B Question SRAct With Answer

Group-B
Specific Relief Act 1877
Group-B Specific Relief Act 1877 May 19, 2000
1. Raham Ali is in possession of his ancestral homestead, at plot 405, Khatian No.13 of Mouza
Bachila, P.S. Mohammadpur. His neighbor Kalimuddin being the owner of the adjacent northern plot No. 406 threatens to encroach upon the land of Raham Ali on the plea that Raham Ali as per the mouza map is occupying the land beyond the area demarcated in Plot No. 405. You as lawyer have to seek remedy for Raham Ali in the Civil Court by a permanent Injunction. What law would apply and what are the grounds to be taken for the same. Draft a plaint. [May 19, 2000] Answer to the question no. 1: In the given problem, a suit for permanent injunction can be filed under section 54 of the Specific Relief Act 1877 in a civil Court which has proper jurisdiction. The law relating to injunction is contained in the CPC and the Specific Relief Act. The law as to perpetual injunction is regulated by the Act, and as to temporary injunction it is regulated by the CPC. In the well known case of The Shamnugger Jute Factory Co. Ltd. & anr. Vs. Ram Narain Chatterjee & Ors.1, it has been ruled that the granting of an injunction is now regulated by sections 54 and 55 of the Specific Relief Act, which in general terms, express the rules acted upon by the Equity Courts in England and introduced into this country, as they are in accordance with equity and good conscience. A suit for permanent or perpetual injunction is contemplated in section 54 of the Specific Relief Act. For the grant of permanent or perpetual injunction the existence of a right in the plaintiff and its threatened violation will have to be found. Every suit for permanent injunction necessarily involves a determination of the right of the plaintiff.2 In a suit for permanent injunction with regard to a disputed landed property the relief is available to a person who is in possession. The Court may enquire incidentally into the respective claims of the parties to the suit for determining whether the plaintiff is in possession of the disputed property and entitled to the specific relief of permanent injunction. If the dispute involves complicated questions of title, the plaintiff must establish his title by filing a regular suit for declaration of title. A simple suit for permanent injunction should not be allowed to be used as a testing device for ascertainment of title.3 In a suit for permanent injunction the court need not enter into disputed title except to the extent that it would help the Court in finding which of the parties have prima facie title and exclusive possession. 4 It is enough for the Court to find who is in actual and exclusive possession of the suit land. 5 No permanent
1 2
ILR 14 Cal 189. Barada Sundari Paul Vs. The Assistant Custodian, Enemy Property (Land and Buildings), Comilla and others, 15 BLD (AD) 95. Rafizuddin Ahemd Vs. Mongla Barman 43 DLR (AD) 215. Jobayer Hossain and ors. Vs. Noor Hafez and another, 56 DLR (AD) 22. Pasharuddin Mir Vs. Ismail Mir, 6 BLD (1986) 155; 9BLD (1989) (AD) 67.
3 4 5
Group-B
injunction can be granted unless the applicant has any personal interest in the matter and when there is no breach of any obligation existing in his favour.6 Whether a party acquired valid title in the suit property by dint of registered documents cannot be a prime issue in a suit for permanent injunction. In such a suit the question of possession is the main consideration before the Court.7 It is now well settled that if the plaintiff can prove his possession in the suit land he is entitled to protect his possession by way permanent injunction. Even the rightful owner cannot evict by force a person in long and continuous possession in the suit property. If he cannot be evicted with force he continues to be in possession and he can resist invasion of his possession by every one including the rightful owner. Person in possession for more than 12 years can be protected by permanent injunction even against rightful owner.8 The question of title has thus become a matter of little significance.9 When defendant is in possession, no injunction can be issued against him.10 In a suit for permanent injunction only the persons who held out threat of dispossession to the plaintiff from the suit property are necessary parties and not those who did not hold out any such threat. The reason is that the cause of action in a suit for permanent injunction is the threat or attempted interference with the plaintiffs possession in the suit property.11 In case of violation or disobedience, the execution of decree of permanent injunction is held either by putting the delinquent judgment debtor in civil imprisonment or attachment of violators property or by both.12 Issue of temporary injunction is governed by the same principles as the granting of permanent injunction. When a permanent injunction cannot be given no temporary injunction will be allowed.13 Perpetual injunctions are such as to continue forever and can only be granted by the decree made at the hearing and upon the merits of a suit and conclude a right forever. By perpetual injunction a defendant is perpetually restrained or forbidden for committing an act which would violate the right of the plaintiff established at the hearing. A man seeking an injunction must show that the act complained of is in fact a violation of his right and which if carried into effect will result in violation of his right. One of the objects for which a perpetual injunction is granted is to prevent future mischief and multiplicity of judicial proceedings. A Court may in the exercise of its judicial discretion grant a perpetual
6 7
Prof. MA Raquib Vs. Prof. Zillur Rahman, 37 DLR 83.
Abul Hashem Dhali and ors. Vs. Md. Idris Bari and ors., 15 BLD (AD) 106; see also Kamaluddin Ahmed Vs. Mst. Nurjahan Begum, 6 MLR (2001) (AD) 206.
8 9
Md. A. Gafur Vs. Nazimuddin, 4 BLD (1984) 127. Kalyan Krishna Goswami Vs. Madhyapara High School and anr., 15 BLD (HCD) 509. 7 DLR 6. Mobarak Ali Vs. Kazi Azimuddin, 17 BLD 91997) (HCD) 49.
10 11 12
Shashi Mohan Sen Vs. Ain Ullah, 12 BLD (1992) (AD) 8; Jiban Bima Corp. Dhaka Vs. Mohibul Majid, 5 MLR (2000) (HCD) 32.
13
Mojibul Hoq Vs. Ataur Rahman, 53 DLR (2001) (HCD) 229; NWR. Admn. Vs. NWR. Union, 14-9-330; Bihun Vs. Shasi, 73 IC 294.
Group-B
injunction, when the relief is not barred by any of the provisions of sections 55 and 56 of the Specific Relief Act, to prevent the breach of an obligation which is in existence and has not been lost. From the absence of the words the Court may in its discretion in sections 54 and 55 it cannot be said that an injunction is not a discretionary relief.14 Sections 54 and 56 must be read together as supplementary to each other.15 The former defines the circumstances under which perpetual injunction may be granted; the latter enumerates the cases where an injunction must not be granted. The right to an injunction should not be determined independently of sections 54 and 56 by reference to section 53. The first para of section 54 establishes the broad and general rule that given the breach of an existing legal right which is vested in the applicant, the breach thereof may be restrained by injunction where a plaintiff applied for an injunction to restrain a violation of an alleged right; if the existence of the right be disputed, he must establish that right before he gets the injunction to prevent the recurrence of its violation.16 The third para of section 54 undoubtedly contemplates cases irrespective of any contract. The grant of an injunction is not restricted to wrong out of contract only but relief can also be given in respect of an invasion of the rights of any person resting on tort. Circumstances when perpetual injunction is granted: a) Perpetual injunction is granted as provided under section 54. It lays down that an injunction may be granted to prevent the breach of an obligation in favour of the applicant, whether expressly or by implication, provided there exists no measure for ascertaining the actual damage or likely to be caused by threat of the defendants and where such invasion or threat is such that pecuniary compensation would not afford adequate relief.17 b) Relief by way of issue of an injunction is granted by the principle of qua time, and if the Court finds that there is substantial question to be investigated and the matter to be preserved in status quo till the final determination of that question, it is a sufficient ground for granting an injunction.18 c) Simply because the enjoyment of the plaintiff is rendered less beneficial that would not entitle him to obtain an injunction unless he can show that there was legal duty on the part of the defendant towards of his property in materially affected. The Court is competent to grant perpetual injunction in cases of threatened invasion of rights in property (personal or real) specified in clauses (a), (b), (c), (d) and (e). The relief is obtainable in cases of invasion of civil rights in the nature of tort. Mere apprehension of injury or the mere belief that the act may or will be done is not enough. Of the principal cases of injuries to immoveable properties, in which injunctions are generally issued, the following may be mentionedwaste, trespass to immoveable property, nuisance to houses, obstruction to light and air, obstruction to right of way to ,right of flow of water, invasion of privacy etc. d) If the legal right is not in dispute, a man who seeks the aid of the Court must be able to show that the act complained of is in fact a violation of the right, or is at least an act which, if carried into effect, will necessarily result in a violation of the right. The mere prospect of or apprehension of injury or the mere fact the act complained of may or will be done is not sufficient.
14 15 16 17 18
1955 All 68. (1957) Andh WR 10, 47 Cal 733. 47 Cal 733, 31 CLJ 259, 56 IC 571, 18 Lah 345, 1937 Lah 545. Hossain Ahmed Vs. HD Hossain and Brothers, 32 DLR (AD) 223. PLD 1960 Dacca 153, 11 DLR 470.
Group-B
e) But if an intention to do the act complained of can be shown to exist, or if a man insists on his right to do, or begins to do, or threatens to do, gives notice of his intention to do, an act which must in the opinion of the Court, if completed, give a ground of action, there is a foundation for the exercise of the jurisdiction. f) The mere prospect or apprehension of injury or the mere belief that the act complained of may be done or will be done is not sufficient. The plaintiff must show the existence of an intention on the part of the defendant to do the act complained of, but direct evidence of such intention may be unnecessary, if a man insists on his right to do or threatens to do or give notice of an intention to do an act which must, if completed, give a ground of action.19 g) The plaintiff must show a strong case of probability that the apprehended mischief will in fact arise. The plaintiff must show that the opposite party has done something towards infringing his rights, or that he is on the point of doing something which will infringe them and that there is prospect of irremediable injury. Plaintiff must establish a legal right and then show an actual or threatened invasion of that right. Evidence must be adduced that there is a real substantial likelihood that the wrongful act, complained of or apprehended will be repeated or done unless restrained.20 h) Ordinarily acts which are restrained by injunction are those which appear to the Court issuing the injunction to be prima facie illegal or with respect to the legality of which there is a reasonable doubt. 21 An injunction cannot be granted to prevent acts which do not cause legal injury. No permanent injunction can be granted restraining a party from moving a Court for the redress of his grievance. This would be an embargo upon the undoubted right of a party. 22
i) The question whether in a particular suit an injunction should be issued or damages should be awarded depends upon the facts and circumstances. A Court has discretion to award damages in lieu of an injunction. Prima facie the Court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. 23
The grounds : a) As Raham Aliss neighbor Kalimuddin being the owner of the adjacent northern plot No. 406 threatens to encroach upon the land of Raham Ali . b) The damage is not ascertainable and it is actual damage and the reason for damage arises due to the threat of Kalimuddin. c) Pecuniary compensation would not afford adequate relief.
19 20 21 22 23
20 CLJ 538. (1893) 2 Ch 87; 57 IC 414, 22 BLR 723, 1958 Punj 318, 1938 Lah 585, 37 Cal 731, 63 IC 728. PLD 1954 Lah 414 AIR 1944 All 220. PLD 1963 Lah 418, (1957) 2 All ER 343, (1886) 31 Ch D 354 CA.
Group-B
d) Raham Alis legal right is in dispute and the injury is not a mere apprehension. Kalimuddin has done something towards infringing his rights and Kalimuddin is on the point of doing something which will infringe them and there is prospect of irremediable injury. Draft a plaint: In the Court of 1st Senior Assistant Judge, Dhaka Civil Suit no.- 100/2000 Raham Ali S/O- Akbar Ali Bachila, Mohammadpur ..Plaintiff Versus Kalimuddin S/O- Rahimuddin Bachila, Mohammadpur .Defendant An application for permanent injunction under section 54 of the Specific Relief Act, 1877.
Suit valuation Tk. 3,00,000/The above named plaintiff most respectfully states: 1) That the plaintiff is innocent, simple and religious person and obedient to law. 2) That on the other hand the defendant is cruel, covetous and dishonest person. 3) That the plaintiff is in possession of his ancestral homestead, at plot 405, Khatian No.13 of Mouza Bachila, P.S. Mohammadpur. 4) That the plaintiffs neighbor Kalimuddin being the owner of the adjacent northern plot No. 406 threatens to encroach upon the land of Raham Ali on the plea that plaintiff as per the mouza map is occupying the land beyond the area demarcated in Plot No. 405. 5) That as per the mouza map the defendant has no right, ownership or possession over the disputed land. 6) That the defendant has threatened the plaintiff on 03/03/2000 that he would dispossess the plaintiff from his land on 20/03/2000. The plaintiff has filed an G.D. (GD no.-420) in the Police station of Mohammadpur. The copy of G. D is attached hereinafter with the application. 7) That under these circumstances, it is necessary to grant a permanent injunction to restraint the defendant from doing any harm and prevent dispossession of the plaintiff from his land. 8) That the cause of action arises when the defendant threatened the defendant on 20/03/2000 to evict and the threat still remains.
Group-B
8) That the cause of action arose under the police station of Mohammadpur. The plaintiff is resident
of Mohammadpur and the suit land is situated in this area. Therefore, the honourable Court has territorial jurisdiction to try this suit. 9) That the valuation of the suit land is Tk. 3 Lac, so the honourable Court has pecuniary jurisdiction to try this case and the valued ad valorem court fees has been paid. 10) That the other grounds will be urged at the time of hearing. In these circumstances, the plaintiff is praying that the honourable Court would be kind enough to grant-
a) a permanent injunction so that the defendant

