' This 1st Appeal under section 96 of the Civil Procedure Code is directed against the preliminary decree passed on 23-11-1976 by the Additional District Judge, Tharparkar at Sangbar in Suit No, 15 of 1965 filed by the respondent/ plaintiff` against the appellants/defendants.
2. In the suit filed by the respondent, he claimed settlement of accounts and permanent injunction.
His case was that he was appointed as non-official conanaission agent by the agricultural Department for sale or the wheat seeds, cotton seeds, and fertilizer for the years 1958-59, 1959-60, 1960.61 by the Extra Assistant Director Agricultural and Seeds Depot Officer, Sanghar, appellant 3. De however, worked as commission agent only for the year 1960.61. According to the terms of the agreement he was entitled to payment of commission at the rate of .25 paisas per mune] of wheat seeds and cotton seeds, and .25 paisas per bag of fertilizer but he was not paid his commission, rent and other charges which he allegedly incurred on behalf a the appellant which he claimed, he was entitled to receive from the appellants according to the tears of the agency agreement, and he annexed to the plaint a memo of accounts for the year 1950-61, which reads as follows "Supplies during year 1960-61.
(a' Fertilizer 625 page value Rs, 4,881.70
(b) Cotton see 00 maunds 12,000.00
(c) Wheat seeds 2250 26,000.00
(d) Wheat seeds transferred 375 Maunds valued 6,356.25
(1) No gunny bags were supplied for the wheat.
(2) All the goods supplied have been accounted for and amount credited. No balance remain.
Commission, rent etc. Remain to be paid to the plaintiff by the defendants."
3. The appellants in their written statement admitted their liability to pay the commission to the respondent but denied their liability to pay rent or any other charges and also pleaded that the suit was not mantainable and was hatred by res judicata and the law of limitation.
4 On the plea lines of the parties the following issues were framed t-
(1) Whether an amount ef Rs, 1,20,403.75 is outstanding against the plaintiff ?
(2) Whethe the plaintiff is entitled to commission before clearing the arrears ?
(3) Whether the plaintiff is entitled to ent, wastage, and other allowances ?
(4) Whether the suit is not propetly stamped ?
(5) Sl.Hether the suit is time barred ?
(6) Whether the suit is not maintainable ? (1) What should the decree be ?
5. The learned Additional District Judge, Tharparkar, Sangbar by the judgment dated 23-11-1976 passed a preliminary decree which is the subject matter of this appeal, without dealing with each issue separately or even without adverting to the issues of the limitation and the one relating to the maintainability of the suit.
6. I have heard Mr. Hussain Adil Khatri, Advocate for the appellants. The respondent and his advocate are called absent though notice of hearing for today was issued to the Advocate for the respondent by the office on 20-5-1977.
7. The learned counsel for the appellants had urged before me only two grounds in support of this appeal. The first ground is that the suit was barred by the principles of constructive res judicata and the second ground is that the suit for account was not maintainable in the circumstances of the case.
8. So far as the first ground is concerned no doubt a plea to tha effect was taken in the written statement but no issue was raised and accordingly it must be deemed to have been given up.
Even in the memo. A of appeal no grievance has been made as to the non-framing of issue on the question of rev judicata. Therefore, in absence of the respondent and his advocate I am not inclined to allow the learned Advocate for the appellants to urge this ground. Accordingly, I overrule it.
9.. As regards the second contention that a suit by an agent against his principal is not maintainable the submission is that the respondent was or could be aware of the amount due to him on account of commission as well as alleged rent and other charges. Tne memo. Of account annexed by him to the plaint and reproduced herein above shows the quantity of each commodity, sold by him on commission basis and he also knew the rate of commission in respect of each commodity and in these circumstances, it is contended that the suit for accounts was not maintainable. I agree with the learned counsel for the appellant that on the basis of the quantities sold and shown in the memo of accounts annexed to the plaint by the respondent the total amount of commission earned by him could be easily calculated by him. He must also have been aware of the expenses allegedly incurred by him.
10. I may mention with regard to the claim for rent and other charges the finding of the learned Additional District Judge is that the respondent failed to prove that he was entitled to the same.
11. In support of his contention that a suit for accounts by an agen against his principal does not lie, the tamed counsel for the appellant B has relied upon the Province of West Pakistan v. Allahadltta
(1) wherel Doz ab Petel, J. (as his Lordship then was sitting in Division Bench) observe as follows :- "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."
12. ' There is no doubt that the above observations support the (1) PLD 1972 Kar. 8 contention as the respondent failed to plead in the plaint any special circumstances and in fact Annexure 'A' to the plaint shows that the amount of commission could be easily calculated by him. Similarly the amount of alleged rent and expenses claimed by him was also known to him.
13. Moreover, under section 213 of the Contract Act an agent is under obligation to render accounts to his principal on demand but the principal is under no counter statutory obligation of the same nature towards the agent.
' There may however, be exceptional cases such as where an agent is not aware as to the transactions between the principal and the third parties which entitles the agent to receive certain amount as commission earned by him in respect of such transactions during the course of agency but the details of the transactions entitling him to receive his commission and the amount due on account thereof could not be known to him or otherwise there is special contract or trade usage which entitles him to sue for account as was held in Ram Lal Ka-poor & Sons v. Asian Commercial Assurance Co. (1) in the following words : "On the contrary, a perusal of all three 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."
' Reference may also be had to a judgment of Madras High Court in Ramachandra Madhavadass Co. v. M. M. Birankutti & Bros. (2) where in A. Rahman, J. (as he then was and who later on became a Judge of the Federal Court of Pakistan) held : "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."
' I may also refer to the earliest case on the point, namely, lowahar Singh v. Hada Mal (3) wherein it was observed "The right to claim a statement of accounts is an unusual form of relief only granted it certain specific cases and is only to be claimed when the relationship between the parties is such that this is the only relief which will enable the claimant to satisfactorily assert his legal rights."
' The above case has been followed by Moti Sagar, J. In Ghulam Qutubuddin Khan V. Mian Faiz Bakhsh and others (4) who observed : "The right to claim a statement of account can only be claimed when looking to the relationship between the parties it is the only relief which will make the claimant to assert his legal rights satisfactorily, such right being an unusual form or relief."
(1) AIR 1933 Lah. 483 (2) 177 I C 631
(3) 1899) 60 P R 1899 (4) AIR 192e Lab. 104 ' Reference may also be had to Hanuman Bakhsh and others v. (Firm) Balmukand Kanhaya La! (1) wherein following Jowahar Singh v. Haria Mal it was laid down as follows "An agent is not ordinarily entitled to institute a suit for accounts against his principal. His suit must be for the recovery of the specific amount alleged to be due to him from the principal."
' I have therefore, no escape from the conclusion that the respondent's suit for account was misconceived and was not maintainable. I accordingly, allow the appeal, set aside the pre?Imieary decree and dismiss the suit. However, I make no order as to costs as the respondent is absent.