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1988 SCC OnLine Ker 521 : (1988) 2 KLT 331

Kerala High Court

(BEFORE RADHAKRISHNA MENON, J.)

Kerala State Housing Board

Versus
Raghunadhan
C.R.P. No. 355 of 1986
Decided on July 21, 1988
ORDER
1. The Kerala State Housing Board, the third defendant in a suit instituted by the
first respondent, is the revision petitioner. The relief prayed for in the plaint which led
to the passing of the order under challenge is relief (e). It reads:—
“(e) To allow the plaintiff to recover all the loss and damages above mentioned
due to the unjust acts of the defendant including plaintiffs investments, would be
gains, prevented gains and earnest money etc., including interest which this court
permits”. Along with the suit, the respondent filed I.A. 398/86 for the following
relief:—
“For reasons submitted in the accompanying affidavit it is humbly prayed that
the posting of the case may be advanced to 22-1-1986 and petition for the
appointment of a technical personality as commissioner to enquire into the
matters under issue is to be heard and ordered”.

Page: 332

2. This prayer would indicate that the petition is one filed under Order XXVI Rule 10
(A) C.P.C. The court below after considering the various aspects of the case has held
thus:—
“…So I hold that this petition is maintainable. Considering the ‘e’ prayer in the
plaint I find that the appointment of a commissioner is necessary for the proper
adjudication of this case. So in the interest of “justice I allow this petition. Mr. K.
Madhavan Nair, “Sri. Kripa”, Kazhakutton Trivandru, Retired Chief Engineer, the first
person, mentioned in the panel submitted by the counsel of the plaintiff is
appointed as the commissioner…”.
3. The answer to the question, “Do the facts of the case warrant the issue of an
order appointing a technical qualified person as commissioner to resolve the dispute
covered by prayer ‘e’”, depends upon the construction of S. 75(e) and Order XXVI Rule
IOA of the Code of Civil Procedure. S. 75(e) defines and limits the power of the court
to issue a commission to hold a scientific, technical or expert investigation. The
conditions and limitations prescribed in this connection, are contained in Rule 10A of
Order XXVI. Rule 10A reads:
“10A:— Commission for scientific investigation:— (1) Where any question arising
in a suit involves any scientific investigation which cannot, in the opinion of the
Court, be Conveniently conducted before the Court, the Court may, if it thinks it
necessary or expedient in the interests of justice so to do issue a commission to
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such person as it thinks fit, directing him to inquire into such question and report
thereof to the Court.
………………………”
4. This rule says that in the event of the question arising in a suit involves any
scientific investigation which cannot, in the opinion of the court be conveniently
conducted before the court, then the court, if it thinks it necessary or expedient in the
interests of justice so to do, can appoint a technical qualified person as commissioner,
who will be directed to inquire into such question and report thereon to the court. The
conditions and limitations, to put it differently arei—
(1) The question arising in the suit shall involve a scientific investigation.
(2) which cannot in the opinion of the court, be conveniently conducted before the
court.
(3) the court must be of opinion that-it is necessary or expedient in the interests of
justice to issue a commission to a technically qualified person who can conduct
the scientific investigation, and
(4) such person shall be directed to inquire into such questions, i.e. questions
involving any scientific investigation, and
(5) such person shall submit a report thereon.
5. It is thus clear that only for the purpose of a scientific, technical or expert
investigation, a technically qualified person can be appointed as commissioner under
this Rule and that too only, if the court is satisfied that it is necessary or expedient in
the interest of justice to issue a commission to such a person. This in short is the
scheme of the Rule. Considered in the light of the above principles, I am of opinion
that the order under challenge is not sustainable in law. No scientific investigation is
required to dispose of prayer (e). The loss and damages, the plaintiff is alleged to have
suffered require to be established by the plaintiff by producing materials before the
court. This prayer, on a reading of it, makes it clear that the suit is one for damages
simpliciter. No scientific investigation therefore is warranted. The order appointing the
commissioner therefore is liable to be set aside.
6. The order is to the effect that it has become necessary to appoint a commissioner
for the proper adjudication of the case. The phraseology used

Page: 333

in the order would indicate that the court in fact has abdicated its jurisdiction to
decide the issue in favour of the commissioner. This is not warranted. For this reason
also the order is liable to be set aside.

7. The court below therefore has committed an error of jurisdiction in passing this
order.
8. The C.R.P. for the reasons stated above is allowed. No costs. Issue carbon copy
on usual terms.
S.M.
9. Allowed.
———
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