Petitioner challenged a lower court order refusing to remit a Commissioner's report. High Court allowed the writ petition, holding that measurement errors must be rectified before evidence is admissible, and remitted the report to the Commissioner.
Ext.P7 order set aside; application for remission of Commissioner's report allowed; directive to submit fresh report.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938
OP(C).No. 1335 of 2016 (O)
PETITIONER(S)/PLAINTIFF:
SAJEENDRAN K.,
AGED:36 YEARS, S/O BALACHANDRAN, KILIPARMBATH HOUSE, KOMMERI POST, VALAYANAD AMSOM DESOM,. KOZHIKODE.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S)/DEFENDANT:
SHAHJAHAN P., AGED 36 YEARS, MOOSARIPARAMBATH HOUSE, VENGERI (PO), VENGIRI AMSOM DESOM, KOZHIKODE-673 010.
BY ADV. SRI.C.P.MOHAMMED NIAS
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
OP(C).No. 1335 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS:
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
K. Ramakrishnan, J.
============================== O.P.(Civil)No.1335 of 2016
============================== Dated this, the 04th day of August 2016.
J U D G M E N T
1.This is a petition filed by the petitioner, challenging Ext.P7 order passed by the court below, under Article 227 of Constitution of India.
2.It is alleged in the petition that the suit was filed by the plaintiff for return of certain amount due from the defendant towards the construction made by the petitioner as a building contractor entrusted by the respondent. According to the plaintiff, apart from the original work, certain additional works were also done and that can be ascertained only by taking out a Commission with the help of a valuer. Accordingly, he filed an application for issue of a Commission and that was allowed and the Commissioner filed Exts.P3 and P4 report and valuation statement. He filed Ext.P6 application to remit the Commissioner's report stating that certain measurements of the work carried out were not correctly
O.P.(Civil)No.1335 of 2016 : 2 :
mentioned and there are certain factual errors in the measurement shown, that can be rectified only by remitting the Commissioner's report to the same Commissioner and the Surveyor. That petition was dismissed by the court below by the impugned Ext.P7 order which is being challenged by filing this petition.
3.Heard Shri.P.V.Kunhikrishnan, the learned counsel appearing for the petitioner and Ms.Namitha, counsel representing Shri.C.P.Mohammed Nias, counsel for the respondent.
4.The counsel for the petitioner submitted that in the objection, he had clearly mentioned about certain factual errors committed by the Commissioner and the Surveyor in noting the measurement of the work done of certain items. That can be found out only if the Commissioner's report is remitted to the Commissioner and after inspection of the same and report about the same.
5.On the other hand, the counsel for the respondent submitted that, court below had considered this aspect and the liberty of the petitioner to adduce evidence on
O.P.(Civil)No.1335 of 2016 : 3 :
this aspect has not been closed by the court. So, he can very well adduce evidence on that aspect.
6.It is an admitted fact that the petitioner, as a building contractor, filed suit for recovery of certain amount said to be due from the defendant, who is the respondent herein, towards the work done by him. According to the defendant, he had paid the entire amount due to him and no amount is due from him. In order to ascertain the work done and the amount recoverable, according to the plaintiff, he had taken out a Commission and the Commissioner with the help of a Surveyor, conducted inspection and submitted a report and the valuation statement. The petitioner filed objection to the same along with a petition to remit the Commissioner's report to rectify the mistake committed by the Commissioner. In the objection to the Commissioner's report, he had mentioned that, certain measurements shown by the Commissioner regarding certain item of the working is not correct as it was not properly measured and shown and that was a mistake and that mistake will have to be
O.P.(Civil)No.1335 of 2016 : 4 :
rectified. As regards the value of the articles, materials etc., the petitioner may be able to adduce evidence. But, as regards the measurement is concerned, unless it is remitted to the Commissioner's report for rectification, any amount of oral evidence adduced on the side of the petitioner will be sufficient to prove the case of the petitioner on this aspect. So, under such circumstances, the reasonings given by the court below for rejecting the application leaving open the right of the petitioner to adduce evidence on those aspects appears to be unsustainable in law and the same is liable to be set aside and I do so.
7.In the result, the petition is allowed and Ext.P7 order passed by the court below in I.A.No.3369/2015 in O.S.No.100/2013 of II Additional Sub Court, Kozhikode, is set aside and the application is allowed and report and valuation statement submitted are remitted to the Commissioner for filing a fresh report and a valuation statement with the help of the same Surveyor on the basis of objections filed by the petitioner. The court
O.P.(Civil)No.1335 of 2016 : 5 :
below can fix the amount payable as remuneration to the Commissioner and Surveyor for this purpose and on deposit of that amount, the court below is directed to issue an order to the Commissioner to file a fresh report on the basis of objection filed by the petitioner.
With the above direction and observation, the petition is disposed of.
Registry is directed to communicate this judgment to the concerned court immediately.
Sd/- K.Ramakrishnan, Judge.
Bb
[True copy]
P.A to Judge
3 issues framed by the court
Whether an application to remit a Commissioner's report for rectifying measurement errors can be allowed in civil proceedings.
Whether refusal to remit the Commissioner's report despite objections hampers the petitioner's right to adduce evidence.
Whether the lower court's order setting aside the remission application is liable to be set aside under Article 227.
2 provisions across 2 enactments
Sajeendran K.
Shahjahan P.
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
