Specific
Relief Act, 1877
Sections—9
and 54
In
a suit under Section 9 of the Specific Relief Act the plaintiff is required to
file the suit within 6 months of dispossession. To obtain a decree he must
prove that he was in possession of the suit property till before he was
dispossessed by the defendant. In such a suit the Court will not adjudicate
upon the title of the parties.
Section
54 of the Act provides for granting of perpetual injunctions. There is no scope
for granting injunction in a suit u/s 9 of the Act for recovery of possession.
Munshi Kamal
Hossain Vs. Shamsul Hoque, 14 BLD (HCD) 385.
Ref:
Ganga Din Vs. Gokul, A.I.R. 1950 All. 407; Noab Zada Mohamed Umar Khan Vs.
Mohammed Asif, 16 D.L.R. (WP) 164;Dr. Kudrat All Vs. Md. Monsur Au, 16 DLR 599;
Debendra Mohan Das Vs. Mohammed Afaz Uddin, 17 DLR 187; Abdur Rahman Vs. Mofiz
Uddin Bhuiyan, 7 D.L.R. 335. Mohammad Shafl Vs. The State 19 DLR (SC) 216 and
Abdul Hamid Vs. Karam Dad, PLD 1966 Lahore 16-Cited.
Section—9
In
a suit for recovery of possession under section 9 of the Specific Relief Act,
notwithstanding any question of title that may be setup in such a suit, the
person disposed without his consent or otherwise than in due course of law can
claim for recovery of possession. A tenant having lawfully entered into
possession of an immovable property cannot transfer possession to a third party
without the consent of the landlord. In such a case, the plaintiff is entitled
to recovery possession in the suit property.
Mohammad
Abdur Rouf Vs. Abdul Hamid, 16 BLD (AD) 277.
Section—9
Code of
Civil Procedure, 1908, Order XXI Rules 100 and 101
The
suit framed under section 9 of the Act is title suit, though, summary in
nature. But an application under Order XXI Rule 100 of the Code takes the form
of miscellaneous proceeding. There was no scope of converting the suit under
section 9 of the Act into a miscellaneous proceeding under Order XXI Rule 100
of the Code. So the question of converting the suit under section 9 of the Act
into a miscellaneous proceeding under Order XXI Rule 100 of the Code does not
at all arise.
No
litigant has a right to get his affairs settled in the manner as he wishes.
Every access to justice must not be used as a licence to a litigant.
Delwar
Hossain Khan Vs Amzad hossain and others, 19 BLD (HCD) 523.
Section—9
A
plaintiff in a suit under section 9 of the Act is required to prove is his
possession and dispossession within 6 (six) months next before the institution
of the suit. In a suit of this nature the court is quite competent to pass a
decree in favour of the plaintiff for recovery of the possession of the suit
land, notwithstanding any claim of title that may be set up in defence.
Md. Yakub
Ali Vs Md. Atiar Rahman and others, 20 BLD (AD) 183.
Section—18
(a)
It
provides that where a person contracts to sell or let certain property, having
only an imperfect title thereto, and the vendor or lessor has subsequent to the
sale or lease acquired any interest in the property, the purchaser or lessee
may compel him to make good the contract out of such interest.
Khatibun
Nahar and others Vs. Syed Haflzullah and others, 15 BLD(HCD)565
Section—22
Hardship
of a party in a contract for sale
Unless
the defendants able to prove that facts constituting hardships were present
surrounding the disputed agreement for sale and the plaintiff was in an
advantageous position over the defendant, he will not get the benefit of item
No. II of Section 22 of the Specific Relief Act.
Most. Hamida
Begum Chowdhury Vs. Ahamad Hossan Khan and others, 18BLD (HCD)189
Ref:
6BLD(AD)131 1984 B.C.R. (AD) 127: 2CLC (Volume-2)1983 Karachi page 1085—Cited.
