Specific Relief Act, 1877 [Section 42]


Specific
Relief Act [I of 1877]

 

Section 42—

Under
section 42 where consequential relief is found necessary, but has not been
asked for the suit may either be dismissed or the plaintiff directed to pay
additional court—fee—For relief sought by way of cancellation of a document, a
kabala or a decree, section 39 is applicable—Declaration ofnullity of a
document is the main and substantive relief, whereas cancellation of the
instrument is a consequential relief.

Sufia Khanam
vs Faizunessa 39 DLR (AD) 46.

 

Section 42—

A written
instrument when is adjudged void, need not be cancelled—Plaintiff should also
seek the additional relief by way of setting aside the decree or cancelling the
deed­Suit for mere declaration that an instrument is void, maintainable without
a prayer for its cancellation—Relief by declaration of nullity of any
instrument and also relief by cancellation of the instrument provided in
section 39. Section 42 does not specifically provide for declaration of nullity
of any written instrument; nevertheless a decree for nullity of an instrument
in view of the general provision therein comes under section 43.

Sufia Khanam
vs Faizunessa 39 DLR (AD) 46.

 

Section 42—

If a
person’s right and title is clouded by an instrument he may seek a declaration
under section 42 to nullify the effect of such an instrument—A suit for
declaration that a deed whether a sale deed or decree is void comes under
section 39 of the SR Act in terms of this section—But when further prayer is
added that by the said deed plaintiffs right is not affected, this falls under
section 42—If his suit includes the reliefs that the instrument in question is
void and his right has not been affected thereby and, or, the defendant
acquired no right thereby, then the reliefs are covered by both sections 39 and
42.

Sufia Khanam
vs Faizunnessa 39 DLR (AD) 46.

 

Section 42—

Possession
has been delivered through Court to the defendant and the plaintiffs have
failed to prove their possession therein and as such the present suit by the
plaintiff for declaration without prayer for recovery of khas possession is not
maintainable.

Fazlure
Rahman vs Bani Rahman 39 DLR 339.

 

Section 42—

The plaintiffs
can file a properly constituted suit for declaration of title.

Fazlur
Rahman vs Bani Rahman 39 DLR 339.

 

Section 42—

A suit for
negative declaration under section 42 of the SR Act is maintainable.

Nurul Apser
vs HR Chowdhury 40 DLR 226.

 

Section 42, Proviso—

Court’s
discretion to make a declaration of any status or right upon a suit instituted
under section 42 of the Act­—Positive bar to make a mere declaration of title
if the plaintiff being able to seek further relief omits to do so—Meaning of
“being able to seek further relief.”

Trading
Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

 

Section 42, Proviso—

The
contention that the second declaration that ‘the plaintiff is in service of the
Corporation as executive officer’ is a consequential relief, is to be rejected
outright as being not acceptable.

Trading
Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

 

Section 42—

Absence of
consequential relief by way of mandatory direction for re-instatement in
service—Declaration ineffective and infruc­tuous.

Trading
Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

 

Section 42—

A suit for
declaration, even without a prayer for recovery of possession, that the
Certificate proceeding is without jurisdiction, illegal and void ab initio, is
maintainable.

Amina Khatun
vs Ansar Ali 40 DLR 419.

 

Section 42—

The question
arose whether the respondent was a worker under the relevant labour law or he
is an employee of the Corporation governed by its Service Rules or whether his
remedy lay in a grievance petition under section 25 of the Act.

Leave was
granted by us to consider the question whether the respondent is a worker under
the relevant Labour Law or whether he is an employee of the Corporation,
governed by its Service Rules, and whether his suit was hit by section 42 of
the Specific Relief Act in the absence of any prayer for consequential relief.

We have
heard lengthy arguments of the learned Advocates for both the parties—Mr
Asrarul Hossain for the appellants and Mr Mahmudul Islam for the respondent. Mr
Asrarul Hossain has contended that the order of the respondent’s dismissal
itself shows that he was treated as a worker of the Mills and was dismissed by
the “Employer” under section 17 of the Act and as such his only remedy
lay in a “grievance petition” before the Labour Court under section
25 of the Act.

Dosta
Textile Mills vs SB Nath 40 DLR (AD) 45.

 

Section 42—

Respondent
is a worker and he is not an employee of the corporation. Corporation Service
Rules are not applicable to him.

Dosta
Textile Mills vs SB Nath 40 DLR (AD) 45.

 

Section 42—

A suit
wherein negative declaration is prayed for is not barred under section 42 of
the Specific Relief Act.

