| SooperKanoon Citation | sooperkanoon.com/729552 |
| Subject | Criminal |
| Court | Kerala High Court |
| Decided On | Aug-10-2009 |
| Case Number | W.P. (C) No. 20763 of 2009 (O) |
| Judge | S.S. Satheesachandran, J. |
| Reported in | 2009(3)KLJ99 |
| Acts | Evidence Act - Sections 32 and 32(2); Constitution of India - Article 227 |
| Appellant | Kerala Police Housing and Construction Ltd. |
| Respondent | Skypark Builders and Distributors |
| Advocates: | G.S. Reghunath, Adv. |
| Cases Referred | Selin Joseph v. Vijayan
|
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. - where as the plaintiff imputes of breach of 'contract, after considerable work was done, in terms of the contract by the fault of the defendant the contra is raised by the defendant contending that on account' of the breach committed and failure to do the work by the plaintiff the contract was terminated and entrusted to another agency on 12.2.2001 and the work was completed on 11.9.2004. while the new agency was doing the work, the suit was laid claiming the sum covered by the plaint and an application for appointment of a commission was also moved to assess the work done by the plaintiff.s.s. satheesachandran, j.1. the writ petition is filed seeking the following reliefs:(i) to call all records relating to exhibit p7 to this honourable court and an order passed setting aside exhibit p7 order.ii) to pass an order staying all further proceedings of the commissioner appointed as per exhibit p7 order.2. petitioner is the defendant in o.s. no. 52/2003 on the file of the sub court thiruvananthapurarh and the respondent the plaintiff? suit is one for recovery of money for the work allegedly done by the plaintiff pursuant to a contract between them. challenge raised in the petition is against an order passed by the learned sub judge in the application moved by the plaintiff for appointing an advocate commissioner to ascertain the matters sought for with the assistance of an expert. ext. p7 is the copy of the order passed by the court below allowing that commission application. correctness and propriety of ext: p7 order is challenged by the dependent in the petition invoking the supervisory jurisdiction vested with this court under article 227 of the constitution of india.3. i heard the counsel on both sides.4. admittedly, an agreement was entered into between the parties for construction of internal roads, tow walls, sided rains, external water supply and sewerage etc. at kap iii battalion, adoor. where as the plaintiff imputes of breach of ' contract, after considerable work was done, in terms of the contract by the fault of the defendant the contra is raised by the defendant contending that on account' of the breach committed and failure to do the work by the plaintiff the contract was terminated and entrusted to another agency on 12.2.2001 and the work was completed on 11.9.2004. while the new agency was doing the work, the suit was laid claiming the sum covered by the plaint and an application for appointment of a commission was also moved to assess the work done by the plaintiff. as the summer holidays of the court intervened, plaintiff filed an original petition as o.p. no. 13783/2003 before this court in which pursuant to orders passed, a commission was appointed to ascertain the matters sought for with the assistance of an expert. after obtaining a commission report, the original petition was disposed of. the expert, who assisted the commissioner in preparing the report later passed away. acceptability of that report prepared with the assistance of the expert, who is no more in the suit was disputed by the defendant mainly canvassing that the report prepared in another proceeding can be received in evidence, only after examining the commissioner. since the expert is no more, the defendant contended the report prepared, with his' assistance-cannot be admitted and- proved in the case. challenge being so raised by the defendant on the acceptability of the report, the plaintiff moved a new application for appointing another commissioner to prepare a fresh report with the assistance of an expert over the matters set out in his application. that application was also objected to by the defendant, in various grounds, including an objection that no purpose would be served as the entire work had been subsequently carried out and completed by a new agency. at this stage, it is practically impossible to ascertain what part of contract was done by the plaintiff before this contract was terminated, according to the defendant. measurement books and relevant documents are sufficient to ascertain the work performed by the plaintiff and it has no right to get a report prepared by a commission was another objection raised by the defendant. learned sub judge after hearing both sides, negativing the objections, allowed the commission application by et.p7 order.5. after hearing the counsel on both sides at length with reference to ext;p7 order passed by the learned sub judge, i find some of the observations made in that order presumably on the objections raised by the defendant if not removed or corrected may affect a proper and fair disposal of the suit on merits. a report prepared by the commissioner deputed by the court after the death of the commissioner of for any reason that his presence could not be secured for