SPECIFIC RELIEF ACT, 1877 [SECTION 42]

Specific Relief Act [I of 1877]

Section 42—

Under section 42 where consequential relief is found necessary, but has not been asked for the
suit may either be dismissed or the plaintiff directed to pay additional court—fee—For relief sought
by way of cancellation of a document, a kabala or a decree, section 39 is applicable—Declaration
ofnullity of a document is the main and substantive relief, whereas cancellation of the instrument
is a consequential relief.

Sufia Khanam vs Faizunessa 39 DLR (AD) 46.

Section 42—

A written instrument when is adjudged void, need not be cancelled—Plaintiff should also seek the
additional relief by way of setting aside the decree or cancelling the deedSuit for mere declaration
that an instrument is void, maintainable without a prayer for its cancellation—Relief by declaration
of nullity of any instrument and also relief by cancellation of the instrument provided in section 39.
Section 42 does not specifically provide for declaration of nullity of any written instrument;
nevertheless a decree for nullity of an instrument in view of the general provision therein comes
under section 43.

Sufia Khanam vs Faizunessa 39 DLR (AD) 46.

Section 42—

If a person's right and title is clouded by an instrument he may seek a declaration under section
42 to nullify the effect of such an instrument—A suit for declaration that a deed whether a sale
deed or decree is void comes under section 39 of the SR Act in terms of this section—But when
further prayer is added that by the said deed plaintiffs right is not affected, this falls under section
42—If his suit includes the reliefs that the instrument in question is void and his right has not been
affected thereby and, or, the defendant acquired no right thereby, then the reliefs are covered by
both sections 39 and 42.

Sufia Khanam vs Faizunnessa 39 DLR (AD) 46.

Section 42—

Possession has been delivered through Court to the defendant and the plaintiffs have failed to
prove their possession therein and as such the present suit by the plaintiff for declaration without
prayer for recovery of khas possession is not maintainable.

Fazlure Rahman vs Bani Rahman 39 DLR 339.

Section 42—

The plaintiffs can file a properly constituted suit for declaration of title.

Fazlur Rahman vs Bani Rahman 39 DLR 339.

Section 42—

A suit for negative declaration under section 42 of the SR Act is maintainable.

Nurul Apser vs HR Chowdhury 40 DLR 226.

Section 42, Proviso—

Court's discretion to make a declaration of any status or right upon a suit instituted under section
42 of the Act—Positive bar to make a mere declaration of title if the plaintiff being able to seek
further relief omits to do so—Meaning of "being able to seek further relief."

Trading Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42, Proviso—

The contention that the second declaration that 'the plaintiff is in service of the Corporation as
executive officer' is a consequential relief, is to be rejected outright as being not acceptable.

Trading Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42—

Absence of consequential relief by way of mandatory direction for re-instatement in service—

Declaration ineffective and infructuous.

Trading Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42—

A suit for declaration, even without a prayer for recovery of possession, that the Certificate
proceeding is without jurisdiction, illegal and void ab initio, is maintainable.

Amina Khatun vs Ansar Ali 40 DLR 419.

Section 42—
The question arose whether the respondent was a worker under the relevant labour law or he is
an employee of the Corporation governed by its Service Rules or whether his remedy lay in a
grievance petition under section 25 of the Act.

Leave was granted by us to consider the question whether the respondent is a worker under the
relevant Labour Law or whether he is an employee of the Corporation, governed by its Service
Rules, and whether his suit was hit by section 42 of the Specific Relief Act in the absence of any
prayer for consequential relief.

We have heard lengthy arguments of the learned Advocates for both the parties—Mr Asrarul
Hossain for the appellants and Mr Mahmudul Islam for the respondent. Mr Asrarul Hossain has
contended that the order of the respondent's dismissal itself shows that he was treated as a worker
of the Mills and was dismissed by the "Employer" under section 17 of the Act and as such his only
remedy lay in a "grievance petition" before the Labour Court under section 25 of the Act.

Dosta Textile Mills vs SB Nath 40 DLR (AD) 45.

Section 42—

Respondent is a worker and he is not an employee of the corporation. Corporation Service Rules
are not applicable to him.

Dosta Textile Mills vs SB Nath 40 DLR (AD) 45.

