DORAB PATEL, J.-This is a first appeal against a judgment of a First Class Sub-Judge, Hyderabad, dated the 27th May 1964 by which the learned Sub-Judge decreed the suit of the respondent against the appellant.
2. The facts material to this appeal are as follows :- The respondent was a contractor and on 16-11-1957 he entered into a written agreement (Exh. 26) with the then Province of West Pakistan for the construction of a bridge on K. B. Feeder Lower at R. D.
4321 of K. K. Road on the terms and conditions specified in the said contract (Exh. 26). Later, however, according to the respondent, the appellants directed him to construct the bridge not at R.
D. 4321 but at R. D. 4800 ; and as the soil at R. D. 4800 was hard as compared to the soil at R. D. 4321 he was compelled to incur greater expenditure than anticipated under the contract. But he had nonetheless carried out the instructions of the appellants and was entitled to reimbursement for the additional expenditure properly incurred by him. Further, according to the respondent, after the start of the work, the appellants 2 and 3 had directed him to carry out more items of work which were not contained in the contract and he had complied with those directions and was entitled to reimbursement for all the additional work done by him at the instance of the appellants 2 and 3.
Finally, according to the respondent, after the start of the work, the appellants 2 and 3 had altered the specifications and details of many of the items of work fixed in the contract (Exh. 26), and although these alterations involved more expense than had been fixed under the agreement (Exh.
26) the respondent had carried out the orders of the said appellants, therefore, he was entitled to reimburse--ment for all extra-expenditure thus incurred by him at the instance of the appellants 2 and 3. The respondent had completed all the work entrusted to him by 8-10-1956 and his contention is that, on the completion of the work, he became entitled to reimbursement for all the extra or additional work done by him. He therefore made representations to the third appellant who recommended to the second appellant that lie (the respondent) should be paid Rs. 39,663.25 for all the extra work done by him. The second appellant however arbitrarily rejected the third appellant's recommendation, and in August 1960, he sanctioned only Rs. 8,048.75 against the respondent's claim. The respondent did not accept this offer because he considered he eras entitled to Rs. 81,821.50, therefore he served the statutory notice under section 80, C. P. C. On the appellants demanding payment of the said amount claimed by him, and as his demand was not complied with, on or about 31st May 1961, on these allegations, he filed a suit against the appellants for the recovery of the said amount of Rs. 81,821.50 in the Court of the First Class Sub-Judge, Hyderabad. This suit was contested by the appellants, but before we proceed to examine their contentions, we have to point out here that with the plaint the respondent had filed a schedule containing all the details of his claim for Rs. 81,821.50; yet we find that the respondent had valued his claim for jurisdiction at only Rs. 5,000, and for purposes of court-fees at only Rs. 200. He has further stated in his prayer clause that the Court should pass a decree for the "settlement of claim" on the basis of rate analysis for each item of work specifically mentioned in the Schedule A to the plaint . . . . . . .", for the refund of his security deposit of Rs. 2,663 and for a hutting allowance at 2-- % on the total amount of work done by him.
3. The appellants filed a joint written statement in which, apart from disputing the merits of the claim, they raised certain legal objections. Thus they submitted that the second and third appellants had been unnecessarily impleaded. They also expressly pleaded that the suit was not in proper form and was not maintainable. They further submitted that the claim was barred by the terms and conditions of the agreement signed by the respondent (Exh. 26). They also denied all the allegations of the respondent and submitted that except for the sum of Rs. 8,048.75 the respondent had been paid all his dues. On these pleadings several issues were framed, but tire learned counsel agreed that only the following issues were relevant :-
(1) Is the suit not maintainable according to law?
(2) Is the suit not in proper form?
(3) Did the defendants ask the plaintiff to carry out the contract work on new specifications and details not covered try the terms of agreement. If yes, was the plaintiff bound to carry out the said work?
(4) Is the plaintiff entitled to payment for work done by hire contained in the schedules.
(5) Has the defendant settled the claim of the plaintiff. If yes, whether the same is legal and is binding on him?
(6) Is the plaintiff entitled to a decree of settlement of accounts and refund of security deposit?
(7) What should the decree be?