Abdul Gani
and others vs Almas Khatun and others 42 DLR 211.

 

Section 42—

Maintainability
of suit­Plaintiffs having failed to prove their possession in the suit land, a
simple suit for declaration of their title is barred.

Noor
Mohammad Khan vs Bangladesh 42 DLR 434.

 

Section 42—

The
plaintiff being entitled to a decree that the suit property is not an abandoned
property and the Government having disclaimed the same as requisitioned
property, the latter is liable to restore its possession to the plaintiff and
also to pay rentlcompensation under the Requisition of Property Act for its use
and occupation from 14-2-72 till the possession of the property is restored to
the plaintiff.

Md Zaher vs
Bangladesh 42 DLR 430.

 

Section 42—

A suit
wherein negative declaration is prayed for is not barred under section 42 of
the Specific Relief Act (relied on 37 DLR 49, 40 DLR 226).

Abdul Gani
vs Almas Khatun 42 DLR 211.

 

Section 42—

As the
plaintiff—appellant does not have title to the entire suit land the greater
part of which is in fact an enemy and vested property, he is not entitled to a
decree for declaration as prayed for—He may seek remedy by way of partition in
an appropriate forum.

It is not
ascertained what is the appellant’s share nor is it clear whether the Il3rd of
the suit land representing original owner Jugal Chand’s share, has· been
mcluoed in the Vested Property case. Determination of the appellant’s lawful
share in the suit land is not an issue in this suit. It is .a suit for
declaration that the Vested Property case is illegal, collusive and void.· Now
that the appellant is not found to have title to the entire suit land the
greater part of which is in fact an enemy and vested property the
appellant—plaintiff is not entitled to a decree he prayed for. He may seek
remedy by way of partition in an appropriate forum. Decision of the High Court
Division affirming that of the Appellant Court is perfectly correct.

Nuruzzaman
Sarker vs Seraj Mia 41 DLR (AD) 107.

 

Section 42—

When prayer
for consequential relief not necessary—The plaintiffs did not file the suit for
declaration of their title. They have prayed for simple declaration to the
effect that the judgment of the certificate proceeding bearing No. 697 and sale
held thereunder is illegal, collusive; fraudulent and is not binding upon the
plaintiff. So the prayer for consequential relief is not required in the
instant case. As such the suit will not be hit by section 42 of the Specific
Relief Act.

In a case
where the defendant’s plea of his having taken symbolical possession or that
there is evidence of ‘the defendant having taken symbolical possession, the
plaintiff must pay for recovery· of possession in a suit for declaration of his
title, otherwise the suit will be hit by section 42 of the Specific Relief Act.

Mokbul
Hossain vs Anil Kumar Shaha 37 DLR 131.

 

Section 42—

While
passing a declaratory decree under section 42 of the Specific Relief Act the
trial Court will consider if the plaintiff can establish his locus standi to
sue the · Vice­ Chancellor and whether the case involves any personal
entitlement, any legal character or right to any property.

Prof MA
Raquib vs. Prof Zillur Rahman 37 DLR 83.

 

Section 42—

What
exigency of circum­stances prevailed which compelled an officer of the
University to institute a suit against the highest officer of the University with
regard to an official act of the University has to be established before the
trial Court while disposing of the suit on merits by the court concerned.

Prof MA
Raqub vs ProfZillur Rahman 37 DLR 83.

 

Section 42—

Suit for
injunction incidentally the question of title is gone into that will not
convert the suit to one for declaration of title and injunction—Where defendant
is in possession or the plaintiff has no legal possession suit for permanent
injunction will not lie.

Bazlur
Rahman vs Jan Mohammad 37 DLR 79.

 

Section 42—

Negative
declaration sought in a suit—that creates no bar under section 42 SR Act.

Merely
because a negative declaration has been sought that cannot be any ground to
hold that the suit does not come within the ambit of section 42 of the Specific
Relief Act. The said section does not really bar a negative declaration as such
if otherwise its conditions and terms are fulfilled.

Bipin
Chandra Ray vs Bunchuki Barmani 37 DLR 49.

 

Section 42—

A
declaration as to illegal and void character of an act would automatically mean
the restoration of the position previous of the illegal act.

Sarder Ahmed
Ali vs GM Ali Baksh 37 DLR 7.

 

Section 42—

Relief which
cannot be called further reliefs within the meaning of the prP\ is ion to
section 42.

