ARUNA JAIN Vs. TIRLOK KUMAR GAMBHIR

JUDGEMENT

(1.) Through this application the plaintiff seeks inclusion of a prayer for declaration that the legal notice dated 26/08/1999 purporting to cancel the irrevocable registered general power of attorney and Will and acts done thereunder are ab initio void and illegal and also for a permanent injunction restraining the defendant from acting under or proceeding on the basis thereof or in any manner dealing in the suit property. These prayers are being included in view of the admission in the written statement by the defendant that he had himself appeared before the sub- Registrar and had put his thumb impression as well as his signature on the aforesaid documents. These reliefs are being claimed after the plaintiff came to know about the cancellation of the aforesaid documents on 13.11.2000 when he was served with a copy of the written statement that certain cancellation deeds have been unilaterally got registered on 14.9.99 by the defendant whereas the copy of these documents including the registered cancellation deeds were supplied only on 28.11.2000.

(2.) The application has been resisted on the sole ground that for this alleged act the the plaintiff has a remedy by way of independent suit seeking declaration as prayed in the amendment application. It is averred by the applicant/plaintiff that in the application under Order 39 Rule 4 Criminal Procedure Code moved by the defendant it was mentioned that by way of notice dated 26.8.99 the defendant had cancelled the sale transaction and this gave rise to the instant suit. It was filed on 16.9.99 seeking stay of acts of the defendant and ad interim ex party injunction was granted in favour of the plaintiff. As a result the instant suit was on the basis of the cancellation of the documents made by him on 14.10.99 and in that suit no reference of cancellation deed was made. What was pleaded was that the defendant intended to cancel the aforesaid documents.

(3.) So much so the order dated 16.9.99 was also not referred. As is apparent from the suit filed by the plaintiff as well as subsequent suit filed by the defendant the main dispute is with regard to the act of cancelling the documents executed by the defendant in favour of the plaintiff pertaining to the sale transaction. On the one hand the plaintiff has sought declaration of part ownership of the suit premises and on the other hand the defendant has sought possession of the suit premises from the plaintiff on the basis of the cancellation of the documents of sale transaction made by the defendant.