Specific Relief Act, 1877 [Section 41 - 42]

Citation: (1969) 21 DLR (WP) 362, (1957)9 DLR 456, (1958) 10 DLR 431, (1960)12 DLR 224, (1959) 11 DLR 57, (1959) 11 DLR 424, (1959) 11 DLR 528, (1960) 12 DLR 448, (1956) 8 DLR 82, (1955) 7 DLR 49, (1954) 6 DLR 97, (1960) 12 DLR 321, (1966) 18DLR (SC) 571, (1966

Subject: Specific Relief

Delivery Date: 1970-01-01

 

 

Specific Relief Act

(I of 1877)

 

S. 41—Minor entering into mortgage by fraudulently representing him as major and subsequently instituted a suit as plaintiff for restitution of mortgaged property. Held: restitution of property is to be ordered but the minor must be made to refund the consideration money—Maxim : He Who seeks equity must do equity. In such a case the law is,

(1) If there is a fraudulent representation as to

(2) If he brings the action as a plaintiff, the restitution of the immovable property is to be ordered but the minor must refund the consideration.

Shah Pasand Khan Vs. Ihsan, (1969) 21 DLR (WP) 362.

 

S. 42—Seeking of consequential relief

In cases in which a declaration is a sufficient remedy for the plaintiff, he cannot be compelled to seek a consequential relief.

Where the plaintiff asked for setting aside the sale he being in possession of suit land in a suit under section 42 of the Act on the ground that the proceedings under the Public Demands Recovery Act were colorable and fraudulent he need not ask for any consequential relief.

Md. Mazharul Huq Chowdhwy Vs. Nagendra Lal Dey (1957)9 DLR 456.

 

—The object of section 42 is to express in definite terms the kind of cases in which the specific relief of a declaration of right, apart from all further relief, may be granted. At the same time care has to be taken to avoid multiplicity of suits and to prevent a person getting a declaration of right in one suit and thereafter bring another suit for the kind of relief’s available to him in the former suit.

Sm. Bidhumukhi Dasya Vs. Sarela Sundari (2954) 6 DLR 97 (111) 1.h.col.).

 

Scope of section 42—Relief’s provided under the section exhaustive, all kinds of declarations arc not within its scope.

Where a declaration as to legal character, etc. is sought not for plaintiff but for defendant—Suit under section 42 will not lie.

Al Haj Abdur Rahman Bhuiya Vs. Commr, Narayangonj Municipality (1958) 10 DLR 431.

 

Suit under section 42 by a person for declaration that assessment in respect of his holding is illegal and for injunction—will lie.

Al Haj Abdur Rahman Bhuiya Vs. Commr, Narayangonj Municipality (1958) 10 DLR 431.

 

—Injunction cannot be applied for ousting a person in possession

In cases where the plaintiff is in possession of the suit property and somebody else from outside tries to interfere with his possession injunction may be a suitable remedy. But where the defendant is in possession it is wrong to grant a decree for injunction as injunction is a remedy which cannot be utilized for ousting a person from possession who having initially entered into possession in a rightful manner fails to give up possession after lapse of his right.

Haji Yar Ali Khan Vs. Mobarak Ali Chowdhury (1955) 7DLR 6(24-25).

 

—Where the plaintiff whose right is denied by the defendant is out of possession and the defendant is in possession, the ‘further relief in section 42 of the Act would be recovery of possession and a suit for mere declaration of title without prayer for possession is barred under section 42 of the Specific Relief Act.

Haji Yar Ali Khan Vs. Mobarak Ali Chowdhury (1955) 7DLR 6(24-25).

 

Suit to set aside fraudulent decree— section 42 not applicable.

A suit for a declaration that a decree is fraudulent age by the minor and is not binding upon the plaintiff without a prayer for setting aside the same is maintainable as the effect of such a declaration would be to set aside the decree and section 42 of Specific Relief Act is no bar to such a suit.

