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Suit for declaration

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24th May

http://thepracticeoflawjalan.blogspot.in/2015/05/suit-for-declaration.html

Suit for declaration

Section 34: 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 to deny, 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 further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so.
Explanation : A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence,
and for whom, if in existence, he would be a trustee.
Section 34: Discretion of court as to declaration of status or right:
It is certainly for the interest of the State that this jurisdiction of the court should be maintained and the causes of apprehended
litigation, respecting real property necessarily affecting its use and enjoyment, should be removed; for as long as they remain,
they will prevent improvement and consequent benefit to the public. It is a matter of everyday observation that many plots of
lands in our cities remain unimproved because of conflicting claims.
The section does not lay down as a rule, that any one who claims any interest in property, present or future, may ask the court to
give an opinion, on his title. ILR 8 Cal 761; it does not warrant every kind of declaration but only a declaration that the Plaintiff
is entitled to a legal character or to any right as to any property, and it warrants this kind of relief only under certain special
circumstances. AIR 1916 PC 78; ILR 47 All 434;
Where a Suit is simpliciter for perpetual injunction under Section 38, on the basis of possession only, Section 34 does not apply.
Fabrica do Igreja versus Union of India (1995) 2 Cur CC 100 at 105 Bom.
A declaratory decree is not capable of execution as it does not require the judgment debtor to do or not to do anything. No
proceeding for contempt of court lies against the judgment debtor if he ignores the decree, the decree holder can seek his remedy
by Suit on the basis of the declaratory decree. 1975 CrLJ 679 (P&H) (FB)
Section 35: Effect of declaration: The judgment passed under this Section is judgment in personam and judgment in rem.

Specific Relief declaration section 34 (2014) 1 SCC 669A


Section 34 declaratory Suit / Sp. Relief Act (2013) 9 SCC 438F
Sections 34, 5 burden of proof sections 101 to 103 (2014) 2 SCC 269
Specific Relief Act, section 34 (2014) 2 MhLJ 353

Posted 24th May by The Practice of Law


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7/21/2015 7:43 PM

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