Submitted by:

Talha Tariq (01-177192-041)

Khizar Aziz (01-177192-026)
Aimen Saad (01-177192-003)
Mahliqa Danish (01-177192-021)
Ahmed Asif (01-177192-002)
Hassaan Siddiqui (01-177192-025)

Submitted to:
Ma’am Hafiza Amina Sadia

Equity & SRA

Department of Law
Bahria University, Islamabad.
 MAXIMS OF EQUITY WITHIN THE CONTEXT OF
COMPARITIVE ANALYSIS OF LEGAL SYSTEM OF
PAKISTAN, INDIA AND COMMON LAW.
Talha Tariq
01-177192-041

INTRODUCTION:

In the realm of law, equity serves as an important component to ensure fairness and justice.
Maxims of equity are fundamental principles that guide the application of equitable principles in
legal systems. This article explores the background, overview, definition, origin, and the role of
maxims of equity in the legal systems of Pakistan, India, and common law jurisdictions.

Maxims of equity form an integral part of legal systems worldwide, serving as guiding principles
for equitable decision-making. They have their origin in medieval England and have since
evolved to shape the jurisprudence of various jurisdictions, including Pakistan, India, and
common law systems. By emphasizing fairness, conscience, and flexibility, these maxims ensure
that equitable remedies are applied in situations where strict legal rules may fall short. The
maxims of equity are essential in maintaining a just and equitable legal system that upholds the
principles of fairness and justice.

BACKGROUND:

The concept of equity emerged in medieval England as a supplement to the rigid common law
system. Initially, it operated as a parallel system administered by the Lord Chancellor, providing
relief in cases where common law remedies were inadequate. Over time, equity evolved into a
distinct body of law, characterized by flexibility and fairness. The principles that guided
equitable decision-making were encapsulated in the maxims of equity, serving as a compass for
equitable jurisprudence.

OVERVIEW OF MAXIMS OF EQUITY:

Maxims of equity are succinct statements or principles that capture the underlying philosophy
and values of equitable justice. These maxims provide guidelines for judges and legal
practitioners in applying equitable remedies to ensure fairness and prevent the harshness of strict
legal rules. While the number and content of maxims may vary across jurisdictions, some
common maxims include "equity follows the law," "he who comes to equity must come with
clean hands," and "equity acts in personam."

He Who Comes To Equity Must Come With Clean Hands:

This maxim of equity provides there is no remedy for a person who is himself guilty of some
misdoing in the particular case for which he wants to claim rights. This simply means you must
not have acted in a way inconsistent with the law in a particular matter for which you seek
redress.

Example:

A tenant owing his landlord rent, cannot bring a claim against him for ‘forceful eviction’.
Likewise, in situations where the plaintiff had in that instance broken the law, equity will decline
to provide a remedy since this would tarnish the image of the court.

CASELAWS:

Everett v Williams (1893) 9 LQR 197 where both parties were highway robbers. The plaintiff
sued the defendant for not properly accounting for goods gained in the course of their joint
“business dealing”.

When the real nature of things was discovered, the case was not only dismissed, the courts
awarded costs to be paid by the plaintiff’s lawyer who had the audacity to bring such a case to
court. The two highway robbers were apprehended, prosecuted and finally executed.

D&C builders ltd v Rees; The plaintiff, a building company, constructed a house for the
defendants for the total sum of £732. The defendant (Rees) had already paid £250 and when time
came for a balance of £482, the defendant claimed the work was defective and were only willing
to pay £300. The plaintiff was in dire need of money at that point in time. So, it accepted it, but
later made a claim in court.

The defendant attempted to rely on the doctrine of ‘promissory estoppel’. Lord Denning refused
the application of this principle on the grounds that they had taken advantage of the plaintiff’s
financial difficulties and as such had not acted with ‘clean hands’.

DEFINITION OF MAXIMS OF EQUITY:

Maxims of equity can be defined as general principles that aid in the interpretation and
application of equitable law. They serve as a moral and ethical compass, supplementing the strict
legal rules of common law systems. Maxims of equity are not binding rules but are persuasive in
nature, providing a framework for judges to exercise their discretion when applying equitable
remedies.

ORIGIN OF MAXIMS OF EQUITY:

The origin of maxims of equity can be traced back to the Chancellor's Court in medieval
England. As the Lord Chancellor dispensed justice according to his conscience, a set of general
principles emerged to guide his decision-making. These principles were grounded in notions of
fairness, conscience, and equity. The Chancellor's decisions formed the basis for equitable
jurisprudence and ultimately led to the development and codification of the maxims of equity.