examination to prove that report would render it unacceptable in evidence appears to be the view taken by the court below on the basis of the contention raised by the defendant that the death of the expert who assisted the commissioner in preparing the report would interdict the court from receiving it in evidence. i am afraid the objection so raised and accepted by the court below does not have the sanction of law as the report of the commissioner, even after the death of the commissioner, if relevant, is admissible and can be received in evidence. section 32 of the indian evidence act carries out an exception in the cases of statements by persons who cannot be called as witness. that section provides for proving a statement of a relevant fact made by a man who is dead or his evidence cannot be procured without unreasonable delay, provided the statement can be used in evidence as coming under any of the heads specified. it is an exception to the general rule of evidence- mat statement of a person is not admissible unless that man is called to give evidence in the case. sub-section (2) of 32 which alone is applicable to the present case reads thus:32. casks in which statement of relevant fact by person who is deod or cannot be found, etc., is relevant.(1) x x x x x x x x x(2) or is made in course of business- when the statement was made by such person in the ordinary course of business/and in particular when it consist of any entry or memorandum made by him in books kept in the ordinary course of business/or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods securities of property of any kind; or of a document used in commerce/written or signed by him; or of the date of a letter or other document usually dated/written or signed by him.the expert who assisted the commissioner in preparing the earlier report by orders passed in the original petition filed by the plaintiff before this court had executed the commission order in the discharge of his professional duties. needless to point out the advocate commissioner and also the expert, when so appointed by the court to execute the work, did such work as officers of the court to enable the court to determine the disputed questions arising in the petition. the expert being a professional, a civil engineer, was deputed to assist the advocate commissioner as his technical knowhow and expertise was required for executing the commission order in accordance with law. so much so, the statements made by that expert relating to the work done by the plaintiff in respect of the matters sought to be ascertained in the commission application are relevant and admissible, and the assistance given by him to the advocate commissioner in preparing the report is part of and in discharge of his profession duties. when a commissioner is deputed by the court to execute the commission work and the report filed by him, on his death by itself would not render that -report., inadmissible in evidence. statements in me report by the commissioner who is dead when the trial of the suit commences are admissible in evidence under section 32(2) of the evidence act. the patna high court in luxmi narayan arfundas and ors. v. state bank of india : air 1969 (patna) 385) has expressed a similar view. in a case where section 32(2) of the evidence act applicable for admissibility of the statement made in the report prepared by the commissioner who is no more, me principles stated in selin joseph v. vijayan 1993 (3) klt 898, relied by the court below mat a commission report in another report cannot be accepted in evidence without examining the commissioner cannot have any application. further more, it has to be noticed the advocate commissioner was appointed to execute the commission work with the assistance of the expert. examination of that advocate commissioner in the suit for formal proof of the report alone, at the most, may be proceeded with, which also not necessary to place reliance in the statements of the expert (late), for admissibility of that report in evidence, and so received, the statements of the expert forming part of the report become relevant as covered-under section 32(2) of the evidence act.6. a larger question, however, remains, what is the evidentiary value of the report of a commissioner appointed in a original petition by this court prepared with the assistance of the expert who is no more in relation to the suit pending for adjudication before the court below. while disposing of the original petition o.p. no. 13783 of 2003, by judgment dated 2.6.2003, it is seen this court has made it clear that it is not expressing any opinion as regards the admissibility or relevancy of the report which was collected by the plaintiff through a commission by orders obtained in that petition. in the above judgment, it is stated thus: .i make it clear that i am not considering the correctness of the report in this proceedings. it is for the competent forum to consider all those matters. the question, how far a report filed in a proceedings solely for the purpose of obtaining such a report, its admissibility, relevancy and evidentiary value are-all matters to be decided by competent forum in the case in which the report is produced. i do not venture into go into those matters in this original petition.relevancy or merit of the report is different from its admissibility