If the court finds that the decree is fraudulent then it is void ab initio and altogether loses its binding effect, and, in such case, the plaintiff need not ask for setting aside the same.

Hemnalini Basu Vs. Md. Sabed Ali Bhuiyan (1960)12 DLR 224.

 

The plaintiff was not a party to certain certificate proceedings which were against one for realisation of certain sum of money. The plaintiff instituted a Suit and one of the relief’s claimed in the plaint ran as follows: “The plaintiff is not liable for any money claimed under the certificate proceedings for the realisation of the said amount.”

Held—The relief claimed is purely declaratory which the plaintiff can seek under section 42 of the Specific Relief Act and, as such, a fixed court-fee under Article 17 (iii), Schedule II of Court-Fees Act is payable.

Kumudini Welfare Trust Vs. Pakistan, Karachi (1959) 11 DLR 57.

 

A member of a club having a right to the properties of the club has a right to sue for proper relief under section 9 of the Civil Procedure Code and section 42 of the Specific Relief Act if his name is removed from membership of the club. 8 DLR (Dac) 167.

 

—Section 42 proviso—”Further relief’—In Suit for declaration that dismissal from service was void and inoperative—Plaintiff is not the to seek “further relief.” 1952 PLR (Kar)121.

 

—Declaratory relief in respect of fraudulent kabala—The relief claimed under section 42 is no doubt discretionary but the real test is whether there is any impending danger or whether the plaintiff really apprehends that an interested party may deny the plaintiffs title.

Where, therefore, the defendant obtained a fraudulent kabala from the plaintiffs vendor in respect of the lands, the latter can maintain a Suit under section 42 of the Specific Relief Act for a declaratory relief that effect.

Mofizuddin Khan Vs. Jadu Pramanik (1959) 11 DLR 424.

 

Void document—consequential relief

When a document itself is a void document, it is not necessary for the plaintiff to pray for setting aside the document. A prayer for declaration that the document is void and not binding on him is enough.

Mafizuddin Khan Vs. Jadu Pramanik (1959) 11 DLR 424.

 

A mere declaratory decree (such as the status of a person) is not executable.

The decree passed by the court was in the following terms.

‘Dismissal of plaintiff from the service be declared unjust and wrongful. Defendant is hereby directed to reinstate the plaintiff in its service as driver or in any other post with all attendant benefits." Question was raised as to whether this decree was executable.

Held—Decree-holder’s suit for a declaration that his dismissal from service was illegal and for reinstatement in his former post is a declaratory suit with no consequential relief. A declaratory decree so obtained is not capable of execution.

Gladstoue Wyllie & Co. Vs. Badsha Mia. (1959) 11 DLR 528.

 

—A Civil Court has jurisdiction to entertain a suit for a declaration that the purported sale did not affect the property in question where the Certificate Officer under the Bengal Public Demands Recovery Act had no jurisdiction to sell the property.

Hailmunnissa Vs. Hemendra Kr. Roy Chowdhury (1960) 12 DLR 448.

 

—Plaintiff in possession of suit land need not ask for consequential relief.

When the plaintiff is in possession of the suit land and filed the suit for a declaration that the suit property has not been affected by the purported sale, he can maintain the suit with a prayer for mere declaration and need not ask for consequential relief.

Hailmunnissa Vs. Hemendra Kr. Roy Chowdhury (1960) 12 DLR 448.

 

—A Suit under section 42 of the Act for declaration of the plaintiffs right in respect of lands which were in his possession through tenants will not lie without asking for consequential relief where the defendant after his auction purchase had obtained symbolical possession thereof inasmuch as symbolical possession in such a case effectively terminates the possession of the plaintiff.

Almaz Khatun Vs. Ezhar Mia (1956) 8 DLR 82.

 

—Section 42 permits a declaration only in favour of a person entitled to any legal character or 10 any right to property. The plaintiff, however, has a right to compensation in respect of a right which the defendant has denied by introducing amendments, and the court cannot make a declaration without first declaring the amendments to be void. 1955 PLR (Lah) 242.