Section—22
When
the plaintiffs-substantive prayer is for a decree for specific performance of
the contract and only alternatively he prays for refund of the earnest money in
the event of refusal of specific performance of the contract, it cannot be
argued that in the face of an alternative prayer for the refund of the earnest
money the plaintiff is not entitled to a decree for specific performance of
contract.
The
granting of a decree for specific performance of a contract is the discretion
of the court but it must be exercised on the basis of sound judicial principles
capable of correction by a superior court. The court may not exercise the
discretion for specific performance of a contract where such performance
involves hardships on the part of the defendant which he did not foresee
whereas its non- performance would not cause such hardships to the plaintiff.
Amena Khatun
and others Vs. Hajee Abdul Jabbar being dead his heirs: Mst. Maleka Banu and others,
14 BLD (AD) 267.
Sections—22(11),
24(b) and 28(a)
When
a party does riot come to the court with a clean hand, he is not entitled to
get benefit of Section 22(11) on grounds of hardship. Hardship’ as contemplated
in Section 22(11) of the Act means hardship has to be considered in the
circumstances that existed at the time of the contract.
Enforcement
of a contract or refusal to enforce it lies in the discretion of the Court but
this discretion is. not arbitrary, but sound and reasonable, guided by established
judicial principles and capable of correction by a Court of appeal.
The
condition as to deposit of the balance of the consideration in the Court is not
an essential term of the contract the violation of which will render the
contract unenforceable.
When
the plaintiff comes to the Court seeking specific performance of a contract, it
is -implied that he is ready to make the deposit whenever so directed by the
Court. Section 24(b) cannot be a bar against the Plaintiff.
Mere
inadequacy of price does not bring a case within the ambit of Section 28(a) of
the Act. To attract this sub-section an inadequate price must be attended with
evidence of fraud or of undue advantage taken by the Plaintiff.
Quazi Din
Mohammad Vs. Al-haj Arzan Ali and another, 14 BLD(AD)211
Ref:
‘A.I.R. 1928 (PC) 208; 43 l.A. 26 (PC), A.I.R. 1965 (SC) 1405; 39 DLR(AD) 242;
6 BLD(AD) 231; 5 BLD(AD)45; 3 BLD (AD)225—Cited.
Section—31
Rectification
of a document
To
secure an order for rectification of a document under section 31 of the Act it
requires to be proved that through the mutual mistakes of the parties the
instrument in question did not truly express the intention of the parties. When
both the Courts concurrently found that the plaintiff purchased the suit
property from the recorded tenant for valuable consideration and obtained
delivery of possession pursuant thereto and duly mutated his name in respect of
the suit land, mere failure of the plaintiff for filing a suit for
rectification of the sale deed for inserting the wrong name of the mouza does
not stand in his way of getting a decree for declaration of title, the mistake
in question occurring in the disputed sale deed being due to mutual mistake of
the parties. The failure of the plaintiff to rectify a mistake in the sale deed
does not extinguish his title in the suit property which was actually sold to
him and in which he is in possession.
Binode
Bihari Ghose Vs. Assistant Custodian, Vested and Non-Resident Property and
others, 18 BLD (HCD) 194.
Ref:
AIR 1956 Orissa 83; AIR 1930 Allahabad 387; A1R1931 Madras 783; 36 DLR
337—Cited.
Sections—31,
39 and 42
As
the document in question in respect of transfer of 0.30 decimals of land is
admitted as legal but the remaining portion of the land in the document has
been affected by fraud for which the suit can be treated as a Suit under
section 3.1 and not under section 39 of the Act and as the whole document is
not denied or challenged where cancellation of the document is not necessary,
mere rectification is sufficient and section 42 still can come to rescue the
plaintiff to get the proper relief.
Joynal
Abedin Vs Maksuda Khatun and others, 18 BLD (HCD) 647.
Sections—39
and 42
Void and
Voidable instrument
Where
a written instrument is void ab initio the transaction is a nullity and in such
a case a plaintiff is not required to have it cancelled or set aside. If, on
the other hand, the instrument is only voidable, then it is incumbent upon the
plaintiff to have it cancelled or set aside under section 39 of the Specific
Relief Act.