in evidence. what evidentiary value can be attached to that report in any other proceedings is different from the question whether it is receivable without examining the commissioner who prepared that report. admissibility is different from proving a document or of its evidentiary value evaluated as required by law.7. i do not wish to express any opinion on the merit of the commission report prepared by an advocate commissioner with the assistance of an expert who is no more by orders passed by this court in the original petition moved by the plaintiff during the pendency of the suit. what evidentiary value to be attached to that report and to what extent reliance can be placed thereunder are all questions to be considered by the court below in accordance with law. but to say that the report cannot be looked into as inadmissible for the reason of the death of the expert, is not at all correct.8. now, as regards the challenge raised against ext.p7 order though this court is reluctant to interfere' with the orders of appointment of a commission in a pending suit or proceeding in exercise of its supervisory jurisdiction under article 227 of the constitution of india, as i find there is no advertise to the objections raised by the defendant to the commission application even by contending that the work had been completed and no purpose will be served by appointing a commission the non application of mind by the court to any of the objections while disposing the application cannot be brushed aside as not affecting the merit of the order. true, while disposing the commission application, a detailed order is not necessary, but, advertence to the objections and if not at all, but, at least the material objection why it is not acceptable while allowing that application is necessary. after expressing a view that the previous report is inadmissible for the reason that the expert is no more, which already indicated, is not correct the court below allowed the commission application as desired by the plaintiff. in the petition filed by the plaintiff, a report with the assistance of an expert after scrutiny of the verification and correctness of the records already produced including the commission report filed in the original petition was sought for. if the previous commission report is found to be inadmissible as held under the impugned order due to the death of the expert, it would give rise to another challenge at the time of evidence as the fresh report prepared with reference to that report could also e attacked as unacceptable. i have adverted these points only to show that examination of the petition and the points sought for determination with reference to the objections raised by the defendant if not minutely, but, at least on an over all perspective, is a must from the court before the application is disposed of. having regard to the fact that work had been completed by the defendant through another agency which has not been seriously disputed before me though there was no such admission specifically thereof if at all a commission application is allowed, the court below has to consider what are me directions to be given to the commissioner and also the expert with respect to the various matters enumerated in the petition of the plaintiff after applying its mind to the points raised for determination. the court below can- also* direct the commissioner to file an interim report if at all the commission application is allowed to report to what extent the work done by the plaintiff is capable of being-ascertained after the completion of the work, so that it can issue appropriated directions/orders if necessary for completing the execution of the commission work, within a reasonable time. i make it clear that i am not expressing a view that the court below has to pass orders on the commission application only after obtaining an interim report, but, only that after allowing the application, if so found, it can direct for submission of an interim report as indicated above.9. ext.p7 order is set aside and the court below is directed to examine the matter afresh and pass appropriate orders on the commission application moved by the defendant, subject to the above observations made and in accordance with law.writ petition is disposed of as indicated above.
Judgment:S.S. Satheesachandran, J.
1. The writ petition is filed seeking the following reliefs:
(i) To call all records relating to Exhibit P7 to this Honourable Court and an order passed setting aside Exhibit P7 order.
ii) To pass an order staying all further proceedings of the commissioner appointed as per Exhibit P7 order.
2. Petitioner is the defendant in O.S. No. 52/2003 on the file of the Sub Court Thiruvananthapurarh and the respondent the plaintiff? Suit is one for recovery of money for the work allegedly done by the plaintiff pursuant to a contract between them. Challenge raised in the petition is against an order passed by the learned sub Judge in the application moved by the plaintiff for appointing an advocate commissioner to ascertain the matters sought for with the assistance of an expert. Ext. P7 is the copy of the order passed by the court below allowing that commission application. Correctness and propriety of Ext: P7 order is challenged by the dependent in the petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.