ROLE OF MAXIMS OF EQUITY IN LEGAL SYSTEMS:

Pakistan:

In Pakistan, the legal system operates under the common law framework, heavily influenced by
equity. The maxims of equity have a vital role in shaping equitable remedies and ensuring
fairness in legal proceedings. Pakistani courts apply the principles of equity when statutory laws
are silent or inadequate to provide justice. The maxims of equity guide judges in striking a
balance between legal principles and equitable considerations, fostering a just outcome in
specific cases.

India:

Similar to Pakistan, India also follows the common law legal system, incorporating equity as an
essential component. The maxims of equity play a significant role in Indian jurisprudence,
particularly in matters related to trusts, mortgages, and injunctions. Indian courts rely on
equitable principles to supplement statutory laws and provide equitable relief when necessary.
The maxims of equity guide Indian judges in determining the appropriate remedies and ensuring
fairness in a wide range of cases.

Common Law Jurisdictions:

The maxims of equity have an influential role in common law jurisdictions such as the United
Kingdom, the United States, Canada, and Australia. Common law systems, rooted in English
law, have incorporated equitable principles to complement the rigid rules of common law. The
maxims of equity serve as a vital tool for judges to address legal gaps, mitigate injustices, and
achieve equitable outcomes. They provide flexibility in applying the law to specific
circumstances, promoting fairness and justice.

KHIZAR AZIZ
01-177192-026
ORIGIN OF EQUITY IN BRITIAN:

Before William, there were courts of old Anglo Saxons. Open-air meetings of free men were
held at that time. Gradually these Anglo Saxon Courts were replaced by itinerant justice whom
were appointed by either the King’s court or by the King himself. A chief judiciary was
appointed by William the Conqueror in his era to preside over the trials of the suits initiated. This
led to the origin of common law tribunals throughout the state of England. The hardship caused
by the king was removed by the ‘Magna Carta’ which provided that ‘the common pleas shall no
longer follow the king. The problem with common law was its rigidity. Only a certain type of
suits were allowed to go to trial in the courts of common law. There were many flaws in it such
as simple error n formalities could lead n either discretion of suit or decree against the plaintiff.
Another major error was this that the only remedy that common law provided was damages.
Damages are not a suitable remedy in every case. This system of law had many loopholes such
as if an individual takes unlawful possession of someone’s property, then the only option that
aggrieved had was to accept damages if decree was in his favour and possession could not be
recovered even if the property was rightfully his. This sort of rigidness was causing havoc in the
general public as the system was not just. Another problem was this that a court would only
initiate suit if a specific amount of money was paid to the staff. If the damages claimed by the
plaintiff were lower than that fee, then the aggrieved had no other option but to accept his fate
and suffer the damages caused to him. The quality of witnesses didn’t matter but the quantity
mattered, ths led to people standing outside the court to be fake witnesses for money. The king
was swamped with applications but as the king was busy in other affairs, he would pass on these
applications to his chancellor who would decide on the principles of equity and fairness.
During this period of William the conqueror, the judicial officials were converted into the court
of exchequer. The courts continued its process till 2nd, Nov 1875 when a new act came and
consolidated the court into the supreme court of judicature.
Till the year 1875, two distinct systems of law were administered in England.
1. Common law administered by the King’s benches
2. Court of chancery
The rules established by the old courts (King’s Benches) were incorporated by the Courts of
Chancellor into the system of equity. Unless some reasonable grounds were there for the
rejection or modification of the suits. In case of dispute between both the legal systems, the rule
established by the court of chancellor prevailed because it worked on the principles of equity. In
case if the rule established by the King’s benches was against the principle of equity, then the
plaintiff had a remedy to obtain common injunction through the court of chancellor which
ordered the defendant to not to continue his actions.
Equity is that system of justice which was administered by the High Court of Chancery in
England in the exercise of its extraordinary jurisdiction.
On this basis the system of equity evolved. The chancellor was allowed to look beyond the
complications of customs and precedents. Other remedies such as injunctions, specific
performance and rectification were recognized. The chancellor was allowed to look beyond the
binding legal documents and would consider intent of the parties in making a decision. The
chancellor had a great legal mind. Other procedural things such a subpoenas and summons were
also introduced.
Later on, the King James I on the advice of the then Attorney General Sir Francis Bacon ruled
that in a case where there is a conflict between equity and common law, equity shall prevail. This
was a major victory for equity.
ORIGIN OF EQUITY IN BRITISH INDIA:

This strong legal system became the back bone of the British empire and the British empire
prospered and conquered colonies. British entered India as traders under the company named as
English East India Company EEIC. At first, they began making alliances with the local warlords
as the central government was weak. Then they started gaining political power even though they
were there for their commercial interests. The company’s employees started settling matters and
started giving justice arbitrarily which was termed as traders justice at that particular time. After
the War of Independence in 1857-1858, when the last Mughal Emperor was removed from
power, the British took control of the judicial system of the East India Company (EEIC). The
"Bill of 1858" transferred all territories held or controlled by the EEIC to the British Crown. In
1833, the Privy Council was established, and in 1861, High Courts were set up in Calcutta,
Madras, and Bombay. In 1937, a Federal Court was formed for India, which was later replaced
by the Supreme Court in Pakistan in 1956.
To avoid going too deep into the history of colonization and the development of the judicial
system, we'll keep it at this brief summary.
Therefore, India was under British rule, and the British imposed their common law system on the
Indian population. Over time, this system merged with equity law after the Judicature Acts of
1873-1875. The application of equity principles in India by British courts began during the
period when the East India Company (EEIC) held power and administered cases. In 1684, an
Admiralty Court with jurisdiction over maritime cases was established based on the Company's
charter, which stated that cases should be decided "according to the rules of equity and good
conscience and according to laws and customs of merchants."
This is where the concept of equity first initiated in India. The directions of settling dispute
through rules of equity were explicitly mentioned. Origin of equity was established particular
time in India.
In 1687, the Mayor's Court in Madras declared that all cases would be adjudicated according to
"equity and good conscience." In 1718, when the courts in Bombay, administered by the EEIC,
were reconstituted by the Council of Bombay, the judges were empowered to handle all types of
cases, civil and criminal, on the island of Bombay "according to Law, equity, and good
conscience." Furthermore, the judges were instructed to take into account local caste customs,
"the principle of common right, the orders of the Right Honourable Company, the policy and
known established law of the Realm of Great Britain, provided the same be confirmable to the
instruction given by the court." When the Charter of 1726 was passed, the courts were authorized
to “try, hear and determine all civil suits, actions and pleas between party and party” and to give
“Judgement.
In any lawsuit or legal proceeding, if a Civil Court needs to determine matters related to
succession, inheritance, marriage, caste, religious practices, or institutions, the court will follow
the Muhammadan law for parties who are Muslims and Hindu law for parties who are Hindus.
However, if there have been legislative changes or abolishment of these laws, the court will take
those into account. In cases where there are no specific provisions or applicable laws, the court
will make decisions based on principles of justice, fairness, and good conscience.
In India, many of the principles and rules of equity have been included in the statutory laws and
made applicable according to the provisions stated in those laws. Whether these provisions of
equity in the Indian statutes originate from common law or equity itself, or if they represent a
combination of both, doesn't really matter.
STATUTORY PROVISIONS OF EQUITY:

The Bengal Civil Court Act (VI OF 1871) and the Bengal, Agra and Assam Civil Courts Act
(XII of 1887) also reaffirmed this pledge. Section 37 of the later Act stated, “Where in any suit
or other proceeding it is necessary for a Civil Court to decide any question regarding succession,
inheritance, marriage or caste, or any religious usage or institution, the Muhammadan law in
cases where the parties are Muhammadans and the Hindu Law in cases where the parties are
Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment,
been altered and abolished. In cases not provided for by sub-section or by any other law for the
time being in force, the Court shall act according to justice, equity and good conscience”
Statutory recognitions of the principles of equity are found in:

 The Indian Contract Act, 1872;

 The Specific Relief Act, 1877
 The Indian Trust act, 1882
 The Transfer of Property Act, 1882
 The Indian Succession Act, 1925.

Applicability of Maxims of Equity in Pakistan's Legal System

Aimen Saad
01-177192-003
MAXIM#1

"ONE WHO SEEKS EQUITY MUST DO EQUITY”1

MEANING

1
Maxim is derived from the Latin phrase "Qui quaerit aequitatem, faciat aequitatem."
This maxim is derived from the legal principle of equity which embodies the idea that if
someone seeks fairness or equitable treatment in a legal or moral context, they must also act
fairly and equitably themselves. In simpler terms, it means that if you want to be treated fairly,
you should also treat others fairly. It emphasizes the importance of reciprocity and balance in
relationships and interactions. If you expect a certain outcome you should be willing to fulfill
your own obligations as well.
The maxim is often associated with the concept of "clean hands"2 which means that a person
seeking equitable relief should not have engaged in any wrongdoing themselves. Overall, the
maxim serves as a reminder that fairness is a two-way street, and those who seek equitable
outcomes must also demonstrate fairness in their own actions and conduct
APPLICABILITY IN PAKISTAN