cannot disturb the plaintiff, cannot dispossess or evict the plaintiff from the suit land;
b) a temporary injunction so that the defendant

cannot encroach upon the suit land and cannot evict or dispossess the plaintiff and cannot disturb the plaintiff from his peaceful enjoyment of the suit land; c) an order of all cost of the suit And to give further relief or relieves the plaintiff entitled to in law and equity. Affidavit 1. Raham Ali , S/O Akbar Ali, Bachila, Mohammadpur, by profession businessmen, by religion Muslim, by nationality Bangladeshi do hereby solemnly affirm as followsi. That I am the plaintiff of the suit, as such competent to swear this affidavit. ii. That the statements has been made herein above are true to my information based on record which we verify believe to be true. .. Signature of the deponent Prepared in my office and solemnly affirmed before me this day June 17, 2000 in my office at about 10am.
.. (Signature of the advocate)
Group-B
2. Rathindra Das is the owner and was in possession of Plot No. 65, Khatian No. 10, of Mouza
Senpara, P.S. Mirpur. One Jagadish Pal dispossessed Rathindra from the land valued at Tk. 5 lacks on the basis of a fraudulent deed 10th of January, 1990. Rathindra Das comes to you for advice. What suit you will file under what law and on what grounds. Prepare a plaint specifically the section and the statute in the cause title. [May 19, 2000] Answer to the question no. 2: From the given problem it is appeared that Rathindra Das is the owner and was in possession of Plot No. 65, Khatian No. 10, of Mouza Senpara, P.S. Mirpur. One Jagadish Pal dispossessed Rathindra from the land valued at Tk. 5 lacks on the basis of a fraudulent deed 10th of January, 1990. Rathindra Das is the owner and was in possession of the Plot No. 65, Khatian No. 10, of Mouza Senpara, P.S. Mirpur. Thus, he has to file a suit for declaration of title with recovery of khas possession. So, Rathindra Das can file a suit under section 8 and 42 of the Specific Relief Act. Section 8 provides that a person entitled to the possession of specific immoveable property may recover it in the manner prescribed by the Code of Civil Procedure. Section 42 provides that 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.24 If Rathindra Das was a mere possessor, then he could file a suit for recovery of khas possession under section 9 of the Specific Relief Act.25 Valuation of Suit and Court Fees: The value of the disputed land will be the value of the suit and advalorem court fees have to pay according to the value.
24
Section 42 of the Specific Relief Act is as following:
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.
25
Section 9 of the Specific
Relief Act is as follows:
If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this section shall be brought against the Government. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
Group-B
Period of Limitation: The suit for declaration of title with recovery of possession has to be filed within 12 years of period after the event of dispossession. Draft of a plaint: In the Court of 1st Joint District Judge, Dhaka Title Suit No.- 100/2000 Rathindra Das S/O- Rabindra Das Senpara, Mirpur ..Plaintiff Versus Jagadish Pal S/O- Tapos Pal Senpara, Mirpur .Defendant Suit for declaration of title with recovery of khas possession. Suit valuation Tk. 5,00,000/The above named plaintiff most respectfully states 1) That the plaintiff is innocent, simple and religious person and obedient to law. 2) That on the other hand the defendant is cruel, covetous and dishonest person. 3) That the plaintiff is the owner of the scheduled land hereinafter mentioned and was in possession thereof. He enjoyed the land without disturbing and interference of others. 4) That on 31/07/2000 the defendant wrongfully and forcibly entered into possession of the disputed land and dispossessed the plaintiff. 5) That the defendant claimed that he was the owner of the disputed land based on a deed. 6) That the plaintiff has come to know after making an inquiry in the Land Registry Office that the deed is fake and the disputed land was never sold to the defendant. 7) That the cause of action of this suit has been arisen when the plaintiff was dispossessed by the defendant forcibly on 31/07/2000 and the cause is still existed. 8) That the valuation of the disputed land is Tk. 5,00,000/- and the land is situated within the local jurisdiction of this honourable Court. Therefore, this honourable Court has full jurisdiction to try this suit. 8) That the right of plaintiff to the disputed land is disturbed and darkened by the defendants claim. 9) That the plaintiff filed this suit for recovery of possession and declaration of plaintiff title over the suit land in order to demolish the darkness of plaintiffs right. 10) That as this is a suit for declaration of title with the recovery of possession, the plaintiff has paid Tk as ad-valorem fees on the basis of the value of the disputed land which is Tk. 5,00,000/11) That the other grounds will be urged at the time of hearing. In these circumstances, it is humbly prayed that the honourable Court would be kind enough to grant a) a decree of recovery of khas possession of the schedule land in favour of the plaintiff and against the defendant;
Group-B
b) a decree of mesne profit; c) a decree of declaration that the plaintiff is the absolute owner of the schedule land and to remove all obstruction for the enjoyment of the schedule land; d) a decree of cancellation that the defendants deed is fake and is of no legal effect; e) a decree of all cost of the suit in favour of the plaintiff; And f) an order of any other or further relief or relieves the plaintiff is entitled in law and equity. Schedule of the land Plot No. 65, Khatian No. 10, of Mouza Senpara, P.S. Mirpur. Measuring of land-3 Kathas. The boundaries of the land are as under to the East- Golam Hossain, to the West- Nurul Haque, to the North- Maruf Ahmed, to the South- Mostafa Noor. Verification Verification that the statement made herein above are true to the best of my knowledge and information. Whereof, I sign this verification on this on15th April, 2000 at 11:00 am before the learned advocate. Signature of Verifier
3.
Sabiha appeared in an advertisement film for Clean Soap Company Ltd. and bound herself that she would not appear in any other film to be exhibited in TV for any other soap manufacturing company for one year. Before the completion of the period Sabiha has been booked for making a film for Beauty Soap Co. Ltd.
a)
Clean Soap CO. Ltd. comes to you for advice- as to how the negative covenant by Sabiha not to appear in another film for one year can be enforced. Give your reasoned opinion and advice. b) What remedy, if any, is available to Clean Soap against BTV, ETV and Channel (i)
c)
What will be the advice if Sabiha came to you in order to get advice as to how she can continue making the film for Beauty Soap Company without violating the covenant in case you were not engaged by any of the soap companies. [May 19, 2000]
Group-B
Answer to the question no. 3: In the given problem, it is seen that Sahiha appeared in an advertisement film for Clean Soap Company Ltd. and bound herself that she would not appear in any other film to be exhibited in TV for any other soap manufacturing company for one year. Before the completion of the period Sabiha has been booked for making a film for Beauty Soap Co. Ltd. The covenant between Clean Soap CO. Ltd. and Sabiha is negative covenant and Section 57 of the Specific Relief26 Act is provided for negative covenant. Though under section 56, clause (f), an injunction cannot be granted to prevent the breach of contract, the performance of which would not be specifically enforced. Section 57 specifically provides for this difficulty. Clause (f) of section 56 refers to section 21 of this Act which treats of contracts that cannot be specifically enforced. Section 54, para 2 27 enacts that when such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. Where a decree for specific performance of a contract cannot be given, no injunction should be granted for breach of such a contract. Unless the plaintiff brings his claim within the ambit of section 57, the Court would ordinarily refuse to grant a mere negative injunction or the specific performance of the contract. A contract may contain both negative and affirmative agreements, and although it may be beyond the powers of the Court to compel specific performance of the affirmative part, a party may be restrained from committing a breach of negative part under section 57. Notwithstanding section 56, clause (f) where a contract contains an affirmative agreement to do something coupled with a negative agreement, express or implied no to do another thing, the fact that the Court is unable to compel specific performance of affirmative agreement by reason of the rule in section 21 and section 56, clause (f), e.g., when it is dependent on the personal volition or qualification of a party, shall not preclude it from granting an injunction to perform the negative agreement provided that the applicant has actually performed his part of agreement (Illustration(e)). Although it is not within the power of the Court to grant relief by directing specific performance of the positive agreement, the Court will grant as much relief as possible in the circumstances, and retrain by an injunction the breach of the negative covenant (Illustrations (a) and (c)). In such cases, an injunction restraining the breach of a negative agreement is in substance an order specific performance. An agreement may be as effectually performed in this way is by order for the performance of the thing to be done. It is true that the disability of the Court to compel specific performance of an affirmative covenant does not preclude the Court from enforcing a negative covenant contained in an agreement.
26
Section 57 of the Specific Relief Act provides as follows:
Notwithstanding section 56, clause (f), where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: provided that the applicant has not failed to perform the contract so far as it is binding on him. According to Section 56, clause (f), an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced;
27
Section 54, para 2 provides When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
10
Group-B
The most essential requirements of this section are that the contract must contain two agreements, that is an affirmative agreement to do certain act, a negative agreement (express or implied) not to do a certain act and the negative part must be capable of being separated from the rest of the contract; and the applicant must have fully carried out his part of the contract. The person affected by the negative agreement cannot make any complaint. The other party is entitled to ask the Court to restrain him by an injunction from committing a breach of the negative covenant, unless he has by his own conduct or omission disentitled himself to the equitable relief. Where there is no express negative covenant but only an affirmative covenant, the Court, although it cannot enforce affirmatively the performance of the covenant, will sometimes, in special cases interpose to prevent that being done which would be a departure from and a violation of, the covenant. In such cases the Court imports a negative covenant not to act inconsistently with the agreement and restrain by injunction the breach of such implied negative covenant. Whether the Court would enjoin the performance of a negative contract or would infer the existence of such covenant by implication must depend on the circumstances of each case. Thus, Clean Soap Company can apply for an injunction to restrain Sabiha from appearing in any other film to be exhibited in TV for any other soap manufacturing company for one year. After one year, Sabiha can work for other soap companies. If Sabiha violate the injunction, she will be liable for punishment i.e. civil imprisonment or attachment of property. Where in a contract of personal service there is an express or implied negative covenant, the Court can also issue an injunction against a third party retraining them from employing the person. [13 Bur LT 227] Therefore, Clean Soap factory can apply for an injunction against ETV, BTV and Channel-I not to exhibit any other soap companies film where Sabiha has participated. As Sabiha entered into a contract with Clean Soap Company Ltd. and bound herself that she would not appear in any other film to be exhibited in TV for any other soap manufacturing company for one year. Thus, she may enter into contract with other soap companiesa) if the films of the other soap companies are not exhibited within one year, and b) if the film exhibits in cinema hall or broadcasting in radio. As we find that there is nothing in the contract with Clean Soap Company which prohibits participating in other soap companys film which cannot exhibit in any other media, thus Sabiha can contract with any other soap company.
October 27, 2000
4.
Rahmatullah had a piece of land in his possession. The land was his paternal property. He was dispossessed from his land by his neighbor who claimed to have got the land by way of purchase from the father of Rahmatullah. Rahmatullah stated that the kabala is fake. Rahmatullah seeks declaration of title without prayer for recovery of possession. Is this suit maintainable? If not, why? [October 27, 2000] Answer to the question no. 4: A suit for declaration, even without a prayer for recovery of possession is maintainable.
11
Group-B
Case- Amina Khatun Vs. Ansar Ali 40 DLR 419 But the proviso of Section 42 of the Specific Relief Act implies 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. From the case laws, it is appeared that when the plaintiff is in possession of the suit land, he does not need to seek further relief. But when he is dispossessed by the defendant, he has to seek for further relief. Some case laws are given below. When the plaintiff has possessed the suit land seeking declaration of title to the suit land, he need not seek any further relief as has been contemplated by the proviso to section 42. Case- Ali Akbar Khan Vs. Gurudas Mondal and others, 4 BLC 265 When plaintiff is found to be out of possession, a mere suit for declaration without a prayer for recovery of possession is clearly hit by the proviso of the section 42 and accordingly, the suit is not maintainable. Case- Jute Trading Corp. Ltd. Vs. Khona Rani Guha and others, 5 BSCD 264. 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 Specific Relief Act would be recovery of possession and a suit for mere declaration of title without prayer for possession is barred under section 42 of this Act. Case- Hajee Yar Ali Khan Vs. Mobarak Ali Chowdhury 7 DLR 6 (24-25) In a case where the defendants plea of his having taken symbolic 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 the suit will be hit by section 42 of the Specific Relief Act. Case- Mokbul Hossain Vs. Anil Kumar Saha 37 DLR 131. The bar under the proviso is attracted only if it is found that the plaintiff is able to seek further relief which he has omitted to pray. The relevancy of the proviso in relation to the defendant of the suit and the Court in such a suit is to be satisfied that the plaintiff could have claimed other relief against the defendant but has not done so. Case- Abdul Latif Vs. Ashia Bibi and others. 2 BSCD 162 A suit for declaration simpliciter is maintainable when no further relief is necessary to be prayed for. The proviso of section 42 requires the plaintiffs filing a declaratory suit to seek further relief. It is well settled that a person in possession of the land need merely to file a declaratory suit for his title. Case- Jogendra Kumar Datta Vs. Nur Mohammad and others 2 BSCD 163. Mansur Ali Mallik Vs. M Nurul Huque Mallick, 6 BSCD 274 However, if Rahmatullah, the plaintiff would be entitled, in some remote way, to some other relief in consequence of the declaration but which are not immediately related to the cause of action the said relief cannot be called further relief within the meaning of the proviso to the Act and hence the plaintiff in such
12
Group-B
a case cannot be compelled by the Court to ask for relief, whether he wants it or not and if the plaintiff in a given case is not in need of any other consequential relief the suit will not lie. All this would depend upon the facts and circumstances of each case and this ought to be decided at the outset and allow an amendment of the plaint if so required after an objective examination of the further relief that need be claimed. Case- Sarder Ahmed Ali Vs. GM Ali Bokshi 37 DLR 7 It appears from the plaint as well as from the fact that Rahmatullah was in possession. If Rahmatullah would be dispossessed during the continuance of the suit, then as per section 42 the plaintiffs right to maintain a suit for declaratory decree is not affected by the fact that during the pendency of the suit. Section 42 contemplates that the position obtaining at the date of the suit and not obtaining at the date of the suit and not subsequently. Case- Niaz Hussain Vs. Imdad Hussain, PLD 1956 (WP) Lah. 172 Moreover, in a dispute as to possession of a land, it is not enough to say that plaintiff is not in possession. It must be shown that the defendant is in possession. Unless this is done it cannot be said that the plaintiff is able to seek further relief than a mere declaration of title against the defendant. Though the suit has been filed without a prayer for recovery of possession, the suit should not be dismissed. If his suit is otherwise maintainable and he is otherwise entitled to the relief, it is open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court fees and then to grant him relief even though he has not specifically asked for it.28 There is no obligation on the Court to dismiss a suit if it is bad under proviso to section 42. Section 42 does not authorize the dismissal of a suit where the plaintiff being able to seek further relief than mere declaration of title omits to do so. It only forbids the Court to make the declaration, the prayer for which is not coupled with a prayer for a consequential relief. A suit which is defective under section 42 should not, therefore, be dismissed for failure on the part of the plaintiff to amend the plaint. It is a settled rule of practice not to dismiss a suit for non-compliance of the provisions of section 42 but to allow the plaintiff necessary amendment. Case- Niaz Hussain Vs. Imdad Hussain, PLD 1956 (WP) Lah. 172
5.
Sangita enters into a contract to sing for a charity show for one week in aid of a College in Comilla. The show is scheduled for the first of November 2000. She also took an advance of Tk. 25,000/- from the college. The Principal receives a letter on 25th October 2000 that she cannot perform because she had been hired by Chittagong Club for their centenary on the same day. Advise if the College can enforce the contract for her to perform at the college function and explain how the college can prefer an action against her. Draft a plaint with an appropriate prayer. [October 27, 2000]
Answer to the question no. 5:

28
PLD 1971 SC 762
13
Group-B
A Contract of personal service cannot ordinarily be specifically enforced and the Court normally would not give a declaration that the contract subsist. In cases in which the reputation, goodwill and the question of job satisfaction etc., are involved, the compensation in money cannot be an adequate relief and when it is found that the specific performance of the material terms do not include such minute and numerous details so as to show that the Court cannot enforce the specific performance and the specific performance is possible without involving the supervision and continuous duty of the Court.
It is seen that it is on the grounds of public policy and in the interests of the public that Courts of Equity in England refuse to grant specific performance of a contract of personal service. The rule of public policy precluding specific performance of a contract of personal service has been embodied in Section 21 of the Specific Relief Act, 1877. Jessel M.R. said in the case of Rigby Vs. Connol [(1880) 14Ch D 482] The Court have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service. In the given problem Sangita enters into a contract to sing for a charity show for one week in aid of a College in Comilla. The show is scheduled for the first of November 2000. She also took an advance of Tk. 25,000/- from the college. The Principal receives a letter on 25 th October 2000 that she cannot perform because she had been hired by Chittagong Club for their centenary on the same day. In these circumstances, the contract between Sangita and the College is not enforceable as per Section 21(b) of the Specific Relief Act 1877. Section 21(b) implies that a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms. Volition is no more that status of mind, the will to do or not to do. Such contract is usually referable to contract of personal service where a particular quality possessed by a person for whom the contract is entered into, depends upon his willingness or the state of mind and which if specifically enforced, may lead to results not contemplated in the original contract. Thus, the College authority cannot bind Sangita to sing for a charity show for one week in aid of the College. But the College authority can sue against Sangita for injunction directing Sangita not to sing for Chittagong Club under Section 57 of the Specific Relief Act. Section 57 of the Specific Relief29 Act is provided for negative covenant. Though under section 56, clause (f), an injunction cannot be granted to prevent the breach of contract, the performance of which would not
29
14
Group-B
be specifically enforced. Section 57 specifically provides for this difficulty. Clause (f) of section 56 refers to section 21 of this Act which treats of contracts that cannot be specifically enforced. Section 54, para 2 30 enacts that when such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. Where a decree for specific performance of a contract cannot be given, no injunction should be granted for breach of such a contract. Although it is not within the power of the Court to grant relief by directing specific performance of the positive agreement, the Court will grant as much relief as possible in the circumstances, and retrain by an injunction the breach of the negative covenant (Illustrations (a) and (c)). Notwithstanding section 56, clause (f) where a contract contains an affirmative agreement to do something coupled with a negative agreement, express or implied no to do another thing, the fact that the Court is unable to compel specific performance of affirmative agreement by reason of the rule in section 21 and section 56, clause (f), e.g., when it is dependent on the personal volition or qualification of a party, shall not preclude it from granting an injunction to perform the negative agreement provided that the applicant has actually performed his part of agreement (Illustration(e)). Where there is no express negative covenant but only an affirmative covenant, the Court, although it cannot enforce affirmatively the performance of the covenant, will sometimes, in special cases interpose to prevent that being done which would be a departure from and a violation of, the covenant. In such cases the Court imports a negative covenant not to act inconsistently with the agreement and restrain by injunction the breach of such implied negative covenant. Whether the Court would enjoin the performance of a negative contract or would infer the existence of such covenant by implication must depend on the circumstances of each case. In the contract between Sangita and the College, there is an affirmative part i.e. sing for a charity show for one week in aid of the College. The negative part is implied which is Sangita will not sing for any others in the same scheduled time. Thus, the College authority may obtain an order from the Court directing Sangita not to sing for Chittagong Club. Limitation Period: The suit has to be filed within one year of the declination to perform as per Article 113 of the Limitation Act 1908. A plaint is drafted below with an appropriate prayer; In the 2nd Assistant Judge Court, Comilla Civil Suit No. 100/2000 Mr. Ruhul Khan Principal, City College Comilla ..Plaintif Versus Sangita D/O Mahbubur Rahman
30
15
Group-B
Gulshan, Dhaka Defendant Suit for injunction under Section 57 of the Specific Relief Act, 1877. The above named plaintiff most respectfully states that: 1. That the plaintiff is the Principal of the City College, Comilla and the defendant Sangita is a popular singer. 2. That the defendant entered into a contract to sing for a charity show for one week in aid of the College in Comilla. The show is scheduled for the first of November 2000. She also took an advance of Tk. 25,000/- from the college. 3. That the plaintiff Principal has received a letter on 25 th October 2000 that the defendant cannot perform because she had been hired by Chittagong Club for their centenary on the same day. 4. That the plaintiff has arranged all things for the charity show and if the defendant will not perform or sing in the charity show, the plaintiff shall be highly prejudiced. 5. That the reputation and goodwill are involved and thus the compensation in money cannot be an adequate relief. 6. That it is necessary to order an injunction for the purpose of restraining the defendant from singing Chittagong Club otherwise the plaintiff will suffer irreparable injury and loss. 7. That due to the declination of the defendant to perform in the charity show, the cause of action raised and still remain so. 8. That the Court has pecuniary and territorial jurisdiction and the Court fees has also been paid. 9. That the other grounds will be urged at the time of hearing. In these circumstances, it is humbly prayed that the honourable Court will be kind enough toGrant an order of injunction against the defendant for restraining her to perform in the Chittagong Club and to perform in the City College of Comilla, And Grant all other remedies which the plaintiff is entitled to get for the end of justice Verification Verification that the statement made herein above are true to the best of my knowledge and information. Whereof, I sign this verification on this on15th April, 2000 at 11:00 am before the learned advocate. Signature of Verifier
16
Group-B
6.
Neighbour of your client builds his boundary wall on the Eastern side of your clients house without keeping the necessary space as required by the RAJUK and raises his wall so high that it obstructs your clients light. What remedy can your client seek from the Civil Court and under what provisions of law? Draft a brief plaint. You can choose the name and address of the plaintiff and the defendant for the purpose of the draft. [October 27, 2000] Answer to the Question No. 6: In the given problem, we see that neighbor of my client builds his boundary wall on the Eastern side of your clients house without keeping the necessary space as required by the RAJUK and raises his wall so high that it obstructs your clients light. In such situation, my client can seek an order of mandatory injunction under Section 55 of the Specific Relief Act, 1877. Section 55 of the Specific Relief Act provides that when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. No doubt an obligation is co-related to a legal right and normally one would expect that the prevention of the breach of an obligation has reference to the obligation owed to the plaintiff. But there may be an obligation which is not directly co-related to a legal right in the plaintiff but is a condition precedent of the enforcement of that right. It is provided in illustrations (a) of Section 55 that, A, by new buildings, obstructs lights to the access and use of which B has acquired a right under the Limitation Act, 1908 Part IV. B may obtain an injunction, not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B's lights. The wall in question was built from days before the filing of the suit. It is right and proper that the order of its demolition, if at all, by way of mandatory injunction should ordinarily be passed on the conclusion of the suit. Case- Abdul Barik Vs. Serajul Islam 20 DLR 501. A mandatory injunction is an order requiring the defendant to do some positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise in fulfillment of his legal obligations, for example, an order to pull down a building which he had already erected to the obstruction of the plaintiffs lights31 In granting a mandatory injunction, firstly, the Court has to determine what acts are necessary in order to prevent a breach of the obligation and secondly, the requisite acts must be such as the Court is capable of enforcing. The jurisdiction to grant injunction is discretionary and the Court before granting a mandatory injunction will weigh all facts and circumstances with great caution. Where the injury done to the plaintiff cannot be estimated and sufficiently compensated for by damages, or is so serious and material that the restoration of things to their former condition is the only method whereby justice can be adequately done, or where the injury complained of is in breach of an express
31
Salmond on Torts 11 Ed., p. 186
17
Group-B
agreement, the Court will exercise its jurisdiction and grant a mandatory injunction, even though the expense and trouble of carrying out the mandatory injunction will be far in excess of any sum which could reasonably be awarded by way of damages.32 Where plaintiffs right to free passage of light and air is interfered with so as to materially affect the physical comforts of the occupancy of a room, a mandatory injunction may be issued directing defendant to remove, so much of the obstruction as interferes with the free passage of light and air through the plaintiffs window to the extent of the old dimensions.33 A mere plan to build certain construction in breach of the municipal rules and regulations by the defendant does not render the plaintiff to obtain mandatory injunction.34 It was held in Krushna Kishore Vs. Sankarasan, [AIR 1974 Ori 89, pp 90 to 94] that the mere violation of municipal rules or plan is not actionable per se unless an injury, real or apprehended, is established by the persons in whose interest and for whose protection the rules are framed. Plaintiff is, therefore, to establish not merely injury to their right to light, air and privacy but material injury. Thus, by proving the injury as material, my client can obtain mandatory injunction under section 55 of the Specific Relief Act from the Court directing the neighbour to demolish his wall which obstructs the light. A Plaint is drafted below: In the Court of Joint District Judgem, Narsingdi. Civil Suit no. 100/2000 Abdul Halim S/O Tofazzol Hossain Narsingdi Plaintiff Versus Matin Ahmed S/O Adnan Ahmed Narsingdi Defendant Suit for mandatory injunction under section 55 of the Specific Relief Act, 1877. Suit valuation Tk 5,00,000/The above named plaintiff states: 1. That the plaintiff is religious, simple, law abiding and honest person. 2. That the defendant is cruel, covetous and dishonest person. 3. That the plaintiff is the owner of the scheduled-A land and the defendant is the owner of the scheduled-B land. 4. That the defendant is the neighbour of the plaintiff and recently built a boundary wall on the eastern side without keeping required space as fixed by RAZUK.
32 33 34
Halsbury, 2nd Ed., Vol. 18, para 37, pp. 24,25. (1910) 33 Mad. 327; MLT 345; 20 MLJ 291. PLD 1968 Lah. 1235.
18
Group-B