Since
in the present case the plaintiffs are parties to the disputed Kabala, it is
undisputedly not a void document but only a voidable one. In order to remove
the impediment in the way of the plaintiffs to get complete relief, along with
the declaration the plaintiffs must also pray for cancellation of the document
on payment of advalorem Court fee.
Sree Chitta
Ranjan Chakraborty being dead his heirs Ashish Chakraborty and others Vs Md.
Abdur Rob alias Mvi. Md. Abdur Rob, 17 BLD(AD)127
Ref:
16 DLR (SC) 477; 17 DLR (Dhaka) 119; 21 DLR (Dhaka) 507; 39 DLR (AD) 46—Cited.
Sections—39
and 42
A
person in possession of a land on assertion of his right, title and interest
finds a decree obtained by any other person in respect of such land affecting
his interest or possession, or clouding his right or title in such land, he is
always entitled to have such decree adjudged or declared void. When such person
is not a party to such decree, he does need to get the decree set aside or
cancelled. Under the law, he is also not required to seek further declaration
that the decree is not binding upon him or that he has got title in the suit
land.
Abul Kashem
Howlader v. Sultan Ahmed and others, 22 BLD (HCD) 606.
Ref:
Md. Yunus v. Md. Yusuf, 21 DLR 466; Imanuddin Rarhi v Lilabati Das, 32 DLR 75;
M A Mallik v M H Mallik, 6 BCR(AD)56 and Sufia Khanom v Faizunnessa, 39 DLR (AD)46;
Abdul Sukur v Bhasan Mondal, (2001) BLC 549.
Section—42
In
the face of the evidence on record showing that the plaintiffs have been
possessing the suit land on taking pattan from the recorded tenant in 1351-52
B.S. and their names have been recorded in the S.A. Khatian and there being no
evidence on record to prove that the Government ever took over possession of
the land as an enemy property, defendants claim of enemy property does not
stand.
The
Additional Deputy Commissioner (Revenue), Manikgonj Vs. Md. Siddiqur Rahman and
others, 14 BLD(AD)80
Section—42 Proviso
Simple
suit for declaration without a proper prayer for a decree for cancellation of
the deed of gift is not maintainable and the same is barred under the proviso
to section 42 of the Act.
The
plaintiff was fully aware that defendant No. 3 had already transferred the
disputed properties in favour of defendant No. 5 by a deed of gift and filed a
simple suit for declaration of title without praying for cancellation of the
said deed of gift. In such circumstances, a simple suit for declaration without
a prayer for cancellation of the disputed document is not maintainable.
Although
he knew that such cancellation is required because P.W.1 the father of the
minor plaintiff, himself admitted in his cross- examination that he prayed for
cancellation of the earlier deed of gift also which is not correct. Under the
circumstances the suit for simple declaration, without a proper prayer for
decree for cancellation of deed of gift, is also barred under proviso to
section 42 of the Act.
Minor Md.
Basihur Rahman Biswas Vs Md. Hanif Ali
Biswas and others, 21 BLD (HCD) 89.
Section—42
Mere
recording in the SA Khatian of the suit land cannot confer any title on the
holder of the record.
Md. Azizur
Rahman Vs Most. Hasina Jamil, 21 BLD (HCD) 163.
Section—42
Part decree
as equable relief
In
a suit for specific performance of a contract a part decree is not ordinarily granted.
But under special circumstances it may be permissible to grant a part decree
when it is found in consonance with the principle of equity, justice and good
conscience.
Sree Naru
Gopal Roy Vs Parimal Rani Roy and others, 21 BLD (HCD) 282.
Section—42
Plaintiff
being in possession seeking for declaration he need not seek any further relief
as contemplated under proviso to section 42 of the Act.
Ali Akbar
Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122.
Section—42
Code of
Civil Procedure, 1908, Section—115(1)
The
plaintiff has not sought for any decree for setting aside the order of his
termination from service but has sought for his reinstatement with back wages.
