For Teacher’s Use

SCHOOL OF LAW (University of

Karachi) Marks
Obtained:
Assessment Cover Sheet for Submission of Assignments

STUDENT/S:

Name Seat/ Enrolment No.

1. MUHAMMAD USMAN H1964102

2.
Course title: Specific relief act

3. Course code:
Class: I
4.
Assignment no: I
Submission date: 13-04-2022
Word count: 1420
Due date: 13-04-2022
Name of course Ma’am sarwar Jahan
instructor
PLAGIARISM AND COLLUSION

Plagiarism: using another person’s ideas, designs, words or works without appropriate
acknowledgement.

Collusion: another person assisting in the production of an assessment submission without the express
requirement, or consent or knowledge of the assessor.

CONSEQUENCES OF PLAGIARISM AND COLLUSION

The penalties associated with plagiarism and collusion are designed to impose sanctions on offenders
that reflect the seriousness of the School of Law’s commitment to academic integrity. Penalties may
include: the requirement to revise and resubmit assessment work, receiving a result of zero for the
assessment work, failing the course, or receiving a financial penalty.

I declare that all material in this assessment is my own work except where there is clear
acknowledgement and reference to the work of others. I give permission for my assessment work to
be reproduced and submitted to other academic staff for the purposes of assessment and to be
copied, submitted to and retained by the University's plagiarism detection software provider for the
purposes of electronic checking of plagiarism.

Signed………………………………………………. Date ……………………………………………

Teacher’s Feedback: For details, refer to the marking rubric. Additional Comments:
When suit for mere declaration is not entertained?

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. This declaration litigation may assist the affected party in restoring and
protecting his rights in due course of law.

What is a declaratory suit?

It is a suit under which a party seeks an authoritative pronouncement from a court regarding that
party’s 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;

If a person is denied that right by another person then that person whose right is
violated or whose right is in question may sue that other person and seek an order of
declaration from a civil court.

Here is the term,

“Right to property” means any right to any property that is recognized by law. I.e.
right to position, right to easement, etc. and;

“Right to the legal character” means any rights that have been acquired by personal
qualification with the personal library.

It must be noted that 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 a declaratory suit, consequential relief must
be added to the suit.

What is consequential relief?

“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 complete enjoyment of the property.

For example;

If a person has no position on his immovable property but filed a suit only for
declaration for the title, 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.

 Suit for mere declaration while flouting necessary remedy

The suit for declaration is not given as a remedy to the plaintiff when the person is not meeting
the lawful standard for such declaration. The suit for declaration is reserved in several cases such
as the omission of the plaintiff asking for any necessary relief additionally, other than a mere
declaration. When the plaintiff does not ask for any further relief when he can do so, then the suit
for declaration of title will not be entertained (Section 42 Specific Relief Act).

The declaratory suit is also rejected when the essentials of declaratory relief are missing. The
essentials such as

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 to give him the cause of action.

These elements do not always act mandatory but are upon the discretion of the court to grant the
suit for declaration keeping the circumstances in consideration.

Relinquishment of a pre-existing right

The plaintiff must not deny his right or character in a filing suit for declaration. If the plaintiff
denies his claim, the court will dismiss the suit. This was held in a Case-Law 1995 MLD 397 that
the plaintiff filed a suit for declaration that he bought the property from a Benami owner and the
plaintiff to be declared as the real owner. But it was held that the plaintiff accepted the seller as
the real owner instead of the Benami owner. This claim relinquished his right of declaration
which dismissed the suit for declaration.

Subsisting Contract

When the contract is continuing between parties and is not extinguished then the claim, then the
plaintiff's claim over the right or character maintained in his suit for declaration. The suit will be
rejected if a party files suit for declaration but the contract between plaintiff and defendant is still
not extinguished.

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.

In the end, a Declaratory suit is one of the finest legal scopes 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. To use this provision effectively, we need to follow the law with the understanding of
the law otherwise your time and effort may remain unfruitful.

Discuss the criteria and discretion of the court and grant a permanent injunction?
INJUNCTION AND ITS TYPES:

An injunction is a preventive remedy granted to a party aggrieved by the

acts of another party, and thereby refrain the wrongdoers to pursue the acts performed

by them, to evade any further injury and thus considers equity. The law relating to

an injunction in Pakistan is governed by the Specific Relief Act 1877 and falls under two

categories i.e., Permanent or perpetual injunction and temporary injunction.

The difference lies between them as to permanent injunctions

Where the restraint is to last forever, whereas temporary injunctions, also known as,
interlocutory injunctions, may be granted at any stage of the suit and shall continue until a
specified time or further order of the court. Temporary injunctions are regulated by the Code of
Civil Procedure 1908 whereas perpetual injunctions are governed by the Specific Relief Act

1877.

WHEN PERPETUAL INJUNCTION ARISES: -

There must be a breach of an obligation or infringement of a legal right: - The plaintiff claiming
the relief of perpetual injunction has to establish the breach of an obligation or infringement of a
legal right. A true owner is under an obligation not to interfere with the possession of a
trespasser. A person’s possession of immovable property can sustain an action for an injunction
even against the rightful owner on the principle that such a person must be evicted only by due
course of law.

The possession must be lawful one: -

“It is not necessary for the person claiming injunction to prove his title to the suit property and it
would be sufficient if he proves that he was in lawful possession of the property and his
possession was invaded or threatened to be invaded by a person who had no title whatsoever. If it
is established that the plaintiff was in possession of the suit property on the date of the suit, the
relief of perpetual injunction cannot be rejected. Where a person is in lawful possession of the
property and his possession is threatened to be interfered with by the defendants, he is entitled to
sue for a mere injunction without a seeking declaration of his rights. The injunction would not be
issued against the true owner.
WHEN PERPETUAL INJUNCTION DOES NOT ARISE: -

Suit for declaration and injunction. Where the title of the plaintiff is in the cloud, a suit for ma
ere injunction without praying for declaration of title is not maintainable. “Suit for a bare
injunction is not maintainable when both parties are claiming the title on that too, effective
possession cannot be proved.”

Injunction against breach of contract: -

An injunction cannot be granted to prevent the breach of a contract, the performance of which
cannot be specifically enforced.

An injunction cannot be granted in case of illegal agreements: -

Since an illegal agreement cannot be enforced at all, there cannot be an injunction in the case of
an illegal agreement.

Conclusion: -

The relief of injunction is an equitable and discretionary remedy. Proceedings for the grant of an
injunction are always discretionary and a court of law shall not grant a perpetual injunction in
favor of the plaintiff against the right owner if he is a mere trespasser. The plaintiff must
establish his legal right and also his exclusive possession to have the relief of perpetual
injunction. A court may exercise its judicial discretion and grant a perpetual injunction if the
relief is not barred by any of the provisions of sections 42 and 51 of the Specific Relief Act, 1877
and to prevent the breach of an obligation that is in existence.