JANKI NATH BHAT, J.: - The Judgment will dispose of civil 1st appeal No. 33 against a preliminary decree passed by the District Judge, Udhampur, 01 25-7-1966 and two revision petitions Nos. 81 and 82 of 1966 arising out of the interlocutory orders passed by the Judge on 27-4-1966. The appeal and the revision petitions arise out of the following facts:-

2. The respondent, L. Tota Ram brought a suit for rendition of accounts relating to construction work of motor road from Forebay to Power House site Chenani Hydel Project in the year 1963 against the appellant, the State, valuing the suit for purposes of court-fees and jurisdiction at Rs. 5,100/-. The plaintiff respondent among other things alleged that he was allotted work of motor road from Forebay to Power House Site Chenani Hydel Project from R. D. O. to R. D. 20000 by the Superintending Engineer Electrical Project Circle. An agreement was drawn up according to the terms and conditions agreed upon by the parties in the year 1963. The original agreement being with the department Subsequently under pressure the plain tiff-respondent was made to execute another agreement on 29-12-1964. The plaintiff-respondent also constructed a Zig in the first mile of the road. In paragraph 6 of the plaint the plaintiff stated that the measurements of the work done by him have been recorded in the relevant books and registers of the department and all such entries have also been signed by him time and again in token of the verification thereof." The plaintiff goes on to state that the plaintiff suffered on account of the treatment of the department with him and he had to incur a sum of Rs. 15.000/- for extra labour The plaintiff also claimed Rs. 700/- from the department as felling charges of some trees. The plaintiff claimed interest at the rate of 24% per annum on the sum due to him from the department.

3. Written statement was filed on behalf of the defendants-appellant. Among other objections, a preliminary objection was taken that the suit for accounts was not maintainable as the defendants were not the accounting parties. The plaintiff should have filed a suit for money. Various other pleas were taken which need not be enumerated in detail. The then learned District Judge examined the plaintiff and the Superintending and the Executive Engineers of the department under Order 10, C. P. C. A large number of issues were framed. Firstly a preliminary issue was raised which reads as under:

4. Whether the valuation put by the plaintiff in a suit for accounts for the purposes of court-fee and -jurisdiction can be challenged? ...... O. P. D.

5. After hearing arguments the learned District Judge decided this issue in favour of the plaintiff on 8-3-1966. Then on 9-3-1966 the learned Judge framed as many as 17 issues. The issues are not either happily worded or drafted and some of them are obviously unnecessary. When these issues were struck the counsel for the defendant-State put in an application for amendment of the issues and deletion of some issues. That application was rejected by the learned Judge on 27-4-1966. Against this order a revision petition No. 81 was filed by the defendant-State in this court. By another order of the same date the learned District Judge directed that an amount of Rs. 18572.20 lying in deposit with the Department should be deposited in the Court. Against that order also revision No. 82 was presented in this court. While these revisions were pending in this court an intimation of the same had gone to the learned District Judge, he nevertheless proceeded with the suit. The parties led their evidence and ultimately he passed a preliminary decree on 25th July, 1966 in the following terms: -

(i) That the parties are bound by the terms and conditions of the agreement Ext. B executed on 6-3-63. The plaintiff is entitled to the rates for the items worked by him in terms of Schedule A attached to the same. The Commissioner will go into the accounts to find it out that what more sum is due to the plaintiff. For that purpose the defendant would make available to him all the eleven accounts bills drawn with regard to this contract. The final bill Exd. D, the work register and measurement books lying in the court will remain at the disposal of the Commissioner. Any other measurement book or work register or any other documents pertaining to accounts lying with the defendants will be produced before the Commissioner on his demand.

(ii) That the plaintiff is entitled to the return of Rs. 18572.20 lying in deposit to his credit with the department;

(iii) That the plaintiff is entitled to a sum of Rs. 3082/- which has wrongly been deducted from the final bills.

