1. ' This second appeal filed by the appellant/plaintiff, is directed against the judgment and decree, dated 6th December,1972, passed by the learned 1st Additional District Judge, Sukkur in Civil Appeal No,5/1971, whereby he dismissed the said appeal and while doing so the decree passed by the learned 1st Class Civil Judge, Sukkur in Suit No,171/1969, partly decreeing the plaintiff's suit, was also set aside.
1. The facts briefly stated are that the plaintiff brought above- mentioned suit for recovery of Rs,9,190 against the respondent (hereinafter referred to as the defendant) on the plea that he was a contractor, to whom the work of constructing Shopping Centre at Sehwan and another job of constructing Town Hall and Community Centre at Dadu were granted at the rates offered by him. According to the plaintiff he completed both the works in 1969 and handed over possession thereof to the defendant. The final bill in respect of constructing the Town Hall and Community Centre at Dadu was paid but towards the final bill in respect of the construction work of Shopping Centre at Sehwan approved and passed for Rs,33-,940 the plaintiff was paid Rs,30,000 only by cheques and thus Rs,3,940 remained outstanding against the said job.
2. The total clailm of the plaintiff against the defendant is summarised in para. 4 of the plaint, which reads as follows:- 4 That the defendant has not yet paid the following payments which are still remaining due:-- {{TABLE TEXT}}
(i) Balance of the final bill of the work of Shoping Centre at Sehwan. Rs,3,940
(ii) Town Hall and Community Centre, Dadu earnest money Rs,1,250 Securities deposit: Rs,4,000 Rs,9,190"
3. ' According to the plaintiff both the works were final list and that he was entitled to receive the above-mentioned sum amounting to Rs,9,190. As the said amount was not paid in spite of demands made, the plaintiff filed the above-mentioned suit praying for decree for Rs,9,190 against the defendant with costs.
4. ' It may be mentioned that the above suit was brought at Sukkur, where the plaintiff resides in the plea that the cause of action arose partly at Sukkur.
5. ' The defendant filed its written statement and while denying the claim made in the suit it was pleaded that the plaintiff was entitled to only Rs,1,808.20 and not Rs,9,190. The jurisdiction of the Court at Sukkur was also challenged. It was further pleaded in para. 4 of the written statement that the plaintiff in his statement for settlement of accounts before the Chief Officer admitted the payment of Rs,5,000 through Mr.Juman Shah and also in his notice, dated 2nd February, 1969, sent by him through his Advocate and that he had objected to the deduction of Rs,1,058.80 as pointed out by the auditors. Thus, it was pleaded that the plaintiff was bound to return the amount received in excess by him "due to mistake of calculations as the final bill of town hall was prepared in hot haste". It may also be mentioned that in the concluding para. 2 of the written statement it was stated that the plaintiff was entitled to receive Rs,1,808.20 which the defendant was willing to pay to the plaintiff but the latter had unnecessarily filed the above suit for recovery of Rs,9,190. To which he was not entitled.
6. ' On the pleadings of the parties, the following issues were framed:-- (1). Whether this Court has no jurisdiction to entertain and try this suit?
7. (2). How much amount the plaintiff is entitled to receive from the defendant?
8. (3). What should the decree be?'
2. The plaintiff in support of his case examined himself as Exh.15 and produced certain documents and closed the side. The defendant on its behalf examined Abdul Sattar (Exh.51), who in his evidence also produced account forms. The other witness examined by the defendant was Juman Shah (Exh.53). The learned trial Court after hearing the Advocates for the parties by judgment passed on 29th May,1970 under Issue No,1, while repelling the contention raised on behalf of the defendant that as the accounts had not been settled, the plaintiff could only file a suit in the competent civil Court at District Dadu, held as follows:-- "The plaintiff has deposed in his evidence Exh.15 that the final bills of both the works have been passed hence the question of performance of contract or settlement of accounts is not involved in this matter. The only question involved in this matter is the payment of money remaining from one bill and the amount of deposit. The refusal to pay the same has given cause of action to the plaintiff for filing this suit in this Court. The plaintiff is residing within the jurisdiction of this Court. The plaintiff, therefore, can file suit at the place of his residence becuase the suit for recovery of money can be filed where the plaintiff resides or works for gain."
9. ' After referring to a number of reported cases, the learned trial Court concluded as follows:- "Thus, it is very clear that this suit being suit for recovery of money could be filed in the Court in whose jurisdiction the plaintiff resides. This Court has, therefore, got jurisdiction to entertain this suit.
10. This issue is, therefore, answered accordingly."
11. (The underlines are by me).
12. ' Having disposed of the question of territorial jurisdiction and having held that the suit was competently filed in the civil Court at Sukkur, under Issue No,2 it was further held, that the plaintiff was entitled to receive Rs,1,834 only. It was further observed that the defendant was prepared to pay this amount to the plaintiff, and accordingly the suit was decreed for this amount only.
