TITLE: Declaratory Relief Under Section

42 and 43 of Specific Relief Act 1877

Submitted to Ma’am Tahira Manzoor

Prepared by;
Name: Mohammad Waseem
Batch: 45
CMS ID: 464-2021
Course: specific relief act 1877.

11/18/2024
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TABLE OF CONTENT

1. Abstract

2. Literature Review
3. Introduction
➢ What Is Decree
➢ Relevant Provision

4. Scope And Applicability

5. Suit For Declaration

6. Essentials Of A Declaratory Suit

➢ Legal Character
➢ Defendant Denying Or Interested To Deny
➢ Present Interest
➢ Complete Title

7. Bar To Such Declaration Under Section 42 Of Specific Relief Act

8. Adverse Possession, Trust Property, And Onus Of Proof

9. Effect Of Declaration Under Section 43 Of Specific Relief Act

10. Limitation

11. Recent Case Laws

12. Critical Analysis And Recommendations

13. Conclusion

14. Bibliography

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❖ ABSTRACT
The purpose of this research is to find out the scope and applicability of suit for declaration
in civil disputes. This research delves around the related section of specific relief act 1877
to know the bare act language of the section 42 and 43. In order to complete this assignment
I have taken help from many researches and gone through the commentaries on civil major
acts and commentary on Specific Relief Act. And in last the cases are given to support the
practical aspect of the declaratory relief.

Keywords; Declaratory Relief, Specific Relief Act 1877, section 42 and 43

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❖ INTRODUCTION
➢ WHAT IS DECREE

A decree is preliminary when further proceedings have to be taken before the suit can be
completely dispose of. It is final when such adjudication completely disposes of the suit. It
may be partly preliminary and partly final; 1

A decree is the operative part of the judgement in a civil suit for civil appeal, decree can be passed
on the basis of existing right of parties and not on the basis of future rights, which they might not
acquire. [2007 YLR 525].

There are three types of a decree Preliminary Decree, Final decree, and Exparte Decree [2013
CLC 214].A decree must include the condition for the rejection of any plaint or the question raised
in Section 144 of the CPC. However, a decree can be passed if any appeal is filed against the
previous order or decision and any order of discharge relating to default. A decree can not be
referred to as a precedent to pronounce future judgments.2

➢ HISTORY

History of Declaratory Decrees and their provisions

It is crucial to understand how the Declaratory Decree's provisions came to be and how they
evolved into what they are now before delving deeply into them. The background of

The first Declaratory Decree was issued in 1852.

(i) The 18524 Chancery Procedure Act: Such a clause in a decree that is just declaratory did
not exist prior to the passage of the Chancery Procedure Act. Section 50 of the Chancery
Procedure Act of 1852 marked the introduction of declaratory decrees in England. Before this
legislation, English courts only issued declarations as an introduction to remedy that was
subsequently administered.

(ii) The 1859 Code of Civil Procedure: Following the Chancery Procedure Act of 1852, the
Declaratory Decree provision was added seven years later, in 1859. The
Section 50 of the Chancery Procedure Act of 1852 and Section 15 of the Code of Civil
Procedure 1859 were identical. India's civil courts have the authority to make legally binding
rulings without offering any repercussions.
(iii) The 1877 Specific Relief Act: The Specific Relief Act of 1877 introduced the idea of
specific performance into the Indian statute books. When it was first draughted, the New York
Civil Code draft from 1862 was taken into consideration. When the Particular Relief Act was
passed, the Declaratory Decree's provisions were moved from Section 15 of the 1859 Code of
Civil Procedure to Section 42 of the Act.

(iv) Specific Relief Act, 1963: A few amendments to the Specific Relief Act, 1877, were
suggested in the Law Commission's ninth report on the subject. The Specific Relief Act of 19635
was created to put the recommendations into effect. came into being. The current version of

1 Section 2(2) of Code of Civil Procedure 1908

2 www.ipleaders.in/order-9-rule-13-cpc-1908

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Section 42 of the act was not altered. However, Section 34 of the Specific Relief Act of 1963
adopted the requirements of Section 42. 3

➢ RELEVANT PROVISIONS

In Pakistan the chapter VI, section 42 and 43 of Specific Relief Act 1877 deals with the
declaratory Relief. Section 42 provides discretion of court as to declaration of status or right and
bar to such declaration, and section 43 deals with the effect of such declaration. 4

❖ SCOPE AND APPLICABILITY.