(iv) That the plaintiff is also entitled 1 Rs. 700/- as charges for the trees felled by him;

(v) That the plaintiff is neither entitled to any amount as labour charges nor any amount as interest; and

(vi) That the defendant will be entitled to the costs of the Stores and materials supplied to the plaintiff, which has not so far been deducted from the bills.

6. We need not discuss the merits of the case nor need we scrutinise whether the preliminary decree has been properly passed, in our opinion the appeal can be disposed of purely on one or two legal issues. The first contention raised before the learned District Judge was that the valuation fixed for the purposes of court fees and jurisdiction by the plaintiff was wrong. But that matter was decided by the learned judge against the defendant by means of his order dated 8-3-1966. The learned Judge has held that the plaintiff can fix any value he likes in a suit for accounts. It is, however, well settled that although a plaintiff has got power to fix his valuation in a suit for accounts but he cannot do so by mentioning a fanciful amount, nor can he put a fictitious valuation. The court has power to interfere in the valuation put by the plaintiff if the valuation made by the plaintiff is arbitrary or unreasonable. Where it is evident that the plaintiff made no endeavour to estimate the relief sought and the value given has no proportion to the relief sought and is arbitrary, the court has ample power to ask the plaintiff to correct the valuation. In this behalf AIR 1948 Nagpur 223, may be quoted. It says:

"The principle underlying Section 7(iv) (c) and Section 7 (iv) (f) is substantially the same. In both the cases it is for the plaintiff to put his valuation whether it is a case of consequential relief or whether it is a case of accounts. Ordinarily the court should not endeavour to correct the plaintiffs valuation except in a clear case where the disparity is so great as to show that the plaintiff has not endeavoured to fix a fair value at all but has simply set down a figure which is unreasonable and bears no relation to the value of the right litigated. When the valuation put for court-fee purposes by the plaintiff on a relief sought by him in a suit appears to be arbitrary and unreasonable the Court may reject the plaint and leave the plaintiff to correct the valuation or have the suit rejected. There is nothing in the Court-fees Act which shows that in this type of case the power which the Court is given by the Civil P. C. to challenge an undervaluation is taker away and if the Court thinks that the value assessed is unreasonable valuation there is no reason why it should not treat that unreasonable valuation as an undervaluation and exercise its powers under Order 7, Rule 11, Civil P. C."

6A. Similarly it has been held that if the estimate given by the plaintiff is on the face of it a sham one or so obviously wrong, the court can ask the plaintiff to make a proper estimate. AIR 1960 Mad 260 lays down as under: -

"When the plaintiff purports to make an estimate in regard to what he would get on the taking of an account there would necessarily be an element of some guess or speculation. There is bound to be some kind of inaccuracy if one were to consider it in relation to the actual amount that would ultimately be found due. But if the estimate is on the face of it a sham one or so obviously wrong or if the other portions of the plaint make it clear that that is not the real estimate which the plaintiff himself had in mind it would be open to the court to look at the plaint and ascertain what the real estimate is."

7. In this case the plaintiff on his own showing in the plaint had claimed Rs. 15,000/-, in paragraph 7, as charges for extra labour. In paragraph 9 of the plaint, Rs. 700/- for felling of trees were claimed by the plaintiff and according to the trial court he was entitled to the refund of Rs. 18572.20. In addition, according to the plaintiff, he had other claims against the department. If only the above mentioned specified amounts or any two of them are added the valuation of the suit would exceed Rs. 20,000/-or the minimum valuation that the plaintiff could place on the suit on the averments in the plaint must be above Rs. 15,700. Thus putting a fanciful valuation of Rs. 5.100/- is not bona fide but sham, fanciful, arbitrary and unreasonable. Therefore, the finding on this issue returned by the learned District Judge is not correct. Then the remaining necessary issue framed in the case will be taken up.

Issue No. 16 runs as follows: -

"Whether the suit for accounts is not maintainable. When both the executive Engineer concerned and the plaintiff are not in a position to state as to what specific amount is due from one to the other?"

