MUHAMMAD AFZAL LONE, J.---This appeal under Article 185(2) of the Constitution filed by the plaintiff in a suit for rendition of accounts is directed against the High Court's judgment dated 28- 2-1987, whereby the respondents' first appeal was accepted, the preliminary as well as final decree passed by the trial Court in favour of the appellant were set aside, and the suit was remanded to the trial Court with the direction to decide it afresh after filing of the amended plaint by the appellant for recovery of specific amount.
2. The relevant facts are that the respondents awarded a contract to the appellant for repairing ghara along Shahdara protection bund and for providing up shta alongwith R.D. 13/14 Shahdara protection bund. According to the appellant, he executed the work and supplied some material to the respondents in pursuance of several work orders placed on him; in August 1974 he was issued a Cheque for Rs.3,92,178, as a running payment, for a portion of the work completed by him, but the payment of the cheque was stopped and it was retrieved back from him by the respondents. That despite his request the cheque was never re-issued to him. He then filed a suit against the respondents for rendition of accounts on the plea that they failed to furnish details of the running payment and render accounts maintained by them, disclosing the full information about the work completed and supplies made to them by the appellant. In the written statement the respondents objected to the form of the suit and also raised some other objections which were put into preliminary issues. At a later stage, they did not appear in the Court; consequently were proceeded against ex parte. And on 12-5-1976 the trial Court passed a preliminary decree against them; appointed one Syed Ali Shah an Accountant of the office the Deputy Comptroller PTNT Department as Local Commissioner, with the direction that after hearing the parties and examination of their accounts he would submit his report on 29-7-1976. However, the report was filed by him on 26-2- 1977, wherein he opined that a sum of Rs.3,57,517 was due to the appellant from the respondents.
The latter filed objections against the report, which mainly were that the Local Commissioner was appointed without their knowledge and consent; the work orders were not issued by the competent authority, m this respect a departmental inquiry was being conducted and that the report was also inconsistent with the factual position of the suit. The learned trial Court by a detailed and well-- reasoned order dated 30-4-1977 turned down all the objections, passed a final decree for Rs.3,57,517 in terms of the Local Commissioner's report in favour of the appellant, who was allowed a period of two months to make good the deficiency in the court-fee.
3. The respondents assailed this decree before the High Court through an appeal. Under section 96, C.P.C. During the course of its hearing; on their behalf, it was contended that they were not under any legal obligation to keep and render the accounts for the work done by the appellant. This argument weighed with the learned Single Judge, who maintained that the appellant was well aware of the work performed by him and could sue for a specific amount of remuneration therefor.
In this view of the matter, the High Court accepted the respondents' appeal and alongwith the final decree also set aside the preliminary decree and remanded the suit to the trial Court, as observed in the opening para. Of this judgment.
4. From the appellant's side, it is argued that the preliminary decree is appealable under section 97, C.P.C., but the respondents never filed any such appeal within the period of limitation and were thus debarred from challenging the same in appeal from the final decree. It is submitted that the High Court acted illegally in setting aside the preliminary decree, while hearing the appeal under section 96, C.P.C. Against the final decree. On the other hand the argument of the respondents is that relationship between the parties being contractual, they were not liable to render accounts to the appellant, who should have filed a suit for recovery of specific amount. Their submission is that an objection to the competency of the suit, in the form of rendition of accounts having been raised in the written statement, an important issue fell for consideration before the trial Court and even if they were absent the trial Court could not have passed an ex parte preliminary decree against them without satisfying itself by recording evidence or examining other material that the respondents were really an accounting party. In the absence of any such material, according to the respondents' learned counsel, the preliminary decree suffered from a jurisdictional defect and being wholly void could be ignored and set aside by the High Court in hearing the appeal against the final decree.
5. It is to be remembered that liability to render accounts is the foundation for maintainability of a suit for rendition of accounts. Such a liability exists when there is fiduciary relationship between the parties as in the case of partners of a firm, guardian and ward, principal and agent, trustee and beneficiary of the trust. These instances are only enumerative and under Order XX, Rule 16, C.P.C., the Court is empowered to pass a preliminary decree where it feels necessary that to ascertain the amount due to one party from the other side, the accounts should be taken. But, in the instant case, the relationship between the parties is undoubtedly contractual. In such a case, the respondents are not under any obligation to render accounts to the appellant. The work done, the material supplied to the department and the payments received from them by the appellant were within his knowledge. It was, therefore, for him to have ascertained the amount due to him and filed a money suit for recovery thereof.
