Canapathipillai V. Adanappa Chetty

Present: De Sampayo J. and Schneider A.J.  1919

CANAPATHIPILLAI v. ADANAPPA CHETTY.

42-D. C. Colombo, 48,993.

Agreement to build for another - Action for remuneration - Finding of Judge that remuneration wag due at alleged by plaintiff-Insufficient material on record to calculate amount due-Issue of commission after both parties had closed their cases-Civil Procedure Code, ss. 134 and 428.

Plaintiff alleged that defendant entered into an agreement to remunerate him at a certain rate for erecting buildings on defend­ant's land, and on that footing claimed Rs. 48,004.34. The defendant denied the agreement as to remuneration. The District Judge, held that the plaintiff had established the agreement pleaded by him, but as there was not sufficient materials for ascertaining the actual amount due to the plaintiff, he ordered a commission to issue to report on certain matters.

Held, that the District Judge had power to issue the commission even at that stage.

THE facts are fully set out in the judgment.

Bawa, K.C. (with him A. St. V. Jayawardene), for appellant.

Hayley (with him Retnam), for respondent.

Cur. adv. vult.

September 15, 1919.   De Sampayo J-

This is an appeal from an order of the District Judge issuing a commission for the inspection of a certain building and report of the cost of constructing the building. The order was made in these circumstances. The plaintiff alleged in the third paragraph of his plaint that in the month of June, 1916, it was agreed between him and the defendant that the plaintiff should build for the defendant, on premises Nos. 15 to 22, Sea Street, Colombo, shops and stores according to a plan; that the defendant should advance the 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 the cost and expenses already mentioned, the lump sum payable to the plaintiff should be the total charge which would be made for the completed building according to the current rates in Colombo for work of that class by any firm of standing carrying on the business   of  builders   and   contractors,   and   on  that  footing,   after

having credited the defendant with certain moneys paid, he claimed Rs. 48,004.34; and in the alternative he claimed the same sum as reasonable remuneration for his services. The defendant admitted that the plaintiff built the shops and stores for him, and that the expenses amounting to Rs. 73,944.80 were discharged by him, but as to the remuneration, he denied the making of the agreement alleged by the plaintiff, and said that the plaintiff was to get only reasonable remuneration for his work, and that after the work was completed the defendant duly paid to the plaintiff Rs. 5,000 (which is one of the payments admitted by the plaintiff) as his remuneration, and that it was accepted by the plaintiff in full settlement of all his claims. On these pleadings the issues stated at the trial relevant to the present appeal were: (1) Was the agreement between the plaintiff and the defendant as set out in paragraph 3 of the plaint? (2) Was the agreement between the plaintiff and the defendant as set out in paragraph 2 of the answer? (3) If issue .(1) is answered in the affirmative, did the plaintiff carry out the terms of the agreement? If so, what sum is due to the plaintiff? The plaintiff gave evidence, and also called another witness, and the District Judge was satisfied that the agreement as to remuneration was as alleged by the plaintiff. As regards the figures necessary to make out the sum due to the plaintiff,  the only witness whom the plaintiff called was one Hubert Walker. The plaintiff explained that he had approached Mr. Claessen, an architect, who was subsequently called by the def

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