The parties gave evidence on these issues, and whilst the respondent examined his overseer, the appellants examined an Executive Engineer by the name of Amirul Hassan. Unfortu--nately, neither the second nor the third appellant gave evidence, therefore as these appellants were in charge of the works at the relevant time, the learned Sub-Judge, who heard the suit, drew an adverse inference against the case of the appellants, and he accepted the evidence of the respondent that he had not been paid for the work done by him. He also held that the suit was not barred by the agreement between the parties (Exh. 26) and he further held that the suit was maintainable because the plaintiff was entitled to value a claim for accounts arbitrarily. Accordingly, by his judgment dated 27-5-1964 he decreed the respondent's suit. Aggrieved by this judgment the appellants tiled an appeal in this Court which has now come up for hearing before us.
4. We have observed earlier that the Schedule to the plaint contains full particulars of the respondent's claim for Rs. 81,821.50, yet the respondent has valued his claim for purposes of court- fees at only Rs. 200, and he has further prayed for "settlement of claim". As we were not able to understand the expression "settlement of claim", we invited Mr. Pirzada to clarify what he meant by it. Mr. Pirzada pointed out that the plaint had not been drafted by him, that the suit was really a suit for account, and that the words "settlement of claim" were merely a clumsy manner of seeking the relief of accounts. Two questions obviously arise for consideration in the situation discussed. The first question is whether the respondent could value his claim for the purpose of court-fees at Rs.
200 when In fact he was seeking a decree for Rs. 81,821.50. The second question is whether he could sue for accounts when the Schedule to the plaint itself shows that he was fully aware of every detail of his claim. These questions fall under the first two issues, and the first part of the 6th issue ; but as they are legal questions, we shall examine them first.
5. Mr. Pirzada defended the valuation of the suit for purposes of court-fees at Rs. 200 on the ground that a plaintiff was entitled under the Court Fees Act to value his claim for accounts in any manner he wished. But if this argument is accepted, it would defeat the provisions of Order VII, rule 11, C. P. C., therefore in Lokumal Deepchand and others v. Tolaram and others (AIR 1937 Sind 241) a Full Bench of the Judicial Commissioner's Court, Sind held that a plaintiff could not value a claim for declaratory relief arbitrarily. This judgment was considered 22 years later by Constantine, J. In Imamuddin v. Abdul Ghani (PLD 1959 Kar. 802), and after considering all the relevant authorities, Constantine, J. Held that a plaintiff' could not value a claim for accounts arbitrarily, and that he could be directed to make a reasonable valuation on the basis of his knowledge and information.
These cases were again approved by Waheeduddin Ahmad, J., as he then was, in Zafar Ahmed v.
Abdul Khaliq (PLD 1964 Kar. 386). Wahiduddin, J. Further observed that whilst the Lahore High Court had taken a different view, the Courts in Karachi had always held that a plaintiff seeking declaratory relief could not value his claim arbitrarily. This view was again approved by to Division Bench of the West Pakistan High Court in Muhammad Siddiq v. Haji Ahmed & Co. (PLD 1967 Kar.
468). It is true that Muhammad Siddique's case and Zafar Ahmed's case both related to suits for setting aside decrees on the ground that the decrees had been obtained by fraud, but if declaratory relief' cannot be valued arbitrarily, on the same principle, a claim for accounts cannot be valued arbitrarily, therefore the principle laid down in these judgments is fully applicable to the present case. Additionally, Imamuddin's case was a case for accounts, therefore, according to the long established practice of the Courts in Karachi, as the respondent was aware that his claim was for Rs. 81,821.50, he should have valued it for the purpose of court---fees at the same amount. As the view of this Court is well settled, we can only express our great regret that the learned Civil Judge should have disregarded it. However we were informed that the respondent had subsequently paid court-fees on the fall amount, namely, Rs. 81,821.50, therefore we agree with Mr. Pirzada that the deliberate under valuation of the plaint by the respondent is not a defect fatal to his claim.
6. We now turn to the second question which obviously arises from a perusal of the plaint and its schedule. 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 t 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 Bom. 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". In the instant case, the plaint does not contain any averment showing how the appellants were liable to the respondent for account, nor does it even contain an averment that the respondent had asked for accounts and been refused accounts. We are therefore not able to understand how the learned Civil Judge decreed the respondent's claim on the pleadings. Be that as it may, as a plaint can be amended, we invited Mr. Pirzada to explain to us on what basis the respondent claimed that the appellants were liable to him for accounts. After we had put this question repeatedly to learned counsel, learned counsel stated that the respondent was entitled to accounts from the appellant because he was their agent. But whilst a principal is entitled to accounts from an agent and to sue his agent for accounts if he is not given proper accounts, an agent can sue his principal for accounts only in exceptional cases. That was also Mr. Naimuddin's submission, and in support of it he referred us to the judgments of the High Courts of the sub-continent.