3. I heard the counsel on both sides.
4. Admittedly, an agreement was entered into between the parties for construction of internal roads, tow walls, sided rains, external water supply and sewerage etc. at KAP III Battalion, Adoor. Where as the plaintiff imputes of breach of ' contract, after considerable work was done, in terms of the contract by the fault of the defendant the contra is raised by the defendant contending that on account' of the breach committed and failure to do the work by the plaintiff the contract was terminated and entrusted to another agency on 12.2.2001 and the work was completed on 11.9.2004. While the new agency was doing the work, the suit was laid claiming the sum covered by the plaint and an application for appointment of a commission was also moved to assess the work done by the plaintiff. As the summer holidays of the court intervened, plaintiff filed an original petition as o.p. No. 13783/2003 before this Court in which pursuant to orders passed, a commission was appointed to ascertain the matters sought for with the assistance of an expert. After obtaining a commission report, the original petition was disposed of. The expert, who assisted the commissioner in preparing the report later passed away. Acceptability of that report prepared with the assistance of the expert, who is no more in the suit was disputed by the defendant mainly canvassing that the report prepared in another proceeding can be received in evidence, only after examining the commissioner. Since the expert is no more, the defendant contended the report prepared, with his' assistance-cannot be admitted and- proved in the case. Challenge being so raised by the defendant on the acceptability of the report, the plaintiff moved a new application for appointing another commissioner to prepare a fresh report with the assistance of an expert over the matters set out in his application. That application was also objected to by the defendant, in various grounds, including an objection that no purpose would be served as the entire work had been subsequently carried out and completed by a new agency. At this stage, it is practically impossible to ascertain what part of contract was done by the plaintiff before this contract was terminated, according to the defendant. Measurement books and relevant documents are sufficient to ascertain the work performed by the plaintiff and it has no right to get a report prepared by a commission was another objection raised by the defendant. Learned Sub Judge after hearing both sides, negativing the objections, allowed the commission application by Et.P7 order.
5. After hearing the counsel on both sides at length with reference to Ext;P7 order passed by the learned Sub Judge, I find some of the observations made in that order presumably on the objections raised by the defendant if not removed or corrected may affect a proper and fair disposal of the suit on merits. A report prepared by the commissioner deputed by the court after the death of the commissioner of for any reason that his presence could not be secured for examination to prove that report would render it unacceptable in evidence appears to be the view taken by the court below on the basis of the contention raised by the defendant that the death of the expert who assisted the commissioner in preparing the report would interdict the court from receiving it in evidence. I am afraid the objection so raised and accepted by the court below does not have the sanction of law as the report of the commissioner, even after the death of the commissioner, if relevant, is admissible and can be received in evidence. Section 32 of the Indian Evidence Act carries out an exception in the cases of statements by persons who cannot be called as witness. That section provides for proving a statement of a relevant fact made by a man who is dead or his evidence cannot be procured without unreasonable delay, provided the statement can be used in evidence as coming under any of the heads specified. It is an exception to the general rule of evidence- mat statement of a person is not admissible unless that man is called to give evidence in the case. Sub-section (2) of 32 which alone is applicable to the present case reads thus:
32. casks in which statement of relevant fact by person who is deod or cannot be found, etc., is relevant.
(1) X X X X X X X X X
(2) or is made in course of business- When the statement was made by such person in the ordinary course of business/and in particular when it consist of any entry or memorandum made by him in books kept in the ordinary course of business/or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods securities of property of any kind; or of a document used in commerce/written or signed by him; or of the date of a letter or other document usually dated/written or signed by him.
The expert who assisted the commissioner in preparing the earlier report by orders passed in the original petition filed by the plaintiff before this Court had executed the commission order in the discharge of his professional duties. Needless to point out the advocate commissioner and also the expert, when so appointed by the court to execute the work, did such work as officers of the court to enable the court to determine the disputed questions arising in the petition. The expert being a professional, a civil engineer, was deputed to assist the advocate commissioner as his technical knowhow and expertise was required for executing the commission order in accordance with law. So much so, the statements made by that expert relating to the work done by the plaintiff in respect of the matters sought to be ascertained in the commission application are relevant and admissible, and the assistance given by him to the advocate commissioner in preparing the report is part of and in discharge of his profession duties. When a commissioner is deputed by the court to execute the commission work and the report filed by him, on his death by itself would not render that -report., inadmissible in evidence. Statements in me report by the commissioner who is dead when the trial of the suit commences are admissible in evidence under Section 32(2) of the Evidence Act. The Patna High Court in Luxmi Narayan Arfundas and Ors. v. State Bank of India : AIR 1969 (Patna) 385) has expressed a similar view. In a case where Section 32(2) of the Evidence act applicable for admissibility of the statement made in the report prepared by the commissioner who is no more, me principles stated in Selin Joseph v. Vijayan 1993 (3) KLT 898, relied by the court below mat a commission report in another report cannot be accepted in evidence without examining the commissioner cannot have any application. Further more, it has to be noticed the advocate commissioner was appointed to execute the commission work with the assistance of the expert. Examination of that advocate commissioner in the suit for formal proof of the report alone, at the most, may be proceeded with, which also not necessary to place reliance in the statements of the expert (late), for admissibility of that report in evidence, and so received, the statements of the expert forming part of the report become relevant as covered-under Section 32(2) of the Evidence Act.
