1. This Rule is directed against an order returning a plaint for presentation to the proper Court.
2. The order was made by the Small Cause Court, Sealdah, on the ground that that Court had no jurisdiction to try the suit as the claim involved regular accounting.
3. Now, the mere fact that in deciding the question in controversy between the parties accounts may have to be gone into, would not necessarily make the suit one for accounts.
4. In the present case the defendant took advances from the plaintiff and agreed to re pay the amount by constructing earth work under the plaintiff. The plaintiff stated that the defendant took Rs. 846-240 from time to time on a Hatchita and re paid Rs. 246-8-0 by supplying coolies and doing earth-work and that Rs. 599-10-10 was the balance due. That is the specific amount which was claimed in the plaint and the plaintiff did not claim any accounts. It was contended that the fact that money was taken in advance by the defendant shows that he was bound to render account. But the mere fact that money was taken in advance would not necessarily render the party taking the advance liable to render account; and although the true nature of the suit cannot be altered by the form laid in the plaint, we think that the question whether a suit is one for accounts within the meaning of Article 31 of the Provincial Small Cause Courts Act must depend upon the relation in which the parties stand to each other and not merely, as stated above, on the fact that an examination of the accounts may be necessary for determining the question in controversy between the parties.
5. The decisions on the point are noticed in the case of Kshetra Nath Bhuiya v. Kali Dasi Dasi 41 Ind. Cas. 929 : 27 C.L.J. 96 at p. 99 : 2 C.W.N. 784. Reliance was placed on behalf of the opposite party on the case of Kailas Chandra v. Kiranenda Ghosh 10 Ind. Cas. 883 : 24 C.L.J. 187 where the learned Judges observed as follows: 'The true relation between the parties is that as the defendant has from time to time accepted advances from the plaintiff, it is his duty to account for the sums received and spent by him. He is bound to show what sums have been spent in the purchase of materials from time to time.'
6. In that case, however, the plaintiff was a silk merchant and the defendant was an artisan engaged in the business of dyeing and dressing silk. He was employed by the plaintiff in his professional work, and the plaintiff from time to time advanced him money out of which he spent a portion on materials for dyeing and dressing and paid himself as remuneration for work done. Apparently, therefore, the defendant was either in the position of an agent or artisan employed by the plaintiff, otherwise he would not be bound to show what sums had been spent in the purchase of materials from time to time, and it was under these circumstances that the learned Judges held that it was the duty of the defendant to account for the sums received and spent by him.
7. It may be pointed out that Mookerjee, J. who was a party to the decision in Kailas Chandra v. Kiranenda Ghosh 10 Ind. Cas. 883 : 24 C.L.J. 187 was one of the Judges who decided the case of Kshetra Nath Bhuiya v. Kali Dasi Dasi 41 Ind. Cas. 929 : 27 C.L.J. 96 at p. 99 : 2 C.W.N. 784.
8. In the present case the money was no doubt taken in advance bat it became the money of the defendant, and the earth-work done or the coolies supplied was, we think, the mode in which the money was to be re-paid. The parties did not stand in the relation in which the defendant was bound to render any account of the money taken by him from the plaintiff. The money received by the defendant was not for the plaintiff, nor was it to be employed for his benefit although it was to be re-paid in a particular way. It is only where the relation of the parties is such that one of them is bound to render an account to the other that a suit may be said to be a suit for account. We do not think in the present case that the suit is one of that description.
9. That being so, the order of the Court below must be set aside and the case sent back to that Court in order that the case may be tried by it.
10. The opposite party to pay to the petitioner costs, one gold mohur.