5. That the wall is so high that it obstructs the right of light of the plaintiff and causes material injuries to the plaintiff. 6. That the family members of plaintiff including a new born child are materially affected and are under the threat of pneumonia. 7. That the plaintiff will suffer irreparable loss if the mandatory injunction is not granted and the plaintiff is eligible to obtain a mandatory injunction as the defendant has violated an obligation. 8. That the defendants act of build the wall is objectionable and illegal and he was asked several times to desist from his unlawful act but his attitude revealed his incompliance nature. 9. That the Court has the territorial jurisdiction as well as pecuniary jurisdiction to try this case. 10. That the valuation of the suit is Tk 5,00,000/- and valued ad valorem court fees has been paid. 11. That the other grounds will be urged at the time of hearing. In these circumstances, it is humbly prayed that the honourable Court would be kind enough to a) Grant an order of mandatory injunction directing the defendant to demolish the wall; b) Give an order not to disturb the right of light of the plaintiff in any other way, c) Give an order for all cost of the suit in favour of the plaintiff And d) All other relieves which plaintiff is entitled in law and equity. Schedule-A Plot No. 65, Khatian No. 10, of Mouza Senpara, P.S. Bilasdi. Measuring of land-3 Kathas. The boundaries of the lands are as under to the East- Matin Ahmed, to the West- Nurul Haque, to the North- Maruf Ahmed, to the South- Mostafa Noor. Schedule-B Plot No. 66, Khatian No. 11, of Mouza Senpara, P.S. Bilasdi. Measuring of land-3 Kathas. The boundaries of the lands are as under to the East- Rakib Ahmed, to the West- Abdul Halim, to the North- Hafez Ahmed, to the South- Kazi Mostafa. Verification Verification that the statement made herein above are true to the best of my knowledge and information. Whereof, I sign this verification on this on15th April, 2000 at 11:00 am before the learned advocate. Signature of Verifier June 15, 2001
7. Jalil is a renowned footballer. On 10.06.2001 he entered into a contract to play for Arambagh
Sporting Club for the current season for a consideration of Tk. 10 Lac. One week before the commencement of the game he entered into another similar contract with Wari Club for a consideration of Tk. 20 Lac. Whether Arambagh Sporting Club can obtain an order from the Court directing Jalil to play for the Arambagh, if not, what other remedy for Arambagh Sporting
19
Group-B
Club is available? Mr. Jalil receives a leg injury and is unwilling to play for Arambagh. Can the club enforce the contract against Jalil to pay for them? [June 15, 2001] Answer to the question no. 7: In the problem, Jalil, a renowned footballer, entered into a contract to play for Arambagh Sporting Club for the current season for a consideration of Tk. 10 Lac on 10.06.2001. One week before the commencement of the game he entered into another similar contract with Wari Club for a consideration of Tk. 20 Lac. In these circumstances, Arambagh Sporting Club cannot obtain an order from the Court directing Jalil to play for the Arambagh as per Section 21(a) and (b) of the Specific Relief Act 1877. According to Section 21, certain contracts are not enforceable and sub-sections (a) and (b) is relevant here. Sub-Section (a) provides that a contract for the non-performance of which compensation in money is an adequate relief, the contract is not enforceable. Sub-section (b) provides that a contract which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms, the Court cannot order for the enforcement of such contract. Volition is no more than status of mind, the will to do or not to do. Such contract is usually referable to contract of personal service where a particular quality possessed by a person for whom the contract is entered into, depends upon his willingness or the state of mind and which if specifically enforced, may lead to results not contemplated in the original contract. As the contract is no enforceable thus, Arambagh Sporting Club can file a suit for injunction under section 57 of the Specific Relief Act. Section 57 of the Specific Relief35 Act is provided for negative covenant. Though under section 56, clause (f), an injunction cannot be granted to prevent the breach of contract, the performance of which would not be specifically enforced. Section 57 specifically provides for this difficulty. Clause (f) of section 56 refers to section 21 of this Act which treats of contracts that cannot be specifically enforced. Section 54, para 2 36 enacts that when such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. Where a decree for specific performance of a contract cannot be given, no injunction should be granted for breach of such a contract.
35
36
20
Group-B
Although it is not within the power of the Court to grant relief by directing specific performance of the positive agreement, the Court will grant as much relief as possible in the circumstances, and retrain by an injunction the breach of the negative covenant (Illustrations (a) and (c)). Notwithstanding section 56, clause (f) where a contract contains an affirmative agreement to do something coupled with a negative agreement, express or implied no to do another thing, the fact that the Court is unable to compel specific performance of affirmative agreement by reason of the rule in section 21 and section 56, clause (f), e.g., when it is dependent on the personal volition or qualification of a party, shall not preclude it from granting an injunction to perform the negative agreement provided that the applicant has actually performed his part of agreement (Illustration(e)). Where there is no express negative covenant but only an affirmative covenant, the Court, although it cannot enforce affirmatively the performance of the covenant, will sometimes, in special cases interpose to prevent that being done which would be a departure from and a violation of, the covenant. In such cases the Court imports a negative covenant not to act inconsistently with the agreement and restrain by injunction the breach of such implied negative covenant. Whether the Court would enjoin the performance of a negative contract or would infer the existence of such covenant by implication must depend on the circumstances of each case. Thus, the affirmative part of the contract between Jalil and Arambagh Sporting Club is that, Jalil will play for Arambagh Sporting Club for the current season for a consideration of Taka 10 lac. But the implied negative part is that Jalil will not play for any other sporting club for the current season. Therefore, Arambagh Sporting Club can obtain an order of injunction from the Court directing Jalil not to play for Wari Club for the current season. Later on, Mr. Jalil receives a leg injury and is unwilling to play for Arambagh. Arambagh Sporting Clud may compel Jalil to return the money if any amount of money has been paid already. As per Section 65 of the Contract Act 1872, when an agreement is discovered to be void or when contracts becomes void and person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it, to the person from whom he received it.
8.
Mr. Shawkat was a teacher for Rangpur College for 15 years. The College authority by a resolution dismissed him from service on account of insubordination. Mr. Shawkat has instituted a suit under Section 42 of the Specific Relief Act in the Court of Senior Assistant Judge, Rangpur challenging the legality of the resolution. He seeks to get a temporary injunction against giving effect to the resolution. Draft an appropriate petition for injunction stating the fact and relevant section of law. [June 15, 2001] Answer to the question no. 8: It is appeared from the fact that Mr. Showkat was a teacher for Rangpur College for 15 years. The College authority by a resolution dismissed him from service on account of insubordination. Mr. Shawkat has instituted a suit under Section 42 of the Specific Relief Act in the Court of Senior Assistant Judge, Rangpur challenging the legality of the resolution. He seeks to get a temporary injunction against giving effect to the resolution. Terminating from 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 under section 42 will not lie.
21
Group-B
Case- Chowmuhani College Vs. Md Ismail Hossain, 26 DLR 10 But Mr. Showkat was not dismissed from the service due to incompetency thus, he can sue the authority under Section 42 of the Specific Relief Act. In a suit for declaration that the order of suspension from service as well as the order of dismissal from service is illegal and for declaration that the plaintiff is still in service, without asking for any consequential relief, is not maintainable. Case- Hasan Ali, Chairman, Saidkati Union Parishad, Banaripara, Barisal Vs. Abdul Motalib Sheikh & others, 3 BLC 15 Moreover, a suit for simple declaration that the impugned order of dismissal from service is illegal, void and not binding upon the plaintiff without a further prayer for consequential relief in the form of back salary and reinstatement in his former post is hit by the proviso to section 42. Case- Basharatullah Vs. Managing Committee, 17 BLD 68 Thus, Mr. Shawkat has to seek further relief in the form of back salary and reinstatement along with the declaration that the dismissal order is illegal and void. Under section 42 of the Specific Relief Act, a case will lie when the plaintiff proves that he is entitled to a legal character or right and the defendant is denying such legal character or right. Case- Hasamat Ali Vs. Mofizuddin Majhi, 37 DLR 231 Shafi A Chowdhury Vs. Pubali Bank Ltd. & others, 54 DLR 310 Divisional Forest Officer Vs. Md Shahabuddin 12 BLC (AD) 138. In order to obtain relief under section 42, plaintiff must establish that-
a) The plaintiff is at the time of the suit entitled to any legal character or to any right as to any
property. Legal character and right to property are used disjunctively so that either of them, exclusively, may be the basis of a suit. A suit under section 42 does not lie unless declaration as to any legal character or right to property is sought.
b) The defendant has denies or interest in denying the character or title of the plaintiff. There must
be some present danger or detriment to his interest. In other words, some doubts must be cast on the title or character of the plaintiff, so that a declaration is necessary to safeguard his right and clear the mist. The denial must be communicated to the plaintiff in order to give him cause of action. c) The declaration asked for is a declaration that the plaintiff is entitled to a legal character or to a right to property.
d) The plaintiff is not in a position to claim further relief than a bare declaration of his title. A
person, who is able to seek for further relief, should not be allowed mere declaratory relief. It is clear that Mr. Shawkat is entitled to a legal character. The college authority denied the character and its decision is detriment to his character. Thus, a declaration becomes necessary to safeguards his right. Moreover, Mr. Shawkat is able to seek further relief and he would not be allowed mere declaratory relief.
22
Group-B
It is the admitted position that the plaintiff is out of his office consequent to the order of his dismissal from service and, therefore, the decree for permanent injunction cannot be an effective relief if the plaintiff gets the declaratory decree to the effect that his dismissal is illegal. Under such circumstances the plaintiff ought to have prayed for a decree for a mandatory injunction under section 55 of the Specific Relief Act but clause (e) of section 56 of the Specific Relief Act is a bar to get the decree for mandatory injunction in the case of the plaintiff and hence the suit as framed is not maintainable on the ground that a declaratory decree will not be enough and that even a decree for mandatory injunction as consequential relief is barred under the law. Case- Rupali Bank Ldt. Vs. Ad Arab Ali & others, 7 BLC (AD) 1. Thus, Mr. Shawkat can obtain an order of temporary injunction under the section 53 of the Specific Relief Act as an interlocutory order in the suit.37 The requisites for temporary injunction are: a) That the plaintiff has prima facie case to go to trial, b) That protection is necessary from irreparable injury before his legal right can be established c) The mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise from granting it. Case- Uttara Bank Vs. Macneill & Kilburn Ldt., 33 DLR (AD) 298. Here, Mr. Shawkat has prima facie case and in need of protection from irreparable injury and if injunction will not be granted than the mischief or inconvenience likely to arise will be greater than which is likely to arise from granting it. A Petition for injunction is drafted below: The Court of Senior Assistant Judge, Rangpur Civil Suit no. 100/2001 Mr. Shawkat S/O Mr. Moin Ahmed Rangpur. Plaintiff/Petitioner Versus Governing Body Rangpur College, Rangpur. .Defendant/Opposite Party Prayer for Temporary Injunction under Section 53 of the Specific Relief Act.
I.
II.
The above named petitioner most respectfully states: That the plaintiff/petitioner is an innocent, simple and law abiding citizen of Bangladesh. That the petitioner was carrying out his profession as a teacher with goodwill for the last 15 years in the Rangpur College.
37
AIR 1926 Lah. 523.
23
Group-B
III.
IV.
V. VI. VII.
VIII.
That the governing body dismissed the petitioner by resolution from service because he did not support the unauthorized activities of the governing body for the welfare of the students and the College. That the petitioner filed a suit of declaration for challenging the legality of the resolution before this honourable Court which is under trial. That the petitioner has right to obtain a declaration in the suit. That the petitioner is in need of temporary injunction unless he will suffer irreparable loss. That the petitioner has prima facie case and has the right to obtain an order of temporary injunction. That other arguments and grounds will be urged at the time of the hearing before the honourable Court. In these circumstances, it is humbly prayed that the honourable Court would be kind enough to a) Accept this petition for hearing;
b) Promulgate a show cause notice to the

