Distinction between a suit for cancellation and suit for declaration. & Agreement to sell which was produced in the statement of learned counsel for the "appellant" is not ..........

2024 CLC 1415

Agreement to sell which was produced in the statement of learned counsel for the "appellant" is not permissible at all 

2024 CLC 1415

RFA 71-21

ABDUL GHAFOOR ETC VS BABAR SULTAN JADOON ETC

i). Distinction between a suit for cancellation and suit for declaration.

ii). Applicability of Articles 91 and 120 of the Limitation Act, 1908.

iii). Scope and import of Section 202 of the Contract Act, 1872

iv). Agreement to sell which was produced in the statement of learned counsel for the "appellant" is not permissible at all

Distinction between a suit for cancellation and suit for declaration.

Section 39 is part of Chapter V which deals with the cancellation of instruments whereas Chapter VI relates to declaratory decrees and Section 42 forms part of the same. In terms of former provision any person having reasonable apprehension that a written instrument being void or voidable to his extent, if left outstanding, may cause him serious injury can sue to have it adjudged void or voidable and the court may in its discretion, so adjudge it and order it to be delivered up and cancelled whereas in terms of latter any person entitled to any character, or any right to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled and such person need not in such suit to ask for any other relief.

The notable distinction between the above two provisions of the “Act 1877” is that Section 39 presupposes that the document whose cancellation is sought through the suit is void or voidable qua the plaintiff whereas in terms of Section 42 a person entitled to any character or to any right to any property being offended from the denial of such character or right or title from any other person, seeks a declaration of his status or right without asking for cancellation in furtherance of such declaration.

The appellants did not deny the execution of general power of attorney and while admitting its execution are seeking cancellation. The registered sale deeds are clearly offshoot of general power of attorney. Moreover, the appellants are not seeking a declaration regarding their title but their concern is with regard to the validity of the deeds in question. In this background, suit was in the nature of cancellation and that’s why it was also captioned so, falling within the domain of Section 39 of the “Act 1877”.

RFA 71-21

ABDUL GHAFOOR ETC VS BABAR SULTAN JADOON ETC

2024 CLC 1415