Declaratory suit (section 42)
Where there is any confusion or conflict as to the right to property or any legal character then a court may provide a declaration clearing and solving that matter, the suit is known as a declaratory suit.
What is a declaratory suit?
It is a suit under which a party seek an authoritative pronouncement from a court regarding that parties right to property or status of legal character.
Section 42 of the Specific Relief Act 1877 deals with the declaratory suit.
Section 42 of the Specific Relief Act
According to the section when any person is entitled to –
- Any legal character, or
- Any right as to any property and ;
that person is denied to that right by another person then that person who’s right is violated or who’s right is in question may sue that other person and seek an order of declaration from a civil court.
Here the term,
“Right to property” means any right as to any property that is recognised by law. I.e. right to position, right to easement etc. and;
“Right to legal character” means any rights that have been acquired by personal qualification with the personal library.
It must be noted that in order to file a suit for declaration, those rights must be pre-existing (before the suit) and there must be a violation or claim against those rights. The power of declaration is a discretionary power of the court, decided based on principles of law and judicial decisions.
In addition to that, during the Institution of declaratory suit consequential relief must be added to the suit.
“Consequential relief” is such relief that is essential to enjoy the complete right and facilities or the relief after the declaration is made. The object of this condition is to avoid the multiplicity of suits and decide a matter at once.
The plaintiff is not permitted to seek a mare decoration without the consequential relief when it is necessary to the full and complete enjoyment of the property.
Where a person has no position on his immovable property but filed a suit only for declaration for the title, then this suit for declaration would not be maintainable unless the recovery of possession is added as a consequential relief.
The plaintiff must seek recovery of possession under Section 8 along with the declaration under section 42 of the Specific Relief Act.
This decision was helped in Kala Mia versus Gopal Chandra Pal and others. – 51 DLR 77
Essential elements of a declaratory suit
- That the plaintiff must have any legal rights as to any property or any legal right as to character.
- That the right must be pre-existing during the Suit; the right must be present as per law not by contract.
- There must be some present danger, denial or claim against such rights.
- That the denial must be communicated to the plaintiff is in order to give him the cause of action.
Declaration binding on whom
According to section 43 of the Specific Relief Act, the declaration (if given) is not binding on everyone in general but it is only binding on;
- Parties to the suit.
- Person claiming under
- Where the party is a trustee, then for the beneficiary is of the trust.
Period of limitation
The period of limitation for a declaratory suit is not defined therefore the general rule of limitation shall be applicable and it is 6 years according to Article 120 of the Limitation Act.
The suit is only for a declaration the court fees is fixed and it is only 300 Taka, but if the suit is not only for declaration and if there is any consequential relief added then ad-valorem Court fee to be paid for that consequential relief.
Declaratory suit one of the finest legal scope where your legal status is violated and other direct remedies are not available. as a result, this section 42 has widespread use in the civil suit. In order to use this provision effectively, we need to follow the law with the understanding of law otherwise your time and effort may remain unfruitful.