defendant/opposite by asking why an order of temporary injunction will not be granted and after hearing both of the parties, grant temporary injunction in favour of the petitioner so that the defendant/opposite party cannot harass the petitioner; And Give further relief which the petitioner is entitled to obtain in equity and law. Affidavit I, Mr. Shawkat, S/O Mr. Moin Ahmed, Rangpur, by profession teacher, by religion Muslim, by nationality Bangladeshi do hereby solemnly affirm as followsi. That I am the plaintiff of the suit, as such competent to swear this affidavit. ii. That the statements has been made herein above are true to my information based on record which we verify believe to be true. .. Signature of the deponent Prepared in my office and solemnly affirmed before me this day June 17, 2001 in my office at about 10am.
.. (Signature of the advocate)
24
Group-B
9.
Rahmat Ali dead at the age of 90 leaving a son Sharafat and two daughters Amena and Rahima and only property, a house situated at Goakhali, Barisal. Sharafat claims the house property on the basis of a deed of gift. The two sisters approached you with the allegation that their father was in a coma, when his thumb impression was taken and the document was fraudulent. Advise the sisters of Sharafat. What remedy they have with reference to the specific provision of law? [June 15, 2001]
Answer to the question no. 9: From the fact, it is appeared that Rahmat Ali Ali dead at the age of 90 leaving a son Sharafat and two daughters Amena and Rahima and only property, a house situated at Goakhali, Barisal. Sharafat claims the house property on the basis of a deed of gift. The two sisters approached me with the allegation that their father was in a coma, when his thumb impression was taken and the document was fraudulent. In order to remove the impediment in the way of the sisters to get complete relief along with the declaration the two sisters need to make a prayer for cancellation of the document on payment of ad valorem court fee. The prayer ought to be made by filing a suit under section 39 of the Specific Relief Act, 1877. Section 39 provides as follows: Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or viodable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. In a suit under section 39 for cancellation of an instrument, three points must be made good which are: a) The written instrument is void or voidable b) There is reasonable apprehension that such instrument, if left outstanding, may cause serious injury c) The Court ought, under the circumstances of the case, in the exercise of its discretion to adjudge the instrument void or voidable and order it to be delivered up and cancelled. Rahima and Amena, two daughters of the deceased, are not able to get relief under section 31 of the Specific Relief Act i.e. they cannot file a suit for rectification of the instrument. In order to obtain rectification of an instrument under section 31, it must be proved that it was through a mutual mistake of the parties that the instrument in question did not truly express the intention of the parties. The Court has to find it clearly proved that there has been a mistake in executing the instrument. Rahima and Amena are not the party of the deed. Thus, there is no question of making mistake by them. Moreover, the relief under section 39 is not restricted to the parties to an instrument, but any person affected by it may sue. A suit under this section is maintainable only by a person against whom the instrument is void or voidable or to whom it may cause injury. Thus, being affected and injured, Amena and Rahima can file a suit under section 39. They may not seek possession by way of consequential relief under section 42.38
38
Nur Muhammad 21 DLR 507
25
Group-B
However, it was held in Sultana Begum Vs. Abul Kalam [43 DLR 177] that where the plaintiff is not a party to the instrument mere declaration that the instrument is void is sufficient and the plaintiff need not pray for cancellation of the instrument whether the suit falls under section 42 or under section 39. In Abdul Hamid Vs. Dr. Sadeque Ali Ahmed [21 DLR 507], it was held that where a document is to be set aside or declared null and void by a person who is a party to the deed, a mere declaration would not do and cancellation of the deed is a necessary relief unless the document is void ab initio. But a person who is not a party to the deed is not bound to have it set aside or cancelled and a mere declaration that it will not affect the plaintiffs right would be quite enough. If the plaintiff is bound to have the document set aside or declared null and void the plaint must be treated as including a prayer for consequential relief; if it is not incumbent upon the plaint to get rid of the document the plaintiff must be treated as one for a declaration, pure and simple. Thus, Amena and Rahima, being bound to have the deed set aside or declared null and void and being not in possession, must pray for consequential relief i.e. the deed is null and void, along with the prayer for declaration that the deed does not bind them. October 10, 2003
10. a) A person comes to you and alleges that he was dispossessed from his land and wants to
recover possession thereof. You decided to file a suit under Section 9 of the Specific Relief Act, 1877 for recovery of possession of the land. What points you will ascertain from him and embody in the plaint?
b) In his written statement in the above suit the defendant sets up a plea to the effect that he was
title in the land as a purchaser from the real owner. How you will meet this contention of the defendant? [October 10, 2003] Answer to the question no. 10: (a) In a suit under section 939, question of title is irrelevant. The section was enacted to afford a summary remedy against persons who had taken the law into their own hands and had ejected that person who was in possession of land otherwise than through process of law.40 The only points for determination are:
I.
39
Whether the plaintiff was in possession of the disputed property within six months previous to the institution of the suit;
Section 9 provides as follows:
40
58 Cal 29.
26
Group-B
II.
III.
Whether he has been dispossessed of that possession by the defendant; Whether the dispossession took place without his consent and otherwise than in due course of law.
Case- Sona Mia Vs. Prokash, AIR 1940 (Cal) 464. If the plaintiff can prove his previous possession, he may recover possession from the defendant who dispossessed him without reference to any question of title. Even where the person ousting claims a superior title, the person dispossessed is entitled to be restored to possession if he can prove his previous possession and brings an action within six months from the date when the dispossession occurred. Therefore, I will ascertain the above mentioned points. Moreover, I will also ascertain the following points: I. II. III. IV. Whether he was dispossessed by any co owner; Whether he is a tenant and dispossessed by a third party ; Whether he is a tenant and dispossessed by the landlord; Whether he is dispossessed by a trespasser;
(b) In written statement in the above suit the defendant sets up a plea to the effect that he was title in the land as a purchaser from the real owner. This contention might be met in the way mentioned below. i) it is clear from the expression of Section 9 of the Specific Relief Act i.e. any other title that may be set up in such suit clearly indicates that question of title to the land cannot be raised in this suit for recovery of possession. If a suit brought under this section within six months for recovery of possession on the ground of illegal dispossession, and even if the dispossessor be the rightful owner, still the plaintiff will be entitled to a decree for recovery of possession, on the strength of his anterior possession, notwithstanding that the defendant may set up a superior title. Case- Debendra Mohan Das Vs. Md. Afzuddin, PLD 1965 Dacca 269 ii) it was held that when a person is dispossessed from any immoveable property he may file a suit to recovery possession thereof and the question of title will not be a matter of decision in that suit. All that the Court can do under section 9, is to restore the plaintiffs to physical possession. Case- Bisheswar Dutta Vs. G Chandra 39 DLR iii) The words in due course of law in section 9 does not mean that the party against whom a suit for recovery of possession is filed must, in due course of law, be in possession as a result of the proceedings between the same parties. Case- Abdur Rahman Vs. Mofizuddin Bhuiya 7 DLR 335. Abdur Rouf (Md) Vs. Abdul Hamid and others, 49 DLR (AD) 133. iv) in a suit for recovery of possession under this section, the plaintiff is entitled to get a decree for possession against a defendant without proving his title and such remedy being summary one is intended to restore the status quo ante. Case- Shamsul Haque Akanda Vs. Azimuddin Akanda, 3 BLC 480.
27
Group-B
11. a) Who can seek cancellation of an instrument? On what grounds he can seek such
cancellation? b) What essential points are required to be proved by the plaintiff in order to succeed in a suit for cancellation of an instrument? [October 10, 2003] Answer to the question no. 11:
(a) Section 39 of the Specific Relief Act is provided for the cancellation of an instrument. The
relief given under this section is founded upon the administration of protective justice for fear (quia times). The remedy under this section is to remove a cloud upon the title by removing a potential danger but it does not envisage adjudication between competing titles. It is not limited to cases of contract, and the remedy is open to persons who are not parties to a document. It can be obtained even in respect of void instruments provided there is reasonable apprehension that the document if left uncancelled may cause serious injury. Who can seek cancellation: A person seeking to have an instrument cancelled need not be a party to it. A suit under Section 39 is maintainable only by the person against whom the instrument is void and voidable or to whom it causes injury. Thus, any person who is affected by the instrument may sue and seek cancellation of the instrument. In other words, any person against whom a written instrument, if left outstanding, may cause him serious injury may sue to have it cancelled. The test is reasonable apprehension of serious injury. Whether that exists or not depends upon the circumstances of each case.41 Grounds to seek cancellation: In a suit under section 39 for cancellation of an instrument, three grounds are needed to be satisfied which are:42 a) The written instrument is void or voidable b) There is reasonable apprehension that such instrument, if left outstanding, may cause serious injury c) The existence of circumstances.
(b) Essential points: The following points required to be proved by the plaintiff in order to
succeed in a suit for cancellation of an instrument: I. The written instrument is void or voidable; There is reasonable apprehension that such instrument, if left outstanding, may cause serious injury; The suit for cancellation of deed is not time barred under Article 91 of the Limitation Act; The instrument is attempted to enforce against the plaintiff;43 The Court has the jurisdiction to cancel the instrument for the ends of justice;
II.
III.
IV.
V.
41 42 43
52 CWN 389; 23 Bom 375; 1938 Bom 37; 26 IC 272 (1901) 25 Bom 10 (18); 2 Bom LR 907 (FB). 83 PLR 1909.
28
Group-B
12. Rina enters into a contract to sing for charity show for one week in aid of a private law college
in Dhaka. The show is scheduled to be held on first of November, 2003. She also took an advance of Tk. 25,000/- from the college. The Principal receives a letter on 5th October, 2003 that she cannot perform because she is scheduled to sing at BTVs special sponsorship programme on the same day. Advise if the college can enforce the contract in any manner making her perform at the college function instead at the BRV and explain how the college can prefer an action against her. Draft a plaint with an appropriate prayer. [October 10, 2003] Answer to the question no. 12: Please see the answer of question no. 5. August 27, 2004
13.
Paresh had a piece of land in his possession. The land was his paternal property. He was dispossessed from his land by his neighbor who claimed to have got the land by way of purchase from the father of Paresh. Paresh stated that the Kabala is fake. Advise Paresh what kind of suit has to be filed. Draft a plaint mentioning the appropriate provisions of law. [August 27, 2004] Answer to the question no. 13: Please see the answer of the question no 2.
14.
Ronesh a collector of painting, who is in possession of a painting of Joynal Abedin, enters into a contract with Jamal to sell the painting. Jamal tenders the entire consideration money of the painting but Ronesh reufses to deliver the painting. Can Jamal sue Ronesh for delivery of the painting? Explain mentioning the specific provision of law. [August 27, 2004] Answer to the question no. 14: From the fact, it is appeared that Ronesh, a collector of painting, who is in possession of a painting of Joynal Abedin, enters into a contract with Jamal to sell the painting. Jamal tenders the entire consideration money of the painting but Ronesh reufses to deliver the painting. In these circumstances, Jamal can sue Ronesh for delivery of the painting under Section 12(b) of the Specific Relief Act 1877.
Specific performance is an equitable relief, given by the Court in cases of breach of contract, in the form of judgment that the defendant does actually perform the contract according to its terms and stipulation.44 General principles relating to specific performance of contract are:
44
Hals. 2nd Ed., Vol 32, para 356
29
Group-B
I. Specific performance will not be granted where damages are an adequate remedy unless and until the II. III. IV.
V. VI. contrary is proved;45 Specific performance will not be granted where it will be unconscionable to allow it;46 Right to specific performance of contract for sale of any property is a right relating to property. Such right must receive protection in absence of any provisions of law to the contrary. It will no longer remain a right unless when threatened or invaded it can be protected in the Court of law;47 If sale deed is not registered, suit for specific performance of contract competent if the original contract is still subsisting;48 There must be a concluded contract and readiness and willingness on the part of plaintiff to perform the contract; Where the parties have agreed to accept compensation in money in case of breach, the contract cannot be specifically enforced; A provision for compensation in case of breach of contract does not exclude right to specific performance;49 Notice to the defendant by the plaintiff willingness to perform the contract is necessary.
VII.
VIII.
In a suit for specific performance of contract the plaintiff must prove:
I. there was a concluded contract between himself and the defendant; II. he had performed or was ready and willing to perform the term of the contract on his part to be then
performed;
III. he was ready and willing to do all matters and things on his part thereafter to be done;
Though the presumption regarding contract for transfer of moveable property is that damages would be an adequate remedy for breach but there are exceptions. In case of certain goods, it would not be possible to secure goods of the like quality or quantity from the market. In such cases, specific performance would be granted of contracts for the transfer of goods. In the illustration (b) of the Section 12 provides that A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare china vases. A may compel B specifically to perform this contract, for there is no standard for ascertaining the actual damage which would be caused by its non-performance." As the painting of Joynal Abedin is something for which damages are not adequate relief. Therefore, from the above discussion we can say that Jamal can sue Ronesh for the specific performance of the contract.
15. Asma, a poor lady was in possession of 4 decimals of land without any title. Rafiq, a rich
and powerful neighbor of Asma dispossessed her on 25th June, 2004 on the plea that he had purchase the land from its real owner. She seeks your advice for her remedy. Under what provision of law she should proceed in this case. Draft a plaint for her remedy mentioning the appropriate provision of law. [August 27, 2004] Answer to the question no. 15:
45 46 47 48 49
Bazlur Rahman Bhuiyan Vs. BSC, 34 DLR (AD) 42. Mir Hasmat Ali Vs. Birendra Kumar Ghosh, 16 DLR 239. Asaduzzaman Vs. Bangladesh, 4 BSCD 194. PLD (1953) Lah. 87. 5 DLR Nag. 86.
30
Group-B
From the given fact, it is appeared that Asma, a poor lady was in possession of 4 decimals of land without any title. Rafiq, a rich and powerful neighbor of Asma dispossessed her on 25th June, 2004 on the plea that he had purchase the land from its real owner. She seeks my advice for her remedy. In these circumstances, Asma, who was in possession of land without any title, can file a suit for recovery of possession under section 9 of the Specific Relief Act 1877. In a suit under section 9 50, question of title is irrelevant. The section was enacted to afford a summary remedy against persons who had taken the law into their own hands and had ejected that person who was in possession of land otherwise than through process of law.51 The only points for determination are: I. II. III. IV. V. Whether the plaintiff was in possession of the disputed property; Within six months previous to the institution of the suit; Whether he has been dispossessed of that possession by the defendant; Whether the dispossession took place without his consent; Otherwise than in due course of law.