13. ' Against the above judgment the plaintiff filed Civil Appeal No,5 of 1971, which was heard by the 1st Additional District Judge at Sukkur, who by judgment and decree, passed on 6th December,1972, dismissed the said appeal and while doing so also set aside the decree passed for Rs,1,834 by the trial Court with the following observations:-- "While discussing issue No,2 the learned Civil Judge has tried to settle the accounts between the parties and this was outside the jurisdiction of the civil Court at Sukkur. Under these circumstances, I hold that the suit for recovery of money as filed by the plaintiff is not maintainable as the facts and circumstances show that the accounts are not yet settled and, therefore, the civil Court at Sukkur had no jurisdiction in the matter.
14. ' In view of my findings on the Issues Nos.1 and 2, I hold that the appeal of appellant against the lower Court judgment and decree is not maintainable and the plaint is ordered to be returned to the plaintiff for want of jurisdiction and for filing it before the competent Court. Each party to bear its own costs. The appeal stands disposed of, with judgment and decree of lower Court set aside."
3. Being aggrieved by the above judgment and decree, passed by the two Court below, the plaintiff has filed this Second Appeal under section 100 of Civil Procedure Code.
4. The learned Advocate for the appellant in support of the above appeal raised the following two grounds:- "(1) That the plaintiff a contractor, had brought the suit for recovery of amount which according to him was due from the defendant and that he was not bound to sue for settlement of accounts.
15. (2). That the learned trial Court had decided Issue No,1 in favour of the plaintiff and held that the said Court had the jurisdiction to entertain the suit. Having held the Issue No,1 as above, for the reasons given in the judgment under Issues Nos. 2 and 3 separately dealt with, decreed the suit only for Rs, 1,834 in favour of the plaintiff as against his claim for Rs,9,190 made in the plaint. The plaintiff, therefore, filed appeal in which he claimed that the suit ought to have been decreed for the entire amount claimed. The defendant however filed no cross-objections and thus it was contended that the learned lower appellate Court was not justified to reopen the question of jurisdiction of the trial Court decided under the Issue No,1"
5. As regards the ground No,1 mentioned above, the relationship between the plaintiff and the defendant was that of an employer and a contractor which was governed by the agreement entered into between them for carrying out construction works awarded to the plaintiff. There is nothing on the record to show that either under the said agreements or otherwise under any principle of law relationship of principal and agent was created between the parties or that the plaintiff or the defendant was obliged to render accounts or that relief for settlement of account could have been claimed by the plaintiff in the suit. Reference may be made to here to section 213 of the Contract Act, under which an agent is made liable to render proper accounts to his principal on demand.
16. ' The view, taken by me as above, is supported by the case reported as Province of West Pakistan v.
17. Allah Ditta PLD 1972 Kar.
18. 8.
19. ' The facts of the said case were that the plaintiff was a contractor, who was granted the job of construction of a bridge on the terms and conditions specified in the contract between the parties.
20. The plaintiff Pleaded that subsequent to the grant of the job, the site where the bridge was to be constructed was changed and thus due to the change of the soil he was compelled to incur greater expenditure than anticipated, nonetheless he carried out the instructions of the employers, the defendants and was, therefore, entitled to reimbursement for the additional expenditure incurred by him. In the plaint he mentioned various items of his claim totalling Rs,81,821.50 which became payable to him. He however valued the suit for jurisdiction at Rs,5,000 and for purposes of court-fees at Rs,200 and made a prayer for passing a decree for the "settlement of claim" on the basis of rate analysis for each item of work specifically mentioned by him in the schedule to the plaint besides claiming refund of security deposit of Rs,2,663. The learned Division Bench in respect of the prayer for "settlement of claim" made by contractor/plaintiff in the suit held as follows:- "A suit for accounts is an equitable remedy which is available to a plaintiff only if he is entitled to accounts and has not been given accounts. It follows, therefore, that such relief does not arise out of a mere contractual relationship or because accounts may have to be examined in the course of a suit. As observed by Lokur, J. In Kanhayalal v. Hiralal Deoram AIR 1947 Born 255 there must be something more than a mere relationship of debtor and creditor. The defendant must stand in some other relationship to the plaintiff such as that of agent or bailee or receiver or trustee or partner or mortgagee."
21. The principle laid down as above is fully applicable to the present case as we and accordingly I hold that the contractor/the plaintiff in the present case was not entitled and could not have sued the respondent (defendant) for settlement of account.
22. ' It would also be relevant to mention that even the defendant has not made any claim in the written statement by way of counter claim for settlement of account.
23. ' For the above reasons the observations of the learned lower appellate Court that the settlement of account was required to be made between the parties or that the learned Civil Judge tried to settle the accounts between the parties were not warranted by the facts or the law. The plaintiff had rightly sued for specific sum which he claimed was allegedly due and payable to him by the defendant.