The plaintiff did not prefer the statutory appeal as provided in the service
regulations. The suit as framed is. thus not maintainable.
Mujibur
Rahman Vs Abdul Maleque Akon and others, 21 BLD (AD) 86.
Section—42
Where
a plaintiff is a party to a document or decree that has clouded his title to
property in suit, he is to seek a declaration either that the document or
decree is void or void abinitio, or for a declaration and cancellation. In the
absence of seeking a declaration against such document or decree, a plaintiff
cannot have a declaration of title to the property in suit.
Dudu
Mia v. Ekram Mw Chowdhury, 21BLD(AD,)157 Citations: Sufia Khanam Chowdhury v.
Faizun Nesa Chowdhury 39DLR(AD)46; Abdul Hamid v. Dr. Sadeque Ali Ahmed and
others 21DLR507. Cases distinguished: 44 DLR(AD)46; 21 DLR (SC)365; AIR 1924
(Cal) 411; 17 DLR 119.
Section—42
It
is now well-settled that each suit seeking relief within the scope of section
42 must be decided on its own merits and its own peculiar circumstances and
that no hard and fast rule can be laid down for all cases.
The
expression ‘legal character’ in section 42 of the Act denotes a personal and
special right not arising out of contract or tort, but of legal recognition.
Herein rejection of plaintiff’s application for allotment has created a legal
recognition enforceable against a person whose similar application is accepted.
Mirpur Mazar
Co-operative Market Society Ltd. Vs Secretary, Ministry of Works, Government of
Bangladesh and ors., 19 BLD (HCD)164
Section—42
Discretion
of Court as to declaration of status or right
A
declaratory suit need not be confined within the terms of section 42 of the
Specific Relief Act which is meant for obtaining a specific relief. A
declaration can be sought for various other matters as well.
Bangladesh
Water Development Board, represented by its Chairman Vs. Syed Moazzem Hossain
and others, 15 BLD (AD) 239.
Section—42
In
a suit for cancellation of a decree passed by competent court, whether exparte
or contested, it is incumbent upon the plaintiff to prove by cogent evidence
that the decree impugned was obtained by practicing fraud upon the court or by
other fraudulent means.
Most.
Jinnatunessa Vs. Bangladesh, represented by the Deputy Commissioner Mymensingh,
15 BLD (HCD) 104.
Ref.
Md. Namiuddin Sarder Vs. Abdul Kalam Biswas, 39 DLR (AD) 237; Bangladesh Vs.
Israil Ali and others, I BLD (AD) 371—Cited.
Section—42
A
suit for a mere declaratory relief under Section 42 of the Act without stating
anywhere in the plaint as to what is the plaintiff’s ‘legal character’ or
‘status’ conferred by law entitling him to make such a prayer for declaration,
is not maintainable in law. Such a plaint is no plaint in the eye of law and it
should be rejected under the inherent power of the Court.
Md. Ayub Vs.
Sonali Bank & ors., 14 BLD (HCD) 236.
Ref:
Sk. Md. Junaid and others Vs. Turner Morrison and Co. Ltd. 26 DLR 111; National
Bank Ltd. Vs. Haroon Malik and others, 42 DLR 103; Burmah Eastern Ltd. Vs.
l3urmah Eastern Employees Union and others, 18 DLR 709, -Cited.
Section—42
A
suit for simple declaration that the order of termination of plaintiffs service
is illegal, inoperative and not binding upon him without a prayer for
consequential relief is hit by proviso to section 42 of the Specific Relief Act
and as such it is not maintainable in law.
Sonali Bank
and another Vs. Chandon Kumar Nandi, 15 BLD(HCD)249
Ref.
Abdul Mannan Sikder Vs. Bangladesh Bank and others, 31 DLR(AD) 298; State Vs.
Abdul Awal, 35 DLR(HCD) 151; Mr. Shahabuddin Vs. Janata Bank, 41 DLR (HCD) 94;
Senior Manager. Messrs Dost Textile Mills Ltd. and another Vs. Sudhansu Bikash
Nath, 8BLD (AD)66; 41 DLR (HCD) 94; 44DLR (AD)260; Manager, Personal Division
Vs. Sazahan Miah and others, 35 DLR (HCD) 224-Cited.