If a
plaintiff would be entitled, in some remote way, to some other relief in
consequence of the declaration but which .are not immediately related to the
cause of action the said relief cannot be called further relief within the
meaning of the Proviso to the Act and hence the plaintiff in such a case cannot
be compelled by the court to ask for relief, whether he wants it or not and if
the plaintiff in a given case is not in need of any other consequential relief
the suit will not lie. All this would depend upon the facts and circumstances
of each case and this ought to be decided at the outset and allow an amendment
of the plaint if so required after an objective examination of the further
relief that need be claimed.

Sarder Ahmed
Ali vs GM Ali Boksh 37 DLR 7.

 

Section 42—

Under
section 42, SR Act a case will lie when the plaintiff proves that he is
entitled to a legal character or right and the defendant is denying such legal
character or right.

Hasmat Ali
vs Mofizuddin Majhi 37 DLR 231.

 

Section 42—

Suit for
declaration that the order of removal of the plaintiff, a bank officer, from
service was void and inoperative and that he remained in service was
maintainable without any further relief.

Fazlul Karim
vs Agrani Bank 45 DLR 375.

 

Section 42—

When a
decree adversely affects a person not a party to the same he may file a suit
for declaring the decree not binding on him and get the same set aside if found
illegal.

Moulvi Abdul
Mannan vs Md Rajiqul Islam 46 DLR 493.

 

Section 42—

In a case of
original co­ownership the plaintiff and defendant being in joint possession of
the suit property, suit for declaratory relief in respect of the share of the
plaintiff in a specified land without seeking partition is maintainable.

Shankar
Chandra Das vs Kalachand Das 46 DLR 419.

 

Section 42—

As the
plaintiffs failed to prove their possession in the suit land their simple suit
for declaration of title is barred and the suit as framed is not also
maintainable.

Madaris Ali
vs Biswamber Das 46 DLR 34.

 

Section 42—

In a suit
for declaration of title to property when it stands attached under section 145
CrPC it is unnecessary to ask for further relief of recovery of possession. It
is unnecessary to ask for possession when the property is in custodia legis.
The fact that the decree may not be binding on the Magistrate does not affect
the competence of the suit.

Jogendra
Kumar Dutta vs Nur Mohammad & others 45 DLR (AD) 173.

 

Section 42—

In the face
of evidence showing that the plaintiffs have been possessing the suit land from
1351 BS and their names have been recorded in the Khatian and there being no
evidence on record to prove that the Government ever took possession of the
land as an enemy property, defendants’ claim of title is sustainable.

Additional
Deputy Commissioner (Revenue) ys Md Siddiqur Rahman 46 DLR (AD) 179.

 

Section 42—

Maintainability
of suit—The suit being one for declaration of title to an unspecified share of
an undivided plot of land on the basis of gift and there being no evidence that
the donor thereof was in exclusive possession at any time, is not maintainable
without a prayer for partition.

Tayeb Ali vs
Abdul Khaleque 43 DLR (AD) 87.

 

Section 42—

Suit for
declaration simpliciter—When the suit property is in possession of the
Government, no prayer for recovery of possession is required. If it is declared
by the Court that the property is not an abandoned property, the Government
will have no reason to possess the same and will be under an obligation to
restore possession to the plaintiff and no prayer for recovery of possession as
a consequential relief is necessary. The lessor under the Government has no
independent right and no prayer for her eviction is necessary.

Hashem vs
Bangladesh and others 43 DLR I 09.

 

Section 42—

Plaintift’s
prayer for declaration that defendant Nos. 2 and 3 have no title· in the suit
property in the suit for specific performance of contract by the purchaser was
not maintainable since the plaintiff acquired no interest in the suit property
under the contract for sale.

Silver
Estate Ltd vs Abdul Hakim Mia 43 DLR 360.

 

Section 42—

A
declaratory decree passed in a case without any prayer for consequential relief
is an “annuity”. Such decree· is a gain and its implementation is
dependent on as to whom the decree is passed against. In the instant case the
defendant being a statutory corporation, there is no reason to believe that
such corporation will not implement the decision of the court.

Jiban Bima
Corporation, Dhaka vs Mustafa Hussain & and another 50 DLR 411.

 

Section 42—

Service
matter—Suit for declaration is not maintainable in view of the fact that till
now the relationship between the parties is that of master and servant—Though
the corporation had taken over the jute mill no statutory rules have been
framed in order to guide the service conditions of the plaintiff and employees
like him.

Bangladesh
Jute Mills Corporation Ltd and others vs Abdul Halim Chowdhury 47 DLR 17 3.

