RETNAKARAN Vs. VENGANOOR PANCHAYAT

JUDGEMENT

(1.) HE plaintiff in a suit for settlement of accounts is tHE revision petitioner.

(2.) IS application, I. A. . 3854/87 under Order VI R. 17 C. P. C. seeking the following amendments, has been dISmISsed by the order under challenge:-"title. The word "accounts" to be amended as "damages". 2. Relief: (A) "a decree allowing the plaintiff to realISe the sum of money as found by the court due to the plaintiff from defendant by settling the accounts towards agreement No. 29/ 81-82 for the work of seven point programme-construction of burial ground in Kottukulam in Venganoor panchayat, including all items of works executed, materials supplied for the purpose of work, interest and compensation for damages and refund of security deposit from defendant's assets both movable and immovable IS to be amended as: "a decree allowing the plaintiff to realISe Rs. 72,130. 77 as per the statement of accounts given below from defendant's assets both movable and immovable".

(3.) VALUATION and court fee 1st line portion from "prayer" to seventh line upto settlement of accounts" is to be deleted and to insert "suit is valued to Rs. 72,130. 77 and a court fee of rs. 7,194/- is levied and paid under S. 22 of Kerala Court-fee and Suit valuation Act X of 1960". Going by the pleadings particularly those in Para. 10 of the plaint, the suit indisputably is one for settlement of accounts. A reference in this connection to the reliefs prayed for in the plaint is also relevant. They are: " (A) A decree allowing the plaintiff to realise the sum of money as found by the court due to the plaintiff from defendant by settling the accounts towards agreement No. 23/81-82 for the work of "seven Point Programme-construction of a burial ground in Kattukulam in venganoor Panchayat, including all items of works executed, materials supplied for the purpose of the work, interest and compensation for damages and refund of security deposit from the defendant's assets both movable and immovable; (B) A decree allowing the plaintiff to realise 12% interest for the money due to the plaintiff from the defendant as per prayer (A) from the date of suit to the date of decree from the defendant's assets both movable and immovable; (C) A decree allowing the plaintiff to realise 6% interest for the principal sum from the date of decree til! final realisation from the defendant's assets both movable and immovable; (D) A decree allowing the plaintiff to realise his costs including advocate's fee from defendant's assets both movable and immovable; (E) Such other reliefs such as appointment of commission, interim injunction etc. , which the plaintiff may pray for and which the court deems fit in the circumstances of the case may also be granted". There can therefore be no doubt that the suit is one for settlement of accounts. That the petitioner was conscious of the fact that the suit was for settlement of accounts, is further clear from the statements in the petition for amendment. It has been stated therein that the amendment was necessitated because this court in S. S. Nair v. Travancore Devaswom Board (1987 k. L. J. 838) has observed thus: ". . . A contractor to whom amounts are due from the contracting party for breach of contract, is bound to sue for damages. There is no obligation on the part of the contracting party to render accounts to the contractor. The plaintiff's remedy was therefore, only to file a suit for realisation of a definite sum of money by way of damages and not for settlement of accounts". (Head Notes) That means the plaintiff, on seeing this decision, was convinced that a suit for settlement of accounts is not maintainable and therefore he wanted the same to be converted into a suit for damages. 3. The learned counsel for the respondent argued that the amendment sought for, if allowed, would definitely change the character of the suit, in that, a suit for accounting will be converted into a suit for damages. According to the learned counsel, the jural relationship that should exist between the parties in a suit for settlement of accounts is different from the jural relationship that must be there between the parties in a suit for damages. The learned counsel, I should say, is well founded in his argument, particularly in view of the decision in S. S. Nair's case. The Division Bench after considering the various aspects of this matter has observed thus: ". . . The plaintiff who knows the amount of work that he has done, the amount he has spent, and the amount of damages, if any he has incurred, can only file suit for damages for a specified ascertained sum. He cannot masquerade the suit as one for settlement of accounts, for the reason that there is no account to be settled between the parties. A contractor to whom amounts are due from the contracting party for breach of contract, is bound to sue for damages. There is no obligation on the part of the contracting party to render accounts to the contractor. The plaintiff's remedy was therefore, only to file a suit for realisation of a definite sum of money by way of damages and not for settlement of accounts". (emphasis supplied) (Head Notes) (See also the rulings of the Jammu & Kashmir High court in Trilokinaih Dhar v. Dharmarth Council, A. I. R. 1975 J & K 76 (FB)and in State of J. & K. v. Tota Ram (A. I. R. 1971 J & K 71) relied on by the Division Bench ). In my view, the Division Bench has held positively that the requirements insisted upon to sustain a suit for settlement of accounts are different from the requirements that should be alleged to maintain a suit for damages for breach of contract. That means a suit for settlement of accounts shall not be permitted to be amended and converted into a suit for damages or vice versa. The court below therefore in my view, has rightly rejected the petition. 4. The above position notwithstanding, the learned counsel for the petitioner, relying on a decision of the Supreme Court in A. K. Gupta & Sons v. Damodar Valley Corpn. (A I. R. 1967 SC 96) argued that the amendment sought for requires to be allowed because on the amendment being allowed neither the cause of action is charged nor new set of fact is added so as to say that the case that is pursued after the amend inert, is different from the one that has been pleaded in the unamended plaint. He made particular reference to the statement contained in Para. 9 and 10 of "the judgment. These statements without reference to the facts of the case may perhaps support the above argument of the learned counsel. But if we understand the facts of that case it can be seen that the above argument of the counsel is without any substance. From the facts discernible from the ruling it is clear that the suit was one falling under S. 42 of The Specific Relief Act. That means that suit was for a mere declaration. The defendant therefore contended that a suit for mere declaration was not maintainable. The plaintiff having realised that a suit for mere declaration is not maintainable, sought leave of the High Court to amend the plaint by adding an extra relief, which reads: ". . . That a decree for Rs. 6,500/- or such other amount which may be found due on proper account being taken may be passed in favour of the plaintiff against the defendant". The High Court refused the amendment and that order was under attack in the appeal before the Supreme Court. While considering the above aspects the Supreme Court made the findings and the observations contained in Para. 9 and 10 of the judgment. The Supreme Court held that, even after the amendment the cause of action continued to be the same, etc. 5. That is not the position here. Here the suit for settlement of accounts is sought to be converted into a suit for damages and therefore the above Supreme Court ruling has no application here. The following observations of the Supreme Court however squarely apply to the facts of the case on hand: ". . . The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. . . " The cause of action according to the plaintiff arose on 31-5-1982. The petition seeking amendment is dated 24th August, 1987. So if the amendment is allowed, as already observed, that will change the character of the suit. Not only that the petitioner will be allowed to set up a new case which indisputably will be time barred. No plaint under such circumstances shall be allowed to be amended. It is all the more so because such amendments will prejudice the right acquired by a defendant by lapse of time. The C. R. P. for the reasons stated above is dismissed. No costs. . .