Kandasamy and Latha vs Syed Hashim

S. Tamilvanan, J.—C.R.P. (PD) No. 4167 of 2011 has been preferred under Article 227 of the Constitution of India, seeking an order,

striking off the plaint in the suit in O.S. No. 502 of 2011 pending on the file of the I Additional District Court, Coimbatore. C.R.P. (PD). No. 266

of 2012 has been filed challenging the order, dated 21.11.2011 made in I.A. No. 810 of 2011 in I.A. No. 679 of 2011 in O.S. No. 502 of 2011

on the file of the I Additional District Court, Coimbatore. Both the revisions are arising out of the suit in O.S. No. 502 of 2011.

Learned Senior counsel appearing for the petitioners submitted that the Civil Revision Petition in C.R.P. (PD). No. 4167 of 2011 be dismissed

as not pressed.

It is seen that the suit in O.S. No. 502 of 2011 was filed by the respondent/plaintiff, seeking a money decree for Rs. 15 lakhs to be paid with

subsequent interest and costs. In the said suit, Interlocutory Application in I.A. No. 679 of 2011 was filed by the respondent/plaintiff, under Order

26 Rule 9 CPC, seeking appointment of Advocate-Commissioner to inspect the suit property with the help of a qualified senior Civil Engineer to

find out the actual cost of construction of the buildings mentioned in the petition. Earlier, I.A. No. 678 of 2011 was filed by the respondent/plaintiff,

seeking temporary injunction restraining the petitioners/defendants from proceeding with the further work of construction activities in the petition

mentioned sites.

In the accompanying affidavit relating to I.A. No. 810 of 2011 filed in I.A. No. 679 of 2011, the respondent/plaintiff has stated that he had

sought for appointment of Commissioner to find out the actual cost of construction on the date of the visit of the Advocate-Commissioner. As per

the order passed in I.A. No. 679 of 2011, Advocate-Commissioner was appointed to note down the physical features and to file his report and

plan. The respondent/plaintiff herein has further stated in the affidavit filed before the Court below that the Advocate-Commissioner had filed his

report. The petitioners herein subsequently, appeared through their counsel, hence, it necessitated to remit back the warrant of commission to the

Advocate-Commissioner, to revisit once again the property with the help of a qualified Civil Engineer and to find out the actual cost of the building

constructed, as on the date of his revisit. The respondent/plaintiff has stated that directing the Commissioner to revisit the property and to file his

report would minimize unnecessary oral evidence.

The revision petitioners/defendants filed their separate counter affidavit, wherein they have stated that the respondent/plaintiff has admitted that

he had not done any work, after March 2011. According to the petitioners/defendants, the respondent herein did not work after 15.02.2011 and

the respondent would admit that another contractor was doing the construction work but pretends as if it was being done after filing of the suit by

him. According to the revision petitioners/defendants, the work of the respondent was stopped either in the month of February 2011 or March

2011, hence, an attempt to seek an order directing the Commissioner to have revisit of the property and fix the cost is not legally permissible and it

would be an fraudulent attempt.

Mr. R. Krishnamoorthy, learned Senior counsel appearing for the revision petitioners drew the attention of this Court to the relief sought for in

the plaint, the alleged cause of action and the prayer sought for in the Interlocutory Application in I.A. No. 810 of 2011. As contended by the

learned Senior counsel, admittedly it is a money suit, seeking a decree for a sum of Rs. 15 lakhs to be paid by the petitioners/defendants with

subsequent interest and costs.

In the plaint, the respondent/plaintiff has averred that the cause of action arose on 10.03.2010, when the plaintiff and the defendants signed the

working sheet relating to the construction of building on the suit sites; when the defendants paid the amount in installments towards the

constructions put up by the plaintiff; on or about in the month of February 2011, when the plaintiff had completed 95% of the work as mentioned

in the body of the plaint; on 05.03.2011, when the plaintiff and the defendant signed in the letter pad of the plaintiff; on subsequent date thereafter

when the defendants failed to pay the balance amount towards the actual cost incurred by the plaintiff; on 01.07.2011, when the plaintiff was

threatened with the help of the local police by the defendants while demanding the balance amount, on subsequent dates when the defendants have

been making attempts to proceed with the construction of further work without settling the plaintiff''s claim.

It is seen from the docket order passed by the Court below that ad-interim injunction was granted in I.A. No. 678 of 2011, that was extended

up to 09.08.2011. As per the order, dated 09.08.2011, the previous order was extended till 29.08.2011. On 29.08.2011, I.A. No. 678 of 2011

was posted for counter of R1 and R2, without extending the interim order.