 

Section 42—

Plaintift’s
prayer for declaration was not followed by any consequential relief and, as
such, the Court committed no illegality in holding that the omission to pray
for such a relief for the purpose of enforcing the declaratory decree ‘was hit
by section 42 of the Act.

Bangladesh
Jute Mills Corporation Ltd and others vs Abdul Halim Chowdhury 47 DLR 173.

 

Section 42—

A suit at
the instance of a co-­sharer against a trespasser for recovery of possession is
maintainable without impleading the other co-sharers.

Abdul
Khaleque (Md) vs Raj Mohammad Sarker and others 47 DLR 524.

 

Section 42—

Suit for
cancellation of decree—in such a suit it is incumbent to show that the decree
was obtained by practicing fraud upon the Court.

Jinnatunessa
vs Bangladesh, represented by the Deputy Commissioner, Mymensingh 48 DLR 208.

 

Section 42—

Omission to
pray for any consequential relief for the purpose of enforcing a declaratory
decree would be hit by the provision to section 42 of the Specific Relief Act.

Sonali Bank
and another vs Chandon Kumar Nandi 48 DLR 330.

 

Section 42—

The courts
below having held that the plaintiffs, had failed to prove their title and
possession it must be held that they were not entitled to a decree for a simple
declaration that the sole decree in the entitled Suit was obtained fraudulently
and not binding on them.

Ishaque Mia,
(Md) & another vs Abdul Mazid Mollah & others 48 DLR 465.

 

Section 42 (Proviso)—

In service
matter a suit for simple declaration without any prayer for consequential
relief is not maintainable.

Dhunat
Degree College and others vs Md Abdus Samad and others 49 DLR 38.

 

Section 42—

The
defendants being in possession of the suitland from before the filing of the
suit, the plaintiff was to pray for recovery of khas possession by way of
consequential relief as a suit for mere declaration is liable to be dismissed.

Abdul Hamid
Mollah vs Md Abdul Hye and others 49 DLR 428.

 

Section 42—

Although an
oral agreement for sale of an immoveable property is not barred by law, it has
to be looked at with some suspicion unless it is proved by reliabe evidence.

Moslemuddin
(Md) and others vs Md Jonah Ali and another 50 DLR (AD) 13.

 

Section 42—

Plaintiffs
could have asked for either joint possession or partition as .a .co-sharer of
the defendants in the disputed land but they did not take any such stand in the
lower appellate Court or even before the High Court Division, The impugned
judgment calls for no interference.

Enjaheruddin
Mia vs Mohammad Hossain and others 50 DLR (AD) 84.

 

Section 42—

When the
plaintiffs are in possession claiming raiyati settlement they cannot set up
adverse possession to be entitled to a declaration of title.

Salma Khatun
and others vs Zilla Parishad Chittagong, represented by its Secretary and
another 51 DLR (AD) 257.

 

Section 42—

In a suit
for declaration of title mere possession of the property is not sufficient
unless the plaintiff can produce a document of title showing his acquisition of
right, title and interest in the suit property.

Abdul Kader
vs Abdullah and others 51 DLR 435.

 

Section 42—

Mere
inclusion of the name of the plaintiff in the list recommended by selection
committee for appointment could not confer any right to appointment to the
service of the government.

Habibur
Rahman (Md) vs DC, Patuakhali and others 51 DLR 70.

 

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
Gopal Chandra Paul and others 51 DLR 77.

 

Section 42—

“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. Rejection of plaintiffs 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 Ministry of Works Government of People’s
Republic of Bangladesh and others 52 DLR 263.

 

Section 42—

In a case
where plaintiff is a party to a document or decree that has clouded his title
to the property in suit, he is to seek declaration either way, i.e., that the
document or decree is void or void ab-initio or that for declaration as well as
for cancellation.

Dudu Mia and
others vs Ekram Miah Chowdhury 54 DLR (AD) 7.

 

Section 42—

The High
Court Division was not correct, rather was in error in observing that decrees
are collusive and consequently those need not be set aside.

Dudu Mia and
others vs Ekram Miah Chowdhury and others 54 DLR (AD) 7.

 

Section 42—

In a suit
for permanent injunction trial Court is not required to decide the title of
respective parties.

Chief
Engineer, C&B and another vs Shah Hingul Mazar Sharif and others 54DLR (AD)
73.

 

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 of
the Specific Relief Act.

Shafi A
Choudhury vs Pubali Bank Ltd 54 DLR 310.