 

—Plaintiff put out of possession of the land by process of law—declaratory suit—plaintiff ought to have prayed for recovery of possession—prayer for injunction, misconceived.

Plaintiff being put out of possession of the suit lands by process of law by defendant and being entitled to claim recovery of possession from the defendant but in his plaint without asking for recovery of possession prayed instead for injunction restraining the defendant from interfering with the plaintiffs possession of the suit land.

Held—The Court in its discretion would not grant injunction. The remedy which plaintiff should have properly asked was recovery of possession. The defendant who is actually in possession cannot be restrained from disturbing the supposed possession of the plaintiff whom he has dispossessed under the process of law although the order for possession may subsequently be set aside by a competent Court, or in other words, an injunction cannot be used as an instrument for recovery of possession by a person w!i0 has been dispossessed.

Fazlur Rahman Vs. Abdul Jabbar Jamadar (1955) 7 DLR 49.

 

—Where it has been found that relief by way of petition cannot be granted a mere declaration of title cannot be made. 7 PLR (Dac) 619.

 

Suit by a reversioner—A member of a club having a right to the properties of a club has a right to sue for proper relief’s under section 9 of the C.P. Code and under section 42 of the Specific Relief Act, if his name is removed from membership of the club.8 PLR (Dac) 167.

—A Suit by a reversioner, immediate or remote, for declaring an alienation by a widow is not barred under section 42 of the Specific Relief Act.

Sm. Bidhumukhi Dassya Vs. Sm. Sarkar Sundari (1954) 6 DLR 97.

 

—The question whether the dismissed officer’s prayer for declarator that the order of dismissal was void and inoperative should be given effect to or not is a matter which lies with the discretion of the court. An officer who has been dismissed from service without any opportunity being given of showing cause against action proposed is entitled to have such a declaration.

Province of East Bengal Vs. Zahurul Huq (1955)) 7 DLR 446-(450-451).

 

Benami deed without consideration— consequential relief.

A suit for declaration that a document being a benami deed without consideration is void and ineffective, automatically involves in it the consequential relief for consideration of the document and, as the suit is not only a declaratory Suit but a declaratory suit with a consequential relief in the shape of cancellation of the document. A Suit for declaration that a document is benami, ineffective and in-operative is really a Suit for cancellation of the document in which the plaintiff is bound to pay ad valorem court-fees.

Debendra Lal Shil Vs. Banshi Mohan Shil (1960) 12 DLR 321.

 

—The condition about further relief existed only under section 42, Specific Relief Act, a suit for cancellation was not filed under section 42 but under section 39 which created an independent right, and that even though the plaintiff did become entitled to possession of property by virtue of the cancellation of the gift yet he was not barred from subsequently suing for possession. (1960) PLR (I WP) 573.

 

—A suit for a declaration that the entry in the record-of-rights describing the plaintiff as a tenure-holder erroneous, is a declaratory suit.

When a suit was for a declaration that the entry in the record-of-rights describing the plaintiff as a tenure-holder was erroneous, and for a declaration that he was an occupancy raiyat, such suit comes within the proviso to section of the Bengal Tenancy Act, and is a bare declaratory suit as contemplated by section 42 of the Specific Relief Act.

Abdul Mannaf Vs. Abdul Huq Talukdar (1960) 12 DLR 642.

—[See under section 39 in the case of Daibakilal Basak Vs. lqbal Ahmed Quarishi, in I7DLR 119 above]

—Discretionary relief claimed in a declaratory suit will be refused if the plaintiff is found seeking an unfair advantage over the other party by trying to back out from a solemn Contract into which he entered.

Md. Hayat Khan Vs. Yar Mohd. Khan (1966) 18DLR (SC) 571.

 

—Delay cannot be held to be a valid ground to refuse specific performance of contract where relevant provision of the Limitation Act does not make such delay a bar.