7. We have already referred to the Bombay judgment in Kanhayalal's case, and, as is clear from that judgment, the consistent view of the Bombay High Court has been that a plaintiff can sue a defendant for accounts only when the defendant's liability is based on a special relationship such as agent, bailee, trustee, etc. The same view has been taken by the Calcutta High Court in Narmada Charan v. Maharaj Bahadur Singh (AIR 1937 Cal. 359), and by the Lahore and Madras High Courts, and as the judgments of the Lahore and Madras High Courts relate to suits for accounts by agents we shall briefly refer to them. In Ram Lal Kapoor & Sons v. Asian Commercial Insurance Co. (AIR 1933 Lah. 483) the plaintiff was an insurance agent and sued its principal, the Insurance Company, for accounts on the plea that its commission was dependent on policies that had lapsed, matured and forfeited, and that as it was not aware of the policies that had lapsed, matured, forfeited, it was entitled to accounts. The difficulties of the plaintiff were obvious, and in upholding its claim for accounts after examining the earlier authorities of the Lahore High Court, the learned Single Judge observed at page 484:- "On the contrary, a perusal of all these 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 circumstances or under trade, usage or a definite contract . . . . . . . . . . . . . . . It has been held in England that where the accounts between a principal and agent are of so complicated a nature that they cannot be satisfactorily disposed of in an action at law an agent in such a case has a right to have an account taken in a Court of equity. Such a right is of a very limited nature."
The same view was taken by the Madras High Court in Ramachandra Madhavadass Co. v. M. M.
Birankutti & Bros. (177 I C 631). The facts in this case were that a plaintiff had filed a suit in the Small Causes Court for a specified amount. That Court did not have jurisdiction to entertain suits for accounts, and because the claim involved the investigation of accounts, the learned Judge thought it was a suit for accounts, therefore he ordered the presentation of the plaint in the proper Court. Aggrieved by this order, the plaintiff filed an appeal in the High Court, and in allowing the appeal Abdur Rehman, J. Observed at page 632 :- "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 on 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."
8. 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 can succeed only if he shows that, due to special circumstances or difficulties, he is not able to ascertain the amount due to him from his principal. As, in the present case, according to Mr. Pirzada, the respondent was the agent of the appellants, the respondent had to prove the special cir--cumstances entitling him to file a suit for accounts. Not only has he not pleaded any such special circumstances, but he has not even pleaded in his plaint that he was the agent of the appellants. Further as all the details of his claim are fully set out in the Schedule to the plaint, we do not see how he can possibly contend that on account of special circumstances he is entitled to sue for accounts, and the suit is barred, according to the settled law.
9. Mr. Pirzada however submitted that even if the plaint was defective, the defect was curable under section 11 of the Suits Valuation Act and section 99 of the Civil Procedure Code. Section 11 of the Suits Valuation Act is not relevant because the; respondent has not only deliberately undervalued his suit, but he has filed a suit for accounts when his only cause of action was for the recovery of the specified sum known to him. As to section 99, in so far as it is relevant, this section states that no decree shall be reversed on account of any defect or error in the proceedings in the suits "not affecting the merits of the case". Mr. Naimuddin rightly pointed out that this section also did not help the respondent, because the respondent had deliberately filed a suit for accounts knowing that he had no cause of action for such suit, therefore, it could not be said that the illegality in the plaint was a mere irregularity not affecting the merits of the case. Learned counsel's submission is correct. Mr. Pirzada then submitted that his argument was supported by the authorities and referred us to judgments of the Lahore High Court in Umar Din v. Fazal (PLD 1952 Lah.166) and Khawaja v. Nur Alam (PLD 1953 Lah. 277). In the first case Kayani, J. As he then was held that, in view of section 99, C. P. C. a suit for possession could be treated as a suit for specific performance. But this conclusion was based on the pleadings in the case. The following observations of Kayani, J. At page 183 are significant:- "The general sense of the plaint, therefore, is that the plaintiffs are entitled to possession on the basis of the contract contained in the sale-deed of January 1944, and their right acquired by the sale-deed of April, 44, and except that there is no express mention of the words `specific performance', we cannot fail to see that possession is sought on that basis."
Thus the view taken by Kayani, J. Was that if a plaintiff has pleaded the facts constituting his cause of action, his claim could not be allowed to be defeated merely because he had failed to pray for the correct relief to which he was entitled on the basis of his plaint; and that was also the view taken in Khawaja's case. We are in respectful agreement with this view, but we do not see how this judgment can help the respondent's case because there is nothing in them to support the view that a claim can be decreed on a cause of action which has deliberately not, been pleaded.