8. On this issue the learned Judge has held that both the Executive Engineer and the plaintiff have not been able to exactly state as to what amount was due to one from the other. He has misquoted some authorities, and has not at all tried to apply his mind to the basic fact involved in this issue. In an earlier portion of his judgment we have quoted in extenso paragraph 6 of the plaint. The plaintiff in that paragraph states that he had also signed in token of his verification the measurement books wherein the measurements of the work done by the plaintiff had been recorded. This paragraph clearly indicates that the plaintiff knew the amount of work that he had done or that at least was recorded in the books of the defendants. The suit should have been for a specific amount which according to him was due to him from the department. He was working the contract and he knew what work he had done and therefore should have claimed the amount which according to him was due to him from the department. But he has chosen a very peculiar and ingenious method by calling his suit a suit for accounts and placing an arbitrary and fanciful valuation on the plaint. If this method is allowed to prevail then anybody who has a claim of money against another can easily draft the plaint as a suit for accounts, place his own fanciful valuation on the plaint; thus avoid payment of Court fee. A suit for rendition of accounts is a special and unusual form of remedy which can be resorted to only in some well recognised circumstances. It is not enough in a suit for accounts to allege that the plaintiff does not know the exact amount that he can claim from the defendant. Nor is it any reason as to what amount is due to one or the other that a suit for accounts will lie.

9. In England at Common Law an action of account lay in certain cases, but the modes of proceeding in a Common Law action were very unsatisfactory and as soon as the Court of Chancery began to assume jurisdiction in matters of account the remedy at law gradually fell into disuse. The jurisdiction of the court of Chancery to order an account was of a two fold character. In the first place, it had an exclusive jurisdiction to order an account in aid of a purely equitable right, for instance, in the case of a cestui que trust and a trustee, a mortgagor and a mortgagee; and a remainderman could compel a tenant for life whose estate was granted to him without impeachment of waste by him. In the second place, the Court of Chancery had a concurrent jurisdiction to order an account in certain cases in aid of a legal right. These were the cases of principal against agent, but not vice versa, cases of mutual accounts, where not merely had one party received money and paid it on account of the other, but where each of two parties had received and paid on the others account or cases of special complication. Then the judicature Acts somewhat made the scope of suits for accounts wider. The common cases again were those of a cestui que trust against a trustee, of a beneficiary or creditor against an executor or administrator, of a mortgagor against a mortgagee, of a principal against an agent, and of one partner against another. No account can be obtained by a customer against his banker the relation, between them being in sense fiduciary, but merely that of debtor and creditor. Again it was held a suit by one co-owner against another will lie for accounts when the latter in possession of the land or against person who took possession of an infant™s property. This is the English law on subject. (Snells Principles of Equity}.

10. In a Treatise on the Law of Agency by Brindaban Katiar, Secon Edition, 1961, at page 571 it is stated that remedy by way of account "is an exceptional remedy and can be availed of only where a duty rests upon the defendant to render an account. The plaintiff in a suit for account can succeed only if he establishes that the relationship between the parties is of such a character as to impose on the defendant the duty to render an account. He must establish the existence of facts entitling him to an accounting, namely-

(a) that the person upon whom such an obligation is sought to be imposed" received some property not his own,

(b) that the person seeking to impose the obligation is entitled to that in respect of which the obligation is sought to be imposed,

(c) that the person sought to be made liable did not receive the property as a mere bailee,

(d) that such person received it into! his possession and control, and

(e) that there is privity of contract between the two.

11. There are a number of reported cases which support this very thesis. AIR 1925 Lah 100 is a case having almost the same facts. In that case the suit was brought for an adjustment of accounts by the plaintiffs, the sons of a certain contractor, who had some building work for the defendant. A preliminary decree had been passed for rendition of accounts by the Trial Court and the Judgment was upheld on appeal by the District Judge, but was set aside by the High Court with the following observations: -

"The right to claim a statement of accounts is an unusual form of relief only granted in 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."