A question which arises is, where a discretionary relief is sought in a suit for specific performance of contract is the defendant entitled to raise the pica of delay as a defense to the suit, even where the delay does not amount to a bar under the statute of limitation?

Held : Unless the delay has caused some prejudice to the other party, equity does not intervene to excuse performance of a contract. So long as the matter remains in status quo and there is nothing to show that the party called upon to perform the contract has been misled by the inaction of the other party to alter his position in such a manner as to make it inequitable to force him to perform his part of the contract, lapse of time short of the period prescribed by the Limitation Act should not be allowed to operate as a bar to the claim of relief.

Habibullah Khan Vs. Qazi Md. Jshaq (1966) 18 DLR (SC) 385.

 

—“Legal character”—explained. In section 42 of the Specific Relief Act the expression “legal character” or “status” denotes a character or status conferred by law on an individual or a number of individuals, viewed, as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on person viewed from the stand point of membership of the community. It is a “status” or “character” conferred by law. It is not a creature of contract but of law. For example, a minor cannot contract into majority nor can one, who has attained majority, under law, contract himself into minority.

A declaration was sought that a personal contract subsisted between the plaintiff and the defendant. It was contended that a declaration about contractual rights could not be claimed or granted under section 42 of the Specific Relief Act.

Held : The contention must be upheld to this extent namely, that section 42 of the Specific Relief Act does not contemplate a suit like the present. A man’s “legal character” is the same thing as a man’s status. A man’s status or legal character is constituted by the attributes which the law attaches to him in his individual and personal capacity, the distinctive mark or dress as it were, with which the law clothes him apart from the attributes which may be said to belong to normal humanity in general.

The plaintiff had claimed a declaration that he would be entitled to contribution from the defendant if and when occasion arose and it was held that such a suit was not maintainable under section 42 of the Specific Relief Act.

Burmah Eastern Ltd. Vs. Burmah Eastern Employees Union (1966) 18 DLR 709.

 

—In a suit under section 42 plaint can be thrown out in limine, if not under Order 7, r. 11, Civil Procedure Code, then under the Court’s inherent power.

In a declaratory suit under section 42 relief claimed were as follows: “Declaration that the prejudicial terms and conditions imposed upon the service of the members of the plaintiff union by the defendant are illegal, invalid, void ab initio and not binding on the members of the plaintiff union and that they are entitled to their former rights and privileges including privilege leave and other benefits and emoluments as enjoyed by them.”

Held: From a mere perusal of the plaint itself it must be held that the suit is prohibited under law. Even if the case does not come within the letter of Order 7, rule 11 of the Code of Civil Procedure, there is no doubt that it is barred under legal provisions. The Court below should, therefore, have rejected the plaint in limine. If Order 7, rule 11 of the Code of Civil Procedure cannot be prayed in aid, the inherent power of the Court should be invoked.

Burmah Eastern Ltd. Vs. Burmah Eastern Employees Union (1966) 18 DLR 709.

 

—Plaintiff being out of possession, even when the defendant has taken symbolical possession, must ask for consequential relief.

The prayer in the plaint was for declaration that the rent execution proceedings were illegal and ineffective on the ground of fraud. The plaintiff did not ask for recovery of possession of the land is not the case of the plaintiff that they are in possession of the suit lands, on the other hand, it is not denied by them that the possession was taken by the auction-purchaser.

Held: In these circumstances plaintiffs suit must fail under section 42 of the Specific Relief Act inasmuch as being Out of possession he has not asked for recovery of possession as a consequential relief.

Even in a case when the defendant pleads of his having taken symbolical possession, or that there is evidence of the defendant having taken symbolical possession, the plaintiff must pray for recovery of possession in a suit for declaration of his title, otherwise Suit will be hit by section 42 of the Specific Relief Act.

Syed Ahmed Vs. Prafulla Kumar Dey (1961) 13 DLR 70.

 

—Plaintiff in possession of the suit land need not pray for consequential relief,  i.e. (confirmation of possession) and unless threatened with dispossession need not pray for injunction.