Additionally, we have to observe here that, in order to prevent any injustice to the respondent we told Mr. Pirzada that we would be willing to consider an amendment of the plaint, but after taking instructions learned counsel stated that he was not prepared to amend the plaint. In these circumstances, we do not see how any relief can be given to the respondent.
9-A. The result of this discussion is that we decide the first two issues against the respondent and in favour of the appellants. We also decide the first part of the 6th issue in favour of the appellants and against the respondent. The second part of this issue relates to the refund of the respondent's security deposit. However, we were informed that this amount was included in the sum of Rs.
8,048.75 for which the appellants have accepted liability. We were also informed that this amount had been deposited in Court and drawn out by the respondent therefore this part of the issue was dropped before us.
9-B. Issue No. 3.-In view of our findings on issues 1, 2 and 6 and our finding on the next issue, it is not necessary for us to decide this issue.
10. Issue No. 4.-We have explained that the respondent's claim falls under three heads, for the additional expenditure involved on account of shifting of the venue of the contract from R. D. 4321 to R. D. 4800, for additional work given to him and for alterations in the designs, specifications etc. The burden of proving all these claims is on the respondent, and we shall now consider Mr. Pirzada's arguments in the light of this principle.
11. The respondent's overseer has stated in his evidence that the soil at R. D. 4800 was harder than the soil at R. D. 4321, therefore the respondent had to incur extra expenditure. As the change was for the benefit of the appellants, it is clear that the respondent would be entitled to compensation provided he proved that the soil was harder at R. D. 4800, and further proved the additional expenditure Incurred by him, and that such expenditure was reasonably incurred. However, the only evidence in support of the respondent's claim are copies of his corres--pondence with the appellants, and the evidence of his overseer, Mr. Abdur Razak. Abdur Razak has deposed from his personal knowledge that the soil at R. D. 4800 was harder and he has stated, without giving proper particulars, that extra charges were incurred in consequence. On the other hand, the appellants had examined an Executive Engineer, Mr. Amirul Hassan who stated that he had inspected the sites, and his view was that there was no difference in the soil at R. D. 4800 and the soil at R. D. 4321.
Unlike Mr. Abdur Razak, this witness could claim to have some expert knowledge. In any case, as the burden of the issue was on the respondent, the respondent should have produced evidence to rebut Mr. Amirul Hassan's evidence. As he has not done so, he has failed to prove that the soil at R.
D. 4800 was harder than the soil at R. D. 4321, and his claim for consequent additional expenditure has to be rejected.
12. Mr. Pirzada then referred us to the respondent's claims for the additional expenditure incurred on account of the alterations in designs, specifications etc. Ordered by the appellants, and the respondent's claims for reimbursement for the additional work he was ordered to do. If the respondent's claims are correct, it means he had to incur expenditure on extra labour and on the purchase of extra material. Yet he did not care to produce his books of account or any bills, vouchers, receipts etc. To prove the alleged extra expenses. He also did not examine the person or persons from whom the extra material for the additional work must have been purchased. Instead, he merely' examined his overseer, Mr. Abdul Razak who however deposed generally about the respondent's claims and did not give any proper particulars of the same. According to Mr. Pirzada, this was not material, because the witness had produced the copies of the respondent's letters to the appellants (Exhs. 32 to 73). But even these letters were not supported by any bills, vouchers, receipts etc. And, in the circumstances discussed, they can help the respondent only to the extent to which his claims in these letters have been accepted by the first appellant. But, as we have indicated earlier, whilst the third appellant had accepted the respondent's claim for Rs. 39,663.25, the second appellant had accepted it only for Rs. 8,048.75 therefore Mr. Pirzada invited us to hold that at least the amount certified by the third appellant should be accepted as binding on the first appellant. Unfortunately for learned counsel's argument, all the claims of the respondent for additional and extra work are governed by clause 14 of the contract (Exh. 26), and under this clause, whilst the Engineer-in-Charge is entitled to give written directions and fix the rates for extra work, all disputes have to be referred to the Superintending Engineer. The relevant part of the clause reads :- "In the event of a dispute the decision of the Superintending Engineer of the Circle will be final."
