Suit For Declaration Section 42 Specific Relief Act 1877 In the light of Judgements of Apex Courts

#Declaration #specificperformance #specificrelie #decrees
DECLARATION
50.1 Relevant provisions
Sections 42, 43 of Specific Relief Act, 1877
50.2 When declaration may be sought
 Declaration can only be given in respect of a legal right or character
(2000 SCMR 204).
 Only a pre-existing right could be declared through a decree for
declaration and a new right would not be created. (2020 SCMR
202=2020 PSC 247, 2020 SCMR 483, 2016 CLC Note 133, 2016 MLR
1761, 2016 YLR (NOTE)17)
 It is well settled that in a suit under section 42 of the Specific Relief Act
declaration can be sought either regarding the plaintiff's right to any legal
character or with respect to any right as to property claimed by him
(1982 SCMR 1178).
 under the provisions of Section 42 of Specific Act, which requires any
person entitled to any legal character or to any right as to any property,
may institute 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 (PLD 2018 Sindh 703).
50.3 Object of declaratory decree
The purpose of this jurisdiction vested in the civil Courts is plainly to prevent future
litigation and to remove existing sources of controversy (PLD 1959 SC 147)
50.4 Declaration lies for pre-existing right
A suit for declaration declares pre-existing rights but no new right can be created
(2019 YLR 388).(370)
50.5 Relief for declaration - plaintiff does not seek further relief to
which he was entitled
The proviso to section 42 of the Specific Relief Act,. 1877, enacts that if a plaintiff
does not seek a further relief than a mere declaration of title which is open to him,
the relief for declaration is not to be granted, but (PLD 1950 Lahore 414).
50.5.1 Amendment of plaint
There is no obligation on the Court to dismiss a suit if it is had under proviso to
section 42 of the Specific Relief Act. Section 42 of the Act does not authorize the
dismissal of a suit where the plaintiff being able to seek further relief than a 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 pray for further relief and the Court should allow the
plaintiff to amend the plaint (2012 CLC 1976 Lhr, PLD 1965 Lah. 172)
50.6 Declaratory decree not implementable, not to be granted
No Court will grant a declaration which is useless or may not be honoured (PLD
1965 (W. P.) Lahore 580).
50.7 Limitation
As far as the question of limitation in filing suit for declaration is concerned, we also
would like to discuss it in some detail. In general, the time provided for such suit
under Article 120 of the Limitation Act, 1908 is six years (2017 SCMR 1476).
50.8 Public Documents pertaining to immoveable property- declaration
Non-impleading of public functionaries in the Suits for Declaration and
cancellation of public documents pertaining to immovable properties,
prejudices the rights of authorities to defend their actions and does not enable
the Court to decide the matter effectively and adjudicate completely. (2020
SCMR 202=2020 PSC 247) It is settled by now that the Provincial
Government and the relevant authorities appointed by the same, who(371)
sanctioned a public document, are required to be produced before the Court
when the validity of said document needs to be proved. This is because the
person who scribes a document is needed to be produced before the Court to
prove the validity of said document as under Article 78 of the Qanun-eShahadat Order 1984. (CIVIL PETITIONS NO.2866 AND 2867 OF 2015;
Sakhi Jan and others vs Shah Nawaz ,Ghulam Shabbir and others;
SUPREME COURT OF PAKISTAN; CIVIL PETITIONS NO.2866 AND
2867 OF 2015) Non-impleadment of the Provincial Government and relevant
authorities who have sanctioned a document which has been impugned in a Court of
Law, creates a serious defect in the Suit. (2020 PSC 247)
50.9 Declaration suit converted into specific performance
The plaintiff instead of filing the suit for specific performance, filed a suit for
declaration, the plaint of which was rejected under Order 7 rule 11 CPC. The plaintiff
in the said suit could pray for amendment so as to term it as a suit for specific
performance. (PLD 1990 Lahore 467; 2015 YLR 1845, 2011 YLR 1888, 2017
SCMR 347, 2014 SCMR 513, 2016 CLC 663 and PLD 2018 Peshawar 173).
50.10 Negative declaration-paternity
Plaintiff alleged that defendant was not his father's daughter and therefore not his
heir and not entitled to inherit the properties left behind by him---Plaintiff sought a
negative declaration and one which had nothing to do with his own legal character--
-To challenge another