Section—42
Bar to
simple declaration
It
provides that no Court shall make any declaration as to title or legal
character where the plaintiff being able to seek further relief other than a
mere declaration omits to do so.
In
the instant case, the defendant- petitioner took delivery of possession in the
suit property through Court on 8.4. 1985 in pursuance of the order of redemption
passed on contest by the Sub-Divisional Magistrate under sub-section (4) of
section 95 of the S.A.T. Act. In the eye of Law even a symbolical possession
obtained through court has the effect of actual possession so far as the
judgment- debtors are concerned. Under such circumstances, the plaintiffs suit
for simple declaration of title without any prayer for recovery of khas
possession is barred under Section 42 of the Specific Relief Act.
Osman Gani
Talukder alias Sujat Au Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD) 165
Section—42
Oral
agreement for sale
Although
an oral agreement for sale of an immoveable property is not barred by any law,
nevertheless it has to be looked at with some suspicion unless such agreement
is proved by convincing and reliable evidence and circumstances. The superior
Courts of the sub-continent usually discourage a decree for specific
performance of a contract on the basis of an agreement solely supported on oral
evidence.
Md.
Moslemuddin and others Vs Md. Jonab Ali and
another, 17BLD(AD)328
Ref:
(1969)2 SCWR 347;—Cited.
Section—42
Proviso
A
simple prayer for declaration that the impugned order of dismissal from service
is illegal, void and not binding upon the plaintiff without a further prayer
for consequential relief in the form of back salary and for mandatory
injunction to reinstate him in his former post is hit by the proviso of section
42 of the Specific Relief Act and such a suit is not maintainable in law.
Basharatullah
Vs Managing Committee for New Academy and another, 17 BLD (HCD)68
Section—42
A
declaration with regard to the contractual or financial obligation involved or
transacted between the parties cannot come within the ambit of section 42 on
the Act. If a declaration is given that a plaintiff is not a defaulter or
borrower or loanee, a bank as creditor may be prejudiced in filing a suit for
repayment of loan.
Mere
issuance of a notice by Bangladesh Bank, who is not a creditor, enclosing a
letter of a bank for the purpose of removing the plaintiff director of the
bank, will not entitle him to file a suit for a declaration with regard to his
liabilities, which is an entirely different matter.
Shaft A.
choudhury v. Pubali Bank Ltd. and others, 22 BLD(HCD)423
Section—42
Suit for
declamation
Since
the plaintiffs are in joint possession of the immovable property, they are
entitled to file a suit praying for declaratory relief only with a view to
removing the cloud on their title created due to wrong recording of ROR,
because in such a suit, declaration of title is all that the plaintiff needs.
So, they are not called upon to ask for consequential relief by way of
partition.
Md. Gias
Uddin and others v. Md. Nowab Au & others, 22 BLD(HCD)586
Ref:
Enjaheruddin Miah alias Md. Enjaharuddin Vs. Mohammad Hossain and others,18
BLD(AD)3; Narayan Sarker Vs. Siraj Miah,1989 BLD(AD)9; Paran and others, AIR
137 (Rangun) 427 and Kaup Nath Singh vs. Lala Ram Din Lal, ILR 15 Calcutta,
117; Shankar Chandra Das Vs. Kala Chand Das, 46 DLR 419; Joy Narayan Vs. Shree
Nanta, AIR 1922 Cal, 8; 18BLD(AD) 77.
Section—42
Proviso
The
proviso to section 42 of the Specific Relief Act provides that no Court shall
make any declaration as to plaintiff’s legal character or his right to any
property where the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so. In the instant case, the plaintiff prayed
only for declaration of his title in the suit land and did not ask for either
joint possession or partition as a co-sharer of the defendants in the disputed land.