Scope and applicability. Section 42 gives a remedy to a person against all persons who not only
claim an interest adverse to his interest, but also against all these who may do so and it is
intended that all such claims may once and for all be determined in one suit. AIR 1928 Mad.
489 (DB. The object of Section 42 is merely to perpetuate and strengthen testimony regarding
the title of the plaintiff so that adverse attacks on may not weaken it. AIR 1915 Mad. 348,/38
Mad. 1162 (DB).5

❖ SUIT FOR DECLARATION

Suit for declaration. Resumption of State land by Colony. Officer due to nonfiment of required
preconditions by the plaintiff, Jurisdiction of civil court to entertain such suit Scope. Plaintiff had
not availed remedy of appeal under S. 161 fleein Pakistan Land Revenue Act. 1967, thus,
jurisdiction of civil court was impliedly barred. Jensdiction to resolve such dispute exclusively
vested with Revenue Courts. 6

(i) Scope. Decree in a suit for declaration could declare a preexisting right but could not create a
new right. (PLD 2016 Lah. 478]. Provisions of S. 42 of Specific Relief Act, 1877 are attracted
only to a case in which plaintiff approaches Court for safeguard of his right to legal character or
property. Whether right to his own legal character or property is not involved, suit is not
maintainable.7

(ii) Principle of res judicata. Scope. Person who allegedly had been deprived of rights over a
property from any of the party impleaded in the previous proceedings/suit could neither seek his
independent right over such property nor he could hunt for a declaration of his entitlement to defeat
the earlier verdict of the Court, which otherwise and attained finality. 8

3 Concept has been taken from a research (DECLARATORY DECREES UNDER SPECIFIC RELIEF ACT, 1963 BY: RAVI
SARASWAT)
4 Specific relief act 1877.
5 Commentaries on specific relief act 1877bby Mobin Ahmed Siddiqui Adv, High Court and Salahuddin Siddiqui ADJ(

rtd)
[1989 SCMR 1741; 1998 SCMR 468; 2005 SCMR 1302; 2007 SCMR 554 ref. 2012 SCMR 730] 6
7 [PLD 2017 Sindh 528]
8 PLD 2015 Sindh 39]

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(iii) Creating of new right. Scope. Plaintiff in such suit is required to prove a case pleaded by
him and he can get a decree with regard to a preexisting right in his favour by proving his pleadings.
Entitlement of plaintiff for decree, through declaratory decree for a new right cannot be created.9

(iv) Limitation. Limitation to file a suit for declaration was six years. [PLD 2016 Bal. 44].

❖ ESSENTIALA OF DECLARATORY SUIT

1. Legal Character: The plaintiff must have a legal status or a right that is recognized by law,
either involving their legal identity or a right to property. In L. Hiralal v. Gulab Singh, it was
explained that a person can hold different legal statuses, such as caste, gender, profession, etc.

2. Denial or Possible Denial by the Defendant: The defendant must deny or be inclined to deny
the plaintiff’s title or right. This denial may be temporary or permanent. In GovernorGeneral In
Council v. Mulla Mohammad Bhai and Others, "interested to deny" was interpreted as a
situation where the defendant opposes the plaintiff’s claim with a competing or similar interest.

3. Current Interest: The plaintiff must have a current right or interest at the time the suit is filed
and at the time the court decides the case. A declaration cannot be given for a future right. In Dass
Mal v. Union of India, it was ruled that the plaintiff couldn’t claim a legal status in a declaration
if he didn’t hold it at the time of filing.

4. Complete Title: The plaintiff’s title or right must be fully established when the suit is filed. In
Chairman of Municipal Commissioners v. AssamBengal Ry. Co. Ltd., the court held that even
if the plaintiff is eligible for a title but does not yet fully possess it, the court will not grant a
declaration.10

❖ BAR TO SUCH DECLARATION UNDER SECTION 42 OF SPECIFIC

RELIEF ACT

This bar has been given in section 42 of this act which provides that if the person, who has applied
to the court for declaration, is able to seek further relief than a mere declaration of title and he
omits to seek any other relief. In such circumstances no court shall make any such declaration.