And further it was contended on behalf of the Government that the plaintiffs Suit was hit by section 42 inasmuch as he had made no prayer for confirmation of possession or for injunction.

Held: The plaintiff being in possession of the suit land need not pray for any consequential relief, viz, confirmation of possession and further there being no evidence that the Government had taken delivery of possession the plaintiff need not ask for injunction against government. 1-us suit for a mere declaration is maintainable.

Mafizur Rahman Sardar Vs. East Pakistan (1961) 13 DLR 538.

 

—Declaratory suit of plaintiffs right of distribution, exhibition, etc. of a cinema film—Further prayer for a mandatory injunction to deliver the dupe negative print of the film—if will lie, without a prayer in respect of the title of the film itself and for delivery of possession thereof under section 42—The print being inseparable from its exhibition and exploitation, Suit with mandatory injunction prayer, maintainable.

S. Sibtain Fazli Vs. M/s. Star Film Distributors (1962) 14 DLR 307.

 

—Failure to prove title—Consequential relief for confirmation of possession to be refused.

If plaintiff fails to prove his title, he cannot claim any consequential relief from a non-existent title. Therefore, if the suit in substance and effect is one for establishment of title and the plaintiff fails to prove his case in regard to such principal issue, he is not entitled to get any declaration in regard to his possession, that is to say, the consequential relief in the shape of confirmation of possession cannot be decreed in the absence of a finding in his favour on the question of title.

Ayesha Begum Vs. Nibaran Chandra Dhabi (1962) 14 DLR 44.

 

—Promotion in Government service not a matter of legal right.

A Government servant cannot claim promotion as a matter of legal right.

No right of action unless there is infringement of a legal right.

There can be no right of action in a court of law in respect of infringement of an alleged right of promotion as courts of law exist to enforce legal rights only.

Province of East Pakistan Vs. Mvi. Lutful Huq (1964) 16DLR 168.

 

Suit seeking a declaration that the plaintiff has been illegally and without authority expelled and that he passed the Matriculation examination, maintainable under section 42.

Plaintiff instituted the suit for a declaration that he has passed the Matriculation Examination in due course and that the act of the defendant (Secondary School Board) in putting the word “expelled” against his name is illegal and ultra vires and that in doing so it acted in excess of its authority.

The Courts below concurrently found that the Board acted in excess of its authority, but the lower appellate Court held the view that the plaintiffs suit was barred under section 42 of the Specific Relief Act and it was contended in support of that view that the plaintiff not having asked for all the relief’s he should have, the suit must fail.

Held : The plaintiff has not only asked that the remark “expelled” should be expunged but he has also asked for a declaration to the effect that he duly passed the Matriculation Examination.

That was all he should have asked for at the time of the institution of the suit. It is a different matter as to whether a Court would give him the declaration of having passed the Matriculation Examination or not, but he has asked for it.

It is immaterial whether the expression “null and void” has been used or not.

MA Tariq Vs. East Pakistan Secondary Education Board (1964) 16 DLR 298.

 

—Suit for declaration only against a statutory body, maintainable.

A Suit for declaration simpliciter contemplated in a case where an act or an order of a statutory body is in excess of its jurisdiction is maintainable.

M.A. Tariq Vs. East Pakistan Secondary Education Board (1964)16 DLR 298.

—A mere right to provide and sell refreshment to passengers granted by a Railway for a limited period is not a right which comes within the rights described in section 42.

M. A. Naser Vs. Chairman P. E. Railway (1965) 17 DLR (SC) 11.

—Where no emoluments are attached to the office of the Imam of a mosque, a suit for declaration of right of the Imam in such a case is not entertain able by a Civil Court.

Ghaniur Rahman Vs. Abdus Salam (1965)17 DLR (WP) 68.

 

—Defendant’s possession or right to possess not admitted in the plaint— Plaintiff need not pray for consequential relief.

Scope of suit to be determined with reference to the allegations in the plaint.