Although the plaintiff’s possession was found in some portion of the suit
property, the learned Courts below committed no error of law in dismissing the
suit for declaration of title simpliciter.
Enjaheruddin
Mia alias Md. Enjaheruddin Mw Vs. Mohammad Hossain and ors., 18 BLD(AD)77
Section—42
Since
the plaintiff has no possession in the suit land, the suit for declaration of
title on the basis of adverse possession is not maintainable.
Kala Miah Vs
Sree Gopal Chandra Paul and others, 18 BLD (HCD) 670.
Ref:
8DLR65; 531.A. 89; A.I.R. 1930 Patna 610; 35 Indian Cases 14; AIR. 1927 (Cal)
197;—Cited.
Sections—53
and 54
A
suit for permanent or perpetual injunction is contemplated in sections 53 and
54 of the Specific Relief Act. For the grant of permanent or perpetual
injunction the existence of a right in the plaintiff and its threatened
violation will have to be found. Every suit for permanent injunction
necessarily involves a determination of the right of the plaintiff. [Per
Latifur Rahman. J, delivering the dissenting judgment].
Barada
Sundari Paul and others Vs. The Assistant Custodian, Enemy Property (Land and
Buildings), Comilla and others, 15 BLD (AD) 95.
Ref:
13 D.L.R. 576; 40 C.W.N.81; 16 DLR (Dhaka) 355; 13 DLR 865; A.I.R. 1927
(Madras)984; A.I.R. 1968 (Andra Pra) 291; A.I.R. 1971 (Cal) 252; A.I.R. 1965
(SC) 271—Cited.
Section—54
Whether
a party acquired valid title in the suit property by dint of registered
documents cannot be a prime issue in a suit for permanent injunction. In such a
suit the question of possession is the main consideration before the Court.
Abul Hashem
Dhali and others Vs. Md. Idris Ban and others, 15 BLD(AD) 106
Section—54
Permanent
injunction—when to be granted
The
earlier trend of judicial pronouncements for granting permanent injunction was
that the plaintiff was required to prove his exclusive possession in the suit
property and incidentally a prima facie title thereto. If these two
requirements were fulfilled, the plaintiff was entitled to a decree for
permanent injunction. It appears from a review of the judicial pronouncements
of the superior courts of the sub-continent that the aforesaid view of late has
undergone a change. It is now well-settled that if the plaintiff can prove his
possession in the suit land he is entitled to protect his possession by way of
permanent injunction. Even the rightful Owner cannot evict by force a person in
long and continuous possession in the suit property. The question of title has
thus become a matter of little significance.
Kalyan Krishna
Goswami Vs. Madhyapara High School and another, 15BLD (HCD) 509.
Ref:
Manindra Nath Sen Sarma Vs. Bangladesh, 4 BLD(AD)285; Kuttan Narayan Vs.
Thomman Mathai, AIR 1966(Ker)199; 14 BLD (AD) 229-Cited.
Section—56(e)
On
the de-nationalisation of Rupali Bank and corporatisation, it became a private
bank, and the relationship with its employees became that of master and
servants. But even though by a vendor’s agreement Rupali Bank Limited agreed to
follow the Service Regulations of Rupali Bank when it was a nationalised bank,
the plaintiff is not entitled to get a decree for mandatory injunction in view
of the bar of section 56(e) of the Specific Relief Act 1877 against granting
injunction for breaches of contract for personal service.
Rupali Bank
Limited v. Haji Md. Arab Ali and others, 22 BLD (AD) 13.
Ref:
38 DLR (AD) 81.
Section—56(k)
If
the money in dispute had not fountained from the plaintiff and if the same
cannot lawfully be redirected to him in the event other beneficiaries fail to
receive it, the plaintiff has no legal right or interest over the money which
is the subject matter of an injunction prayer.
S.M. Faziul
Haque i. Salahuddin Ahmed and another, 22 BLD (HCD) 155.
Ref:
Gouriet v. Attorney-General (1978) Act 435; Paton v. British Pregnancy Advisory
Services Trustees (1979) QB 276