Its applicability in Pakistan emphasizes the importance of fairness and reciprocity. However, its
application may vary depending on the specific legal and social context of Pakistan. Here are
some considerations regarding its applicability:
Legal System: Pakistan has a hybrid legal system influenced by both common law and Islamic
law principles. The maxim aligns with the principles of equity, which are recognized in common
law jurisdictions.
Social and Cultural Factors: Pakistan has a diverse society with various cultural norms and
practices. The interpretation and application of the maxim may be influenced by these factors.
Cultural values and traditions may shape how individuals seeking equity may be expected to
conform to societal expectations of fairness within
Power Imbalances: Like many societies, Pakistan faces challenges related to power imbalances,
such as gender inequality, economic disparities, and access to justice issues. The maxim may
need to be applied with caution in situations where power differentials exist, ensuring that
vulnerable or marginalized parties are not further disadvantaged by unrealistic expectations of
"doing equity."
Judicial Discretion: The application of the maxim ultimately depends on judicial discretion and
the specific facts and circumstances of each case. Judges in Pakistan have discretion to evaluate
the equities of a situation and determine what constitutes "doing equity."
In conclusion, the practical application of maxim needs to consider the legal, social, and cultural
context of the country.
CRITICAL ANALYSIS AND LIMITATION

The maxim is an important principle but it is not without its limitations and potential criticisms.
Here is a critical analysis of the maxim:
2
Person not practicing illegal acts or wrongdoings
Lack of Clarity: The maxim is concise but lacks specificity in terms of what constitutes "equity"
and "doing equity." The interpretation of equity can vary depending on the cultural, societal, and
legal context. Similarly, what actions qualify as "doing equity" may be subjective and open to
interpretation. This lack of clarity can lead to inconsistent application and potential misuse of the
maxim.
Limited Scope: The maxim focuses primarily on individual actions and obligations. While it is
essential to promote personal responsibility and fairness, it may overlook broader systemic issues
and structural inequalities.
Overemphasis on Reciprocity3: The maxim places significant emphasis on reciprocity,
suggesting that equitable treatment is contingent upon the actions of the seeking party. It should
not overshadow the recognition of inherent rights or entitlements to fairness regardless of one's
own actions.
Practical Challenges: The maxim assumes that individuals have full knowledge, resources, and
capacity to ensure equitable treatment. However, this may not always be the case. Some
individuals may lack the means or knowledge to determine what equitable actions they should
take.
While the maxim offers a valuable reminder of the importance of fairness and reciprocity, it is
crucial to critically analyze and contextualize its application.

CASELAW

Lodge v. National Union Investment Company Limited

Facts of the case
Lodge mortgaged some securities to the company in order to obtain a loan from National Union
Investment Company (Ltd). The contract was invalid since the aforementioned company was an
unlicensed moneylender under the Moneylenders Act of 1900. Lodge sued the company
recovery of securities.
Decision
The court refused to make an order unless Lodge agreed to refund the loan that had been
advanced to him. The maxim was invoked to stress that parties seeking equitable remedies must
demonstrate that they have acted in a manner consistent with equity and fairness.

MAXIM#2
3
Parties’ Equal acts towards eachother
"BETWEEN EQUAL EQUITIES THE FIRST IN ORDER OF TIME SHALL
PREVAIL”4
MEANING
The maxim "Between equal equities the first in order of time shall prevail" is a legal
principle that guides the resolution of disputes when two parties have equal claims or rights over
a particular property or interest. It essentially means that if two parties have an equally
meritorious right to something, the one who acquired that right first or has the earlier claim in
time will have priority or superiority over the other.5
The maxim recognizes the importance of stability and preventing disputes by according priority
to the earlier-established right and discourages conflicting claims or "race to the courthouse"
scenarios. This maxim applies specifically when the rights/claims are equal in all respects. A
slight difference in the equities (one party having stronger claim than the other), this maxim may
not be applicable and other principles of equity or law may come into play.
APPLICABILITY IN PAKISTAN

Its applicability in Pakistan would depend on the specific circumstances of each case and how
the courts interpret and apply the maxim.
Legal system: In Pakistan, the legal system is influenced by common law principles, and the
concept of priority based on timing is recognized. The principle of "first in time" is commonly
applied in property law, contract law etc
For example, in cases of competing land ownership claims, the court may consider the time of
acquisition or registration as a factor in determining the superior right. Similarly, in cases of
conflicting contractual rights, the court may give preference to the party whose contract was
entered into or executed first.
However, it is important to note that the application of the maxim is not absolute and may be
subject to exceptions or other equitable considerations. Pakistani courts have the discretion to
depart from the strict application of the maxim if circumstances warrant it. They may consider
other factors such as good faith, fairness and any other special circumstances.
CRITICAL ANALYSIS AND LIMITATIONS

While the above maxim is a commonly recognized principle, there are certain critical points to
consider when analyzing its application:

4
Maxim derived from the Latin maxim "Inter aequales æquitas privilegium facit tempus" or "Inter aequales
æquitas est servanda," which have similar meanings.
5
Maxim reflects the broader legal principle of "priority in time," which is also known as the "first in time, first in
right" rule.
Lack of Flexibility: The maxim emphasizes the priority of time without considering other
factors that may be more relevant or equitable. It fails to account for circumstances where the
later claimant may have stronger moral, social, or legal justifications for their claim. Strict
adherence to the maxim may lead to unjust outcomes.
Ignoring Changed Circumstances: The maxim assumes that the equities or circumstances
remain unchanged over time. However, in reality, circumstances can evolve, and new factors
may arise that impact the equities of the parties involved
Balancing other Equitable Factors: The maxim's focus solely on the timing of establishment
can overshadow other equitable factors that should be considered in resolving disputes. The
principle of fairness requires a more holistic approach, taking into account the overall equities,
conduct, and interests of the parties involved.
Potential for Manipulation: The maxim can incentivize strategic behavior, where parties rush
to establish their claim simply to gain an advantage based on timing. This may lead to inefficient
use of resources and an increased likelihood of disputes.
The maxim insures utility but a critical analysis reveals that its rigid application can lead to
unjust outcomes

CASELAW

Umar Din v. Ihsan Ullah Khan (1994 SCMR 1058)

In this case, the dispute was related to the ownership of a plot of land. Both parties claimed
ownership of the land and produced relevant documents to support their respective claims. The
issue before the court was to determine the priority of their claims and establish who had a
superior right over the land.
It was found that the plaintiff had obtained possession of the land and started construction on it
before the defendant. The plaintiff's possession and construction were supported by documentary
evidence, including receipts of payment for the land.
Based on these facts, the Supreme Court applied the maxim and ruled in favor of the plaintiff,
stating that since the plaintiff's claim originated earlier in time and was supported by evidence of
possession and construction, their claim had superior priority over the defendant's claim.
 Mahliqa Danish
01-177192-021

 MAXIM “EQUITY FOLLOWS THE LAW”:

This maxim of equity emphasizes on the policy of equity and its principles indicating that the
primary goal of equity is to not to contradict the law but to provide remedy while complementing
the existing laws. Since the origin of equity, the intention was never to obstruct the law or to
override the common law but rather to eliminate flaws, soften harshness, and make
contradictions clear in the law. In other words, the purpose of equity is to fulfil the law, to
supplement it and to explain it, not to destroy it. Snell has therefore elucidated this maxim by
stating “Equity follows the law, but not slavishly, not always.” Meaning thereby that where the
existing laws are defective and there is injustice, equity interferes to provide remedy.
Therefore, the underlying principle of the maxim can be broken down as follows:
i. Where a situation is controlled by an express common law provision, the court of equity
must uphold that rule.
ii. In situations where the common law is ambiguous on the issue, equity will follow it if
analogical conclusions can be made based on the common law rules.
iii. When the common law is not explicit or when analogous rules cannot be inferred from its
provisions, equity will not follow the common law.
APPLICABILITY IN PAKISTAN:

The maxim "equity follows the law" is generally applicable in Pakistan's legal system. Pakistan
follows a mixed legal system influenced by common law and Islamic law. While the
Constitution is the supreme law, statutes, case law, and customary practices also form part of the
legal framework.
In Pakistan, the principle of equity is recognized and applied by the judiciary. Courts have the
power to provide equitable remedies when strict legal remedies may not be sufficient for justice.
However, the application of equity can vary based on the specific circumstances and the
discretion of judges.
It's important to note that Islamic law (Sharia) also plays a significant role in matters like family
law, inheritance, and personal status. Islamic principles of equity and justice are considered in
these areas, and Islamic courts or bodies are responsible for their application.
RELEVANT CASELAW:
In the case “2013 PLD 174 SUPREMECOURT”6, the respondent in the case had filed a petition
in Lahore High Court stating that her husband had purchased a prize bond which he had secured
but died before he could present the bond and claim the prize money. Since the petitioner was
residing in a far-flung village of Punjab and having discovered the fact sometime later, she was
unable to seek the prize within the six years period as provided in the Prize Bond Rules, 1999.
The petitioner had presented the prize bond four months after the expiration of the said period,
but the Learned Single Judge in Chambers of Lahore High Court allowed the petition stating that
as a resident of a remote village and her claim being barred by only four months does not appear
justified by the Government to withhold the prize money merely on technicality of being barred
by four months.
The decision of the single Judge was also upheld by the division bench in the Intra Court appeal
by the appellant in the present case. The decision of both the Learned single Judge and the
Division Bench was on the grounds of compassion.
The Supreme Court in this case allowed the petition of the appellant on the argument that
compassion can not be a ground to grant relief which is not provided under the law. The
Supreme Court held that equity must follow the law and its principles can only be resorted to and
invoked when the resolution of a proposition is not provided or available under the law. equity
comes into effect to fill the vacuum where the law has no remedy to provide for the injustice
taking place. The rules of equity cannot be considered to frustrate and defeat the law. Hence, the
Court set aside the impugned judgements on the grounds that there exists no provision in the
Prize Bond Rules that accommodate such situations of hardships or compassion. Furthermore, no
such power is vested under the same rules with any authority to be able to extend the period of
six years on the grounds of compassion or hardships.
LIMITATIONS OF THE MAXIM:

While the maxim "equity follows the law" holds significant importance within legal systems, it is
not without its limitations. One limitation of the maxim is that the law itself may be flawed or
unjust, leading to inequitable outcomes. Legal systems are not immune to imperfections, and
there are instances where the law fails to address certain social, moral, or ethical concerns. In
such cases, a strict interpretation of the law may perpetuate inequality or deny individuals access
to justice. Equity, with its flexibility and focus on fairness, can sometimes provide a remedy in
situations where the law falls short.
Moreover, the maxim assumes that the existing legal framework is comprehensive and addresses
all possible scenarios. However, laws are often unable to foresee every circumstance or address
evolving societal needs. In such instances, equity can play a crucial role in filling gaps and
ensuring fairness and justice.

6
Director General, National Savings, Islamabad V/S Balqees Begum and others, PLD 2013 SC 174.
Furthermore, the maxim "equity follows the law" may also be limited by the interpretation of the
law by judges. Different judges may have varying interpretations of the law, and this subjectivity
can influence the application of equity. Inconsistencies in judicial interpretation can lead to
unequal treatment and undermine the principle of equity.
In conclusion, while the maxim "equity follows the law" serves as a guiding principle in legal
systems, it has limitations. Recognizing these limitations is crucial to ensure that equity is not
compromised and that the pursuit of justice remains a priority in legal decision-making.

 MAXIM “HE WHO COMES INTO EQUITY MUST COME WITH CLEAN
HANDS”:

The maxim "He who comes into equity must come with clean hands" reflects a fundamental
principle in equity law, emphasizing the requirement for a party seeking equitable relief to have
acted fairly and in good faith. It signifies that a plaintiff who seeks the intervention of an equity
court must demonstrate that they have conducted themselves with moral integrity and have not
engaged in any wrongdoing or misconduct related to the subject matter of the dispute.
The maxim seeks to promote fairness and discourage the use of equity as a shield for those who
have engaged in improper conduct. It encourages parties to come forward with "clean hands" and
discourages the court from granting relief to those who have acted dishonestly, fraudulently, or
in violation of legal or moral principles.
In essence, the maxim "he who comes into equity must come with clean hands" sets a standard of
moral rectitude for parties seeking equitable remedies, safeguarding the principles of fairness,
and preventing the court from assisting those who have engaged in misconduct or unfair
practices.
The purpose of this maxim is to uphold the integrity of the equity court and prevent its powers
from being misused by those who have acted unjustly or unconscionably. It ensures that
individuals do not take advantage of the equitable remedies available if they themselves have
been involved in any wrongdoing.
APPLICABILITY IN PAKISTAN:

The maxim "He who comes into equity must come with clean hands" holds significant
applicability in the legal system of Pakistan. The principle underscores the importance of moral
integrity and fairness in seeking equitable relief. In Pakistan, where the legal framework is
influenced by both common law and Islamic law principles, the maxim serves as a guiding
principle in the administration of equity. One of the important factors while granting equitable
remedies is the character of the person. It means that the character of the person relating to the
controversy between the parties.it is to be defined in a judicially enforceable sense.
 For instance, the words “SADIQ AND AMEEN” as mentioned in the Constitution of Pakistan
encompass the character test of law with clean hands.
The objective of this maxim is to ensure that individuals approaching equity courts have acted in
good faith and without engaging in any misconduct or wrongdoing related to the matter at hand.
This requirement protects the integrity of the court and discourages the misuse of equitable
remedies by those who have acted unjustly.
RELEVANT CASELAW:

One relevant case that exemplifies the applicability of this maxim in Pakistan is the Supreme
Court judgment in the case of “Pir Saleh Shah v The Custodian of Evacuee Property, Pakistan,
Lahore”7.
In this case the appellant requested relief to overturn the decision of the High Court that decided
that the custodian who claimed that the party in issue had committed fraud by concealing the fact
that their applications for the property they wanted in 1948 has previously been rejected, was
correct. Moreover, there were no grounds for a fresh application in 1960 since there was
unreasonable delay in doing so.
The Court observed that “It is an accepted principle that no person is entitled to any assistance
from a court or tribunal unless he comes with clean hands” 8. It was also observed that the
decision of the High Court in deciding the case was also correct as the matter in issue had
already become time barred.
Hence, it can be seen that the principles of equity have been applicable in Pakistan as they were
in the above-mentioned case where the Court applied the equitable principle of “He who comes
into equity must come with clean hands” along with other principles.
Overall, the maxim serves as a reminder that equity courts in Pakistan will only grant relief to
those who have acted equitably themselves, promoting the principles of fairness, justice, and
ethical conduct within the legal system.
LIMITATIONS OF THE MAXIM:

"He who comes into equity must come with clean hands" reflects the fundamental principle of
equity law, while this maxim serves as a cornerstone of equity jurisprudence, it has certain
limitations that deserve critical analysis.
Firstly, the maxim's application can be subjective and open to interpretation. What constitutes
"clean hands" may vary depending on the context and the specific circumstances of each case.
This subjectivity can lead to inconsistent rulings and create uncertainty in the application of
equitable remedies.
7
Pir Saleh Shah v The Custodian of Evacuee Property [1971] SCMR 543.
8
Pir Saleh Shah v The Custodian of Evacuee Property [1971] SCMR 543.
Secondly, the maxim's emphasis on moral integrity can sometimes overshadow the importance
of justice. While it is essential to discourage wrongdoing and prevent the abuse of equitable
remedies, strict adherence to the clean hands doctrine may result in an unjust outcome. There
may be instances where a party with unclean hands still deserves equitable relief, especially
when the harm suffered by the other party is disproportionate to the wrongdoing.
Furthermore, those in positions of power or privilege can exploit the maxim to evade equitable
remedies by asserting that the other party also acted with unclean hands. This can perpetuate
existing inequalities and undermine the very purpose of equity law, which is to provide fairness
and balance.
Lastly, the maxim assumes that all parties involved have equal access to the legal system.
However, this may not always be the case, particularly for marginalized or disadvantaged
individuals or communities. Applying the maxim without considering the underlying power
dynamics may result in an unjust denial of equitable relief for those who are already vulnerable.
In conclusion, while the maxim "He who comes into equity must come with clean hands" serves
as a guiding principle in equity law, its limitations must be acknowledged. The subjective nature
of its application, the potential for unjust outcomes, the risk of enabling the powerful, and the
disregard for underlying power dynamics all warrant critical analysis to ensure the fair and just
application of equity remedies.
AHMED ASIF
01-177192-002

Application of Equity: An Overview of the Pakistani Jurisprudence

Indirect Application of Equity

After the inception of Pakistan, not only did it inherit a statutory regime originally enacted by the
britishers, but our jurisprudence also evolved under the influence of common law, in fact that of
equity. For instance, the equitable principles of bonafide intention of the petitioner, commonly
referred to as coming to court with clean hands, was indirectly relied upon for the first by the
Dacca High Court in 1957, in A.K.M. v GoP9, where relief was not granted to the petitioner as
the court held that he had an ulterior motive casting doubt on his bonafide intention. Here, the
term equity was not referred to in clear terms, but it can be implied from the dictum of Isaphani,
J in this case. A similar approach was adopted by the Dacca High Court in Momin Motor Co.10,
where a discretionary relief was not granted to the petitioner where the petitioner’s conduct was
not found to be bonafide. Here again, the decision was based upon the principle of equity without
explicitly mentioning it.11

9
PLD 1957 Dacca 342
10
PLD 1962 Dacca 310
Direct Application of Equity

The first instance of explicit reliance on equity, was observed in 1958 in the case of Farooq
Leivers12 (Munir, 2022). The moot question in this case before the court was, whether Muslim
Personal Law could apply to a couple for the purposes of divorce by the husband, when they
originally married under christian rites in British India, and after the conversion of husband to
Islam? After due deliberation of the law of land at that time, it was observed by Changez J, that
though under the Sharia Law husband had a right to divorce her wife, but as the wife was still a
Christian and was in essence party to a Christian marriage, the principles of Muslim Personal
Law under the legal framework were not applicable to her. Therefore, he relied on the provisions
of the Punjab Laws Act, 1872, to hold that such a situation would require the determination of
the case on the principles of justice, equity and good conscience. But this was not the only
occasion where equity was directly relied upon by a court for just decision, later, the courts relied
on equity on various occasion for just decision of the case. For instance, at various instances, the
courts declared that the writ jurisdiction of the High Courts, was an equitable and discretionary
jurisdiction, which could only be resorted to when the petitioner claiming such a relief had a
bonafide conduct, was devoid of any ulterior motive and he himself was also willing to do
equity.13
Jurisprudence of Supreme Court