Where the plaintiff in his plaint has not admitted the possession of the defendant in the property in the suit nor has he admitted the defendant’s right to possess, the provisions of section 42 of the Specific Relief Act regarding the seeking of further relief are not attracted.

The scope of the Suit is to be determined with reference to the allegations in the plaint and not with reference to the allegation in the written statement.

Md. Siddique Vs. Bhupendra Narayan Roy (1961) 13 DLR 544.

 

—Declaratory suit that plaintiff is a mutwalli of wakf land in possession of defendant not maintainable without a prayer of recovery of khas possession.

When a person is out of possession of the property and wants a declaration that he is a mutwalli and the person in possession of the wakf estate is not a muttawalli, his Suit whether instituted in personal Capacity or in the capacity of a mutwalli, will be hit by section 42 of the Specific Relief Act. In the absence of a prayer for recovery of khas possession mere declaration of a title will be useless in such circumstances.

Md. Abdur Rahman Vs. Abdul Jabbar (1961) 13 DLR 576.

 

—For declaration that dismissal from service illegal, maintainable without prayer for consequential relief. Province of East Pakistan Vs. Mir Golam Sarwar (1961) 13 DLR 341.

 

—“Further relief” in form of payment of money—plaintiff must sue for such relief.

If a plaintiff is entitled to money from the Defendant he cannot claim a declaration as to his being so entitled. He must sue for money.

M/S. Malik & Haq Vs. Md. Shamsul Islam Chowdhury (1961) 13 DLR (SC) 228.

—A contract of personal service with a private firm—Suit for re-instatement on dismissal does not lie—Suit for damage is the proper course.

Azizur Rahman Vs. Burmah Oil Co. (Pak) Trading Ltd. (1961) 13 DLR 458.

—Relief as to legal character sought in negative form—Not a ground to deny the relief sought.

Pakistan Vs. Muhammad Abdul Kuddus (1968) 20 DLR 333.

—Suit for declaration that the appointment of plaintiff to a lower rank in service is illegal and inoperative with consequential relief—Suit under section 42 would lie even though prayer for consequential relief will be negative—Civil Court cannot restore any officer to his post if he is removed therefrom.

Pakistan Vs. Muhammad Abdul Kuddus (1968) 20 DLR 333.

 

—A sale of immoveable properly accompanied by an ekrarnama, for the reconveyance.

In case of a sale of immoveable property accompanied by an ekramama, for the reconveyance of the same property to the vendor, a subsequent purchaser of the vendor’s right, he being the successor-in- interest, is entitled to enforce the right of reconveyance against the original vendee.

A contract in the ekrarnama to reconvey the land to the vendor though does not create any interest in the land is yet capable of being transferred to a third person; and the transferee is entitled to enforce the contract of conveyance against the vendee except a bonafide purchaser for value without notice of the agreement.

Jalal Ahmed Vs. Thoraish Mia (1968) 20 DLR 81.

 

—Suit for declaration that notice served on the plaintiff for vacating the premises is illegal, is not a suit which falls under section 42 of the Act.

Goalundo Fishing industries Vs. Pakistan, (1970) 22 DLR 349.

 

—A suit for a mere declaration that an order of dismissal passed against a Government servant is illegal, without a prayer for consequential relief is maintainable and section 42 of the Specific Relief Act is not a bar to such a suit.

Province of East Pakistan Vs. Abdul Latif Talukdar, (1970) 22 DLR 589.

 

Proviso—proviso refers to position of plaintiff on date of institution of suit—Subsequent events do not alter plaintiff’s position.

Plaintiffs sought declaration of their title as joint owners of house mortgaged by other co-sharer. Defendant redeemed house with possession after institution of declaratory Suit of plaintiffs and contended that suit for mere declaration without further relief for possession was incompetent. The contention was rejected and the High Court observed: “at the time when the suit was instituted, the house was not redeemed by the defendants and the suit for a mere declaration at that time was competent. The subsequent events will not alter the position, and if in the meantime the house was redeemed the suit for a mere declaration was competent.”

