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Suit for Declaration

Updated on July 26, 2015

Suit for declaration is practically very significant kind of relief in our legal system. It prevents multiplicity of proceedings and so that the person does not take the law in his hands. Consequential relief is necessary to be claimed in the declaratory decree as without the same suit for declaration may be dismissed as well or the decree will be meaningless. Any person claiming any legal right or character on the property may institute a suit against the person who denies or interested to deny his (the person instituting suit i.e. plaintiff) such right or character of that property for getting a declaration (the Court may grant such declaration or not because it is discretionary power of the court as to the existence of his right or character on that property. It is an equitable relief. So to get the decree for declaration under this section he has to come in the court with clean hands as the maxim of the equity is that “He who comes into equity he has to come with clean hands”. In compliance with the section 42 of Specific Relief Act, 1877, prerequisites have to be fulfilled to file” suit for declaration”. Even fulfillment of all conditions does not make it compulsory for the Court to grant the relief in the terms of Declaration as the relief is discretionary.But such declaration is the discretionary power of the court, which would be sound, judicious and based on the judicial principles.

Nature and Scope of Declaratory Relief

It is mode of relief where there is no specific performance as well as no award of compensation. In it there is only declaration of the rights of the parties without any consequential relief which can be enforced by the execution of the decree. It does not create or confer new rights but only declares the rights already acquired or possessed by the Plaintiff. For instance, A is lawfully in possession of certain land. The inhabitants of a neighboring village claim a right of way across the land. A may sue for a declaration that they are not entitled to the right so claimed.“It is a non-coercive declaration. In many cases a declaration is inherent in the grant of an injunction. In fact is decree which judicially ascertain the status of a person whether it pertains to property or legal character. Negative declaration is also competent.

Declaratory decree can not be made where it is open to the plaintiff to ask for further consequential relief ,but where it is not open to him and there can be no executory decree ,the court may decree a declaration of present and future rights. In the case of the vagueness of his title or legal character, he is entitled to seek assistance of the court to dispel it by a declaratory decree, provided he is not in a position to ask for any other relief consequent on the declaration prayed for. Courts are not empowered to make declaration of abstract rights, exclusive of any particular equity. It is also established law that where during the pendency of suit title vests in any person other than the plaintiff, declaration cannot be granted The relief claimed under section 42 of the Specific Relief Act 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 plaintiff’s title.

Section 42 has no application to cases where a declaration is sought as an introductory to some other relief. Furthermore t has no application to cases where some independent relief other than a mere declaration is sought. Section 42 is not exhaustive and a Suit for declaration can be maintained even if it does not satisfy the requirements of that section .However it can finally be said that section 42 is no exhaustive of the cases where a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section. Legal character means a position recognized by law. Rights arise under law, not under contract or tort. They may relate to property or to a person. It has been held that plaintiff not being in conclusive possession of property because two other persons and also tenants were in occupation, was not entitled for declaration in her favour.

There must be a present existing interest however distant the possibility of its coming into actual possession and enjoyment may be. A mere contingency however proximate and valuable, if by virtue of it, there is no present estate or interest will not suffice. There must be some present danger or detriment to such interest to be adverted by the declaration i.e. the declaration must not of the right have been sought on purely speculative grounds. Discretionary declaratory decree should not be granted where the relief is liable to be frustrated by authorities concerned by passing fresh orders or ii. will lead to injustice ,or iii. will clothe a suitor with undeserving advantage, or iv. will inflict unjustified loss on the defendant. A suit for declaration of more abstract right can not be maintained .There must be some infringement actual or threatened of the plaintiff’ rights the plaintiff must allege and must prove a denial of his right before the plaint is filed. The cause of action must be antecedent to the suit and not subsequent. The scope of the suit has to be determined with reference to the allegations in the plaint and not with reference those made by the defendant in his written statement.

It is necessary for the grant of declaratory decree that following particulars be fulfilled:-

a. Present existing interest however remote the possibility of its coming into actual possession and enjoyment may be.

b. There must be some present danger or detriment to such interest to be adverted by the declaration i.e. the declaration must not of the right have been sought on purely speculative grounds. There must have been denial;

c. A man who is at the time entitled, if at all, to an executory decree, cannot seek only a declaratory decree.

Discretionary declaratory decree should not be granted where the relief –

i. is liable to be frustrated by authorities concerned by passing fresh orders or

ii. will lead to injustice ,or

iii. will clothe a suitor with undeserving advantage, or

iv. will inflict unjustified loss on the defendant[45].

The court should follow the procedure set out in The Code of Civil Procedure 1908,in suits falling under this section (S.42).It is the duty of the court to decide whether a suit is barred or not. Where the declaratory decree has been given by the trial court, the appellate court should not interfere unless it is satisfied that the lower court acted in an arbitrary or perverse manner. A judge interfering with the discretion exercised by the lower court in granting a declaratory decree should state his reasons for so doing. Once a declaration of title is given it is a declaration in rem and good against the world and the defendant would check it if they are minded to do so. It has to be born in mind that a declaratory decree can be issued when it confers no benefit practically on the plaintiff. The court will not make a declaration of the title where the plaintiff being able to seek further relief than a mere a declaration omits to do so. Where plaintiff in earlier suit for declaration and injunction did not asks for possession and mesne profits where he sought such relief in subsequent relief in subsequent suit.Subsequent suit was hit by the provision of O.11 R.2 of The Code of Civil Procedure 1908.

