In this article, Mohammed Zain Khan, Founder and Managing Partner of One Legal, Advocates and Legal Consultants draws an assertion on the provision of section 34 and section 38 of the Specific Relief Act. 

Chapter VI of the Specific Relief Act 1963 provides for Declaratory Decrees under section 34 of the Act.

Section 34 of the Specific Relief Act – Discretion of Court as to declaration of status or right

Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested in denying, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any relief.

Provided that no Court shall make any declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Chapter VIII of the Specific Relief Act 1963 provides for Perpetual Injunctions under section 38 of the Act.

Section 38. Perpetual Injunctions when granted

1. Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the Plaintiff to prevent the breach of an obligation existing in his favor, whether expressed or by implication.
2. When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in chapter II.
3. When the defendant invades or threatens to invade the Plaintiff’s right to or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely:-

• where the defendant is trustee of the property for the plaintiff;
• where there exist no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion,
• where the invasion is such that the compensation in money would not afford adequate relief;
• where the injunction is necessary to prevent a multiplicity of proceedings.

When a suit for Injunction and Declaration would lie?

Any person who has any legal character or any legal rights as to any property by virtue of title deeds or otherwise may file a suit for declaration of those rights and for injunction against any person denying or interested to deny his title to such character or right.

The Hon’ble Supreme Court has in the matter of Anathula Sudhakar vs. P Buchi Reddy & Ors, clarified the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and or possession with injunction as consequential relief which reproduced as under:

Para 11.1- When a Plaintiff is in lawful or peaceful possession of a property and such possession is disturbed or threatened by the defendant, a suit for injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

Para 11.2- Where the title of the Plaintiff is not disputed, but he is not in possession his remedy is to file a suit for possession and seek in addition, if necessary an injunction. A person out of his possession cannot seek the relief of injunction simpliciter, without claiming the relief for possession.

Para 11.3- Where the Plaintiff is in possession but his title to the property is dispute, or under a cloud, or where the defendant asserts title thereto and there is also thereat of dispossession from the defendant, the Plaintiff will have to sue for declaration of title and consequential relief of injunction. Where the title of the Plaintiffs is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

In view of the above judgment any person can file a suit for declaration and injunction with regard to any legal character or rights as to any property against any person who is denying or interested to deny his title or such character. In a suit for seeking declaration with regard to a right or title in respect of property along with consequential injunction the Plaintiff will have to pray for a declaration as contemplated under section 34 of the Specific Relief Act, 1963, an interim injunction during the pendency of the suit under order 39 of the Civil Procedure Code 1908 and a mandatory injunction under section 38 of the Specific Relief Act, 1963.

The Hon’ble Supreme Court in the matter of Dalpat Kumar Vs Prahlad Singh and Ors has provided the manner in which a temporary injunction can be granted under order 39 rule 1(c) of the Civil Procedure Code 1908 in a suit for Declaration and Injunction which is reproduced as under:

Para 4- Order 39,Rule 1(c) provides that temporary injunction may be granted where, in any suit it is proved by affidavit or otherwise, that the defendant threatens to disposes the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court otherwise may by order grant temporary injunction to restrain such act or make such other order for the purpose of staying and preventing or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as court thinks fit until the disposal of the suit or until further orders. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. It is settled law that grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that,

1. There is serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the Plaintiff/defendant;
2. The courts interference is necessary to protect the party from the species of injury. In other words, irreparable damage or injury would ensue before the legal right would be established in trial and
3. That comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than would be likely to arise from granting it.

Based on the aforesaid principles the Hon’ble Supreme Court in the matter of Lakshmi alias Bhagyalashmi & Anr vs. E. Jayarani set aside the order of the High Court which had in turn set aside the order of the Additional Judge City Civil Court which had granted interim injunction under order 39 Rule 1 and 2 of the Civil Procedure Code. On the basis of the pleadings and submissions of the Court observed that the Additional Judge City Civil Court has rightly granted interim injunction under order 39 rule 1 and 2 by categorically observing that the respective rights of the parties shall be decided at the time of final disposal of the Suit.

In a suit for declaration of rights or character and injunction the Plaintiff will have to substantiate/prove his rights as claimed thereof. Accordingly the Court may in its discretion award the rights so prayed along with permanent injunction if deemed fit and necessary in the facts of the case.

Under section 35 of the Specific Relief Act, 1963 the declaration made under section 34 by any court will only be binding on the parties to the suit or any persons claiming through them respectively as a declaration under section 34 is a right in Personem and not a right in Rem. (SNP Shipping Service Pvt Ltd  vs. World Tanker Carrier Corporation) AIR 2000 BOM 34.

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