CHAPTER III
OF THE RECTIFICATION OF INSTRUMENTS
When instrument may be rectified31. When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in interest, may institute a suit to have the instrument rectified; and if the Court find it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the Court may in its discretion rectify the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
Illustrations
(a) A, intending to sell to B his house and one of three godowns adjacent to it, execute a conveyance prepared by B, in which, through B’s fraud, all three godowns are included. Of the two godowns which were fraudulently included, B gives one to C and lets the other to D for a rent, neither C nor D having any knowledge of the fraud. The conveyance may, as against B and C, be rectified so as to exclude from it the godown given to C; but it cannot be rectified so as to affect D’s lease.
(b) By a marriage settlement, A, the father of B, the intended wife, covenants with C, the intended husband, to pay to C, his executors, administrators and assigns, during A’s life, an annuity of taka 5,000. C dies insolvent and the official assignee claims the annuity from A. The Court, on finding it clearly proved that the parties always intended that this annuity should be paid as a provision for B and her children, may rectify the settlement and decree that the assignee has no right to any part of the annuity.
Presumption as to intent of parties32. For the purpose of rectifying a contract in writing, the Court must be satisfied that all the parties thereto intended to make an equitable and conscientious agreement.
Principles of rectification33. In rectifying a written instrument, the Court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be.
Specific enforcement of rectified contract34. A contract in writing may be first rectified and then, if the plaintiff has so prayed in his plaint and the Court thinks fit, specifically enforced.
Illustration
A contracts in writing to pay his attorney, B, a fixed sum in lieu of costs. The contract contains mistakes as to the name and rights of the client, which, if construed strictly, would exclude B from all rights under it. B is entitled, if the Court thinks, fit, to have it rectified, and to an order for payment of the sum, as if at the time of its execution it had expressed the intention of the parties.
CHAPTER IV
OF THE RESCISSION OF CONTRACTS
When rescission may be adjudged35. Any person interested in a contract in writing may sue to have it rescinded, and such rescission may be adjudged by the Court in any of the following cases, namely:-
(a) where the contract is viodable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff;
(c) where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase-money or other sums which the Court has ordered him to pay.
When the purchaser or lessee is in possession of the subject-matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and profits, if any, received by him as such possessor.
In the same case, the Court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether as the justice of the case may require.
Illustrations
to (a)-
A sells a field to B. There is a right of way over the field of which A has direct personal knowledge, but which he conceals from B. B is entitled to have the contract rescinded.to (b)-
A, an 8[Advocate], induces his client B, a Hindu widow, to transfer property to him for the purpose of defrauding B’s creditors. Here the parties are not equally in fault, and B is entitled to have the instrument of transfer rescinded.
Rescission for mistake36. Rescission of a contract in writing cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made.
Alternative prayer for rescission in suit for specific performance37. A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the Court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly.
Court may require party rescinding to do equity38. On adjudging the rescission of a contract, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require.
CHAPTER V
OF THE CANCELLATION OF INSTRUMENTS
When cancellation may be ordered39. Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or viodable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
If the instrument has been registered under the 9[Registration Act, 1908], the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
Illustrations
(a) A, the owner of a ship by fraudulently representing her to be seaworthy, induces B, an underwriter, to insure her. B may obtain the cancellation of the policy.
(b) A conveys land to B, who bequeaths it to C and dies. Thereupon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him. C may obtain the cancellation of the forged instrument.
(c) A, representing that the tenants on his land were all at will, sells it to B, and conveys it to him by an instrument, dated the 1st January, 1877. Soon after that day, A fraudulently grants to C a lease of part of the lands, dated the 1st October, 1876, and procures the lease to be registered under the Indian Registration Act. B may obtain the cancellation of this lease.
(d) A agrees to sell and deliver a ship to B, to be paid for by B’s acceptances of four bills of exchange, for sums amounting to taka 30,000, to be drawn by A on B. The bills are drawn and accepted, but the ship is not delivered according to the agreement. A sues B on one of the bills. B may obtain the cancellation of all the bills.
What instruments may be partially cancelled40. Where an instrument is evidence of different rights or different obligations, the Court may, in a proper case, cancel it in part and allow it to stand for the residue.
