P L D 1977 Karachi 829 (PLP)

(3) Whether the plaintiff is entitled to r eat, wastage, and other allowances ? (4) Whether the suit is not properly stamped ? (5) Whether the suit is time barred ? (6) Whether the suit is not maintainable, ? (7) What should the decree be ?

5. The learned Additional District Judge, Tharparkar, Sanghar by the judgment dated 23‑11‑1976 passed a preliminary decree which is the subject matter of this appeal, without dealing with each issue separately or even without adverting to the issues of the limitation and the one relating to the maintainability of the suit.

6. I have herd Mr. Hussain Adil Khatri, Advocate far the appellants. The respondent and his advocate are called absent though notice of hearing for today was issued to the Advocate for the respondent by the office on 20‑5‑1977.

7. The learn‑.d counsel for the appellants had urged before me only two grounds in support of this appeal. The first ground is that the snit was barred by the principles of constructive res judicata and the second ground is that the suit for account was not maintainable In the circumstances of ,the case,

8. So far as the first ground is concerned no doubt a plea to that affect was taken in the written statement but no issue was raised and accordingly it must be deemed to have been given up. Even in the memo of appeal no grievance has boon made as to the non‑framing of issue on the question of res judicata, Therefore, in absence of the respondent and his advocate I am not inclined to allow the learned Advocate for the appellants to urge this ground. Accordingly, I overrule it.

9. As regards the second contention that a suit by an agent against his principal is not maintainable the submission is that the respondent was or could be aware of the amount due to him on amount of commission as well as alleges) rent and other charges. The memo of account annexed by him to the plaint and reproduced herein above shows the quantity of each commodity, sold by him on commission basis and he also know the rate of commission in respect of each commodity and in these circumstances, it is contended that the suit for accounts was not maintainable. I agree with the learned counsel for the appellant that on the basis of the quantities sold and shown in the memo of accounts annexed to the plaint by the respondent the total amount of commission earned by him could be easily calculated by him. He must also have been aware of the expenses allegedly incurred by him.

10. I may mention with regard to the claim for rent and outer charges the finding of the learned Additional District Judge is that the respondent tailed to prove that he was entitled to the same.

11. In support of his contention that a suit for accounts by an agent against his principal dots not lie, the learned counsel for the appellants has relied upon the Province of West Pakistan v. Allahaditta (P L D 1972 Kar. 8) wherein Dorab Patel, J. (as his Lordship then seas sitting in Division Bench) observed as follows :‑ "Thus the consistent view of the Courts has been that a plaintiff cannot sue for accounts when his relationship with the defendant is on a purely contractual basis. Secondly, when an agent sues his principal for accounts, his rights are even more restricted; and he cant succeed only if he shows that, due to special circumstances or difficulties he is not ably to ascertain the amount due to him from his principal."

12. There is no doubt that the above observations support the contention as the respondent failed to plead in the plaint any special circumstances and in fact Annexure `A' to the plaint shows that the amount of commission could be easily calculated by ‑him. Similarly the amount of alleged rent and expenses claimed by him was also known to him.

13. Moreover, under section 213 of the Contract Act an agent is under obligation to render accounts to his. principal on demand but the principal is under no ‑counter statutory obligation of the same , nature towards the agent. There may however, be exceptional cases such as where an agent is not aware as to the transactions between the principal and the third parties which entitles the agent to receive certain amount as commission earned by him in respect of such transactions during the course of agency but the details of the transactions entitling him to receive his commission and the amount due on account thereof could not be known to him or otherwise there is special contract or trade usage which entitles him to sue for account as was held in Ram Lal Kapoor & Sons v. Asian Commercial Assurance Co. (A I R 1933 Lah. 483) in the following words : "On the contrary, a perusal of all three authorities will show that whilst the principal is under no statutory obligation to render accounts to his agent he does become an accounting party in special circums tances or under trade usage or a definite contract." Reference may also be had to a judgment of Madras High Court in Ramachandra Madhavadass Co. v. M. M. Birankutti & Bros. (177 1 C 631) where in A. Rahman, J. (as he then was and who later on became a Judge of the Federal Court of Pakistan) held "Even according to the allegations of the defendant he was the principal and the plaintiff a mere agent. How could the agent sue his principal for accounts? It is only in exceptional cases where his remuneration depends can the extent of dealings which are not known to him or where he cannot be aware of the extent of the amount due to him unless the accounts of his principal are gone into that a suit by an agent for accounts against his principal might be competent. But where the exact sum of money which the agent claims from his principal is known to him, the only form in which a suit can be filed is the one adopted by the plaintiff here." I may also refer to the earliest case on the point, namely, Jowahar Singh v. Haria Mal (1899) 60 P R 1899) wherein it was observed : "The right to claim a statement of accounts is an unusual form of relief only granted it certain specific cases and is only to be claimed when the relationship between the parties is such that this is the only relief which will enable the claimant to satisfactorily assert his legal rights.)" The above case has been followed by Moti Sagar, J. in Ghulam Qutubuddin Khan v. Mian Faiz Bakhsh and others (A I R 1925 Lah. 100) who observed : "The right to claim a statement of account can only be claimed when looking to the relationship between the parties it is the only relief which will make tie claimant to assert his legal tights satisfactorily, ` such right being an unusual form or relief." Reference may also be had to Hanuman Bakhah and others v. (Firm) Balmukand Kanhaya Lal (A I R 1927 Lah. 701) wherein following Jowahar Singh v. Haria Mal it was laid down as follows : "An agent is not ordinarily entitled to institute a suit for accounts against his principal. His suit must be for the recovery of the specific amount alleged to be due to him from the principal." I have therefore, no escape from the conclusion that the respondent's suit for account was misconceived and was not maintainable. I accordingly, allow the appeal, set aside the preliminary decree and dismiss the suit. However, I make no order as to costs as the respondent is absent. S. Q. Appeal allowed.