6. While dealing with the second ground, Mr.Abdul Majeed Khan, learned counsel for the appellant submitted that the learned lower appellate Court in the absence of any cross-objection filed by the respondent, committed gross error of law in entering upon and re-opening the finding given by the trial Court under Issue No,1 to the jurisdiction of the said Court in entertaining the suit at Sukkur. It was argued that the learned trial Court had answered the Issue No,1 in the affirmative and held that the suit for recovery of money/debt was rightly filed in the said Court which had jurisdiction to entertain and try the same. The appeal was filed by the plaintiff in the Court of District Judge, as his grevience was that instead of passing decree only for Rs,1,834, the trial Court ought to have decreed his suit for entire amount claimed, i,e, for Rs,9,190.
24. I have perused the record which shows that the defendant, though served with the notice of the said appeal, did not choose to file any cross-appeal or cross-objection against the finding given under Issue No,1 as to the competency/jurisdiction of the trial Court to entertain the suit. Thus the finding given under Issue No,1 by the trial Court, attained finality and that the said finding could not have been reversed in exercise of powers under rule 22 of Order XLI, C.P.C. The conclusion thus reached by me finds support from the case of Kherati and others v. Aleemuddin and another, PLD 1973 SC 295. The facts of the said case were that one Dinu executed a deed on 8th December, 1960, which was described as a mortgage deed but contained a recital to the effect that he had realised the consideration for the property and that he would execute the sale-deed and get it registered on the issuance of the P.T.D. In his favour. The said Dinu died on 4th November,1962 before the P.T.D.
25. Could be issued .To him but the same was subsequently used in his name on 5th December,1962.
26. The plaintiffs thereupon filed a suit for specific performance and prayed in the alternate that if it was found that the title had not passed to them then a mortgage decree for Rs,12,500 should be passed in their favour. The learned trial Court on the issue raised as to whether the suit was within time answered the said issue in the affirmative and held that the suit was within time. The trial Court further held that the heirs of Dinu were entitled to redeem the mortgage and accordingly allowed the heirs of Dinu to deposit the mortgage amount with costs of the litigation for redemption of the property. The heirs of Dinu accepted the decree and deposited the mortgage money but the plaintiffs went in appeal to the District Court. The heirs of Dinu neither filed any cross-objection nor challenged the findings of the trial Court under the Issue whereunder it was held that the suit for specific performance was within time. The District Judge allowed the appeal and passed a decree for specific performance and directed the refund of mortgage money to the heirs of Dinu.
27. ' The heirs of Dinu then filed a second appeal in the High Court, which was dismissed in limine. They thereafter went to the Honourable Supreme Court which petition for Leave to Appeal was also dismissed. The petitioners, however, filed review petition, which was disposed of by the judgment reported as Kherati and others v. Aleemuddin and another, PLD 1973 SC 295. In the said judgment after referring to the pleas raised by the petitioner that under section 3 of the Limitation Act it was the duty of the Court to consider if the suit was within time, that under Order XLI, rule 22, C.P.C. The Court of appeal has all the powers of the trial Court and it could pass any decree or order which ought to have been passed or made and that the respondents though may not have appealed from any part of the decree, may support the decree even an anyone of the grounds decided against them, the Honourable Supreme Court held as follows:- "It is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In the present case, the trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could not do without filing any cross-objection.
28. ' The next contention of the learned counsel appearing in support of this review petition is that it is, in any event, the duty of the Court to consider the question of limitation. This is also correct to the extent it goes; but it does not mean that where a trial Court has given a finding on the question of limitation against a particular party, he can still, without filing an appeal or cross-objection, challenge that finding in the higher Court of Appeal.
29. ' The Appellate Court is certainly bound to consider whether the appeal is within time or not, but it is not called upon to consider whether the suit has been rightly held to be within time, if no appeal or cross-objection is filed.
30. ' Lastly, learned counsel contends that where a decree is passed in respect of one of several alternative reliefs prayed for by the plaintiff, the plaintiff cannot go in appeal and in the Appellate Court contend that he does not want the alternative relief which has been granted to him, or that he desires to have the other relief which he claimed but was refused."
31. In view of the principles laid down by the Honourable Supreme Court as above, it is obvious that the learned lower Appellate Court fell in error of law in interfering and reversing the finding of the trial Court given under Issue No,1 by holding that the suit for recovery of money filed by the plaintiff was not maintainable for the reason that the circumstances showed that the accounts were not yet settled between the parties and, therefore, the civil Court at Sukkur had not jurisdiction in the matter. Mr.Abdul Majeed Khan, the learned counsel appears to be right that the attention of the lower Appellate Court was not drawn to the fact that against the finding given under Issue No,1 no cross-appeal or cross-objection had been filed and as laid down by the Honourable Supreme Court in the case of Kherati and others v. Aleemuddin and others (ibid) the finding given as, to the competency of the trial Court to entertain the suit filed by the plaintiff had attained finality and could not have been attacked or reversed in the absence of any cross-appeal or cross-objection.
7. The upshot of the above discussion is that this appeal succeeds and the impugned judgment and decree, passed by the learned lower Appellate Court in Civil Appeal No,5/1971 are set aside. The appeal is remanded to the learned District Judge, Sukkur to hear and dispose of the same himself or transfer it to any other Court of competent jurisdiction for decision on merits and on the other issues which have remained undecided.