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Learned counsel for the plaintiff/petitioner argues that the primary relief sought in the suit was relief (a) of the plaint, which was a declaration simpliciter that the purported agreements dated October 7, 2012 and February 27, 2013 were void, inoperative and not binding on the plaintiff. The subsequent reliefs, being that as to cancellation of such deeds, permanent injunction and other consequential reliefs were only ancillary reliefs in aid of relief (a).

In support of his contention, learned counsel for the petitioner cites a judgment rendered by a co-ordinate Bench of this Court in the unreported case of Kanai Lal Dutta Vs. Babu Das Bairagya in C. O. No. 2920 of 2011.

Learned counsel for the petitioner next relies on the judgment reported at (2006) 1 WBLR (Cal) 374 (Paresh Chandra Nath Vs. Naresh Chandra Nath and others), where another co-ordinate Bench of this Court held that in a suit for declaration simpliciter, on the premise that a deed of gift was obtained by practising fraud on the plaintiff, such declaration was the substance of the claim and other prayers were only consequential. Although the relief for setting aside the deed was prayed for in the suit, this Court held that the suit was one for declaration simpliciter, on the premise that the purported deed of gift was obtained by practising fraud. Accordingly, the court-fees paid were held to be correct.

It is evident that unless the plaintiff seeks relief (b), that is, cancellation of the agreements in question, a question would arise as to the maintainability of the suit itself, since only a stranger to the agreements in question would have challenged the agreements by seeking a mere declaration that those were not binding on the plaintiff.

As such, the intention of the plaintiff has to be gathered in the light of the plaintiff being a dominus litis, and wishing to succeed in the suit. It cannot be construed that the plaintiff would relinquish the cardinal claim made in the suit and can seek consequential reliefs simpliciter, thereby rendering the suit not maintainable in the eye of law, particularly, in view of the proviso to Section 34 of the said Act of 1963, which would prohibit the suit for declaration in terms of prayer (a) without seeking cancellation in terms of prayer (b) in the present plaint.