Abdul Aziz Vs. Mst. Sikandar Jan, (1969) 21 PLD (Peshwar) 221.

 

—Suit for declaratory decree that the defendant was plaintiffs benamdar—Not maintainable without asking for consequential relief.

The defendant contended that he being in possession of the subject-matter of the suit the suit was not maintainable without asking for consequential relief as required by proviso to section 42 of the Specific Relief Act.

Held: A declaration that the defendant is a benamdar would not be a sufficient relief for the plaintiff inasmuch as recovery of possession would not follow directly and necessarily from the declaration sought for.

Md. Yunus Vs. Md. Yusuf (1969)21 DLR 466.

 

—Suit for declaration without prayer for khas possession—Section 42 of the Specific Relief Act does not bar such a declaratory suit if the plaintiff is in possession of the suit property.

Azizur Rahman Vs. Hedayet Ahmed Chowdhury, (1972) 24 DLR 11.

 

—Declaratory suit—Plaintiff challenging defendants as having illegally usurped control of Association—plaintiff, in circumstances, entitled to file suit for declaration—Consequences of such usurpation being removal of plaintiff from membership of council and Chairmanship of Association—Give plaintiff additional entitlement to file suit.

Abbas Khaleeli Vs. Saifuddin, (1969) 21 PLD (Karachi) 693.

 

—Plaintiff (respondent herein) an employee (on probation) of a private Bank being removed from service sought declaration under section 42 that the termination of his service was illegal—Held, section 42 not applicable to such a case.

The respondent was an employee under the appellant Bank (Private Bank) which tenanted his service by a notice.

The respondent thereafter instituted a such for a declaration that the order terminating his service was null and void on the ground that the order violated rule 5 of the Service Rules governing the terms and conditions of his service.

The trial Court decreed the suit but on appeal the Subordinate Judge dismissed it holding that mere declaration would be infructuous under section 42 of the Act. The High Court upheld the Judgment of the trial Court.

Held: The decree passed by the trial Judge is tantamount to holding that the respondent continues to be in the service of the appellant though, on its face, the declaration is confined to striking down the order dated the 24th March, 1962, terminating the respondent’s service as “null and void.”

Under section 42 of the Specific Relief Act 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 in its discretion may make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. The declaration in the present case that the order terminating the respondent’s service was null and void, etc., could not be covered by the provisions of section 42. At best, the relief claimed might be stretched to a declaration of legal character. Since the terms and conditions of the respondent’s service were not regulated by any legal instrument, it could not be said that the declaration asked for by him was in relation to any legal character.

M/S Eastern Mercantile Bank Ltd. Vs. Mohammad Shamsuddin, (1969) 21 DLR (SC) 365.

 

—Dispensing with the service of a college teacher on the ground of incompetence is not a matter covered by section 42 and so in such a case a suit u/s. 42 will not lie.

In the present case the College Selection Board of Chowmuhani College could not find plaintiff opposite party suitable for the post of professorship in which he was acting on probation and recommended the case of another person as the better one and the said recommendation was accepted by the Governing Body which thereupon terminated the service of the plaintiff opposite party.

From the facts stated above, it is clear that the plaintiff could not make out a case regarding his proprietary right or legal character or status as visualized under section 42 of the Specific Relief Act. So on this ground alone the plaint does not disclose a case which may attract the provisions of section 42 of Relief Act.

Chowmuhani College Vs. Md. Ismail Hossain (1974 ) 26 DLR 10.

 

—Not only a person entitled to any legal character but also any person entitled to any right as to any property can institute a suit for declaration.

Jinnat Ali Mukter Vs. Abdul Majid (1975) 27 DLR 385.

 

—A person claiming possessory right, a bargadar, even a trespasser, is entitled to maintain his possession as against anybody else except the true owner.

Jinnat Ali Mukter Vs. Abdul Majid (1975) 27 DLR 385.

 

—The prayer in the plaint though not drafted happily, leaves no doubt that what the plaintiffs were essentially seeking in the Suit was a declaration that their right, title and interest have not been affected by the transaction of sale in favour of defendant Nos. I and 2 or in favour of defendant No. 3. It cannot, therefore be said that the suit as framed does not fall within the purview of section 42 of the Specific Relief Act.

Rabeya Khaiun Vs. Elias Mollah (1976) 28 DLR 181.

 

—A suit for declaration that plaintiffs dismissal was illegal and not binding without asking for coincidental relief for enforcing the declaratory decree.

Omission to pray for consequential relief for enforcing declaratory decree renders it unenforceable in law.

Manager Vs. Md. Sazahan Miah (1983) 35 DLR 224.

 

—Suit for mere declaration without a prayer for consequential relief namely that the Dismissal Order is void is maintainable.

Suit for mere declaration that the order of dismissal was illegal, void, inoperative without a prayer for consequential relief is maintainable. In this view of the law the finding of the lower appellate Court to the effect that without a prayer for consequential relief plaintiffs suit for mere declaration was not maintainable, is not correct.

Nazir Ahmed Vs. Province of East Pakistan, (now Bangladesh) (1979) 31 DLR 399.

 

—Illustrations to s. 42 are merely illustrative not exhaustive—Scope of the section wider—Where plaintiff is entitled to some consequential relief mere seeking a declaratory decree will be of no avail.

Shamsul Huda Vs. Jalaluddin Ahmed. (1979) 31 DLR 5.

 

—A suit u/S 42 being a declaratory one, the plaintiff is to satisfy the Court about the nature of declaration.

M/s Hossain Ahmed, Vs. M/s. HD Hossain & Brothers, (1980) 32 DLR (AD) 223.

 

—The plaintiff ought to assert what was the legal character or what was his right as to the contract for which the tenders were invited. The suit being a declaratory suit, it was incumbent upon the plaintiffs to satisfy the Court that such declaration should be made in their favour and they are entitled to an injunction.

M/s Hossain Ahmed, Vs. M/s. HD Hossain & Brothers, (1980) 32 DLR (AD) 223.

 

—In this suit the only ground was that the plaintiff was the tenders and his case was that the acceptance of the tender of the defendant-appellant was illegal. Such a suit could not be framed either under section 42 or under any other law.

M/S Hossain Ahmed, Vs. M/S HD Hossain & Brothers, (1980) 32 DLR (AD) 223.

 

—Declaration of title in a partition suit when not necessary.

The main question is whether the Suit is maintainable without declaration of title of the plaintiffs. On the death of Sachindra his title passed on to the plaintiffs, his minor sons, and his widow, defendant No. 1, but the plaintiffs, for some reason or other, were thrown Out of possession, according to the defendant No. 2 since their father’s death. But their dispossession will not disentitle them to recover possession on payment of advalorem court-fee. The Suit is not barred by limitation as the suit has been filed within one year of attainment of majority by p1aii-. tiff No. I. He is entitled to file the suit within three years from attainment of his majority as laid down in section 6 of the Limitation Act. During the period of their minority plaintiffs title was not extinguished and as such there is no necessity for getting a declaration of their title. The view taken by the High Court Division that the suit is not maintainable without declaration of title is clearly erroneous.

Sanjib Kumar Bose Vs. Syed Shamsuddin Ahmed (1981) 33 DLR (AD) 347.

 

The proviso to Section 42 — explained

It is, however, necessary to determine the question and the nature of the bar placed by the pro9iso and the Court, where such a bar is raised, may determine firstly, that the plaintiff is able to seek a relief and secondly, that he has not omitted to do so. The proviso does not refer to relief which is not at all necessary. It also cannot have the effect of compelling the plaintiff to sue for all the relief’s which can possibly be granted. If the plaintiff is entitled to a relief, on a mere question of some technicality, his plaint should not be thrown out.

Shamsul Huda Vs. Jalaluddin Ahmed (1979) 31 DLR 5.