Mian Jalal-ud-din, J.

1. This is a plaintiff's second appeal and arises out of a suit for rendition of accounts brought by him in the court of City Munsiff Srinagar. The suit was dismissed by the trial court on the ground that the claim for rendition of accounts did not lie. On appeal the Additional District Judge, Srinagar affirmed the judgment and decree of the trial court and dismissed the appeal.

2. The appeal was originally heard by His Lordship the Hon'ble Chief Justice who was of the view that the appeal involved a substantial question of law as to the maintainability of a suit for accounts by an agent against the principal. The soundness of the view taken by a Division Bench of this court in AIR 1971 J&K 71 was challenged before His Lordship. The case was therefore, referred to the Full Bench. This is how the case has come before us.

3. Briefly speaking the facts of the case are that the plaintiff appellant brought a suit for rendition of accounts. The plaintiff averred that in the year 1956-57 tenders were invited by Mohtmim Dharmarth defendant respondent for the construction of two works namely ; (1) "Construction of office building at Basant Bagh" and (2) "Construction of surrounding wall Samadhi Rambagh". Consequent upon the submission of tender by the appellant which was accepted. the appellant deposited Rs. 400/- as earnest money with the defendant respondent and executed agreements for the construction of the aforesaid works. The appellant completed both the works in accordance with the terms of the agreements and the defendant respondent paid some amount of money to him on account, but no accounts were settled. The plaintiff further averred that there were huge outstandings against the defendant on account of the said works. The plaintiff was not certain about the actual outstanding due to him. Although he called upon the defendant to settle accounts with him, there was no response from the defendant's side. Hence the suit.

4. The defendants contested the suit on various grounds inter alia that the appellant had received final payment regarding the work of Basant Bagh as evidenced by the measurement book and as such there was no amount outstanding against the defendant on account of this work. Regarding the work of wall surrounding, Samadhi Rambagh it was pleaded that the plaintiff had already over drawn an amount of Rs. 493-5-3 and that the plaintiff had furnished a written undertaking agreeing that the amount be set off against him from the cost of material and earnest money. The suit for rendition of accounts was not maintainable.

5. After raising the necessary issues in the case the trial Judge found that there was no relationship of principal and agent between the parties. It was, however, established from the evidence on record, that the plaintiff had maintained regular accounts about both the aforesaid works and had received full and final payment for office building at Basant Bagh in token thereof the plaintiff executed receipt in his own hand on page No. 35 of the Measurement Book. The plaintiff had failed to appear in the witness box to explain the position and he had also withheld the accounts. Therefore, in view of these facts suit for rendition of accounts did not lie. On appeal the learned Addl. District Judge concurred with this view of the trial judge and relying upon the observations made in AIR 1971 J&K 71 dismissed the appeal.

6. Shri J. L. Chowdhary appearing for the appellant has submitted that in the present case the relationship between the parties was that of Principal and agent. The defendant was under statutory obligation to render accounts to the plaintiff. The plaintiff had stated in the plaint that the accounts were with the defendant and therefore he was not in a position to know the exact amount due to him from the defendant on account of the works executed by him for the defendant. He has challenged the correctness of the view taken in AIR 1971 J&K 71 and has relied upon AIR 1967 Supre

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