE ORDER DATED 02/07/2010 IN IA 1686/2010 IN OS.195/2008 OF PRL.SUB COURT,KOTTAYAM .................... PETITIONER(S): ---------------------- SURESH KUMAR.P., S/O.PRABHAKARAN NAIR, PUTHENPURAYIL HOUSE, S.H.MOUNT P.O., KOTTAYAM-686 006. BY ADV. SRI.RAJEEV V.KURUP SRI.ALEX.M.SCARIA SRI.SAJU JOSE RESPONDENT(S): -------------------------- MADHUSOODHANAN PILLAI, GOKULAM VEETTIL (HOUSE NO.508/A) THIRUVANCHOO P.O., MANARCADU VILLAGE, KOTTAYAM-686 037. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.26029 of 2010 ==================================== Dated this the 18th day of August, 2010 J U D G M E N T Plaintiff in O.S. No.195 of 2008 of the court of learned Principal Sub Judge, Kottayam is the petitioner before me. He sued respondent for a decree for money on the strength of a building construction agreement (Ext.P1) he had with the respondent. Estimated cost of construction was Rs.6,66,809.82 and after construction of the building according to the petitioner, he served final bill for Rs.1,80,063.59 on 31.10.2005 but that amount was not paid and hence the suit. Respondent raised various contentions including that work was not done on time and that he has already paid Rs.5,25,000/- to the petitioner. Parties went into evidence with their respective pleadings. Petitioner examined P.Ws.1 and 2 and at that stage in view of certain questions put to petitioner (P.W.1) he filed I.A. No.1686 of 2010 to appoint an Advocate Commissioner to ascertain the work completed. That application was opposed by the respondent contending that he had already transferred building and that his assignee has made additional constructions. Learned Sub Judge dismissed the W.P(C) No.26029 of 2010 -: 2 :- application as per order dated 02.07.2010 which is under challenge in this Writ Petition. Learned counsel contends that inspection by the Advocate Commissioner with the assistance of an Expert is necessary to prove the case of petitioner. 2. The request for appointment of Advocate Commissioner came towards the fag end of the proceeding. Suit was filed in the year, 2008 and necessarily construction must have been prior to that. Request for issue of a commission came in the year, 2010, i.e., after a few years of construction of the building. Now, contention of respondent is that he has already transferred the building and his assignee has effected additional constructions. The assignee is not a party to the suit. In such a situation inspection by the Advocate Commissioner at this stage even with the assistance of Expert will not be of any use since according to respondent, additional construction has been made by his assignee. Moreover, in clause (8) of the agreement (Ext.P1) it is stated that petitioner has to maintain M Book for the work done. Learned counsel states that petitioner has adduced evidence as to the extent of work done by him and that the contention of respondent is that so much of the work as agreed was not done by the petitioner. It is open to the court below to W.P(C) No.26029 of 2010 -: 3 :- consider whether it is for the respondent to prove that the entire building was not constructed by the petitioner as per the agreement. Having regard to the facts and circumstances of the case I do not find reason to allow the request made by petitioner for appointment of a Commissioner at this stage as that would not serve any purpose. Resultantly, Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv