1969 PLP 219 (SCMR)

QADEERUDDIN AHMAD, J.‑Counsel for the petitioner has pressed for leave to appeal against the judgment of a Division Bench of the High Court of West Pakistan, partly accepting the First Appeal of the Respondents.

2. The facts which form the background, briefly stated, are that the petitioner filed a suit against the respondents for the recovery of Rs. 29,488 or "whatever found due in favour of the plaintiff against the defendants." He alleged in his plaint in 1962 that he was supplying motor parts and repairing motor vehicles from 1955. According to him, payments were delayed; therefore, demands had to be made, with the result that some of the bills which were outstanding were paid, but some still remained due. The petitioner, therefore, served a notice dated the 12th of December 1961, under section 80, C. P. C. and then filed the suit. The cause of action, according to paragraph 12 of the plaint, arose in the month of December 1959, "when the above‑mentioned bills of the plaintiff were duly accepted and recorded in the measurement book, and lastly arose about a month back . . . . . . . . when the amount in question was not paid to the plaintiff. The suit was valued in paragraph 13 of the plaint as follows :‑ "the value of the suit is Rs. 29,488 but this being a suit for accounts tentatively it is fixed at Rs. 10,000 for the purpose of Court‑fee and jurisdiction under Order VII, rule 2, C. P. C. read with section 7 (iv) (f) of Court Fees Act, and Court‑fee stamp of Rs. 525 is accordingly affixed. The deficiency in Court‑fee whatever it be, will be paid when the amount found due is decreed." The trial Court held that some of the bills were in duplicate and that "even the plaintiff is not sure as to how much amount he is entitled to recover from the defendants, and hence he has termed his suit for the accounts, valued it at Rs. 10,000 and paid Court fees accordingly. Consequently, a Commissioner will have to be appointed for taking accounts." The Commissioner reported on the 6th of November 1961, that the defendants were liable to pay Rs. 29,488 and Rs. 6785 as interest" as the defendants in spite of sufficient facility and ample time given to them had not produced the accounts." The report was set aside by consent of the parties, and the Commissioner was directed to reconsider the situation. Counsel for the defendants undertook to produce account‑books before the Commissioner, but counsel for the defendants neither appeared before the Commissioner, nor produced documents ; therefore, the Commissioner submitted the same report for the second time giving the following reason for it :‑ "The Advocate for the defendants, Mr. Samandar Khan neither appeared nor filed the statement of the accounts before the undersigned on 5‑3‑64 ; hence the undersigned is constrained to submit ex parte report against the defendants. The under signed finds Rs. 29,488 as principal amount and Rs. 6785 as interest due to the plaintiff from the defendants.

3. The trial Court found that counsel for the defendants had done nothing to defend the claim, and that the Commissioner had not taken pains in doing his job, but felt that he could not reduce the amount mentioned in the report, excepting by reducing the principal amount by Rs. 2,757 and by disallowing interest, and granted final decree for Rs. 26,731 with proportionate costs, subject to the plaintiff making up deficiency in court‑fee. The reason for granting the decree is given by him to be as follows:‑ "Since the defendants have not produced any documents or accounts to meet the demand of the plaintiff for an amount of Rs. 29,488 the defendants will have to pay Rs. 26,731 to the plaintiff, which amount excludes the payment of Rs. 2,757 which has been treated as a duplicate demand." The defendants writ in appeal, which has been partly accepted by a Division Bench of the High Court, as mentioned above.

4. The learned Judges have noted that the final decree was passed without any evidence of the plaintiff merely on the ground that the defendants have not produced their documents, and have rightly observed that the case was dealt with unsatisfactorily. The suit was filed for a specific amount, but was treated as one" for account merely because there was an uncertainty about the correct liability. Such an uncertainty does not entitle the plaintiff to treat his claim as one for accounts. On the contrary, in such circumstances, a plaintiff has to discharge his responsibility of ascertaining facts accurately before filing a suit, and to value it for paying the court‑fee in such a manner that he may get the decree for the amount claimed, or an amount less than that. It is only when the relationship of the plaintiff and the defendant is of such a nature that there may be a liability to render account that a suit for rendition of account can be maintained. Such a liability exists when there is a fiduciary relationship or a con tractual or statutory responsibility to render account exists. The plaintiff has to establish that the defendant is liable to account to him for no decree for accounts can be passed if the liability to render account is not established.

5. In this case there was no such relationship or liability ; therefore, there neither was nor could be a finding that the defen dant was to render account to the plaintiff. Let us note here that there is a difference between the need for examining account books and the liability to render accounts. If it is necessary to examine accounts for proving the correct amount that may be due, it does not by itself create a liability of the party which may be in possession of account books to render account to the other party. When there is a liability to render account, and the party which is so liable fails to discharge its responsibility, then a presumption can be raised against it, but in this case the defen dants were not liable to render account to the plaintiff. Their failure to produce their record could not be used as a substitute for proof of the plaintiff's case.

6. The learned Judges of the High Court have rightly pointed out that in this case the plaintiff was not entitled to get a decree for a bigger amount than the value which he had placed on his claim, and that the trial Court and the First Appellate Court were in error in treating the suit as one for account and granting and upholding respectively the final decree for a bigger amount than the value of the suit on which Court‑fee had been paid. 1t appears that the learned Judges of the High Court have not set aside the preliminary decree for account because no appeal was preferred from it They were nevertheless justified in the circumstances of this case in reducing the amount of the final decree to Rs. 10,000.

7. The petition is dismissed. Leave refused.