Learned Senior counsel appearing for the petitioners submitted that for the subsequent period, interim injunction was not extended and as per

the relief sought for in the plaint, quantified amount of Rs. 15 lakhs with interest was claimed by the respondent/plaintiff and therefore, there is no

need to appoint an Advocate-Commissioner to estimate the work done by the respondent/plaintiff and in the counter affidavit filed in I.A. No. 811

of 2011, that was adopted as part and parcel of the counter relating to I.A. No. 810 of 2011, wherein the petitioners/defendants have stated that

they engaged another contractor from 18.02.2011 and the subsequent contractor continued the work, since the respondent/plaintiff had left the

work on 14.02.2011 itself and thereafter the suit was filed only in the month of August 2011. Hence, the respondent/plaintiff is not entitled to

estimate the work that was done by another contractor and claim amount for the same.

Per contra, learned counsel appearing for the respondent/plaintiff submitted that since the Commissioner had inspected ex parte, it warrants

further inspection by the same Commissioner to estimate the construction work done by the respondent/plaintiff. Only at the instance of the

respondent/plaintiff, the Advocate-Commissioner inspected the property exparte, hence, he is not entitled to raise the same as a defence in his

favour.

As contended by the learned Senior counsel appearing for the petitioner, the specific case of the respondent/plaintiff is that he is entitled to

claim Rs. 15 lakhs with interest and costs. It is a definite and quantified sum and therefore, there is no need to estimate the cost of the construction,

as stated by the respondent/plaintiff and further, the Advocate-Commissioner had already inspected the property and filed his report, on the

petition filed by the respondent/plaintiff.

Though the Advocate-Commissioner inspected the property, without serving proper notice to the petitioners/defendants, it is not open to the

respondent/plaintiff to raise a plea stating that without reasonable opportunity being given to the other side, the Commissioner had inspected the

property. The respondent/plaintiff is not entitled to raise the plea, since he had filed the petition in I.A. No. 679 of 2011, seeking appointment of

Advocate-Commissioner and also took steps to inspect the property without providing reasonable opportunity to the petitioners/defendants.

Merely because the report of the Advocate-Commissioner is not supporting the respondent/plaintiff, he cannot seek an order to re-issue the

warrant to the same Commissioner, so as to collect evidence against law. As per the counter affidavit filed by the petitioners/defendants in I.A. No.

811 of 2011, that was also adopted as part of the counter in I.A. No. 810 of 2011 by the petitioners/defendants, it has been clearly stated that

from 18.02.2011, the petitioners/defendants had engaged another contractor and further construction work was done by the subsequent

contractor, since the respondent/plaintiff had left the work on 14.02.2011 itself. It is seen that the suit was filed only during August 2011 by the

respondent/plaintiff.

It was also made clear by the respondent/plaintiff that he had claimed a quantified sum of Rs. 15 lakhs with 12% interest and costs from the

petitioners/defendants, as per the plaint and therefore, there is no need to estimate the construction work done by the respondent/plaintiff, even as

per the relief sought for in I.A. No. 679 of 2011 filed by the respondent/plaintiff. However, Advocate-Commissioner was appointed under Order

26 Rule 9 CPC. At the admission stage of the suit and he inspected the property and filed his report.

Having obtained an order for appointment of Commissioner, without notice to the other side, after filing of the report of the Advocate-

Commissioner, it is not open to the respondent/plaintiff to say that it was only an exparte Advocate-Commissioner, therefore, again warrant has to

be reissued to the same Commissioner. The defence raised by the petitioners/defendants is that the respondent/plaintiff had left the work on

14.02.2011 itself, subsequently on 18.02.2011, another contractor was engaged by the petitioners/defendants and the subsequent work was done

by the another contractor and the suit was filed only during August 2011 and therefore, the respondent/plaintiff cannot estimate the work done by

the other contractor subsequently, as if the same was also done by the respondent/plaintiff.

The argument advanced by the learned Senior counsel for the petitioners is quite reasonable, as there is no need for seeking appointment of

Advocate-Commissioner to estimate the work done by the respondent/plaintiff, since the respondent/plaintiff has sought definite sum of Rs. 15

lakhs with interest and costs in the suit. However, as per I.A. No. 679 of 2011 filed by the respondent/plaintiff, Advocate-Commissioner was

appointed by the Court below, even without hearing the petitioners herein, who are respondents in the said Interlocutory Application. After the

inspection, admittedly the Commissioner filed his report, however, the respondent/plaintiff filed another Interlocutory Application in I.A. No. 810

of 2011 in the earlier application in I.A. No. 679 of 2011, seeking an order to remit back the warrant to the Commissioner. As per the order

passed in I.A. No. 679 of 2011, dated 02.08.2011, the Court below appointed the Advocate-Commissioner, directing him to visit the petition

mentioned property along with a qualified Engineer and to submit a report.