Case- Sona Mia Vs. Prokash, AIR 1940 (Cal) 464. If the plaintiff can prove his previous possession, he may recover possession from the defendant who dispossessed him without reference to any question of title. Even where the person ousting claims a superior title, the person dispossessed is entitled to be restored to possession if he can prove his previous possession and brings an action within six months from the date when the dispossession occurred. It was held that when a person is dispossessed from any immoveable property he may file a suit to recovery possession thereof and the question of title will not be a matter of decision in that suit. All that the Court can do under section 9, is to restore the plaintiffs to physical possession. Case- Bisheswar Dutta Vs. G Chandra 39 DLR In a suit for recovery of possession under this section, the plaintiff is entitled to get a decree for possession against a defendant without proving his title and such remedy being summary one is intended to restore the status quo ante. Case- Shamsul Haque Akanda Vs. Azimuddin Akanda, 3 BLC 480. Thus, Asma may be able to get back his possession irrespective of her title.
50
51
58 Cal 29.
31
Group-B
A plaint is drafted below: In the Joint District Judge Court, Narsingdi Civil Suit no. 111/2004 Mrs. Asma Khan D/O Sultan Khan Narsingdi .Plaintiff Versus Md. Rafiq Ahmed S/O Borhan Ahmed Narsingdi ..Defendant Suit for recovery of possession under section 9 of the Specific Relief Act, 1877.
Suit valuation Tk.5,00,000/The above named plaintiff most respectfully states: 1) That the plaintiff is a poor, pious and simple woman. 2) That the defendant is a rich man, powerful, greedy, covetous and dishonest person. 3) That the plaintiff was in possession of the scheduled land for more than 12 years without interruption and any disturbance by any person. 4) That the defendant dispossessed her on 25th June, 2004 forcefully, without consent and without any due process of law. 5) That the plaintiff has the right to get back the possession of the scheduled land according to the law and equity. 6) That the plaintiff has filed the suit in the honourable Court within six months of dispossession from the land. 7) That the cause of action has been arisen under the police station of Narsingdi and the plaintiff resides in Narsingdi and disputed land is situated in Narsingdi. Therefore, the honourable Court has territorial jurisdiction to try the suit. 8) That the valuation of the suit land is Tk 5 lac and valued ad valorem court fee is paid. Therefore, the honourable Court has pecuniary jurisdiction to try the suit. 9) That the plaint is bound to suffer irreparable loss, if the decree of recovery of possession is not passed in favour of the plaintiff. 10) That the other grounds will be urged at the time of hearing. In these circumstances, it is humbly prayed that the honourable Court would be kind enough to a) Pass a decree of recovery of possession b) Pass a decree of mesne profit c) Pass a decree of all costs of the suit And
32
Group-B
Order of any other or further relief or relieves the plaintiff is entitled in law and equity. Schedule of the land Plot No. 65, Khatian No. 10, of Mouza Bilasdi, P.S. Narsingdi. Measuring of land-3 Kathas. The boundaries of the land are as under to the East- Golam Hossain, to the West- Nurul Haque, to the North- Maruf Ahmed, to the South- Mostafa Noor. Verification Verification that the statement made herein above are true to the best of my knowledge and information. Whereof, I sign this verification on this on15th September, 2004 at 11:00 am before the learned advocate. Signature of Verifier April 8, 2005
16. (a) What do you mean by cancellation of an instrument? Who can seek such cancellation
and on what grounds? (b) Mention the specific provision of law cancellation of the registered instrument when the plaintiff is a party to it? In such a case, can the plaintiff maintain a suit for a mere declaration that the instrument in question is a forged one and as such it is not binding upon him? [April 8, 2005] Answer to the question no. 16: (a) Please see the answer of question no. 11.
(b) According to section 39 of the Specific Relief Act 1877 in a suit for cancellation of an
instrument, the plaintiff has to prove that: a) The written instrument is void or voidable b) There is reasonable apprehension that such instrument, if left outstanding, may cause serious injury. Section 39 provides that any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
33
Group-B
Thus, a party of the registered instrument can file a suit for cancellation of the instrument and may get the decree of cancellation. In the suit for cancellation of the registered instrument, the plaintiff has to pray for the Courts order so as to send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.52 In a suit for cancellation of a document under section 39 for declaring a will to be a forgery the cancellation of the will and the cancellation of the order of the Sub-registrar registering it is the function of the Court and not part of the prayer in the plaint.53 Section 42 does not provide for declaration of nullity and cancellation of a written instrument but section 39 does so. Voidable, it will have to be avoided both by declaration and cancellation; and if the document is adjudged void or void ab initio need not be cancelled. Sale-deed void become of fraud, need not be cancelled. In Abdul Hamid Vs. Dr. Sadeque Ali Ahmed [21 DLR 507], it was held that where a document is to be set aside or declared null and void by a person who is a party to the deed, a mere declaration would not do and cancellation of the deed is a necessary relief unless the document is void ab initio. But a person who is not a party to the deed is not bound to have it set aside or cancelled and a mere declaration that it will not affect the plaintiffs right would be quite enough. If the plaintiff is bound to have the document set aside or declared null and void the plaint must be treated as including a prayer for consequential relief; if it is not incumbent upon the plaint to get rid of the document the plaintiff must be treated as one for a declaration, pure and simple. Prayer for an instruments cancellation also is consequential relief, then the plaintiff will have to pay for it. But cancellation of the instrument is not indispensably necessary in all cases. A void document need not be cancelled. Where the document is ex-facie void its cancellation is not necessary even if the plaintiff is party to it. Where under section 39 cancellation is found necessary the suit should not be dismissed in the absence of such a prayer but the plaintiff should b be asked to pay additional court-fee. Case-Sufia Khanam Vs. Vaizun Nessa, 39 DLR 46. Moreover, in Daibakilal Basak Vs. Iqbal Ahmed Quarishi [17 DLR 119], plaint prayed for declaration that : (a) the documents relating to the property in suit were void ab initio and that the defendant acquired no interest in them and (b) that the documents were brought about by forgeries for which no consideration passed. It was held that prayers were purely for declaration only for which a fixed court- fee under Article 17(iii) of the Court Fees Act payable. It is not necessary to pray for cancellation in every suit under section 39 of the Specific Relief Act, 1877. There is a difference between a suit for the cancellation of an instrument and one for a declaration that the instrument is not binding o the plaintiff. When the plaintiff seeks to establish a title in himself and cannot
52
The second paragraph of the Section 39 of the Specific Releif Act provides that If the instrument has been registered under the Registration Act, 1908, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
53
AIR 1923 Mad 109; 43 MLJ 615;16 MLW 785.
34
Group-B
establish that title without removing an inseparable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance, a suit for the cancellation of the decree or deed even though it be framed as a suit for declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or that deed cancelled in toto. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy, therefore, in order to clear the way with a view to establish his title is to get a declaration that he decree or deed is invalid so far as he himself is concerned and he must, therefore, sue for such a declaration and not for the cancellation of the decree or deed.54
17. A entered into an agreement with B on 12th of December, 2003 for sale of a piece of land
at Tk. 1,00.000.00 only and on accepting from B Tk. 25,000.00 only as earnest money duly executed as bainapatra in favour of B . It was stipulated between the parties that A would execute and register a sale deed in favour B in respect of in case land on receipt of the balance of the consideration within three years. B duly tendered the balance of the consideration to A within the stipulated time and requested A to perform his part of the contract but A consumed time on some pretext and eventually refused to execute and register the promised sale deed. Draft a plaint for B for proper redress mentioning the appropriate provision of law. [April 8, 2005] Answer to the question no. 17: It is appeared from the fact that A entered into an agreement with B on 12th of December, 2003 for sale of a piece of land at Tk. 1,00.000.00 only and on accepting from B Tk. 25,000.00 only as earnest money duly executed as bainapatra in favour of B . It was stipulated between the parties that A would execute and register a sale deed in favour B in respect of in case land on receipt of the balance of the consideration within three years B duly tendered the balance of the consideration to A within the stipulated time and requested B to perform his part of the contract but B consumed time on some pretext and eventually refused to execute and register the promised sale deed. Here, B can file a suit for specific performance of the agreement against A under section 12 of the Specific Relief Act 1877. When a vendor executes a deed of sale but it remains unregistered and the vendee sues for specific performance of the original contract the question that is to be considered is, whether there is a subsisting contract for sale or not. If the contract be subsisting the vendee has a statutory right subject to the provisions of the Specific Relief Act to have the contract performed.55 In the instant case A has done his part as per the agreement and is also willing to repay the balance consideration money with a view to getting the sale deed registered. In such circumstances, B is dutybound to perform his part as per section 12 of the Specific Relief Act. Case- M Manzur Ahmed Vs. Inge Flatz, 11 BLC 280. A plaint is drafted below:
54 55
AIR 1939 Mad 894; ILR (1940) Mad 73. 1953 PLR (Lah) 210.
35
Group-B
In the First Assistant Judge Court, Narsingdi Civil Suit no. 100/2005 Mr. B S/O Mr. Z Narsingdi. Plaintiff Versus Mr. A S/O Mr. Y Narsingdi. ..Defendant Suit for specific performance of contract under section 12 of the Specific Relief Act, 1877. Suit Valuation at Tk. 1,00,000/The above named plaintiff most respectfully states: 1. That the plaintiff is simple, religious and law abiding person and permanent citizen of Bangladesh. 2. That the defendant is greedy, covetous and fraud person. 3. That the defendant offered to sale the scheduled land to the plaintiff and following their discussion the plaintiff entered into an agreement with the defendant on 12th of December, 2003 for sale of a piece of land at Tk. 1,00.000.00 only and on accepting from the plaintiff Tk. 25,000.00 only as earnest money duly executed as bainapatra in favour of the plaintiff. 4. That it was stipulated between the parties that the defendant would execute and register a sale deed in favour the plaintiff in respect of in case land on receipt of the balance of the consideration within three years. 5. That the plaintiff duly tendered the balance of the consideration to the defendant within the stipulated time and requested the defendant to perform his part of the contract but the defendant consumed time on some pretext and eventually refused to execute and register the promised sale deed. 6. That the cause of action of this suit has been arisen due to the refusal to execute and register the promised sale deed and still it is exiting. 7. That the cause of action has been arisen under the police station Narsingdi and the plaintiff is resident of Narsingdi and the suit land is situated in this area. Therefore, this honourable Court has territorial jurisdiction to hear and try this suit. 8. That the valuation of the suit land is Tk. 1,00,000/- hereby the honourable Court has pecuniary jurisdiction to hear and try this suit and valued ad valorem Court fees has been paid. 9. That the other arguments/grounds will be urged before the honourable Court at the time of hearing of the suit. In these circumstances, it is humbly prayed that the honourable Court would be kind enough to givea) A decree of specific performance of the agreement in favour of the plaintiff and against the defendant; b) An order to the defendant to transfer the suit land in favour of the plaintiff with receiving of the remaining amount of the price of the suit land;
36
Group-B
c) A decree of khas possession in favour of the plaintiff of the suit land; d) A decree to hand over the registered deed of the suit land within the time specified by the honourable Court and if the defendant fails to do so then to return all the money which the defendant took from the plaintiff as price of the suit land and consideration of the agreement; e) A decree of all cost of the suit in favour of the plaintiff and against the defendant of the suit; And Order all other relief or relieves which the plaintiff is entitle to get in law and equity. Schedule Plot No. 66, Khatian No. 11, of Mouza Bilasdi. Measuring of land-3 Kathas. The boundaries of the lands are as under to the East- Rakib Ahmed, to the West- Abdul Halim, to the North- Hafez Ahmed, to the South- Kazi Mostafa. Verification Verification that the statement made herein above are true to the best of my knowledge and information. Whereof, I sign this verification on this on15th April, 2005 at 11:00 am before the learned advocate. Signature of Verifier
18. Rahim is the owner of a piece of land and he is in possession thereof, but the land has been
wrongly recorded in the name of Karim. What kind of suit would you file if Rahim comes to you for your legal assistance? Draft a plaint accordingly mentioning the provision of the Specific Relief Act. [April 8, 2005] Answer to the question no. 18: From the given fact it is appeared that Rahim is the owner of a piece of land and he is in possession thereof, but the land has been wrongly recorded in the name of Karim. Rahim can file a suit for declaration under section 42 of the Specific Relief Act, 1877. A party may sue for a declaration that the entries in the Record of Rights were incorrect and as such inoperative against him.56 The scope of section 42 is very wide and a person can pray for a declaration against any person who is interested to deny the plaintiffs title. The relief claim under this section is no doubt discretionary but the real test for its application is whether there is any impending danger or whether the plaintiff really apprehends that an interested person may deny the plaintiffs title.57
56 57
PLD 1968 Pash 148. PLD 1960 Dacca 103.
37
Group-B
As section 42 of the Act provides that the plaintiff in a suit for declaration need not ask for further relief and as it is found that Rahim is in possession of the suit land, there is no scope or necessity for making a prayer for further relief by way of confirmation of possession or for injunction.58 A plaint is drafter below: In the First Assistant Judge Court, Narsingdi Civil Suit no. 100/2005 Mr. Rahim S/O Mr. Zahir Narsingdi. Plaintiff Versus Mr. Karim S/O Mr. Wahid Mia Narsingdi. ..Defendant Suit for declaration under section 42 of the Specific Relief Act 1877. Suit valuation Tk. 2,00,000/The above named plaintiff most respectfully states: 1) That the plaintiff is simple, religious, and law abiding permanent citizen of Bangladesh. 2) That on the other hand the defendant is greedy, cleaver, covetous person. 3) That the plaintiff is the owner of the suit land specifically described in Schedule and is in possession for up wards of 24 years. 4) That the scheduled land has been wrongly recorded in the name of the defendant of the suit, the owner of the adjacent land of the suit land. 5) That the plaintiff is a illiterate and simple person. He has no knowledge of this matter. He has come to learn this matter on 1st April, 2005 when he went to pay the tax of the suit land. Later on, on the same date, he obtained a certified copy of record from sub registry office and became sure of this matter. 6) That the plaintiff is the absolute and real owner of the suit land without disturbing and interference of others. The plaintiff has the documents and deeds of the suit land and the defendant has no right, interest or title in the suit. 7) That the plaintiff apprehended that if it is left, subsequently it will hamper, damage, prejudice and darken the right and title of the plaintiff and his predecessor, therefore, the record need to be corrected and declared that the record is wrongly executed in the name of the defendant. 8) That the cause of action arose on 1st April, 2005 when the plaintiff obtained a certified copy of record and under the police station of Narsingdi. The plaintiff is resident of Narsingdi and the suit land is situated in this area. Therefore, the honourable Court has territorial jurisdiction to try this suit.
58
PLD 1962 Dacca 635.
38
Group-B
9) That the valuation of the suit land is Tk. 2 Lac, so the honourable Court has pecuniary jurisdiction to try this case and the valued ad valorem court fees has been paid. 10) That the other grounds will be urged at the time of hearing. In these circumstances, it is humbly prayed that the honourable Court would be kind enough to give-
a) An order of declaration that the plaintiff is the absolute

