MAJEED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE plaintiff/petitioner in I. A. No. 2486/94 in O. S. No. 306/87 on the file of the Sub Court, Trivandrum is the revision petitioner. THE suit was filed by the revision petitioner for settlement of accounts with regard to the alleged illegal termination of the contract between the petitioner and the first respondent and for declaration that the termination of the contract at the risk and cost of the petitioner is not legal and proper and for allied reliefs during the pendency of the suit. THE petitioner took out an advocate commission to estimate the actual amount due and claimed by the petitioner with the help of an expert commissioner who is a retired superintending Engineer of the Public Works Department and according to him, the Commissioners filed their detailed accounts. After the commission filed their accounts, the petitioner sought to amend the plaint by filing the above la. claiming specified amounts under various accounts amounting to Rs. 3,11,130/- offering to pay court fee on that amount, by substituting relief No. (a) and making certain other suitable amendments in other parts of the plaint. Respondents vehemently opposed the amendment of the plaint sought for by the revision petitioner and the court accepting those contentions dismissed the petition by the order dated. 29. 6. 1994. That order is assailed in this revision petition.

(2.) THE revision petitioner has contended that he has clearly stated in paragraph. 27 of the plaint that the actual specific sum due to him was not ascertainable since amounts are due to him from the defendants and the defendants are entitled to claim adjustment of monies due from him on various counts including the value of materials received by him from the departmental stores during the course of the execution of the contract and therefore, he valued the suit under S. 35 of the Kerala Court Fees and Suit Valuation Act, tentatively at Rs. 30,000/- stating that he is ready and willing to pay additional Court fee, if any, necessary. According to him, since the amount claimed by him are quantified in the commission report he is entitled to claim the amount on various heads by paying the requisite court fee and therefore, he sought amendment of prayer (a) and other parts of the plaint.

(3.) IN the decision reported in Retnakaran v. Venganoor panchayat (1988 (2) KLT 864) the learned Single judge of this Court held that suit for settlement of accounts cannot be permitted to be amended and converted into a suit for damages and vice versa and for that purpose relied upon the decision of the Division Bench of this Court reported in C. S. Nair v. Travancore Devaswom Board (1987 KLJ 838 ). It is clear from the observations made in the judgment reported in Retnakaran v. Venganoor Panchayat (1988 (2)KLT 864) that the suit involved in that reported case is a simple suit for settlement of accounts alone. It is clear from para. 2 of the judgment reported in C. S. Nair v. Travancore Devaswom Board (1987 KLJ 383) that the suit was filed for a decree for settlement of accounts and for realisation of the amount found due. IN that reported judgment the Division Bench of this Court distinguished the decisions reported in The Kerala State Electricity Board v. Marshall Sons & Co. (INdia) Ltd. , Madras (1985 KLJ 930) and CRP No. 1110/69.