Illustration
A draws a bill on B, who endorses it to C, by whom it appears to be endorsed to D, who endorses it to E. C’s endorsement is forged. C is entitled to have such endorsement cancelled, leaving the bill to stand in other respects.
Power to require party for whom instrument is cancelled to make compensation41. On adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require.
CHAPTER VI
OF DECLARATORY DECREES
Discretion of Court as to declaration of status or right. Bar to such declaration42. Any person entitled to any legal character, or to any right as 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 the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation – A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.
Illustrations
(a) A is lawfully in possession of certain land. The inhabitants of a neighboring village claim a right of way across the land. A may sue for a declaration that they are not entitled to the right so claimed.
(b) A bequeaths his property to B, C and D, “to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children”. No such children are in existence. In a suit against A’s executor, the Court may declare whether B, C and D took the property absolutely, or only for their lives, and it may also declare the interests of the children before their rights are vested.
(c) A covenants that, if he should at any time be entitled to property exceeding one lakh of taka, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The Court may make the declaration.
(c) A covenants that, if he should at any time be entitled to property exceeding one lakh of taka, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The Court may make the declaration.
(d) A alienates to B property in which A has merely a life interest. The alienation is invalid as against C, who is entitled as reversioner. The Court may in a suit by C against A and B declare that C is so entitled.
(e) The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survive her may, in a suit against the alliance, obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow’s lifetime.
(f) A Hindu widow in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may, in a suit against the adopted son, obtain a declaration that the adoption was invalid.
(g) A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property.
(h) A bequeaths property to B for his life, with remainder to B’s wife and her children, if any, by B, but if B die without any wife or children, to C. B has a putative wife, D, and children, but C denies that B and D were ever lawfully married. D and her children, may, in B’s lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B.
Effect of declaration43. A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.
Illustration
A, a Hindu, in a suit to which B, his alleged wife, and her mother, are defendants, seeks a declaration that his marriage was duly solemnized and an order for the restitution of his conjugal rights. The Court makes the declaration and order. C, claiming that B is his wife, then sues A for the recovery of B. The declaration made in the former suit is not binding upon C.
CHAPTER VII
OF THE APPOINTMENT OF RECEIVERS
Appointment of receivers discretionary. Reference to Code of Civil Procedure.44. The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.
The mode and effect of his appointment, and his rights, powers, duties and liabilities, are regulated by the Code of Civil Procedure.
CHAPTER VIII
[Omitted][Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]
PART III
OF PREVENTIVE RELIEF
CHAPTER IX
OF INJUNCTIONS GENERALLY
Preventive relief how granted52. Preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual.
Temporary injunctions Perpetual injunctions53. Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit, and are regulated by the Code of Civil Procedure.
A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit: the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.
CHAPTER X
OF PERPETUAL INJUNCTIONS
Perpetual injunctions when granted54. Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.
When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases (namely):-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Explanation – For the purpose of this section a trademark is property.
Illustrations
(a) A lets certain lands to B and B contracts not to dig sand or gravel thereout. A may sue for an injunction to restrain B from digging in violation of his contract.
(b) A trustee threatens a breach of trust. His co-trustees, if any, should, and the beneficial owners may, sue for an injunction to prevent the breach.
(c) The directors of a public company are about to pay a dividend out of capital or borrowed money. Any of the shareholders may sue for an injunction to restrain them.
(d) The directors of a fire and life-insurance company are about to engage in marine insurances. Any of the shareholders may sue for an injunction to restrain them.
(e) A, an executor, through misconduct or insolvency, is bringing the property of the deceased into danger. The Court may grant an injunction to restrain him from getting in the assets.
(f) A, a trustee for B, is about to make an imprudent sale of a small part of the trust-property. B may sue for an injunction to restrain the sale, even though compensation in money would have afforded him adequate relief.
(g) A makes a settlement (not founded on marriage or other valuable consideration) of an estate on B and his children. A then contracts to sell the estate to C. B or any of his children may sue for an injunction to restrain the Sale.
(h) In the course of A’s employment as a vakil, certain papers belonging to his client, B, come into his possession. A threatens to make these papers public, or to communicate their contents to a stranger. B may sue for an injunction to restrain A from so doing.
(i) A is B’s medical adviser. He demands money of B which B declines to pay. A then threatens to make known the effect of B’s communications to him as a patient. This is contrary to A’s duty, and B may sue for an injunction to restrain him from so doing.