6. A question arises, when the suit for rendition of accounts was not maintainable, whether the ex parte preliminary decree was void, without jurisdiction and thus, could be ignored by the High Court in appeal from the final decree. Our answer is in the negative. By jurisdiction is meant a power to hear and decide legal controversy between the parties, to pronounce judgment and execute the same. It cannot be said that the learned Civil Judge who was seized of the suit and passed a preliminary decree was not possessed of such power. If the order made by him is contrary to law that would not render it as one without jurisdiction. It is correct that in the written statement there was an objection to the from of the suit. It is to be noticed that such an objection does not involve any consideration of public policy. It is well settled that where public policy is not involved any party may waive of the benefit of the law made for his advantage. The respondents' absence from the trial Court and their consequential failure to defend the suit would have the effect of waiving of the objection. What would have been the position of the decree, had there been no objection to the form of the suit by the respondents? Could such a decree be treated as void and a nullity? Where a party can waive of a plea, any decision of the Court in disregard of such a plea, cannot involve a jurisdictional issue, for jurisdiction, is not dependent on the will of the parties to the suit.
7. A preliminary decree is appealable, but the respondents did not prefer any appeal against ex parte decree dated 12-5-1976. It is in the report of the Local Commissioner that from 16th December, 1976, to 26th December, 1977, the officials of the department appeared before him on several occasions produced the account books and participated in the proceedings. The trial Court's order also reflects that the Counsel for the respondents entered appearance in the Court alongwith the Local Commissioner on 29-11-1976, 10-1-1977 and 26-2-1977. It can thus safely be presumed that they stood posted with the knowledge of the preliminary decree in pursuance whereof the Local Commissioner had embarked upon taking the accounts. Section 97, C.P.C., expressly ordains:----- "Where any party aggrieved by a preliminary decree .... Does not appeal from such decree, he shall be precluded from disputing its correctness in an appeal, which may by preferred against the final decree."
It was thus not open to the respondents to throw a challenge to the validity of the preliminary decree against an appeal from the final decree. The order of the High Court in striking down the preliminary decree is evidently violative of mandatory provisions of section 97, C.P.C., and thus, cannot be sustained. The failure of the learned Civil Judge to suo motu take notice of the form of the suit and passing of preliminary decree by him without calling upon the appellant to establish that the respondents were an accounting party would at the most be an illegality against which they could seek remedy through an appeal provided by section 97, C.P.C. As regards a void order, it will not be out of place to refer here to the following observations appearing in M/s. Conforce Ltd. v.
Syed Ali Shah etc. (PLD 1977 SC 599):----- " ....We would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions "void orders" and "orders without jurisdiction" are overworked expressions."
It is significant to note that there is nothing in the impugned judgment to reflect that the High Court proceeded on the assumption that the preliminary decree wag 'void and a nullity. It appears that section 97 was not even present to the mind of the learned Single Judge. The respondents could not have been permitted to circumvent the period of limitation and bypass the provisions of section 97, C.P.C.
8. With a view to see that complete justice is done in this case, we have also gone through the report of the Local Commissioner, prepared by him on examination of the accounts of both the sides, which demonstrates that the cheque for Rs.3,92,178 issued to the appellant, but withdrawn subsequently, related to the work done by him under 15 work orders. It is noteworthy, that out of this amount, the respondents paid to him a sum of Rs.1,71,210 during pendency ,of the suit and showed, rest of the amount as adjusted against Government dues, security and income-tax deductions etc. This would militate against their claim that the work orders were issued to the appellant without sanction of the competent authority. We find that it was on the basis of a detailed inquiry and scrutiny of the accounts that the Local Commissioner came to the conclusion that a sum of Rs.3,57,517 was payable to the appellant by the department. The acceptance of this report and passing of a final decree on the basis thereof by the trial Court, is not open to any valid criticism.
We have noticed that the suit was filed in the year 1975. The appellant has already paid the requisite court-fee on the amount awarded to him. As already observed, the Local Commissioner made his report after a searching look into the respective claims of the parties, in the light of their accounts. We feel, that even if the suit is re-heard on merits, the result would not be different one.
For all these reasons this appeal is accepted and the impugned judgment set aside. Consequently, the judgment and decree of the trial Court stand restored. The parties are left to bear their own costs.