Amendment of the plaint:

There is no obligation on the court to dismiss a suit if it is bad under the proviso to section 42.The section 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 so .It only forbids the court to make a declaration the prayer for which is not coupled with a prayer for a consequential 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 plaintiff. An objection that a further relief was available but was not asked for, should be raised at the earliest time, so that the plaintiff (defendant) can ask for necessary amendment to comply with the provisions of section 42.An objection as to the maintainability of a suit for a mere declaration cannot be raised for the first time in appeal or revision. If the original claim becomes, by reason of any subsequent change of circumstances, inappropriate, it is open to court to take notice as to such change. It has also to be mentioned that if any statutory change is enacted the appellate court is entitled to take into consideration.

Valuation of suit:

In declaratory suit where in which no consequential relief is asked section 8 of the Valuation Act is not applicable. Section 42 was not in force when the court fees Act was enacted. Declaratory suits referred to in section 7 (iv) (c) And Schedule 11, article 17 (iii) are not necessarily covered by section 42.Section 17 (iv) (c) of the court fees Act is limited to cases where a consequential is claimed in addition to that declaration. When the consequential relief is not claimed the fixed court is to be paid and ad valorem court fee is not necessary to be paid.

Limitation for filing suit for declaration and Conclusion

Generally a suit for declaration is to be filed within 6 years from the cause of action. According to article 120 of The Limitation Act; the suit for declaration has to be filed within 6 years from the creation of cause of action. In this respect no consequential relief can be claimed. If the consequential relief is claimed the limitation for suit for declaration is also different i.e. the suit for declaration and the claim for recovering the possession from the adverse possessor (as the consequential relief), the limitation for filing a suit for declaration in this case will be 12 years . Where the appeal is allowed the revision can not be continued so the revision is not allowed in case of suit for declaration. The trial court has no jurisdiction to convert the suit for specific performance of contract into one for determination of title.

Effect of declaration:

We can discuss the effect of the declaratory decree in some points. These are the following:

a. Outcome of the declaratory decree.

b. Upon whom the declaratory decree is binding.

c. Upon whom the declaratory decree is not binding.

(a)Outcome of the declaratory decree:

Section 43 of the specific relief Act, 1877 says that a declaration made under this chapter is binding on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom ,if in existence at the date of the declaration ,such parties would be trustees.

However, the effects of the declaratory decree are the following:

a. The plaintiff gets the declaration as to the legal rights and character on his property. The defendant hearing the decree of the court must oblige to the decree.

b. The plaintiff can enjoy his property peacefully and with no interruption by the defendant/defendants.

c. The new suit will be unavailable in the same issue on which the court declares the declaratory decree as to the legal rights or the legal character of the plaintiff.

d. The consequential decree can be gained with the declaratory decree i.e. the plaintiff can recover the possession of the property if he is not in possession of that property or if there is possibility to be evicted from the property ,the plaintiff can gain the perpetual injunction .

e. If The plaintiff gets the declaratory decree the decree is Act-in-personem, not Act- in-rem because it can declares the as to the specific family, individual.

f. Peace is established by declaratory decree .No one can interfere with the legal right or legal character or property of another.

g. If the decree for declaration is obtained on the basis of wrong of the preceding declaratory decree.

(b)On whom the declaratory decree is binding:

According to the 43 of The Specific Relief Act, 1877 decree, the declaratory decree is binding on the following persons:

a. The declaratory decree is binding on the parties of the suit.

b. The person claiming through the parties of the declaratory suit.

c. If there is any trustee among the parties of the suit, the decree will be binding on the trustee if the trustee was alive the parties would be the trustee for them.

d. The declaratory decree obtained equitably and justifiably will be binding on the reversioner.

(c)On whom the declaratory decree is not binding:

Declaratory decree will not be binding on the third party.


“Suit for declaration” is the extended dimension of the legal system. When any person is facing a problem that his legal right or legal character as to any property or status, that person can file a suit for declaration as to his character or right. The person claiming declaration can claim the consequential relief therewith. So this suit can meet the dual purpose as well. Law or legal system wants always to prevent the multiplicity of proceedings or establish res-judicata. The “suit for declaration” is not exception to that. On the other hand the court will be reluctant to give any kinds of declaratory decree(given in the “suit for declaration”) if the person instituting suit does not claim the consequential relief and it will practically useless if any decree is made in this suit .But this section sanction the court to dismiss the plaint if the consequential relief is not claimed by the plaintiff or if any wrong is committed by the plaintiff or the person instituting the suit. It has also to be remembered by us that the illustration of this section not exhaustive to give the declaratory decree for two reasons i.e.

The court is not bound to give the declaratory decree though the conditions enunciated in section 42 are complied with or

The court can allow such declaratory decree other than section 42 of the SR Act.

Nevertheless the significance of the declaratory decree can’t be expressed in words.


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