Hayley (with him Betnam), for respondent.
Cur. adv. oult.
September 15, 1919. De Sampayo J.—
This is an appeal from an order of the District Judge issuinga commission for the inspection of a certain building and reportof the cost of constructing the building. The order was made inthese circumstances. The plaintiff alleged in the third paragraphof his plaint that in the month of June, 1916, it was agreed betweenhim and the defendant that the plaintiff should build for thedefendant, on premises Nos. 15 to 22, Sea Street, Colombo, shopsand stores according to a plan; that the defendant should advancethe cost of the materials and labour required for the said building;and that upon the handing over of the building to the defendant,he should pay to the plaintiff by way of remuneration a lump sum,to be ascertained in this manner, namely, that, after deducting thecost and expenses already mentioned, the lump sum payable tothe plaintiff should be the total charge which would be made forthe completed building according to the current rates in Colombofor work of that class by any firm of standing carrying on thebusiness of builders and contractors, and on that footing, after
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having credited the defendant with certain moneys paid, he claimedBs. 48,004.34; and in the alternative he claimed the. same sum asreasonable remuneration for his services. The defendant admittedthat the plaintiff built the shops, and stores for him, and that theexpenses amounting to Bs. 73,944.80 were discharged by him,but as to the remuneration, he denied the making of the agreementalleged by the plaintiff, and said that the plaintiff was to get onlyreasonable remuneration for his work, and that after the work wascompleted the defendant duly paid to the plaintiff Bs. 5,000 (whichis one of the payments admitted by the plaintiff) as his remuneration,and that it was accepted by the plaintiff in full settlement of all hisclaims. On these pleadings the issues stated at the trial relevantto the present appeal were: (1) Was the agreement between theplaintiff and the defendant as set out in paragraph 3 of the plaint?(2) Was the agreement between the plaintiff and the defendant asset out in paragraph 2 of the answer? (3) If issue (1) is answeredin the affirmative, did the plaintiff carry out the terms of theagreement? If so, what sum is due to the plaintiff? The plaintiffgave evidence, and also called another witness, and the DistrictJudge was satisfied that the agreement as to remuneration was asalleged by the plaintiff. As regards the figures necessary to makeout the sum due to the plaintiff, the only witness whom the plaintiffcalled was one Hubert Walker. The plaintiff explained that hehad approached Mr. Claessen, an architect, who was subsequentlycalled by the defendant, as well as two other well-known builders, buthe was not able to secure the services of any of them. Mr. Walkermade an estimate and submitted it to Court, giving the cost ofbuilding, including supervision, if the building were constructedby a firm of builders, at Bs. 112,588.50. Mr. .Walker’s evidencewas not valuable, because he made his. calculations, not uponany independent inspection and measurement of the work, but uponparticulars supplied by the plaintiff. On the other hand, thedefendant called Mr. Claessen, a well-known architect, quitecompetent to express an opinion, and he valued the estimated costof the building at Bs. 71.727.16, and stated that, according to thescale of charges of builders in Colombo, there should be added a10 per cent, to that amount. According to Mr. Claessen, thecosts and builder’s charges would have been Bs. 78,899.87. Onthis footing, when the actual cost as stated by the plaintiff, namely,Bs. 73,944.80, is deducted, the balance would be Bs. 4,955.07representing the remuneration to be paid to the plaintiff. As Isaid, the District Judge held that the plaintiff successfullyestablished the agreement pleaded by him; but as in thecircumstances there was not sufficient material upon which theDistrict Judge could ascertain the actual amount due to the plaintiffon that footing, he ordered the commission referred to before. Itis objected in these circumstances that it was not within the
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competence of the District Judge to order the commission.In support of the objection, Mr. Bawa cited the case of Fernando v.Johanes.1 Two remarks have to be made on the authority of thatjudgment: first,thatit makes no reference to section134 ofour
Civil ProcedureCode; second, that no reasons werestatedfor
disapproving oftheDistrict Judges’s proceedings inthat case.