6. A larger question, however, remains, what is the evidentiary value of the report of a commissioner appointed in a original petition by this Court prepared with the assistance of the expert who is no more in relation to the suit pending for adjudication before the court below. While disposing of the original petition O.P. No. 13783 of 2003, by judgment dated 2.6.2003, it is seen this Court has made it clear that it is not expressing any opinion as regards the admissibility or relevancy of the report which was collected by the plaintiff through a commission by orders obtained in that petition. In the above judgment, it is stated thus: .
I make it clear that I am not considering the correctness of the report in this proceedings. It is for the competent Forum to consider all those matters. The question, how far a report filed in a proceedings solely for the purpose of obtaining such a report, its admissibility, relevancy and evidentiary value are-all matters to be decided by competent Forum in the case in which the report is produced. I do not venture into go into those matters in this Original Petition.
Relevancy or merit of the report is different from its admissibility in evidence. What evidentiary value can be attached to that report in any other proceedings is different from the question whether it is receivable without examining the commissioner who prepared that report. Admissibility is different from proving a document or of its evidentiary value evaluated as required by law.
7. I do not wish to express any opinion on the merit of the commission report prepared by an advocate commissioner with the assistance of an expert who is no more by orders passed by this Court in the original petition moved by the plaintiff during the pendency of the suit. What evidentiary value to be attached to that report and to what extent reliance can be placed thereunder are all questions to be considered by the court below in accordance with law. But to say that the report cannot be looked into as inadmissible for the reason of the death of the expert, is not at all correct.
8. Now, as regards the challenge raised against Ext.P7 order though this Court is reluctant to interfere' with the orders of appointment of a commission in a pending suit or proceeding in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, as I find there is no advertise to the objections raised by the defendant to the commission application even by contending that the work had been completed and no purpose will be served by appointing a commission the non application of mind by the court to any of the objections while disposing the application cannot be brushed aside as not affecting the merit of the order. True, while disposing the commission application, a detailed order is not necessary, but, advertence to the objections and if not at all, but, at least the material objection why it is not acceptable while allowing that application is necessary. After expressing a view that the previous report is inadmissible for the reason that the expert is no more, which already indicated, is not correct the court below allowed the commission application as desired by the plaintiff. In the petition filed by the plaintiff, a report with the assistance of an expert after scrutiny of the verification and correctness of the records already produced including the commission report filed in the original petition was sought for. If the previous commission report is found to be inadmissible as held under the impugned order due to the death of the expert, it would give rise to another challenge at the time of evidence as the fresh report prepared with reference to that report could also e attacked as unacceptable. I have adverted these points only to show that examination of the petition and the points sought for determination with reference to the objections raised by the defendant if not minutely, but, at least on an over all perspective, is a must from the court before the application is disposed of. Having regard to the fact that work had been completed by the defendant through another agency which has not been seriously disputed before me though there was no such admission specifically thereof if at all a commission application is allowed, the court below has to consider what are me directions to be given to the commissioner and also the expert with respect to the various matters enumerated In the petition of the plaintiff after applying its mind to the points raised for determination. The court below can- also* direct the commissioner to file an interim report if at all the commission application is allowed to report to what extent the work done by the plaintiff is capable of being-ascertained after the completion of the work, so that it can issue appropriated directions/orders if necessary for completing the execution of the commission work, within a reasonable time. I make it clear that i am not expressing a view that the court below has to pass orders on the commission application only after obtaining an interim report, but, only that after allowing the application, if so found, it can direct for submission of an interim report as indicated above.
9. Ext.P7 order is set aside and the court below is directed to examine the matter afresh and pass appropriate orders on the commission application moved by the defendant, subject to the above observations made and in accordance with law.
Writ petition is disposed of as indicated above.