Section 42—

A suit wherein negative declaration is prayed for is not barred under section 42 of the Specific
Relief Act.

Abdul Gani and others vs Almas Khatun and others 42 DLR 211.

Section 42—

Maintainability of suitPlaintiffs having failed to prove their possession in the suit land, a simple suit
for declaration of their title is barred.

Noor Mohammad Khan vs Bangladesh 42 DLR 434.

Section 42—

The plaintiff being entitled to a decree that the suit property is not an abandoned property and the
Government having disclaimed the same as requisitioned property, the latter is liable to restore its
possession to the plaintiff and also to pay rentlcompensation under the Requisition of Property Act
for its use and occupation from 14-2-72 till the possession of the property is restored to the plaintiff.

Md Zaher vs Bangladesh 42 DLR 430.

Section 42—

A suit wherein negative declaration is prayed for is not barred under section 42 of the Specific
Relief Act (relied on 37 DLR 49, 40 DLR 226).

Abdul Gani vs Almas Khatun 42 DLR 211.

Section 42—

As the plaintiff—appellant does not have title to the entire suit land the greater part of which is in
fact an enemy and vested property, he is not entitled to a decree for declaration as prayed for—
He may seek remedy by way of partition in an appropriate forum.

It is not ascertained what is the appellant's share nor is it clear whether the Il3rd of the suit land
representing original owner Jugal Chand's share, has· been mcluoed in the Vested Property case.
Determination of the appellant's lawful share in the suit land is not an issue in this suit. It is .a suit
for declaration that the Vested Property case is illegal, collusive and void.· Now that the appellant
is not found to have title to the entire suit land the greater part of which is in fact an enemy and
vested property the appellant—plaintiff is not entitled to a decree he prayed for. He may seek
remedy by way of partition in an appropriate forum. Decision of the High Court Division affirming
that of the Appellant Court is perfectly correct.

Nuruzzaman Sarker vs Seraj Mia 41 DLR (AD) 107.

Section 42—

When prayer for consequential relief not necessary—The plaintiffs did not file the suit for
declaration of their title. They have prayed for simple declaration to the effect that the judgment of
the certificate proceeding bearing No. 697 and sale held thereunder is illegal, collusive; fraudulent
and is not binding upon the plaintiff. So the prayer for consequential relief is not required in the
instant case. As such the suit will not be hit by section 42 of the Specific Relief Act.

In a case where the defendant's plea of his having taken symbolical possession or that there is
evidence of 'the defendant having taken symbolical possession, the plaintiff must pay 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.

Mokbul Hossain vs Anil Kumar Shaha 37 DLR 131.

Section 42—

While passing a declaratory decree under section 42 of the Specific Relief Act the trial Court will
consider if the plaintiff can establish his locus standi to sue the · Vice Chancellor and whether the
case involves any personal entitlement, any legal character or right to any property.

Prof MA Raquib vs. Prof Zillur Rahman 37 DLR 83.

Section 42—
What exigency of circumstances prevailed which compelled an officer of the University to institute
a suit against the highest officer of the University with regard to an official act of the University has
to be established before the trial Court while disposing of the suit on merits by the court concerned.

Prof MA Raqub vs ProfZillur Rahman 37 DLR 83.

Section 42—

Suit for injunction incidentally the question of title is gone into that will not convert the suit to one
for declaration of title and injunction—Where defendant is in possession or the plaintiff has no legal
possession suit for permanent injunction will not lie.

Bazlur Rahman vs Jan Mohammad 37 DLR 79.

Section 42—

Negative declaration sought in a suit—that creates no bar under section 42 SR Act.

Merely because a negative declaration has been sought that cannot be any ground to hold that
the suit does not come within the ambit of section 42 of the Specific Relief Act. The said section
does not really bar a negative declaration as such if otherwise its conditions and terms are fulfilled.

Bipin Chandra Ray vs Bunchuki Barmani 37 DLR 49.

Section 42—

A declaration as to illegal and void character of an act would automatically mean the restoration of
the position previous of the illegal act.

Sarder Ahmed Ali vs GM Ali Baksh 37 DLR 7.

Section 42—

Relief which cannot be called further reliefs within the meaning of the prP\ is ion to section 42.

If a 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 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.