Quoting an earlier judgment 6 Pun LR 1900 the learned Judge further remarked:

"In the present case it is clear that there was no duty cast upon the defendant under the law to keep an account, that the proper relief to claim for plaintiffs was to have brought a suit a specific sum and to have asked the defendant to produce his accounts books as evidence in support of their case."

12. In AIR 1925 Sind 173, it was held that an agent cannot maintain a suit against his principal except where he makes out a special case such as that the account between him and the principal is of a complicated nature. It was further held that the plaintiff has to satisfy the Court that the defendant is an accounting party.

13. In AIR 1921 Cal 516, it was held that a suit for account is not maintainable by an owner against a Tehsildar appointed by a Receiver to his estate. Such a suit is really on the same basis as a bill of discovery and can be discovered in the relationship of the parties. But the Receiver is not a representative of the owner, he is an officer of the Court.

14. AIR 1946 Lah 82, lays down; law on the subject rather lucidly. His Lordship, Justice Teja Singh has discussed a number of authorities and then heId that he did not subscribe to the view that a suit for accounts will lie only by one partner against another partner or by a cestui que trust against his trustee. His Lordship further went on to say:

"The correct position is that the plaintiff must satisfy the Court that either because of a particular trade, usage, or of the peculiar relations between the parties the defendant is an accounting party or it is not possible for him to get any relief except by calling upon the defendant to render account to him, and if he does that the suit for accounts would lie."

15. In AIR 1946 Mad 136 it was held that where the suit was to surcharge and falsify the accounts already furnished and to recover specific sums the suit was not for accounts and the plaintiff could not value his plaint at a notional figure but must value it on the basis of specific sums claimed and pay ad valorem court fee accordingly.

16. In AIR 1959 All 546, it was held that there is no provision for a suit for accounts by the agent against his principal either in the Contract Act. or in the Limitation Act. Therefore normally such a suit could not lie. But the existence of special circumstances will justify such a suit for account. For the maintainability of such a suit it should be made clear that the exceptional circumstances of the agent not being able to claim a specific sum without the principals accounts being gone into exist. If this circumstance does not exist a suit for accounts by the agent would be clearly not maintainable.

17. Therefore applying the tests laid down in various authorities on the subject, we have only to repeat that the plaintiffs attempt in converting a suit for a definite sum which he could claim against the defendants into a suit for accounts is a device unknown to the law and cannot be either upheld or encouraged. The mere fact that he pretended not to know the exact amount due to him would not make any difference in his case or for that matter the statement of some Executive Engineer that he was not in a position exactly to state what amount was due to whom amongst the contracting parties did not make any difference. The suit as framed is bad and would not lie. It seems that it was brought and the valuation was placed in order to bring the suit within the jurisdiction of a particular court and to avoid payment of court-fee. We have no alternative, therefore, but to set aside the decree passed by the learned District Judge on 25th July, 1966.

18. It has been further argued by the learned counsel for the appellant that the District Judge was not right in allowing the plaintiff-respondent to draw Rs. 18572.20 just on the passing of the preliminary decree because the accounts had yet to be gone into. We hold that this grievance of the appellant is also well founded and as the entire preliminary decree has to be set aside, we need not make any specific order for this amount. The appellant can take such legal steps in this behalf as he is advised to do. But we find that if the suit of the plaintiff is dismissed in toto he may have to suffer a huge loss as the suit on his behalf for a specific sum of money against the appellant would be barred by limitation. Hence suo motu we allow the plaintiff an opportunity to amend his suit and fix a proper valuation on his claim in the trial court. But for this amendment the plaintiff shall have to pay Rs. 300/- as costs to the other side.

19. In view of our having set aside the entire proceedings before the trial court we need not discuss the revision petitions Nos. 81 and 82 separately.

20. The result is that the appeal is accepted and the suit of the plaintiff held in the present form not maintainable. As already indicated the plaintiff can properly amend the suit on payment of Rs. 300/- as costs if he so chooses.

The respondent will pay the costs of the. appellant-defendant in this appeal.

MIAN JALAL-UD-DIN, J.: - 21.

I agree.

Appeal allowed.