❖ ADVERSE POSSESSION, TRUST PROPERTY, AND ONUS OF

PROOF11
• Onus to prove. Agreement written or oral is to be proved by the beneficiary through
positive evidence of bargain and the transaction reflected therein, especially after denial of
execution. [2005 YLR 245].
• Adverse possession. Proof. Suit for declaration on basis of adverse possession. Plaintiff,
while claiming the decree on basis of adverse possession, had to show continuous and

9 [PLD 2015 Lah. 220]

10 Concept taken from the research DECLARATORY DECREES UNDER SPECIFIC RELIEF ACT, 1963 BY: RAVI
SARASWAT) and different indian case laws
11 Concept has taken from commentary on Civil Major Acts by Amna Malik adv high court.

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uninterrupted adverse possession for prescribed period of 12 years. Person who asserted
ownership over a certain property by his title, would not be legally justified at the same
time to say that his occupation of the property was hostile or adverse as against the real
owner. Two contradictory pleas of permissive and hostile possession, could not stand
together and clash between two was irreconcilable. 12
• Trust property. It is the instrument of trust that will govern the affairs of the Trust and its
propertics. Trust Act, 1882 has no provision which empowers a trustee to sell trust
property. [PLD 2006 Kar. 108].
❖ EFFECT OF DECLARATION UNDER SECTION 43 OF SPECIFIC
RELIEF ACT

Effect of declaration has been explained as under

✓ Binding Effect: Section 43 of the Specific Relief Act states that a declaration under
Chapter VI binds the parties involved in the suit and those claiming through them (AIR
1958).
✓ Adoption Declarations: If a court declares an adoption invalid under Section 42, the
adoptee (if a party to the case) cannot later claim the adoption as a defense in a related
suit (AIR 1936).
✓ Res Judicata: Section 43 aligns with the principle of res judicata in Section 11 of the
Civil Procedure Code, meaning a court's previous declaration is final and binding in
subsequent suits between the same parties (AIR 1952, 1958, 1943, 1946).
✓ Marriage Dissolution: A declaration that a marriage is dissolved under Section 42,
based on personal laws, does not hold as a universal judgment (judgment in rem) and has
no effect outside relevant jurisdictions (AIR 1941, 1934).
✓ NonParties: A declaratory decree does not bind nonparties to the suit unless they claim
rights through one of the involved parties (1993 CLC).

❖ LIMITATION

The plaintiff may file a declaratory suit within six years of his knowledge of such transfer. Where
he had been receiving his share of income from the land till one month before the suit, the suit was
competent irrespective of the date of mutation under challenge13. PLJ 1984 Lah.

Where a suit is filed for a declaration of title to an office for the recovery of possession of land
attached to it, the plaintiff has to prove his possession to land within twelve years. 14 AIR 1950
Pat. 302 (DB).

❖ RECENT CASE LAWS

CASE 1: SHAH MADAR KHAN VS. TARIQ DAUD AND OTHERS (2024
SCMR 1319)

12 1976 SCMR 69; 1987 CLC 916; 2002 MLD 667; PLD 1990 SC 1049; PLD 2003 SC 410; 1999 SCMR 1245; 1988 SCMR
1765; PLD 1994 SC 353 ref. 2004 YLR 1756(a).
13 PLJ 1984 Lah Commentaries on specific relief act 1877bby Mobin Ahmed Siddiqui Adv, High Court and

Salahuddin Siddiqui ADJ( rtd)

14 AIR 1950 Pat. 302 (DB). Commentaries on specific relief act 1877bby Mobin Ahmed Siddiqui Adv, High Court and

Salahuddin Siddiqui ADJ( rtd)

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Facts

The plaintiff/respondent filed a suit for a declaration that he be declared the owner of a plot,
alleging that he never authorized the defendants through a power of attorney to transfer the
property. The plaintiff did not specifically challenge the execution and registration of the power
of attorney in the pleadings and failed to provide evidence negating the registration of the
document.

The trial court dismissed the suit; however, the appellate and revisional courts favored the
plaintiff. The petitioner/defendant appealed to the Supreme Court, arguing procedural flaws in the
earlier decisions.

Issue

Whether the plaintiff/respondent successfully challenged the validity of the power of attorney and
the subsequent property transfers based on it.

Rule

• Specific Relief Act, 1877:

• Section 42: Pertains to declaratory relief.
• Section 39: Requires the cancellation of a document when its validity is contested.