Sarder Ahmed Ali vs GM Ali Boksh 37 DLR 7.

Section 42—
Under section 42, SR 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.

Hasmat Ali vs Mofizuddin Majhi 37 DLR 231.

Section 42—

Suit for declaration that the order of removal of the plaintiff, a bank officer, from service was void
and inoperative and that he remained in service was maintainable without any further relief.

Fazlul Karim vs Agrani Bank 45 DLR 375.

Section 42—

When a decree adversely affects a person not a party to the same he may file a suit for declaring
the decree not binding on him and get the same set aside if found illegal.

Moulvi Abdul Mannan vs Md Rajiqul Islam 46 DLR 493.

Section 42—

In a case of original coownership the plaintiff and defendant being in joint possession of the suit
property, suit for declaratory relief in respect of the share of the plaintiff in a specified land without
seeking partition is maintainable.

Shankar Chandra Das vs Kalachand Das 46 DLR 419.

Section 42—

As the plaintiffs failed to prove their possession in the suit land their simple suit for declaration of
title is barred and the suit as framed is not also maintainable.

Madaris Ali vs Biswamber Das 46 DLR 34.

Section 42—

In a suit for declaration of title to property when it stands attached under section 145 CrPC it is
unnecessary to ask for further relief of recovery of possession. It is unnecessary to ask for
possession when the property is in custodia legis. The fact that the decree may not be binding on
the Magistrate does not affect the competence of the suit.

Jogendra Kumar Dutta vs Nur Mohammad & others 45 DLR (AD) 173.

Section 42—
In the face of evidence showing that the plaintiffs have been possessing the suit land from 1351
BS and their names have been recorded in the Khatian and there being no evidence on record to
prove that the Government ever took possession of the land as an enemy property, defendants'
claim of title is sustainable.

Additional Deputy Commissioner (Revenue) ys Md Siddiqur Rahman 46 DLR (AD) 179.

Section 42—

Maintainability of suit—The suit being one for declaration of title to an unspecified share of an
undivided plot of land on the basis of gift and there being no evidence that the donor thereof was
in exclusive possession at any time, is not maintainable without a prayer for partition.

Tayeb Ali vs Abdul Khaleque 43 DLR (AD) 87.

Section 42—

Suit for declaration simpliciter—When the suit property is in possession of the Government, no
prayer for recovery of possession is required. If it is declared by the Court that the property is not
an abandoned property, the Government will have no reason to possess the same and will be
under an obligation to restore possession to the plaintiff and no prayer for recovery of possession
as a consequential relief is necessary. The lessor under the Government has no independent right
and no prayer for her eviction is necessary.

Hashem vs Bangladesh and others 43 DLR I 09.

Section 42—

Plaintift's prayer for declaration that defendant Nos. 2 and 3 have no title· in the suit property in the
suit for specific performance of contract by the purchaser was not maintainable since the plaintiff
acquired no interest in the suit property under the contract for sale.

Silver Estate Ltd vs Abdul Hakim Mia 43 DLR 360.

Section 42—

A declaratory decree passed in a case without any prayer for consequential relief is an "annuity".
Such decree· is a gain and its implementation is dependent on as to whom the decree is passed
against. In the instant case the defendant being a statutory corporation, there is no reason to
believe that such corporation will not implement the decision of the court.

Jiban Bima Corporation, Dhaka vs Mustafa Hussain & and another 50 DLR 411.

Section 42—

Service matter—Suit for declaration is not maintainable in view of the fact that till now the
relationship between the parties is that of master and servant—Though the corporation had taken
over the jute mill no statutory rules have been framed in order to guide the service conditions of
the plaintiff and employees like him.

Bangladesh Jute Mills Corporation Ltd and others vs Abdul Halim Chowdhury 47 DLR 17 3.

Section 42—

Plaintift's prayer for declaration was not followed by any consequential relief and, as such, the
Court committed no illegality in holding that the omission to pray for such a relief for the purpose
of enforcing the declaratory decree 'was hit by section 42 of the Act.

Bangladesh Jute Mills Corporation Ltd and others vs Abdul Halim Chowdhury 47 DLR 173.

Section 42—

A suit at the instance of a co-sharer against a trespasser for recovery of possession is maintainable
without impleading the other co-sharers.