(j) A, the owner of two adjoining houses, lets, one to B and after-wards lets the other to C. A and C begin to make such alterations in the house let to C as will prevent the comfortable enjoyment of the house let to B. B may sue for an injunction to restrain them from so doing.
(k) A lets certain arable lands to B for purposes of husbandry, but without any express contracts as to the mode of cultivation. Contrary to the mode of cultivation customary in the district, B threatens to sow the lands with seed injurious thereto and requiring many years to eradicate. A may sue or an injunction to restrain B from sowing the lands in contravention of his implied contract to use them in a husband like manner.
(l) A, B and C are partners, the partnership being determinable at will. A threatens to do an act tending to the destruction of the partnership-property. B and C may, without seeking a dissolution of the partnership, sue for an injunction to restrain A from doing the act.
(m) A, a Hindu widow in possession of her deceased husband’s property, commits destruction of the property without any cause sufficient to justify her in so doing. The heir-expectant may sue for an injunction to restrain her.
(n) A, B and C are members of an undivided Hindu family. A cuts timber growing on the family-property, and threatens to destroy part of the family-house and to sell some of the family-utensils. B and C may sue for an injunction to restrain him.
(o) A, the owner of certain houses in Chittagong, becomes insolvent B buys them from the Official Assignee and enters into possession. A persists in trespassing on and damaging the houses, and B is thereby compelled, at considerable expense, to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass.
(p) The inhabitants of a village claim a right of way over A’s land. In a suit against several of them, A obtains a declaratory decree that his land is subject to no such right. Afterwards each of the other villagers sues A for obstructing his alleged right of way over land. A may sue for an injunction to restrain them.
(q) A, in an administration-suit to which a creditor, B, is not a party, obtains a decree for the administration of C’s assets. B proceeds against C’s estate for his debt. A may sue for an injunction to restrain B.
(r) A and B are in possession of contiguous lands and of the mines underneath them. A works his mine so as to extend under B’s mines and threatens to remove certain pillars which help to support B’s mine. B may sue for and injunction to restrain him from so doing.
(s) A rings bells or makes some other unnecessary noise so near a house as to interfere materially and unreasonably with the physical comfort of the occupier, B. B may sue for an injunction restraining A from making the noise.
(t) A pollutes the air with smoke so as to interfere materially with the physical comfort of B and C, who carry on business in a neighbouring house. B and C may sue for an injunction to restrain the pollution.
(u) A infringes B’s patent. If the Court is satisfied that the patent is valid and has been infringed, B may obtain an injunction to restrain the infringement.
(v) A pirates B’s copyright. B may obtain an injunction to restrain the piracy, unless the work of which copyright is claimed is lebellous or obscene.
(w) A improperly uses the trademark of B. B may obtain an injunction to restrain the user, provided that B’s use of the trademark is honest.
(x) A, a trades man, holds out B as his partner against the wish and without the authority of B. B may sue for an injunction to restrain A from so doing.
(y) A, a very eminent man, writes letters on family-topics to B. After the death of A and B, C, who is B’s residuary legatee, proposes to make money by publishing A’s letters. D, who is A’s executor, has a property, in the letters, and may, sue for an injunction to restrain C from publishing them.
(z) A carries on a manufactory and B is his assistant. In the course of his business, A imparts to B a secret process of value. B afterwards demands money of A, threatening, in case of refusal, to disclose the process to C, a rival manufacturer. A may sue for an injunction to restrain B from disclosing the process.
Mandatory injunctions55. When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
Illustrations
(a) A, by new buildings, obstructs lights to the access and use of which B has acquired a right under the 10[Limitation Act, 1908] Part IV. B may obtain an injunction, not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B’s lights.
(b) A builds a house with eaves projecting over B’s land. B may sue for an injunction to pull down so much of the eaves as so project.
(c) In the case put as illustration (i) to section 54, the Court may also order all written communications made by B, as patient, to A, as medical adviser, to be destroyed.
(d) In the case put as illustration (y) to section 54, the Court may also order A’s letters to be destroyed.
(e) A threaten to publish statement concerning B which would be punishable under Chapter XXI of the 11[Penal Code]. The Court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B’s property.
