Right to sue means

The statute of Limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed “period of limitation” must subject to the provisions of Section 4 to 24 be dismissed although limitation has not been set. up as a defence. Section 2(j) defines the expression’ ‘period of limitation” to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(j) also defines,’ ‘prescribed period” to mean the period of limitation computed in accordance with the provisions of the Act. The Court’s function on the presentation of plaint is simply to examine whether, on the assumed facts, the plaintiff is within time. The Court has to find out when the “right to sue” accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing & period of limitation, it must fall within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act 1908) is a residuary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article 113. According to the third column in Article 113, time commences to run when the right to sue accrues.

The words “right to sue” ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted (See: (i) AIR 1930 270 (Privy Council) and (ii) Gannon Dunkerley and Co., Ltd. Vs. Union of India (UOI),

Order 1 Rule 10(2) CPC which empowers the Court to delete or add parties to the suit

 It reads as under:

10 (2) Court may strike out or add parties -The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name, of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

 In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, , this Court interpreted the aforesaid provision and held:

Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the Plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.

(emphasis supplied)

 In Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, this Court interpreted Order 1 Rule 10(2) in the following manner:

By operation of the above-quoted rule though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party-defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.

In Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. (supra), this Court considered the scope of Order 1 Rule 10(2) CPC and observed:

The general rule in regard to impleadment of parties is that the Plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the CPC (‘the Code’, for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

10. (2) Court may strike out or add parties. ‘The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: ( a ) any person who ought to have been joined as plaintiff or defendant, but not added; or ( b ) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.

A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure aright/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.

Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the Plaintiff or the Defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a Plaintiff or as a Defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.’

(emphasis supplied)

In Kasturi v. Iyyamperumal (supra), this Court considered the question whether a person who sets up independent title and claims possession of the suit property is entitled to be impleaded as party to a suit for specific performance of contract entered into between the Plaintiff and the Defendant. In that case, the trial Court allowed the application for impleadment on the ground that respondent Nos. 1 and 4 to 11 were claiming title and possession of the contracted property and, therefore, they will be deemed to have direct interest in the subject matter of the suit. The High Court dismissed the revision filed by the appellant and confirmed the order of the trial Court. While allowing the appeal and setting aside the orders of the trial Court and the High Court, this Court referred to Order 1 Rule 10(2) CPC and observed:

In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 Sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.

As noted herein earlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all. Lord Chancellor Cottenham in Tasker v. Small made the following observations:

It is not disputed that, generally, to a bill for a specific performance of a contract of sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the Defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it.

The aforesaid decision in Tasker was noted with approval in De Hoghton v. Mone. Turner, L.J. observed:

Here again his case is met by Tasker in which case it was distinctly laid down that a purchaser cannot, before his contract is carried into effect, enforce against strangers to the contract equities attaching to the property, a rule which, as it seems to me, is well founded in principle, for if it were otherwise, this Court might be called upon to adjudicate upon questions which might never arise, as it might appear that the contract either ought not to be, or could not be performed.

(emphasis supplied)

 In Amit Kumar Shaw v. Farida Khatoon (supra), this Court examined the correctness of the order passed by the Calcutta High Court which had approved the dismissal of the application filed by the Appellants for impleadment as parties to the suit filed by the original owner Khetra Mohan Das and the transferees, namely, Birendra Nath Dey and Smt. Kalyani Dey. One Fakir Mohammad claimed right, title and interest in the suit property by adverse possession. The suit was decreed by the trial Court. On appeal, the same was remanded for fresh adjudication of the claim of the parties. Fakir Mohammad challenged the order of remand by filing two second appeals. During the pendency of the appeals, Birendra Nath Dey assigned leasehold interest in respect of a portion of the suit property to the Appellants. Smt. Kalyani Dey sold the other portion of the suit property to the Appellants. When the Appellants applied for recording their names in the municipal records, they came to know about the pendency of the appeals. Immediately thereafter, they filed an application for impleadment which was rejected by the High Court. This Court referred to the provision of Order 1 Rule 10(2) and Order 22 Rule 10 CPC as also Section 52 of the Transfer of Property Act, 1882 and observed:

Section 52 of the Transfer of Property Act is an expression of the principle “pending a litigation nothing new should be introduced”. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit.

In order to constitute a lis pendens, the following elements must be present:

1. There must be a suit or proceeding pending in a court of competent jurisdiction.

2. The suit or proceeding must not be collusive.

3. The litigation must be one in which right to immovable property is directly and specifically in question.

4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.

5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.

The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the Defendant is vitally interested in the litigation, where the transfer is of the entire interest of the Defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the Plaintiff. Hence, though the Plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests.

(emphasis supplied)

 In Savitri Devi v. DJ, Gorakhpur (supra), this Court upheld the order passed by the trial Court for impleadment of Respondent Nos. 3 to 5, who had purchased the suit property without knowledge of the pending litigation, as parties. On behalf of the Appellant, it was argued that Respondent Nos. 3 to 5 cannot be treated as necessary parties because alienation made in their favour was in violation of the injunction order passed by the Court. In support of this argument, reliance was placed on the judgment in Surjit Singh v. Harbans Singh (supra). This Court distinguished that judgment by observing that in that case the assignors and the assignees had knowledge of the injunction order passed by the Court and held that the order passed by the trial Court which was affirmed by the District Judge and the High Court does not call for interference.

 In Vinod Seth v. Devinder Bajaj (supra), this Court interpreted Section 52 of the Transfer of Property Act, 1882 and observed:

It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit.

The principle underlying Section 52 of the Transfer of Property Act is based on justice and equity. The operation of the bar u/s 52 is however subject to the power of the court to exempt the suit property from the operation of Section 52 subject to such conditions it may impose. That means that the court in which the suit is pending, has the power, in appropriate cases, to permit a party to transfer the property which is the subject-matter of the suit without being subjected to the rights of any part to the suit, by imposing such terms as it deems fit. Having regard to the facts and circumstances, we are of the view that this is a fit case where the suit property should be exempted from the operation of Section 52 of the Transfer of Property Act, subject to a condition relating to reasonable security, so that the Defendants will have the liberty to deal with the property in any manner they may deem fit, in spite of the pendency of the suit.

 In Surjit Singh v. Harbans Singh (supra), this Court considered the question whether a person to whom the suit property is alienated after passing of the preliminary decree by the trial Court, which had restrained the parties from alienating or otherwise transferring the suit property, has the right to be impleaded as party. The trial Court accepted the application filed by the transferees and the order of the trial Court was confirmed by the lower appellate Court and the High Court. While allowing the appeal against the order of the High Court, this Court observed:

In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, Respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders.

 In Sarvinder Singh Vs. Dalip Singh and Others, this Court considered the question whether the Respondent who purchased the property during the pendency of a suit for declaration filed by the Appellant on the basis of the registered Will executed by his mother is entitled to be impleaded as party and observed:

The Respondents indisputably cannot challenge the legality or the validity of the Will executed and registered by Hira Devi on 26-5-1952. Though it may be open to the legal heirs of Rajender Kaur, who was a party to the earlier suit, to resist the claim on any legally available or tenable grounds, those grounds are not available to the Respondents. Under those circumstances, the Respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. In either case the Respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered Will executed by the Appellant’s mother, Smt Hira Devi. Moreover, admittedly the Respondents claimed right, title and interest pursuant to the registered sale deeds said to have been executed by the Defendants-heirs of Rajender Kaur on 2-12-1991 and 12-12-1991, pending suit.

Section 52 of the Transfer of Property Act envisages that:

During the pendency in any court having authority within the limits of India… of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.

It would, therefore, be clear that the Defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the Appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the Respondents cannot be considered to be either necessary or proper parties to thesuit.’

(emphasis supplied)

 In Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another, this Court was called upon to consider the correctness of the High Court’s order, which declined to interfere with the order passed by the trial Court dismissing the applications filed by the Appellant for impleadment as party to the cross suits of which one was filed for redemption of mortgage and the other was filed for specific performance of the agreement for sale. While dismissing the appeal, this Court referred to the judgments in Sarvinder Singh v. Dalip Singh (supra) and Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, and observed that there is no absolute rule that the transferee pendente lite shall be allowed to join as party in all cases without leave of the Court and contest the pending suit.

Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.

2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.

3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff.

5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.

Suit for disturbance of an easement

The Indian Easements Act, 1882

33. Suit for disturbance of easement. –

The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto; provided that the disturbance has actually caused substantial damage to the plaintiff.

Explanation I. -The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and section 34.
Explanation II. -Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.Continue Reading

Law of Declaration

Encyclopedia of Indian Law

Chapter VI of the Specific Relief Act, 1963 provides for passing of declaratory decrees. Sections 34 and 35 are the only two Sections in the said Chapter.

They read as follows:-

“Section 34. 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.

Section 35. 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.”

Plain reading of Section 34 makes it abundantly clear that in such cases the plaintiff has to fall within the scope and ambit ‘entitled to any legal character’ as evidently such a declaration would not have any relevance to any right as to any property. What is legal character has been the subject matter of many decisions. This Court has, in Duggamma – v. – Ganeshayya AIR 1965 Mys 97 held as follows while dealing with the very words occurring in Section 41 of the Specific Relief Act, 1877.

“It is difficult to predicate what are all the matters comprehended by the term ‘status’. The status of a person means his ‘personal legal condition’, that is to say, a man’s legal condition only so far as his personal rights and burdens are concerned, to the exclusion of his ‘proprietary relation’. An adjudication on adoption will in law amount to a declaration of status and is decided according to the law of domicile of the party making the adoption. But the claim to succession is not a matter of status in this sense and would relate to the proprietary relation of the claimant……..”

The Bombay High Court has, in the decision in Major General Shanta Shamsher Jung Bahadur Rana Vs. Kamani Brothers Private Ltd. and Ors, while dealing with the provisions of Section 42 of the Specific Relief Act, 1877, held that legal character has been taken to mean legal status, a phrase known to jurisprudence. It has observed as follows:-

“When the legislature used the phrase ‘legal character’ in the said two Sections (i.e., Section 42 of the Specific Relief Act and Section 41 of the Indian Evidence Act) it is legitimate to assume that the legislature was using the same in respect of some known legal concept and the context in Section 42 of the Specific Relief Act indicates that what was intended to be meant by ‘legal character’ was ‘legal status’, It is necessary to ascertain what is meant by ‘rights’, ‘legal rights’ and ‘legal status’.”

It has been further held as follows :-

“A legal right must be either proprietary, i.e., in the nature of property, or personal and it is only the latter that creates a status.”

In Abdul Karim Sarraya Begam AIR 1965 Lah. 266 the Full Bench of the Lahore High Court has dealt with this aspect and laid down that the words ‘legal character’ would attract a suit for declaration of legitimacy as legal character would be legal status of a person. This position in law is, in my opinion, no longer open to argument as the same has been held by various High Courts also.

It was argued that if such a declaration does not satisfy the requirements of ‘legal status’ so as to attract the provisions of Section 34 of the Specific Relief Act, 1963, such a declaration can be sought and granted in exercise of the ordinary civil jurisdiction of Civil Court by virtue of Section 9 of the Code of Civil Procedure. In this connection it was further argued that the Supreme Court has, in Veruareddi Ramaraghava Reddy and Others Vs. Konduru Seshu Reddy and Others, ruled that Section 42 of the Specific Relief Act, 1877 is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the said Section. It is plain that the provisions in Section 42 of the old Act and the provisions in Section 34 of the new Act are not different from each other. It is further seen that in the decision in Supreme General Films Exchange Ltd. Vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Others, the same is the position of law laid down by the Supreme Court.

If the ingredients of the main provision in Section 34 of the Specific Relief Act are not satisfied in view of the conclusions reached in the preceding paragraphs, seeking for consequential relief will not take the matter any further in favour of the plaintiff. Even when the main provisions in Section 34 of the Specific Relief Act, 1963 are satisfied, the Court has got to exercise its judicial discretion in deciding whether declaratory decree should or should not be granted. Even that discretion would be lost when the plaintiff omits to pray for the consequential relief even when it arises out of the declaratory decree. That is the effect of the proviso to Section 34 of the Specific Relief Act, 1963.

Section 42 of the Specific Relief Act [Section 34 of the Act 1963]

s. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section.

The provisions of Section 34 of the Act and the provisions of Section 9 of the Code are not in pari materia. u/s 34 of the 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 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. The remedy u/s 34 of the Act is a discretionary remedy subject to the proviso mentioned therein, i.e., no Court shall make such a declaration where the plaintiff being able to seek a further relief than a mere declaration of title, omits to do so. But, u/s 9 of the Code, the jurisdiction of the Civil Court is extended to all suits of a civil nature excepting suit of which their cognizance is either expressly or impliedly barred. In our view, the words ‘legal character’ u/s 34 of the Act do not have the same meaning as the words ‘civil nature’ u/s 9 of the Code. The words ‘legal character’ are not defined under the Act; nor the words ‘civil nature’ defined under the Code and, therefore, we have to fall back on the meaning of these words as understood in civil law, that means to say, in the law of jurisprudence that deals with the branch of civil law. The words ‘legal character’ are found in our Constitution with reference to the duties of the Attorney General and Advocate General-See Articles 76(2) and 165(2) of our Constitution. But, it would be correct to proceed on the basis that the words ‘legal character’ mean ‘legal status’. The learned Judge in Vishwanath Rao (supra) has also proceeded on the basis that ‘legal character’ means ‘legal status’. If that be so, what is the meaning of ‘legal status’ as is generally understood in civil law. In ‘Salmond on Jurisprudence’, dealing with the word ‘status’ it is observed thus :

“Although the term ‘estate’ includes only rights (in the generic sense), the term status includes not only rights, but also duties, co-rights, subjections and disabilities. A minor’s contractual disabilities are part of his status, though a man’s debts are not part of his estate.

The term ‘status’ is used in a variety of senses. It is used to refer to a man’s legal condition of any kind, whether personal or proprietary. A man’s status in this sense includes his whole position in the law-the sum total of his legal rights, duties, liabilities or other legal relations, whether proprietary or personal, or any particular group of them separately considered. Thus we may speak of the status of a landowner, of a trustee, of an executor, of a solicitor and so on.

More commonly it is used to denote his personal legal condition in so far as concerns his personal rights and burdens to the exclusion of his proprietary relations. A person’s status, in this sense, is made up of similar groups of personal rights and their correlative burdens, and each of these constituent groups is itself also called a status. Thus the same person may have at the same time the status of a free man, of a citizen, of a husband, of a father and so on. So we speak of the status of an alien, a lunatic, or an infant; but not of a landowner or …

The term may be used to refer to personal capacities and incapacities as opposed to other elements of personal status. The law of status in this sense would include the rules as to the contractual capacities and incapacities of married women, but not the personal rights and duties existing between her and her husband.

Status is used by some writers to signify a man’s personal legal condition, so far only as it is imposed upon him by the law without his own consent, as opposed to the condition which he has acquired for himself by agreement. The position of a slave is a matter of status, the position of a free servant is a matter of contract. Marriage creates a status in this sense, for although it is entered into by way of consent, it cannot be dissolved in that way, and the legal condition created by it is determined by the law, and cannot be modified by the agreement of the parties. A business partnership, on the other hand, pertains to the law of contract and not to that of status.”

In Chapter XVI of ‘A Text-Book of Jurisprudence’ by George white cross Paton, the learned author dealing with the term ‘status’ has said :

“The test is that status is a condition which affects generally, although in varying degree, a person’s claims, liberties, powers and immunities. In the case of a trustee, there are particular powers relating to the trust property and particular duties owed to the beneficiary of the trust. But the fact that a man is a trustee does not affect his general powers. The particular rights and duties of a trustee spring from one particular title (the trust) and extend no farther. But an infant suffers from a lack of contractual power which affects not only one contract or relationship but all his contracts save those which relate to necessaries.”

11. So, the juristic concept of ‘status’ in relation to a person’s age has to be understood in the context of his right as a natural person, the moment he is born. No doubt, birth is an event in a man’s life. Likewise marriage is also an event in his life. Birth occurs only once in one’s life. But, marriage being left to the volition of the parties may occur more than once depending on the circumstances. But once a marriage is performed, one acquires a marital status. Likewise, a person as soon as he is born acquires a status and that status in jurisprudence is the status of a natural person. To quote G. W. Paton again.

“In ancient systems not all human beings were granted legal personality. The case of the slave is too well known to need stressing. A monk who enters a monastery is regarded in some systems, as being ‘civilly dead’, and his property is distributed just as if death had in fact taken place. In modern times it is normal to grant legal personality to all living within the territory of the State.

Most systems lay down the rule that, in cases where legal personality is granted to human beings, personality begins at birth and ends with death.”

The Decree and adjudication

‘Decree’ is defined in subjection (2) of Section 2 of the Code of Civil Procedure. It reads as follows;-

“2(2) ‘Decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include:-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.”

A plain reading of the definition shows that by the decree the rights between the parties would be adjudicated and the relief prayed for by the plaintiff would either be granted or refused. Therefore, the decree has to relate to a relief.

Valuation of the Suit

In Tara Devi Vs. Sri Thakur Radha Krishna Maharaj, through Sebaits Chandeshwar Prasad and Meshwar Prasad and Another, , also it has been held by the Hon’ble Supreme Court that in a suit for declaration with consequential relief, falling u/s 7(iv)(c) of the Court Fees Act, plaintiff is free to make his own estimation of the relief sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. But, in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstrably undervalued, the Court can examine the valuation and can revise the same.

What is the nature of relief sought in the plaint is a matter of construction of the plaint in each case. The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Article 17 (iii) and the Court fee payable would be as prescribed therein i.e. Rs. 19.50 in Delhi.[

Declaration and Execution 

A declaratory decree merely declares the right of the decree-holder vis-a-vis the judgment debtor and does not in terms direct the judgment debtor to do or refrain from doing any particular act or since in the present case decree does not direct reinstatement or payment of arrears of salary the executing court could not issue any process for the purpose as that would be going outside or beyond the decree. Respondent as a decree holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not How directly and necessarily from the declaratory decree. It is not that if in a suit for declaration where the plaintiff is able to seek further relief he must seek that relief though he may not be in need of that further relief. In the present suit the plaintiff while seeking relief of declaration would certainly have asked for other reliefs like the reinstatement, arrears of salary and consequential benefits. He was however, satisfied with a relief of declaration knowing that the Government would honour the decree and would reinstate him. We will therefore assume that the suit for mere declaration filed by the respondent-plaintiff was maintainable, as the question of maintainability of the suit is not in issue before us.

A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the Defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana, etc. Vs. Harnam Singh and Others, and State of M.P. Vs. Mangilal Sharma,

In Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and another, , this Court dealt with declaratory decree, and observed that “mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the Plaintiff to seek both reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief.”

In Shakuntla Devi Vs. Kamla and Others, this Court while dealing with the issue held:

…a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the Defendant to establish that the declaratory decree on which the suit is based is not a lawful decree.

The Section is not Exhaustive

Incidentally, the decision of the Supreme Court in Supreme General Films Exchange Ltd. Vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Others, requires to be considered since that decision was cited before the learned Judge but he was of the view that it was of no assistance for the purpose of this case. That decision lays down the scope of Section 42 of the old Specific Relief Act which is on pari materia with Section 34 of the Act. The Supreme Court observed :

“Section 42 merely gives statutory recognition to a well recognised type of declaratory relief and subject it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42. The circumstances in which a declaratory decree u/s 42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by another’s legal character or who has no interest in another’s property could not get a declaration u/s 42 with reference to the legal character or the property involved.”

In view of this enunciation of the law by the Supreme Court, even assuming for a moment that the relief claimed by the plaintiff was beyond the scope of Section 34 of the Act. Section 34 is not exhaustive of all kinds of declaratory reliefs. In a proper case, therefore, independently of Section 34 of the Act, the plaintiff could have got the relief, i.e., the declaration sought for u/s 9 of the Code. In Veruareddi Ramaraghava Reddy and Others Vs. Konduru Seshu Reddy and Others, the same view is reiterated by the Supreme Court. Of course, the facts in that case are not relevant for the purpose of the case before us.

Declaration in Service Matter

In State of Punjab and others Vs. Krishan Dayal Sharma, the plaintiff obtained a decree that he was entitled to be promoted from the post of Inspector of Police to that of Deputy Superintendent of Police with effect from the date when his juniors were promoted and further claimed relief for all consequential benefits, rights and privileges. The suit was decreed and in the execution application filed by the plaintiff in addition to the benefits flowing from the decree, he also claimed compound interest at the rate of 12% per annum on the amount found due to him. The claim of interest was allowed by the executing court. This Court noticed that the decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree holder’consequent to the declaration made by the Court decreeing a suit. It was also not disputed that no relief for interest had been claimed by the decree holder in his suit nor any such claim was discussed or Awarded by the Court decreeing the suit. This Court held that the executing court was bound by the terms of the decree and could not add or alter the decree on its notion of fairness or justice. The Court further observed that no doubt the Courts had power to award interest on the arrears of salary or pension or other amount to which a Government servant was found entitled to having regard to the facts and circumstances of the case but that power could not be exercised by the executing court in the absence of any direction in the decree. In Prakash Chand v. S.S. Grewal and Ors. [1975] Cr. LJ. 679, (Full Bench) (Punjab and Haryana High Court), the petitioner had a decree in his favour declaring his dismissal from service to be illegal, void and of no effect. The Punjab Government did not reinstate him nor paid him the arrears of salary. He, therefore, filed a writ petition for taking contempt of courts proceedings against certain officials of the Stale Government. The Court held as under :

“A declaratory decree, in my opinion, cannot be executed as it only declares the rights of the decree-holder qua the judgment-debtor and does not in terms, direct the judgment- debtor to do or to refrain from doing any particular act or thing. Since there is no command issued to the judgment-debtor to obey, the civil process cannot be issued for the compliance of that mandate or command. The decree-holder is free to seek his legal remedies by way of suit or otherwise on the basis of the declaration given in his favour.”

 In our view, it is a correct statement of law except that it may not be fully applicable in the case of a Government servant who acquires a status and his service conditions are governed by statutory rules as noticed above.

Judicial vs legislative Declaration

The distinction between a “legislative” act and a judicial” act is well known, though in some specific instance the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. On the other hand, it is for the legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law.

 While, in view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Article 245 & 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering of changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray C.J. in Indira Nehru Gandhi V. Raj Narain (1975) SCC Supp., the rendering ineffective of judgments or orders of competent court and tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts Such validating legislation which removes the cause’s for ineffectiveness or invalidity of actions or proceedings is hot an encroachment on judicial power.

Declaration if there is an Industrial dispute

The decision which will have to be considered for the purpose of coming to a proper conclusion on this question is the decision of the Supreme Court in the The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, That is the leading case of the Supreme Court on the applicability of Section 9 of the Code in relation to the rights of a workman as provided for under the Industrial Disputes Act. It is well settled that the workman who is governed by the Industrial Disputes Act can raise an industrial dispute and have such dispute adjudicated by the Industrial Tribunal or the Labour Court as the case may be. Whether such a person can approach the Civil Court and obtain the same relief from the Civil Court was the point for consideration before the Supreme Court in Premier Automobiles (supra). The Supreme Court laid down the following Rules while considering the scope of Section 9 of the Code vis-a-vis the special provisions applicable to the workmen who are governed by the Industrial Disputes Act :-

“To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus :

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA, then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.”

Title and Mutation in Records of Right

It is a settled law that mutation in municipal record is only for the purposes of recording the name of a person who is primarily liable to pay property taxes. The said mutation is no proof of title. Further, if there is a dispute to title, municipal authorities have no jurisdiction to determine the dispute and it is for the parties to obtain necessary declaratory decree or a decree otherwise pertaining to a title from a Civil Court.

Civil Suit Rules (Assam)

CHAPTER I  General Instructions

1. (1) It is the duty of the Legal Remembrancer to superintend and advise on the conduct of all litigation, civil or criminal, in which Government or Government officers or the Court of Wards are concerned in accordance with the rules prescribed in this behalf.(2) The Legal Remembrancer is bound to advise Government on all legal questions in connection with administration of public affairs, or arising out of the acts of Government officers or public servants which may be referred to him by Government.Continue Reading