TAPAN PAUL Vs. ANJU PAUL

JUDGEMENT

(1.) THE opposite party/plaintiff filed T.S. No. 358 of 2008 in the learned 1st Court of Civil Judge (Senior Division) at Barasat. Essentially, it is a suit for partition. From the written statement filed by the defendant No. 1 in the suit, the plaintiff came to know that it is being contended that she had executed a general power of attorney in favour of her mother on 10th May, 1983 and a registered deed of gift dated 8th November, 2002 was executed on behalf of the plaintiff on the strength of such power of attorney.

(2.) THE plaintiff filed an application for amendment of the plaint to incorporate pleadings challenging the validity and/or authenticity of the said power of attorney and the deed of gift. By the order impugned, the learned Trial Court has allowed such amendment. Being aggrieved, the defendant No. 1 is before this Court by way of the instant revisional application.

(3.) IT is submitted on behalf of the petitioner/defendant No. 1 that the amendment application was filed in 2009. As on that date, a claim for declaration that the registered power of attorney dated 10th May, 1983 and the registered deed of gift dated 8th November, 2002 are void, inoperative, illegal and not binding upon the plaintiff, became time barred and as such, such amendment could not have been allowed. It is also submitted on behalf of the petitioner that the amendment that has been allowed is hit by Order 6 Rule 4 of the C.P.C. inasmuch as no particulars of any fraud or undue influence have been furnished. It is submitted that if the plaintiff was really aggrieved by the said power of attorney and the deed of gift, she should have prayed for incorporation of a prayer for deliver up and cancellation of the said documents as contemplated in Section 31 of the Specific Relief Act. It is further submitted that the prayer for declaration that has been sought to be incorporated by way of amendment is hit by Section 34 of the Specific Relief Act since the plaintiff being entitled to pray for further relief including deliver up and cancellation of the said documents, has omitted to claim such relief. It is finally submitted that the defendant No. 2 in the suit died in the year 2010. The order allowing the amendment of the plaint was passed without substituting the legal heirs of the defendant No. 2 and this is a grave infirmity in the order.