After entering appearance, the petitioners/defendants have categorically stated in their counter, that the respondent/plaintiff had left the work on

14.02.2011 itself and from 18.02.2011 another contractor was engaged by them, who proceeded with further construction work from

18.02.2011, hence, the respondent/plaintiff is not entitled to seek an order to re-issue the warrant to the same Advocate-Commissioner, so as to

estimate the cost of work done by the other contractor, so as to plead that the subsequent work was also done by the respondent/plaintiff, in order

to strengthen the case of the respondent/plaintiff. The suit was filed only in the month of August 2011, hence, the respondent/plaintiff is not entitled

to collect any evidence in support of his case, seeking an order to reissue the warrant to the same Commissioner, so as to include the work done

by another contractor, who was engaged subsequently by the petitioners/defendants.

In support of his contention, the learned Senior counsel for the petitioners relied on the decision in T. Arivandandam Vs. T.V. Satyapal and

Another, , wherein the Hon''ble Apex Court has held as follows:

The trial Court in this case will remind itself of S. 35A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by

vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an

immediate hearing to the parties concerned.

In Bannari Amman Sugars Limited Vs. R. Sakthivel, , this Court (S. Ashok Kumar, J), relying on the decision rendered by the Hon''ble

Supreme Court in A. Venkatasubbiah Naidu Vs. S. Challappan and Others, , has held that though the petitioners therein should have filed a

petition under Order 7 Rule 11 CPC before the trial court, seeking an order to reject the plaint. An aggrieved party is entitled to seek an order for

invoking the jurisdiction of this Court under Article 227 of the Constitution, to prevent abuse of process of Court.

It has been made clear that alternative remedy is not a bar, when there is abuse of process of Court for invoking Article 227 of the Constitution

of India, seeking an order to strike off the plaint. As the revision petition in C.R.P. (PD). No. 4167 of 2011, has not been pressed by the

petitioners, this Court need not go into the scope of Article 227 of the Constitution of India to strike off the plaint.

It is not in dispute that this Court has got jurisdiction, invoking Article 227 of the Constitution of India to decide the legality and the validity of

the impugned order passed by the Court below in I.A. No. 810 of 2011, dated 21.11.2011.

It is well settled proposition of law that for the purpose of collecting evidence, no party can invoke Order 26 Rule 9 CPC, seeking

appointment of Advocate-Commissioner. In the instant case, though the respondent/plaintiff has claimed Rs. 15 lakhs with subsequent interest and

costs from the petitioners/defendants, he has filed petition, seeking appointment of Advocate-Commissioner to estimate the cost of the

construction, that would amount to collecting evidence, since the claim of the respondent/plaintiff was for a quantified sum. It is also pertinent to

note that Advocate-Commissioner was appointed, without issuance of notice to the petitioners/defendants and after inspection, he has filed his

report, however, again the respondent/plaintiff filed I.A. No. 810 of 2011 in the earlier I.A. No. 679 of 2011 to reissue warrant to the same

Commissioner for the purpose of estimating the value of the construction work.

It is seen that the petitioners/defendants have categorically stated by way of their counter affidavit that on 14.02.2011 itself, the

respondent/plaintiff had left the work and subsequently, the petitioners/defendants engaged another contractor to continue the work and the work

was continued from 18.02.2011 by the subsequent contractor. However, the suit was filed by the respondent/plaintiff only in the month of August

2011, seeking a money claim of Rs. 15 lakhs with costs. Therefore, it is erroneous on the part of the Court below in allowing I.A. No. 810 of

2011 for the purpose of reissuing the warrant to the same Commissioner to estimate the work done by the respondent/plaintiff, in spite of the fact

that subsequent work was already done by another contractor. Hence, this Court is of the view that the relief sought for in the Interlocutory

Application is beyond the purview of the relief sought for in the suit and the same has to be construed only an attempt of collecting evidence, which

is also not permissible under Order 26 Rule 9 CPC. Therefore, it is an abuse of process of Court and accordingly, the impugned order passed by

the Court below is against law, which needs interference by this Court, under Article 227 of the Constitution of India. In the result, the Civil

Revision Petition in C.R.P. (PD). No. 4167 of 2011 is dismissed as not pressed and the Civil Revision Petition in C.R.P. (PD). No. 266 of 2012

is allowed and the impugned order, dated 21.11.2011 made in I.A. No. 810 of 2011 in I.A. No. 679 of 2011 in O.S. No. 502 of 2011 on the file

of the I Additional District Court, Coimbatore is set aside. Consequently, connected miscellaneous petitions are closed.

Having considered the facts and circumstances, the Court below is directed to dispose the suit in O.S. No. 502 of 2011, within six months from

the date of receipt of a copy of this order, according to law, uninfluenced by the findings of this Court, if any in this order. No costs.