Abdul Khaleque (Md) vs Raj Mohammad Sarker and others 47 DLR 524.

Section 42—

Suit for cancellation of decree—in such a suit it is incumbent to show that the decree was obtained
by practicing fraud upon the Court.

Jinnatunessa vs Bangladesh, represented by the Deputy Commissioner, Mymensingh 48

DLR 208.

Section 42—

Omission to pray for any consequential relief for the purpose of enforcing a declaratory decree
would be hit by the provision to section 42 of the Specific Relief Act.

Sonali Bank and another vs Chandon Kumar Nandi 48 DLR 330.

Section 42—

The courts below having held that the plaintiffs, had failed to prove their title and possession it
must be held that they were not entitled to a decree for a simple declaration that the sole decree
in the entitled Suit was obtained fraudulently and not binding on them.

Ishaque Mia, (Md) & another vs Abdul Mazid Mollah & others 48 DLR 465.

Section 42 (Proviso)—
In service matter a suit for simple declaration without any prayer for consequential relief is not
maintainable.

Dhunat Degree College and others vs Md Abdus Samad and others 49 DLR 38.

Section 42—

The defendants being in possession of the suitland from before the filing of the suit, the plaintiff
was to pray for recovery of khas possession by way of consequential relief as a suit for mere
declaration is liable to be dismissed.

Abdul Hamid Mollah vs Md Abdul Hye and others 49 DLR 428.

Section 42—

Although an oral agreement for sale of an immoveable property is not barred by law, it has to be
looked at with some suspicion unless it is proved by reliabe evidence.

Moslemuddin (Md) and others vs Md Jonah Ali and another 50 DLR (AD) 13.

Section 42—

Plaintiffs could have asked for either joint possession or partition as .a .co-sharer of the defendants
in the disputed land but they did not take any such stand in the lower appellate Court or even
before the High Court Division, The impugned judgment calls for no interference.

Enjaheruddin Mia vs Mohammad Hossain and others 50 DLR (AD) 84.

Section 42—

When the plaintiffs are in possession claiming raiyati settlement they cannot set up adverse
possession to be entitled to a declaration of title.

Salma Khatun and others vs Zilla Parishad Chittagong, represented by its Secretary and
another 51 DLR (AD) 257.

Section 42—

In a suit for declaration of title mere possession of the property is not sufficient unless the plaintiff
can produce a document of title showing his acquisition of right, title and interest in the suit
property.

Abdul Kader vs Abdullah and others 51 DLR 435.

Section 42—
Mere inclusion of the name of the plaintiff in the list recommended by selection committee for
appointment could not confer any right to appointment to the service of the government.

Habibur Rahman (Md) vs DC, Patuakhali and others 51 DLR 70.

Section 42—

Since the plaintiff has no possession in the suit land, the suit for declaration of title on the basis of
adverse possession is not maintainable.

Kala Miah vs Gopal Chandra Paul and others 51 DLR 77.

Section 42—

"The expression "legal character" in section 42 of the Act denotes a personal and special right not
arising out of contract or tort, but of legal recognition. Rejection of plaintiffs application for allotment
has created a legal recognition enforceable against a person whose similar application is accepted.

Mirpur Mazar Co-operative Market Society Ltd vs Ministry of Works Government of People’s
Republic of Bangladesh and others 52 DLR 263.

Section 42—

In a case where plaintiff is a party to a document or decree that has clouded his title to the property
in suit, he is to seek declaration either way, i.e., that the document or decree is void or void ab-
initio or that for declaration as well as for cancellation.

Dudu Mia and others vs Ekram Miah Chowdhury 54 DLR (AD) 7.

Section 42—

The High Court Division was not correct, rather was in error in observing that decrees are collusive
and consequently those need not be set aside.

Dudu Mia and others vs Ekram Miah Chowdhury and others 54 DLR (AD) 7.

Section 42—

In a suit for permanent injunction trial Court is not required to decide the title of respective parties.

Chief Engineer, C&B and another vs Shah Hingul Mazar Sharif and others 54DLR (AD) 73.

Section 42—
A declaration with regard to the contractual or financial obligation involved or transacted between
the parties cannot come within the ambit Of section 42 of the Specific Relief Act.