owner of the schedule land;
b) An order of declaration that the khatian record no.11

plot no. 66 which is recorded in the name of the defendant is illegal, void ab initio and is of no legal effect on the plaintiff; c) A decree of all cost of the suit And d) Order of any other relief or relieves the plaintiff is entitled in law and equity. Schedule Plot No. 66, Khatian No. 11, of Mouza Bilasdi. Measuring of land-3 Kathas. The boundaries of the lands are as under to the East- Rakib Ahmed, to the West- Abdul Halim, to the North- Hafez Ahmed, to the South- Kazi Mostafa. Verification Verification that the statement made herein above are true to the best of my knowledge and information. Whereof, I sign this verification on this on15th April, 2005 at 11:00 am before the learned advocate. Signature of Verifier
February 25, 2006
19. A owner of a land enters into a contract with B to sell land and realized the consideration
money but ultimately refused to registered the sale deed. Advise your client and prepare the necessary draft as per law. [February 25, 2006] Answer to the question no. 19: Please see the answer of the question no. 17.
20. What are the essential elements are required to be proved by the plaintiff in order to succeed in
a suit for cancellation of an instrument. [February 25, 2006]
39
Group-B
Answer to the question no. 20: Please see the answer of the questions no. 11 and 16.
21. A had a piece of land in his possession which is his paternal property. He was dispossessed
by B who claimed the land by way of purchase from the co-sharer. A states that the deed is fake. Advise A and prepare necessary draft as per provisions of law. [February 25, 2006] Answer to the question no. 21: Please see the answer of the question no. 2 and 4 December 9, 2006 22. (a) What do you mean by cancellation of an instrument? Who can seek such cancellation and on what grounds?
(c) The plaintiff is a party to the disputed document. Can he maintain a suit for a simple
declaration that the deed in question is a forged and fraudulent one and as such the same is not binding upon him? If not, under which law and what section he should seek his redress? [December 9, 2006] Answer to the question no. 22: Please see the answer of the questions no. 11 and 16.
23. Jafar entered into an agreement with Sadeq on 30 th of June, 2003 for sale of 50 decimiles of his
land at Tk. 1,50.000.00 only and on accepting Tk. 50,000.00 from Sadeq in presence of witnesses, as earnest money in the same sitting Jafar executed a bainapatra in favour of Sadeq wherein it was stipulated that on receipt of the balance consideration money Jafar would execute and register a sale deed in favour of Sadeq in respect of the suit land within three years. Sadeq repeatedly tendered the balance of the consideration within three years and requested Jafar to execute and register the promised sale deed but Jafar consumed time on different pleas and eventually refused to execute and register the promised sale deed. Draft a complete plaint for Sadeq for presentation before the appropriate Court incorporating specific and effective prayers. Can Jafar take the plea that the balance of the consideration money having not been paid within the stipulated period he is not required to execute the promised sale deed? [December 9, 2006]
Answer to the question no. 23 Please see the answer of the question no. 14 and 17.
40
Group-B
Jafars plea: Jafar can take the plea that the balance of the consideration money having not been paid within the stipulated period and he is not required to execute the promised sale deed. Then the onus lies on Jafar.59
24.
Rafiq is the owner of a piece of land measuring 35 dicimals which he inherited from his father. During the recent land survey operation, the land has wrongly been recorded in the name of Jalil, a stranger to the aforesaid land. Taking advantage of the wrong record of right, Jalil on 2 nd of January ,2006 forcibly dispossessed Rafiq from the aforesaid land and constructed a dwelling house thereon and since then has been residing therein with members of his family.
Prepare a complete plaint for Rafiq incorporating appropriate prayers, mentioning the relevant provisions of law under which the reliefs are sought for. [December 9, 2006] Answer to the question no.24: It is appeared from the fact that the land of Rafiq is wrongly recorded in the name of Jalil and Jalil forcibly dispossessed Rafiq from the land. Now, Rafiq can file a suit under section 42 of the Specific Relief Act for a declaration of title along with section 9 for recovery of possession. A party may sue for a declaration that the entries in the Record of Rights were incorrect and as such inoperative against him.60 The scope of section 42 is very wide and a person can pray for a declaration against any person who is interested to deny the plaintiffs title. The relief claim under this section is no doubt discretionary but the real test for its application is whether there is any impending danger or whether the plaintiff really apprehends that an interested person may deny the plaintiffs title.61 As section 42 of the Act provides that the plaintiff in a suit for declaration need not ask for further relief and as it is found that Rafiq is out of possession of the suit land, there is a scope or necessity for making a prayer for further relief by way of confirmation of possession or for injunction. It was held that 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 Specific Relief 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 Act. Case- Hajee Yar Ali Khan Vs. Mobarak Ali Chowdhury, 7 DLR (24-25). Abdul Hamid Mollah Vs. Md. Abdul Hye & others, 49 DLR 428. A plaint is drafter below: In the First Join District Judge Court, Narsingdi Civil Suit no. 100/2006 Mr. Rafiq
59 60 61
11 DLR 177. PLD 1968 Pash 148. PLD 1960 Dacca 103.
41
Group-B
S/O Mr. Zahir Narsingdi. Plaintiff Versus Mr. Jalil S/O Mr. Wahid Mia Narsingdi. ..Defendant Suit for declaration under section 42 of the Specific Relief Act 1877 read with section 9 of the Specific Relief Act, 1877. Suit valuation Tk. 4,00,000/The above named plaintiff most respectfully states: 11) That the plaintiff is simple, religious, and law abiding permanent citizen of Bangladesh. 12) That on the other hand the defendant is greedy, cleaver, covetous person. 13) That the plaintiff is the owner of the suit land specifically described in Schedule and is in possession for up wards of 24 years. 14) That the scheduled land has been wrongly recorded in the name of the defendant of the suit, the owner of the adjacent land of the suit land. 15) That the plaintiff is a illiterate and simple person. He has no knowledge of this matter. He has come to learn this matter on 1st December, 2005 when he went to pay the tax of the suit land. Later on, on the same date, he obtained a certified copy of record from sub registry office and became sure of this matter. 16) That the plaintiff is the absolute and real owner of the suit land without disturbing and interference of others. The plaintiff has the documents and deeds of the suit land and the defendant has no right, interest or title in the suit. 17) That on 2nd January, 2006, the defendant forcibly dispossessed the plaintiff from the scheduled land and constructed a dwelling house thereon. 18) That the plaintiff humbly pray that the record need to be corrected and declared that the record is wrongly executed in the name of the defendant and for recovery of possession and declaration of plaintiff title over the suit land in order to demolish the darkness of plaintiffs right. 19) That the cause of action arose under the police station of Narsingdi. The plaintiff is resident of Narsingdi and the suit land is situated in this area. Therefore, the honourable Court has territorial jurisdiction to try this suit. 20) That the valuation of the suit land is Tk. 4 Lac, so the honourable Court has pecuniary jurisdiction to try this case and the valued ad valorem court fees has been paid. 21) That the other grounds will be urged at the time of hearing. In these circumstances, it is humbly prayed that the honourable Court would be kind enough to give-
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Group-B
a) An order of declaration that the plaintiff is the absolute owner of the schedule land; b) An order of declaration that the khatian record no.11 plot no. 66 which is recorded in the name of the defendant is illegal, void ab initio and is of no legal effect on the plaintiff; c) An order for recovery of possession; d) A decree of all cost of the suit And e) Order of any other relief or relieves the plaintiff is entitled in law and equity. Schedule Plot No. 66, Khatian No. 11, of Mouza Bilasdi. Measuring of land-3 Kathas. The boundaries of the lands are as under to the East- Rakib Ahmed, to the West- Abdul Halim, to the North- Hafez Ahmed, to the South- Kazi Mostafa. Verification Verification that the statement made herein above are true to the best of my knowledge and information. Whereof, I sign this verification on this on15th April, 2005 at 11:00 am before the learned advocate. Signature of Verifier June 2, Year 2007 25. Jalil owned and possessed a piece of land by way of inheritance since the death of his father on 26.5.1998. Kamal, a local notorious land grabber, dispossessed Jalil from the land on 26.5.2007 on the plea that he had just purchased it from Helaluddin, uncle of Jalil, and since purchase he has become the owner of the land.
Prepare a draft plaint on behalf of Jalil for presentation before the appropriate Court detailing the relevant provision of law and the reliefs. Answer to the question no. 25: Please see the answer of the question no. 2. 26. (a) What do you mean by cancellation of an instrument? (b) Who can seek such a relief and on what grounds? (c) Can a party to the disputed document maintain a suit for a mere declaration that the document in question is a forged one and it is not binding upon him? Answer to the question no. 26: Please see the answer of the question no. 11 and 16.
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Group-B
27. Rashid is the owner-in-possession of a piece of land situated at 76 Badda, P.S. Gulshan, District Dhaka. During the last survey operation the land has been wrongly recorded in the name of Rashids neighbor Jamal, who is hostile to Rashid for various reasons. Prepare a draft plaint for Rashid for presentation before the appropriate Court mentioning the relevant provisions of law and the reliefs that may be sought for. Answer to the question no. 27: Please see the answer of the question no. 18 and 24. February 29, 2008
28. a) A person comes to you and alleges that he was dispossessed from his land and wants to
recover possession thereof. You decided to file a suit under section 9 of the Specific Relief Act, 1877, for recovery of possession of the land. What points you will ascertain from him and embody in the plaint?
b) In his written statement in the above suit the defendant sets up a plea to the effect that he has title in the land as a purchaser from the real owner. How you will meet this contention of the defendant? [February 29, 2008] Answer to the question no. 28: Please see the answer of the question no. 10.
29. Neighbour of your client builds his boundary wall on the eastern side of your clients house
without keeping the necessary space as required by the RAJUK and raises his wall so high that it obstructs your clients light. What remedy can your client seek from the Civil Court and under what provisions of law? Draft a brief plaint. You can choose the name and address of the plaintiff and the defendant for the purpose of the draft. [February 29, 2008] Answer to the question no. 29: Please see the answer of the question no. 6.
30. What is meant by relief of specific performance of contract? In which situation will the court
refuse to pass a decree of specific performance? [February 29, 2008] Answer to the question no. 30: Specific Performance of Contract: Specific performance is an equitable relief given by the Court in cases of breach of contract, in the form of judgment that the defendant does actually perform the contract according to its terms and stipulation.62 The rules relating to specific performances are codified in the Specific Relief Act, 1877. In areas to which the specific Relief Act applies, and in matters which are dealth with by the Act, the provisions of the Act will prevail. Where is Act is silent, the English principles
62
Hals. 2nd Ed., Vol 32, para 356.
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and practice may be restored to. In areas to which the Act does not apply, the Court has to act according to the principles of equity, justice and good conscience.63 Specific performance of contract is an equitable relief and though it may be lawful to grant it, the Court may yet refuse to do so. Case- Banka Chandra Das Vs. Abdul Wahed Bhuiya, 7 DLR 556. Relief by way of specific performance of contract is an equitable relief and will not be granted where it will be unconscionable to allow it. Case- Mir Hasmat Ali Vs. Birendra Kumar Ghosh, 16 DLR 239. In a suit for specific performance of contract relating to immoveable property time is not essence of the contract nor hardship of the defendant is a ground to refuse in a suit for specific performance of contract. Case- Anwara Begum Vs. Md. Karimul Haque and others, 5 BLC (AD) 119. In a suit for specific performance, the plaintiff must prove: firstly, that there was a concluded contract between himself and the defendant; secondly, that he had performed or was ready and willing to perform the term of the contract on his part to be then performed; thirdly, that he was ready and willing to do all matters and things on his part thereafter to be done. Notice to the defendant of the plaintiffs willingness to perform is necessary. Situation of refusing to pass a decree of specific performance: The Court has jurisdiction under section 22 to refuse specific performance of a contract even if the contract is genuine and lawful, but the discretion should not be arbitrary but should be sound and reasonable and guided by judicial principles. 64 According to Section 22 of the Act 1877, the following are cases in which the Court may properly exercise a discretion not to decree specific performance:I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part. II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. Moreover, specific performance will be refused in the following grounds also:
a) Specific performance will be refused where damages are an adequate remedy. b) Specific performance will be refused where it would involve a general superintendence which
could not conveniently be undertaken by any Court of Justice.
c) Specific performance will be refused where the contract was lacking in mutuality at the time
when it was entered into.
63 64
18 Cal 10 (PC). Anwarul Huq Vs. Jabal Huq & another, 5 BSCD 263.
45
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d) Specific performance of contract may be refused where its enforcement will adversely affect third parties or lead to breach of contract or compel the defendant to do an act not lawful. Case- Administration of Waqfs vs. Sahera Begum, 28 DLR 238. e) Specific performance of contract may also be refused when its enforcement will involve the Mutawalli in litigation about his authority to transfer. According to Section 21 of the Act 1877, the following contracts cannot be specifically enforced: (a) a contract for the non-performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms; (c) a contract the terms of which the Court cannot find with reasonable certainty; (d) a contract which is in its nature revocable; (e) a contract made by trustees either in excess of their powers or in breach of their trust; (f) a contract made by or on behalf of a corporation or public company created for special purposes, or by the promoters of such company, which is in excess of its powers; (g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date; (h) a contract of which a material part of the subject- matter, supposed by both parties to exist, has, before it has been made, ceased to exist. And, save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract other than an arbitration agreement to which the provisions of the said Act apply and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit. August 29, 2008
31. When can a suit under section 9 of the Specific Relief Act be filed? What are the advantages of
filing a suit under this section? Against whom such a suit cannot be filed? [August 29, 2008] Answer to the question no. 31:
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Group-B
When a suit can be filed: In a suit under section 965, question of title is irrelevant. The section was enacted to afford a summary remedy against persons who had taken the law into their own hands and had ejected that person who was in possession of land otherwise than through process of law.66 The only points for determination are:
I.
II.
III.
Whether the plaintiff was in possession of the disputed property within six months previous to the institution of the suit; Whether he has been dispossessed of that possession by the defendant; Whether the dispossession took place without his consent and otherwise than in due course of law.
Case- Sona Mia Vs. Prokash, AIR 1940 (Cal) 464. Thus, if the above mentioned points are satisfied then a suit under section 9 can be filed. Advantage: If the plaintiff can prove his previous possession, he may recover possession from the defendant who dispossessed him without reference to any question of title. Even where the person ousting claims a superior title, the person dispossessed is entitled to be restored to possession if he can prove his previous possession and brings an action within six months from the date when the dispossession occurred. i) it is clear from the expression of Section 9 of the Specific Relief Act i.e. any other title that may be set up in such suit clearly indicates that question of title to the land cannot be raised in this suit for recovery of possession. If a suit brought under this section within six months for recovery of possession on the ground of illegal dispossession, and even if the dispossessor be the rightful owner, still the plaintiff will be entitled to a decree for recovery of possession, on the strength of his anterior possession, notwithstanding that the defendant may set up a superior title. Case- Debendra Mohan Das Vs. Md. Afzuddin, PLD 1965 Dacca 269 ii) it was held that when a person is dispossessed from any immoveable property he may file a suit to recovery possession thereof and the question of title will not be a matter of decision in that suit. All that the Court can do under section 9, is to restore the plaintiffs to physical possession. Case- Bisheswar Dutta Vs. G Chandra 39 DLR
65
66
58 Cal 29.
47
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iii) The words in due course of law in section 9 does not mean that the party against whom a suit for recovery of possession is filed must, in due course of law, be in possession as a result of the proceedings between the same parties. Case- Abdur Rahman Vs. Mofizuddin Bhuiya 7 DLR 335. Abdur Rouf (Md) Vs. Abdul Hamid and others, 49 DLR (AD) 133. iv) in a suit for recovery of possession under this section, the plaintiff is entitled to get a decree for possession against a defendant without proving his title and such remedy being summary one is intended to restore the status quo ante. Case- Shamsul Haque Akanda Vs. Azimuddin Akanda, 3 BLC 480. Suit cannot be filed against whom: As per section 9, no suit shall be brought against the government.
32. Which are the situations in which the Court will pass a decree for specific performance of
contract? Discuss in detail. [August 29, 2008] Answer to the question no. 32: Please see the answer of the question no. 30.
33. What are the things which are to be proved for obtaining a decree of permanent injunction in
respect of an immovable property? Discuss in detail. [August 29, 2008] Answer to the question no. 33: Please see the answer of question no.1. June 19, 2009 34. If a person is dispossessed from immovable property, what are the provisions in the Specific Relief Act, 1877 to get recovery of possession in the said property? Discuss with reference to the relevant provisions of the Specific Relief Act, 1877. [June 19, 2009] Answer to the question no. 34: Please see the answer of the question no. 10 and 31. 35. (a) What do you mean by a declaratory suit? Is a decree passed in such suit executable by filing an Execution case? (b) What is meant by cancellation of a deed? Who can seek such cancellation and on what grounds? [June 19, 2009] Answer to the question no. 35: (a) Section 42 provides that 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
48
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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.67 Thus, when a person file a suit for a declaration that he is entitled to any legal character or to any right to any property if defendant denies or is interested in denying his title to such character or right, then it is called a suit for declaration. But the proviso of Section 42 of the Specific Relief Act implies 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. From the case laws, it is appeared that when the plaintiff is in possession of the suit land, he does not need to seek further relief. But when he is dispossessed by the defendant, he has to seek for further relief. Some case laws are given below. When the plaintiff has possessed the suit land seeking declaration of title to the suit land, he need not seek any further relief as has been contemplated by the proviso to section 42. Case- Ali Akbar Khan Vs. Gurudas Mondal and others, 4 BLC 265 When plaintiff is found to be out of possession, a mere suit for declaration without a prayer for recovery of possession is clearly hit by the proviso of the section 42 and accordingly, the suit is not maintainable. Case- Jute Trading Corp. Ltd. Vs. Khona Rani Guha and others, 5 BSCD 264. In a case where the defendants plea of his having taken symbolic 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 the suit will be hit by section 42 of the Specific Relief Act. Case- Mokbul Hossain Vs. Anil Kumar Saha 37 DLR 131. The bar under the proviso is attracted only if it is found that the plaintiff is able to seek further relief which he has omitted to pray. The relevancy of the proviso in relation to the defendant of the suit and the Court in such a suit is to be satisfied that the plaintiff could have claimed other relief against the defendant but has not done so. Case- Abdul Latif Vs. Ashia Bibi and others. 2 BSCD 162 The requisite for a declaratory suit are well known. In order to obtain relief of this kind, the plaintiff must establish that (i) the plaintiff is at the time of the suit entitled to any legal character or any right to any
67
Section 42 of the Specific Relief Act is as following:
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.
49
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property; (ii) the defendant has denies or is interested in denying the character or the title of the plaintiff; (iii) the declaration asked for is a declaration that the plaintiff is entitled to a legal character or to a right to property; and (iv) the plaintiff is not in a position to claim a further relief from a bare declaration of his title. Even if all the conditions are fulfilled, the Court has still discretion to grant or not to grant a declaratory relief depending on the circumstances of each case.68 The Privy Council in AIR 1916 PC 78 has taken the view that a suit for obtaining a declaratory relief cannot be outside the scope of Section 42 of the Specific Relief Act. In P. C. Thevar Vs. V. Samban69, it has been held to be quite clear from the above Privy Council decision that, apart from section 42, the Courts have no power to grant a merely declaratory relief. Execution of decree by filing an Execution case: A decree which merely declares the rights of
parties is incapable of being executed and only a separate suit will lie to enforce the rights declared by the decree.70
(b) Please see the answer of the question no.11 and 16. 36. What do you mean by Temporary, Perpetual and Mandatory Injunction? On what grounds Injunction cannot be granted? Illustrate your answer in the light of relevant provisions of the Specific Relief Act, 1877. [June 19, 2009] Answer to the question no. 36: Temporary Injunction: A plaintiff can obtain an order of temporary injunction under the section 53 of the Specific Relief Act as an interlocutory order in the suit.71 The requisites for temporary injunction are: a) That the plaintiff has prima facie case to go to trial, b) That protection is necessary from irreparable injury before his legal right can be established c) The mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise from granting it. Case- Uttara Bank Vs. Macneill & Kilburn Ldt., 33 DLR (AD) 298. A plaintiff can have temporary injunction in a suit if he succeeds to make out a good prima facie case and the good prima facie case has been explained to mean that a serious question to be tried in the suit and that in the event of success, if the injunction be not granted, the plaintiff would suffer irreparable loss. Temporary injunctions are such as are to continue for a specified period, that is, until the hearing of the suit on its merits, or until further order of the Court. The object of the temporary injunction is to prevent mischievous waste, unlawful alienation, fraudulent removal or disposal, of the property in dispute pending the trial of the suit, in order to preserve the property in dispute in status quo until the final
68 69 70 71
State Vs. Khan Bahadur, AIR 1971 MP 65, p. 68 AIR 1928 Rang 143. PLD 1968 (SC) 342; 20 DLR (SC) 286. AIR 1926 Lah. 523.
50
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hearing of the case or until further order. The sole object of temporary injunction is to preserve the subject, in its then condition, and without determining any question of right merely to prevent the further perpetration of wrong, or the doing of any act whereby the right in controversy may be materially injured or endangered. Temporary injunction may be dissolved at any time under section 95 and Order 39, rule 4 of the Code of Civil Procedure. If a temporary injunction is not dissolved earlier, it automatically terminates with the disposal of the suit. Perpetual Injunction: please see the answer of question no. 1. Mandatory Injunction: please see the answer of question no. 6.
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Group-B

