Gonda Singh vs Neelam Sharma

Dharam Chand Chaudhary, J.—Aggrieved by the order passed by learned Civil Judge (Junior Division), Court No. III, Amb, District Una, H.P. in an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure registered as C.M.A. No. 190/2014 (Civil Suit No. 7/14), whereby the application has been allowed and Shri R.K. Sharma, Assistant Engineer, B & R, H.P.P.W.D., Amb has been appointed as Local Commissioner to assess the quality of work, damage/loss, if any, caused to the building under construction and assessment of the condition of the newly constructed house of defendant Smt. Neelam Sharma, respondent herein. The present petition has been filed for quashing the same.

The record reveals that the respondent-defendant wanted to construct the house at Village Nehari Nauranga in Tehsil Amb, District Una. The petitioner-plaintiff claims himself to be mason agreed to construct the house of the respondent-defendant. The cost of construction including the material was agreed to be charged @ Rs. 101 per square feet. The petitioner-plaintiff claims that on completion of the construction work, he demanded the amount due and admissible to him as agreed upon. The respondent-defendant, however failed to make the payment thereof. He, therefore, filed the suit in the trial Court for recovery of Rs. 1,04,664/- against the respondent-defendant. She contested the suit on several grounds, however, mainly that the construction work has not been completed well within the time agreed upon. The quality of workmanship is also not up to the mark and also that while executing the work, damage has been caused to the house. She, therefore, filed the application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure for appointment of Local Commissioner to assess the quality of work, deficiencies in the work and the loss to the building under construction caused on the spot.

The petitioner-plaintiff has contested the application being false and frivolous having been filed as a counter-blast after he having demanded the money due and payable to him towards the execution of the work as agreed upon vide agreement dated 04.06.2012 and 12.04.2013. It is also denied that the quality of workmanship is poor and work is incomplete, as according to him, the construction work has been executed as per her choice and wishes and the contentions to the contrary are raised to avoid her liability to make payment to him. It is also denied that the physical verification of the work is required to be conducted. The application has been filed with a view to collect evidence with the help of the Court. It has also been pointed that first she has to produce the evidence to prove her case at her own and at this stage no commission is required to be appointed.

The trial Court after taking on record the claims/counter-claims and also the given facts and circumstances has, however, allowed the application and appointed the Local Commissioner, as pointed out at the out set.

The legality and validity of the impugned order has been assailed on those very grounds as in reply to the application discussed supra.

Mr. Ashok Tyagi, learned counsel representing the petitioner-plaintiff has strenuously contended that at this stage when even the issues are also not framed in the suit and the parties have not entered in the witness box, the application for appointment of Local Commissioner should have not been entertained. Also that, the respondent-defendant could have got the inspection of the building conducted at her own without seeking order from the Court. On the other hand, Mr. Neeraj Sharma, learned counsel representing the respondent-defendant while repelling the arguments so addressed on behalf of the petitioner-plaintiff has supported the order under challenge, as according to him, the inspection is required to measure the status of the building as the respondent-defendant intends to execute the left out work to make the building inhabitable.

On analyzing the rival submissions and also going through the record, true it is that at this stage when the parties have not entered into the witness box, no application under Order 26 Rule 9 CPC could have been entertained and commission as envisaged thereunder appointed. The tone and tenor in which the application is filed make it crystal clear that the respondent-defendant has not intended to appoint Local Commissioner for conducting investigation to elucidate any matter in dispute or for any other and further purpose detailed under rule 9 of Order 26 for the reason that her simple prayer for appointment of Local Commissioner based upon the averments that the petitioner-plaintiff has not executed the work within time as agreed upon and that whatever construction raised, the quality thereof is not up to the mark and rather poor, besides damage caused to the building under construction and also that she intends to execute the left out work at her own to make the building inhabitable, she intend to preserve the factual position qua the construction of her building raised by the petitioner-plaintiff.

The anxiety of the respondent-defendant in getting the Local Commissioner appointed is that over all condition of the work executed on the spot is preserved and notice qua quality of workmanship and damage, if any, caused to the building under construction while executing the work taken, before she proceed to complete the left out work. The trial Court has appointed Local Commissioner to make the assessment of quality of work, damages, loss, if any, caused to the building under construction and the condition of the construction work executed on the spot vide order under challenge. Such type of order could have even been passed in an application under Section 151 of the Code of Civil Procedure and for that matter under Order 39 Rule 7 of the Code of Civil Procedure. Merely that the application has been filed under a wrong provision i.e. under Order 26 Rule 9 CPC, does not render the impugned order unsustainable, particularly when the respondent-defendant intends to execute the left out work and make the building inhabitable so that the same is occupied by her. In such a situation, the order under challenge could have been the only appropriate order, because after getting the building inspected from an expert and taking on record the report qua the position of the building on the spot, quality of workmanship and damage, if any, caused to the building in question, before the left out work is got executed by the respondent-defendant at her own cost is essentially required for just and effective decision of the dispute in the main suit. I, therefore, find no illegality or infirmity in the order under challenge and the same is hereby affirmed.

The petition is accordingly dismissed and stands disposed of. Pending application(s), if any, shall also stand disposed of.