1. The only point argued in support of the memorandum of objections was that the Subordinate Judge was wrong in refusing to direct an account
to be taken with a view of ascertaining the sum due to the first defendant and give him a decree therefor. It was argued that the plaintiff''s suit was
in reality a suit for an account, and that the defendant in such a suit was entitled to the benefit of the account if it turned out to be in his favour; and
in support of this view it was contended that the first defendant was precluded by the provisions of Section 12 of the CPC from himself bringing a
suit for an account against the plaintiff. The answer to these arguments is, in our opinion, clear. If it were true that the suit was a suit for an account
in the proper sense of that term, then it would follow, according to the decision in Hurrinath Rai v. Krishna Kumar Bakshi ILR 14 Cal. 147 which
decision illustrates the English practice, that the first defendant would be entitled to have an account taken with a view to obtain a decree for the
sum that might be found due to him. But looking at the plaint in the present case we are clearly of opinion that the suit is not, of the supposed
character. There is no allegation in the plaint that the first defendant was under an obligation to account to the plaintiff; there is no allegation of a
mutual account, that is, an account showing payments and receipts on the one side as well as on the other, Phillips v. Phillips 9 Hare 473 and
further there is no prayer for an account. It is true that it was competent to the first defendant to have filed a suit for an account against the plaintiff,
but that circumstance cannot alter the character of the suit actually brought by the plaintiff, nor could it entitle the plaintiff to bring a suit for an
account if otherwise he was not in a position to do so, Padwick v. Stanley 9 Hare 627. Having regard to the nature of the plaint and to the
relations of the parties, we do not think the decision in Hurrinath Bai v. Krishna Kumar Bakshi ILR 14 Cal. 147 has any application to the present
case. These observations practically dispose of the argument derived from Section 12, Civil Procedure Code. There is nothing in the provisions of
that Section to prevent the first defendant from bringing a suit for an account against the plaintiff, notwithstanding the pendency of the present suit.
In a suit for an account brought by him (the first defendant) no doubt the matter in issue would have been substantially the matter in issue in the
present suit. But the relief claimed in a suit for an account would differ in kind from the relief claimed in the present suit. For these reasons we think
that the Subordinate Judge was right in refusing to allow an amendment of the written statement. Therefore the memorandum of objections is also
dismissed with costs.