In view of this clause, Mr. Naimuddin submitted that the second appellant's decision was irrelevant,
13. Mr. Pirzada submitted that clause 14 was illegal because it ousted the jurisdiction of the Courts and was hit by section 28 of the Contract Act. In support of this argument learned counsel referred us to a judgment of the Lahore High Court reported in Cantonment Board, Sialkot v. Nazir Ahmad (PLD 1953 Lah. 400). There the dispute was about the construction of a clause which stated that, in the event of a dispute between the parties, the decision of the Executive Engineer of the Cantonment Board shall be deemed to be correct. The learned Single Judge, who heard the case, held that the clause was illegal, but his conclusion was based on the fact that the Executive Engineer had no expert knowledge of the disputes that would arise under the contract. In the instant case, however, the Superintending Engineer, to whom disputes are to be referred, is in the position of an expert, therefore the ratio decidendi of the judgment cited does not help Mr. Pirzada's argument. Additionally, the real question here is whether the first appellant is bound by the second appellant's approval of the respondent's claim for Rs. 39,663.25 and Mr. Naimuddin relied on clause 14 to show that the first appellant was bound by the third appellant's views but that it could not be bound by the second appellant's views. No other clause was relied upon by Mr. Pirzada, and whatever be the scope and effect of clause 14, it is clear that it does not help Mr. Pirzada's submission that the first appellant is bound by the second appellant's decision, therefore the fact that the second appellant partially supported the respondent's claim and thought a larger amount was due to the respondent, is immaterial.
14. We are aware that the second and third appellants did not give evidence. This was unfortunate, and the learned Civil Judge has rightly drawn an adverse inference against the case of the appellants. But, as we have pointed out, the burden of proving his claim was heavily on the respondent, and the burden could not be discharged merely by drawing an adverse inference against the appellants. In order to discharge the burden of proof on him, the respondent had not only to examine his overseer and produce copies of his correspondence but he had also to produce and prove books of account, vouchers and receipts for the purchases made by him and for the payments made by him to his workers. He has not even produced the documentary evidence which was obviously in his possession, therefore an adverse inference has to be drawn against him also for his failure to produce the evidence in his possession. It is unfor--tunate that the learned Civil Judge failed to consider this aspect of the case, and in the circumstances, we are satisfied that the flimsy evidence produced by the respondent is not sufficient to prove his claim.
15. When we invited Mr. Pirzada to explain why the respondent had withheld the documentary evidence in his possession, Mr. Pirzada merely stated that he did not conduct the proceedings in the trial Court and then referred us to a passage in Mr. Amirul Hassan's evidence. Mr. Amirul Hassan was questioned about the correspondence produced by the respondent, and he said, "They are all genuine documents. They are a part of the official correspondence relating to this work" Mr. Pirzada submitted that the first sentence amounted to an admission by the witness that the claims of the plaintiff were genuine. We do not agree with this submission. The statement of the witness has to be considered as a whole, and taking it as a whole, it is clear that all that the witness meant was that the copies produced by the respondent of his letters to the appellants were true copies. There is no merit in Mr. Pirzada's submission.
16. No other argument was advanced. It is clear that the respondent has failed to prove his claim, therefore we set aside the finding of the learned Civil Judge on this issue. However, we may note here that a sum of Rs. 8,048.75, for which the first appellant has accepted liability, has been drawn by the respondent.
17. Issue No. 5.-Mr. Pirzada did not press this issue, but with regard to the second part of the issue Mr. Naimuddin submitted that, in any event, the respondent's claims were barred under clause 14 of his contract with the first appellant (Exh. 26). As we have pointed out, under this clause, in the event of any dispute with the contractor "the decision of the Superintending Engineer of the Circle will be final". Mr. Naimuddin's submission was that on a proper construction of this clause and in the events that had happened, the respondent was barred from filing this suit as his claim had been rejected by the third appellant. On the other hand, Mr. Pirzada submitted that the clause amounted to an arbitration clause and that, as it had not been invoked by the appellants before they filed their written statement, they were not entitled to rely on it. As in any event, the respondent has failed to prove his claim, we do not need to consider learned counsel's arguments and it is not necessary to decide this issue.
18. Issue No. 7.-The learned Civil Judge had decreed the claim against all the appellants. As the second and third appellants were only acting as the agents of the first appellant even Mr. Pirzada conceded that the suit had been wrongly decreed against these two appellants. Learned counsel of course submitted that the decree should not be set aside against the first appellant, but we have held that the respondent has failed to prove his claim, and we have also held that he had no cause of action for the suit filed by him. We therefore set aside the judgment and decree passed by the learned Civil Judge, dismiss the respondent's suit and allow the appeal of the Province of Sind with costs. As only the first appellant has engaged counsel, the other appellants are not awarded costs.
K. B. A.