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Regular First Appeal No.148 of 1977, decided on 28th February, 1987.

---S. 9 & O. XX, Rr. 16 & 17--Contracting firm having done certain work for a Government department, filing suit against Government for rendition of accounts--Decree for a specified amount passed against Government by trial Court--Validity of proceedings--Where contracting firm was well aware of the work performed, and was in a position to ask for specific amount of remuneration therefor, question for calling upon. Government to render accounts, held, was misconceived--There would be no liability of Government to render account to a contracting firm.

Niaz Muhammad v. Government of West Pakistan 1969 S C M R 219 ref.

---S. 73--Civil Procedure Code (V of 1908), S. 96 & O. VI, R.17- Recovery of specific amount for work done--Remedy--Contracting firm having already paid court-fee in respect of amount claimed by it, was advised by High Court to amend the plaint to ask for recovery of specific amount of money for the work performed--Appeal against decree for rendition of accounts was accepted and case was remanded to trial Court to proceed afresh in accordance with law, after respondents had put in amended plaint for recovery of specific amount.

Syed Abbas Ali Shah for Appellants.

Syed Najamul Hassan and Mr. Azeem Malik for Respondent.

Dates, of hearing: 22nd and 28th February, 1987.

This appeal directed against the final decree passed by the learned Civil Judge, Lahore, dated the 30th April, 1977, in the suit brought by the respondent for the rendition of accounts against the appellants arises out of the following circumstances. The respondent, Messrs Friend Engineering Corporation, Lahore, which claims to be a registered firm, alleged that it had carried out certain works in 1974 for the Public Works Department of the Government of Punjab. To recover the amount due for the execution of the work it brought suit for rendition of accounts against the appellants. While contesting the suit the appellants, inter alia, took serious objection to its maintainability in the form it had been instituted. An issue on the objection was also struck. However, on the 12th May, 1976, when the respondent's evidence was to be recorded none entered appearance on behalf of the appellants before the learned trial Court which proceeded ex parte against them and without receiving any evidence from the respondent and without saying anything on the merits of the cases or deciding the objection to the maintainability of the suit straightway passed ex parte preliminary decree for rendition of accounts and appointed Syed Ali Shah, an Accountant in the Office of the Deputy Controller,. Post and Telegraph, Lahore, to take accounts and report. The Commissioner reported on the 26th February, 1977, that Rs 3,57,517 were due from the appellants to the respondent. The learned Court ultimately passed final decree for the recovery of the aforesaid amount in favour of the respondent and against the appellants on the 30th April, 1977. It directed the appellants to pay interest on the decretal amount from the date of institution of the suit till its realization plus the costs of the suit to the respondent. Feeling aggrieved the appellants have approached this Court in appeal.

2. The learned counsel for the appellants maintains that the appellants were in no way bound to render accounts to the respondent -because neither relationship of principal and agent existed between them, nor they were carrying on any joint venture of partnership business nor they were under any legal obligation to keep and render accounts of the work done by the respondent. He referred to the facts of the case reported as Niaz Muhammad v. Government of West Pakistan 1969 SCMR 219 and the rule laid down by the Supreme Court of Pakistan therein in support of his contention that in the instant case the appellants were in no way liable to render accounts to the respondent.

3. The learned counsel for the respondent banked upon the decision of this Court delivered in R.F.A. No 19 of 1966, Government of West Pakistan v. Sheikh Muhammad Aqil, to canvass for the acceptance of his contention that accounts could be rendered in the case in hand. In the precedent case the Government Pleader appearing on behalf of the Government had stated at the Bar that he had no objection if the preliminary decree for rendition of accounts was passed and it was due to his concession that decree for rendition of accounts was passed. However, in the instant case the appellants are denying their liability to render accounts and are seriously objecting to the sustainability of the suit for rendition of accounts. The learned counsel for the appellants could not cite any other judgment of any superior Court obliging the Government or any of its functionaries in similar circumstances to render accounts to the contractor. The respondent was well aware of the work performed him and was in a position to ask for specific amount of remuneration therefor. The question of calling upon the appellants to render accounts does not arise; the appellants were in no way liable to render accounts to the respondent. The suit for rendition of accounts was misconceived.

4. As the respondent has already paid court-fee in respect of the amount which he now claims is due to him he will better amend the plaint to ask for the recovery of specific amount of money for the work that he claims he has performed. The appeal is accepted, the decrees (preliminary as well as final) granted by the learned trial Court are set aside and the suit is remanded to the learned trial Court for fresh trial and decision according to law after the respondent puts in amended plaint and written statement thereto has been received from the appellants. The litigation is fairly old and it is desirable that the learned trial Court should decide the suit within six months and report compliance to this Court. The parties are left to bear their own costs.

A.A/G-32/L Appeal accepted.

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