(f) A, being B’s medical adviser, threatens to publish B’s written communications with him, showing that B has led an immoral life. B may obtain an injunction to restrain the publication.
(g) In the cases put as illustrations (v) and (w) to section 54 and in illustrations (e) and (f) to this section, the Court may also order the copies produced by piracy, and the trade-marks, statements and communications, therein respectively mentioned, to be given up or destroyed.
Injunction when refused56. An injunction cannot be granted-
(a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought;
(c) to restraint persons from applying to any legislative body;
(d) to interfere with the public duties of any department of the Government, or with the sovereign acts of Foreign Government;
(e) to stay proceedings in any criminal matter;
(f) to prevent the breach of a contract the performance of which would not be specifically enforced;
(g) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(h) to prevent a continuing breach in which the applicant has acquiesced;
(i) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(j) when the conduct of the applicant on his agents has been such as to disentitle him to the assistance of the Court;
(k) where the applicant has no personal interest in the matter.
Illustrations
(a) A seeks an injunction to restrain his partner, B, from receiving the partner-ship-debts and effects. It appears that A had improperly possessed himself of the books of the firm and refused B access to them. The Court will refuse the injunction.
(b) A manufactures and sells crucibles, designating them as “patent plumbago crucibles”, though, in fact, they have never been patented. B pirates the designation. A cannot obtain an injunction to restrain the piracy.
(c) A sells an article called “Mexican Balm,” stating that it is compounded of divers rare essences, and has sovereign medicinal qualities. B commences to sell a similar article to which he gives a name and description such as to lead people into the belief that they are
buying A’s Mexican Balm. A sues B for an injunction to restrain the sale. B shows that A’s Mexican Balm consists of nothing but scented hog’s lard. A’s use of his description is not an honest one and he cannot obtain an injunction.
Injunction to perform negative agreement57. Notwithstanding section 56, clause (f), where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: provided that the applicant has not failed to perform the contract so far as it is binding on him.
Illustrations
(a) A contracts to sell to B for taka 1,000 the good-will of a certain business unconnected with business-premises, and further agrees not to carry on that business in Chittagong. B pays A the taka 1,000 but A carries on the business in Chittagong. The Court cannot compel A to send his customers to B, but B may obtain an injunction restraining A from carrying on the business in Chittagong.
(b) A contracts to sell to B the good-will of a business. A then sets up similar business close by B’s shop and solicits his old-customers to deal with him. This is contrary to his implied contract, and B may obtain an injunction to restrain A from soliciting the customers, and from doing any act whereby their good-will may be withdrawn from B.
(c) A contracts with B to sing for twelve months as B’s theatre and not to sing in public elsewhere, B cannot obtain specific performance of the contract to sing, but he is entitled to an injunction restraining A from singing at any other place of public entertainment.
(d) B contracts with A that he will serve him faithfully for twelve months as a clerk. A is not entitled to a decree for specific performance of the contract. But he is entitled to an injunction restraining B from serving a rival house as clerk.
(e) A contracts with B that, in consideration of taka 1,000 to be paid to him by B on a day fixed, he will not set up a certain business within a specified distance. B fails to pay the money. A cannot be restrained from carrying on the business within the specified distance.
1 Throughout this Act, except otherwise provided, the words “Taka”, “Bangladesh” and “Government” were substituted, for the words “rupees” or “Rs.”, “Pakistan” and “Central Government or any Provincial Government” respectively by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
2 The words, comma and figure “Succession Act, 1925” were substituted, for the words “Indian Succession Act” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
3 The words, comma and figure “Registration Act, 1908” were substituted, for the words “Indian Registration Act” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
4 The word “there” was substituted, for the word “their” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
5 “of clause (a)” was omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
6 The word “Central” was omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
7 Section 21A. was inserted by section 2 of the Specific Relief (Amendment) Act, 2004 (Act No. XXVII of 2004)(with effect from 1st July, 2005).
8 The word “Advocate” was substituted, for the word “attorney” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
9 The words, comma and figure “Registration Act, 1908” were substituted, for the words “Indian Registration Act” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
10 The words, comma and figure “Limitation Act, 1908” were substituted, for the words “Indian Limitation Act” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
11 The words “Penal Code” were substituted, for the words “Pakistan Penal Code” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)