For challenging registered documents, specific pleadings and substantial evidence are required to
rebut legal presumptions attached to registration.

Application

The plaintiff/respondent failed to discharge the initial burden of proving the power of attorney as
forged. The evidence presented by the plaintiff, including his own witness and documentary
exhibits, validated the registration of the power of attorney. The Court held that the plaintiff should
have filed a suit for cancellation of the power of attorney under Section 39, rather than seeking
declaratory relief under Section 42.

Conclusion

The Supreme Court restored the trial court's decision, dismissing the suit as the plaintiff failed to
provide specific challenges and evidence against the registered power of attorney. The appeals and
revisions were set aside.

CASE 2: MST. MUSSARRAT SHAHEEN VS. MST. VERBEENA KHAN

AFROZ AND OTHERS (2024 SCMR 1796)

Facts

The respondent/landlady filed for eviction of the petitioner/tenant, alleging default in rent
payment and personal bona fide need.

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The petitioner/tenant claimed ownership of the rented premises through a sale agreement and filed
a suit for declaration but continued occupying the property.

The Rent Controller ordered eviction, but the appellate court reversed the decision. The High
Court restored the Rent Controller's order, favoring the respondent.

Issue

Whether a tenant can remain in possession of rented premises after denying the landlordtenant
relationship by claiming ownership through a pending suit.

Rule

• Sindh Rented Premises Ordinance, 1979:

• Section 15: Governs eviction based on bona fide need and rent default.

Legal principle: A tenant denying the landlordtenant relationship must vacate the premises and
pursue ownership claims separately.

Application

The petitioner/tenant failed to provide evidence rebutting the respondent’s ownership and the
claims of default and bona fide need. The Court noted the settled principle that tenants claiming
ownership must vacate the premises before contesting ownership in civil courts.

Conclusion

The Supreme Court upheld the High Court's decision to evict the petitioner. The tenant's claim of
ownership did not exempt her from eviction under the tenancy laws.

❖ CONCLUSION

This research has provided a comprehensive analysis of the scope and application of suits for
declaratory relief in civil disputes in Pakistan. Through examining Sections 42 and 43 of the
Specific Relief Act of 1877, it has outlined the essential requirements for declaratory decrees,
highlighting how these legal provisions have evolved over time and established themselves
within Pakistani civil law.

In civil cases, declaratory relief serves as a crucial mechanism for clarifying and protecting
existing rights and legal statuses. It empowers individuals to seek the court’s intervention in
affirming these rights, thereby reducing future disputes and preventing unwarranted claims. Case
law has demonstrated the importance of establishing a clear legal character, an active right, and a
complete title for obtaining such relief, ensuring that the court’s intervention remains grounded
in current, recognizable legal entitlements.

Overall, this study confirms the importance of declaratory suits in upholding legal certainty and
stability in property and personal status cases, ultimately supporting the principles of justice and
fairness in civil law.

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❖ BIBLIOGRAPHY
➢ Books

Commentaries on specific relief act 1877bby Mobin Ahmed Siddiqui Adv, High Court and Salahuddin
Siddiqui ADJ( rtd)

Civil Major Acts by Amna Malik adv high court.

Section 2(2) of Code of Civil Procedure 1908

Specific Relief Act 1877

➢ Researches

DECLARATORY DECREES UNDER SPECIFIC RELIEF ACT, 1963 BY: RAVI SARASWAT)

➢ Websites
1 www.ipleaders.in/order9rule13cpc1908

➢ Citations/ Case laws

1[1989 SCMR 1741;
1998 SCMR 468;
2005 SCMR 1302;
2007 SCMR 554
. 2012 SCMR 730]1
1 [PLD 2017 Sindh 528]
1 PLD 2015 Sindh 39]
1 [PLD 2015 Lah. 220

11976 SCMR 69;

1987 CLC 916;
2002 MLD 667;
PLD 1990 SC 1049;
PLD 2003 SC 410;
1999 SCMR 1245;
1988 SCMR 1765;
PLD 1994 SC 353 ref. 2004 YLR 1756(a). 1976 SCMR 69, 1987 CLC 916;
2002 MLD 667;
PLD 1990 SC 1049; PLD 2003 SC 410;
1999 SCMR 1245;
(2024 SCMR 1319)
2024 SCMR 1796

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