Specific Relief Act 1877

Group-B Specific Relief Act 1877 May 19, 2000

Specific Relief Act 1877

Prof. MA Raquib Vs. Prof. Zillur Rahman, 37 DLR 83.

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

a) a permanent injunction so that the defendant

b) a temporary injunction so that the defendant

.. (Signature of the advocate)

Specific Relief Act 1877

Section 42 of the Specific Relief Act is as following:

Section 9 of the Specific

Relief Act is as follows:

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

Section 57 of the Specific Relief Act provides as follows:

Specific Relief Act 1877

October 27, 2000

Specific Relief Act 1877

Specific Relief Act 1877

Answer to the question no. 5:

PLD 1971 SC 762

Specific Relief Act 1877

Section 57 of the Specific Relief Act provides as follows:

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

Salmond on Torts 11 Ed., p. 186

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

Section 57 of the Specific Relief Act provides as follows:

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

AIR 1926 Lah. 523.

Specific Relief Act 1877

b) Promulgate a show cause notice to the

.. (Signature of the advocate)

Specific Relief Act 1877

Nur Muhammad 21 DLR 507

Specific Relief Act 1877

Section 9 provides as follows:

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

Hals. 2nd Ed., Vol 32, para 356

Specific Relief Act 1877

In a suit for specific performance of contract the plaintiff must prove:

Specific Relief Act 1877

Section 9 provides as follows:

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

AIR 1923 Mad 109; 43 MLJ 615;16 MLW 785.

Specific Relief Act 1877

Specific Relief Act 1877

Specific Relief Act 1877

PLD 1968 Pash 148. PLD 1960 Dacca 103.