Shafi A Choudhury vs Pubali Bank Ltd 54 DLR 310.

Section 42—

Although section 42 of the Specific Relief Act is not exhaustive and declaration independent of that
provision is even permissible but a suit for declaration, would not lie when the plaintiff is neither
entitled to any legal character or status nor clothed with any right.

Shafi A Choudhury vs Pubali Bank Ltd 54 DLR 310.

Section 42—

Since there was a letter of allotment and Alimuddin performed his obligations under the letter of
allotment, and subsequently his heirs are in possession of the suit property, it cannot be said that
late Alimuddin did not acquire any right title in the suit property.

Moinuddin Ahmed alias Farook vs Khursheda Begum and ors 54 DLR 354.

Section 42—

The particular fact that the plaintiffs are in possession of the suit land since 1963 by virtue of the
registered power of attorney the plaintiffs have acquired a right to protect their possession and
maintain a suit within the meaning of section 42 of the Specific Relief Act.

Shishir Kanti Pal and others vs Nur Muhammad and others 54 DLR 440.

Section 42—

Suit for declaration simpliciter m service matter is maintainable without any prayer for
consequential relief.

Tomser Ali@ Md Tamser Ali Sarder vs Md Nazrul Islam and others 55 DLR 151.

Section 42—

A legal action involves determination of rights and obligations of the parties thereto. In law only a
juristic person, whether natural· or artificial, is capable of having a right and an obligation. It,
therefore; follows that only a juristic person can maintain a suit in a court of law. Bangladesh is a
juristic person by being a Sovereign State.

Principal, Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of Health & ors
55 DLR 542.
Section 42—

Law has not conferred upon a Ministry or a Department of the Government a legal personality,
independent of the .Government. In a suit where the name of a Ministry appears as a party, it does
so as the representative of the Government or the.

State, Principal, Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of Health
& ors 55 DLR 542.

Section 42—

The Ministry of Health has no legal personality, independent of the Government. So, it cannot
maintain a suit in its· name; without an authority from the Government. It may derive its authority
to proceed with a legal action from the Government. So, when the Ministry has no authority of its
own to proceed with a legal action, it cannot authorise others to represent it in, and proceed with,
a legal action.

Principal, Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary. Ministry of Health & ors
55 DLR 542.

Section 42—

Suspension of· an employee pending a disciplinary proceeding· is an approved measure and the
Court does not generally interfere with it. But if the order of suspension is prima facie illegal and
tinged with malafidie, the Court is competent to act for preventing injustice.

Bijoy Kumar Shaha vs DC, Chuadanga and others 55 DLR 550.

Section 42—

Although in response to the public notice the plaintiff submitted two tenders and also deposited the
required 25% deposits but since those tenders were· not accepted by the Railway Department, no
agreement came into existence and they had no obligation, legal or otherwise, to allot any plot of
land in favour of the plaintiff.

Government of the People's Republic of Bangladesh and others vs Sheikh Jahangir

Hossain 55 DLR 620.

Section 42—

Respondent was appointed a temporary junior teacher and her probation was for two years and
she was allowed to continue in service for two and a half years. Relying upon the decision reported
in 29 DLR 104, it is ruled that her continuation in the service beyond two years would amount to
her confirmation in the service.

Kadamtala Purba Basaboo Uchcha Bidalaya vs Hachna Hena Sarker Hasna Heba Sarker 56
DLR (AD) 193.
Section 42—

Neither the Government nor the Vested Property Authority challenged the decree of the trial Court.
The defendant Nos. 6-8, being lessees of the Vested Property for one year, cannot have any locus
standi to challenge the decree or prefer an appeal against such decree.

Aroti Rani Paul vs Sudarshan Kumar Paul and others 56 DLR (AD) 73.

Section 42 and 39—

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 it need not be cancelled—Sale deed void because
of fraud, need not be cancelled.

Sufia Khanam vs Faizunnessa 39 DLR (AD) 46.

Sections 42 and 56(7)—

Courts cannot compel a. person, against his will, to employ or serve another, notwithstanding the
contract of service. A mandatory injunction cannot be granted for such purposes.

Padma Oil Co Ltd vs SM Nurul Islam and ors 56 DLR 505.