 

Section 42—

Although
section 42 of the Specific Relief Act is not exhaustive and declaration
independent of that provision is even permissible but a suit for declaration,
would not lie when the plaintiff is neither entitled to any legal character or
status nor clothed with any right.

Shafi A
Choudhury vs Pubali Bank Ltd 54 DLR 310.

 

Section 42—

Since there
was a letter of allotment and Alimuddin performed his obligations under the
letter of allotment, and subsequently his heirs are in possession of the suit
property, it cannot be said that late Alimuddin did not acquire any right title
in the suit property.

Moinuddin
Ahmed alias Farook vs Khursheda Begum and ors 54 DLR 354.

 

Section 42—

The
particular fact that the plaintiffs are in possession of the suit land since
1963 by virtue of the registered power of attorney the plaintiffs have acquired
a right to protect their possession and maintain a suit within the meaning of
section 42 of the Specific Relief Act.

Shishir
Kanti Pal and others vs Nur Muhammad and others 54 DLR 440.

 

Section 42—

Suit for
declaration simpliciter m service matter is maintainable without any prayer for
consequential relief.

Tomser Ali@
Md Tamser Ali Sarder vs Md Nazrul Islam and others 55 DLR 151.

 

Section 42—

A legal
action involves determination of rights and obligations of the parties thereto.
In law only a juristic person, whether natural· or artificial, is capable of
having a right and an obligation. It, therefore; follows that only a juristic
person can maintain a suit in a court of law. Bangladesh is a juristic person
by being a Sovereign State.

Principal,
Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of Health &
ors 55 DLR 542.

 

Section 42—

Law has not
conferred upon a Ministry or a Department of the Government a legal
personality, independent of the .Government. In a suit where the name of a
Ministry appears as a party, it does so as the representative of the Government
or the.

State,
Principal, Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of
Health & ors 55 DLR 542.

 

Section 42—

The Ministry
of Health has no legal personality, independent of the Government. So, it
cannot maintain a suit in its· name; without an authority from the Government.
It may derive its authority to proceed with a legal action from the Government.
So, when the Ministry has no authority of its own to proceed with a legal
action, it cannot authorise others to represent it in, and proceed with, a
legal action.

Principal,
Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary. Ministry of Health &
ors 55 DLR 542.

 

Section 42—

Suspension
of· an employee pending a disciplinary proceeding· is an approved measure and
the Court does not generally interfere with it. But if the order of suspension
is prima facie illegal and tinged with malafidie, the Court is competent to act
for preventing injustice.

Bijoy Kumar
Shaha vs DC, Chuadanga and others 55 DLR 550.

 

Section 42—

Although in
response to the public notice the plaintiff submitted two tenders and also
deposited the required 25% deposits but since those tenders were· not accepted
by the Railway Department, no agreement came into existence and they had no
obligation, legal or otherwise, to allot any plot of land in favour of the
plaintiff.

Government
of the People’s Republic of Bangladesh and others vs Sheikh Jahangir Hossain 55
DLR 620.

 

Section 42—

Respondent
was appointed a temporary junior teacher and her probation was for two years
and she was allowed to continue in service for two and a half years. Relying
upon the decision reported in 29 DLR 104, it is ruled that her continuation in
the service beyond two years would amount to her confirmation in the service.

Kadamtala
Purba Basaboo Uchcha Bidalaya vs Hachna Hena Sarker Hasna Heba Sarker 56 DLR
(AD) 193.

 

Section 42—

Neither the
Government nor the Vested Property Authority challenged the decree of the trial
Court. The defendant Nos. 6-8, being lessees of the Vested Property for one
year, cannot have any locus standi to challenge the decree or prefer an appeal
against such decree.

Aroti Rani
Paul vs Sudarshan Kumar Paul and others 56 DLR (AD) 73.

 

Section 42 and 39—

Section 42
does not provide for declaration of nullity and cancellation of a written
instrument but section 39 does so. ‘Voidable’, it will have to be avoided both
by declaration and cancellation; and if the document is adjudged void or void
ab initio it need not be cancelled—Sale deed void because of fraud, need not be
cancelled.

Sufia Khanam
vs Faizunnessa 39 DLR (AD) 46.

 

Sections 42 and 56(7)—

Courts
cannot compel a. person, against his will, to employ or serve another,
notwithstanding the contract of service. A mandatory injunction cannot be
granted for such purposes.

Padma Oil Co
Ltd vs SM Nurul Islam and ors 56 DLR 505.