When the facts of the case are looked into, it would be further seenthat it is quite a different case from the present. There the DistrictJudge, after hearing both sides, reserved judgment, but in anorder, which was the subject of the appeal, he stated that at present,upon the materials before him, he found himself .unable to decidethe question, and left the parties to take further action in thematter to have the point settled. That is, the District Judge didnot call any evidence on his own initiative, but wanted bothparties to call further evidence. An unreported case, No. 292—D. C. Kalutara,2 was also cited. The facts of that case aresimilar . to theonealready referred to, and hashardlyany
bearing on the present question. On the other hand, theauthority of Hendrik Kure v. Saibu Marikar3 justifies, in myopinion, the course adopted by the District Judge in this case. ' Itwas there held that it was competent to the District Judge, afterboth parties had closed their case, to call ex mero motu a witnessnot cited by the parties and inform himself on any relevant pointthat requires elucidation. In the argument of that case the caseof Fernando v. Johanes 1 was cited, but was not followed. Bonser
J. in the course of the judgment said that it seemed to him thatthe District Judge was quite right in acting as he did in gettingevidence to inform himself on this point, namely, as to the valueand description of certain timber, the subject of thp action. Thewitness whom the District Judge called was the Forest Banger,whom Bonser C.J. said was a gentleman who had no bias on eitherside, and who was well acquainted with the matter. The ChiefJustice proceeded to say that, in his opinion, not only was theDistrict Judge’s procedure- in accordance with common sense, butthat it was justified by our Code,. and he referred to section 134 ofthe' Civil Procedure Code. That section is to this effect: “ Subjectto the rules of this Ordinance as to attendance and appearance,if the Court at any time’ thinks it necessary to examine any personother than a party to the action and not named as a witness by aparty to the action, the Court may, of its own motion, cause suchperson to be summoned as a witness to give evidence, or to produceany document in his possession on a day to be appointed; and mayexamine him as a witness, or require him to produce such documents.”It is true that in this case the advocate for" the plaintiff, inthe course of his address to the Court, made a suggestion that a
»(1892) 1 S. O. It. 262.* S. O. Mins., May 30,1907.
* (1900) 4 N. L. B. 143.
Da SamfayoJ.
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commission might be issued. But it seems to me, from the tenor ofthe proceedings and the view of the District Judge as regards the.evidence already on record, that the District Judge himself desiredto inform himself further on the point, as he was unable toadjudicate on the issue as to the amount on the evidence recorded.The case appears to me to come under section 428 of the CivilProcedure Code, which authorizes local investigation by way ofcommission. It is obvious that the District Judge himself could notsecure the material which he wanted to adjudicate on the issue,for it required the inspection of the building and the takingof measurements and various other processes, which only a com-petent professional man can do. I, therefore, think that both inrespect of the procedure and in respect of the necessities of the case,the order to issue a commission was right.
The defendant purported also to appeal from another part ofthe judgment. The District Judge, after making the order to issuea commission, added that, if he had to determine on the evidencerecorded as to what the plaintiff would be entitled, he would acton the evidence of Mr. Claessen, that is to say, that he would allowcertain percentages, amounting in all to 22$ per cent., on the costof the building. The appellant wished to attack this part of thejudgment, and to have it found that the allowance, of 22$ per cent,was, in the first place, unjustified by Mr. Claessen’s evidence; and,in the second place, wets not reasonable. But I consider thatsuch an appeal could not be entertained at this stage of the case.The District Judge did not give judgment as alleged. All that hedid was to record what he would be obliged to do if there was nofurther evidence available. Consequently no decree would havepassed on this contingent opinion expressed by the District Judge.The proper course would be to relegate the defendant to hisright of appeal when the case is finally determined by the DistrictCourt. The same remark is applicable to a further point taken bythe appellant, viz., as to the correctness of the District Judge’sfinding that the agreement the plaintiff pleaded had beenestablished. There will be time enough for an appeal to be takenon such a question, when the District Judge gives his final
decision on the whole case. I would, therefore, dismiss theappeal, with costs.
Schneider A.J.—I agree.
Appeal dismissed.