Like the high courts, the Supreme Court has also adopted the principles of equity and continues
to do so. For instance, in Pir Saleh Shah14, relief was denied to the petitioner by upholding the
judgement of high court, which had ruled that the petitioner had committed fraud. Khan, J
observed in the judgement that it was a settled principle that a person seeking relief from either a
tribunal or a court must himself come to the court with clean hands, and where the conduct was
not bonafide, petitioner would not be entitled to relief. The same principles were reiterated again
in the cases of Sardar Muhammad15 and Saifullah Khan16. In the former, the petitioners were
found to have come to the court with unclean hands, as they had created a device for the sole
purpose of defeating the court’s order. While in the latter, Nasim, J ruled that when it is found
that the petitioner has not come to the court with clean hands, the petition could be dismissed by
the court on this ground alone.
Conflict between Equity and Shariah Law

11
Munir, Amr Ibn, Equity in Pakistan: Origin, Evolution and Application from the Time of The British India Till Today
(December 26, 2022). Available at SSRN: https://ssrn.com/abstract=4312224 or
http://dx.doi.org/10.2139/ssrn.4312224
12
PLD 1958 (W.P.) Lahore 431
13
PLD 1963 (W.P.) Karachi 450; PLD 1966 (W.P.) Quetta 25; PLD 1981 Peshawar 57
14
1971 SCMR 543
15
1981 SCMR 738
16
1982 SCMR 853
As evident from the previous discussion, the courts have relied on equity on various occasions
apart from the statutory law itself, but it had not been always the case and instead the principles
of Shariah were resorted to instead of equity (Munir, 2022). In Mst. Khurshid Jan17, the court
considered the question with regards to the binding effect of the opinions of Imams and other
eminent Jruirsts of Islamic Jurisprudence, on the principles of equity? The pith and substance of
the decision authored by Yaqub, J along with the separate but concurring opinions of
Wajihuddin, J and Haq, J was that the Islamic doctrines of Istihsan and Istislah were also
doctrines of equity, and where no clear ruling could be derived from the sources of Islamic
Jurisprudence or a binding juristic analogy, the courts could resort to their own private reasoning
while being guided by the rules of justice, equity and good conscience. Hence, the ratio of the
decision was that the courts in Pakistan may resort to the Islamic Doctrine of Istihsan in place of
equity, where no specific ruling could be derived from either the statutory law or the sources of
Islamic Jurisprudence. But contrary to the approach adopted in this case, Afzal Zullah, went on
to evolve a different approach regarding the conflict of common law, equity and the Islamic
Shariah law in a way which could be termed as an attempt which can be termed as “Judicial
Islamisation”. He developed a complex line of reasoning to state a proper mechanism as to when
and to what extent the courts can adopt the principles of common law or Shariah law. The pith
and substance of his argument was, that where the statutory law did not cover any aspect, it
would be replaced by the principles of Islamic Jurisprudence, and the existing scheme of law or
legislation should be adhered to as much as possible in consonance with the Islamic principles
rather than overriding the same, as the courts themselves cannot legislate instead of the
Parliament. Afzal Zullah, J also adopted this approach when he was elevated to Supreme Court,
in the case of Muhammad Bashir18, and the same was again reiterated by Wali, J in Muhammad
Yousaf19.
Hence, there has been a clear trend of conflicting views on the application of equity in Pakistan,
where the tilt of the courts had been more towards adopting the Islamic concept of equity,
justice, and good conscience, but it could not last for long primarily due to the end of the era of
Islamisation (Munir, 2022).
Equity Overriding the Law

As a general and recognised rule equity cannot override the law, but one exception can be traced
out in our jurisprudence where equity was resorted to by the court overriding the dictates of the
law (Munir, 2022). In Kamal Khan v Mst. Zainab20, the moot question before the court was the
correct interpretation of Section 4 of MFLO 1961, as to whether a single female orphan
grandchild would inherit all the estate of the propositus following the per stripes rule or not?
Zafarullah, J while authoring the judgement held that as per his view the intention of the

17
PLD 1964 (W.P.) Lahore 558
18
PLD 1982 SC 139
19
1993 SCMR 1185
20
PLD 1983 Lahore 546
legislature though was to protect the rights of such grandchild whose parents didn’t survive the
opening of inheritance from the grandparents, yet it cannot be held that the intention was to rule
something contrary to the Islamic Law of Inheritance. Meaning thereby that, in the Islamic Law
of Inheritance the only female child of a deceased cannot inherit more than half of the estate of
the deceased, and even though in case of a lone female orphan grandchild for the purposes of
determining inheritance her father would be assumed to be alive but the per stripe rule would still
not be applicable in the literal sense. Rather, the daughter of the pre-deceased would only inherit
half of his estate and the rest would go to the residuaries of the pre-deceased. Later on the matter
came before the Supreme Court in appeal, where the judgement of the high court was upheld and
it was ruled that despite of the non-obstante clause in MFLO, Section 4 had to be interpreted in
light of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1962 which dictated
the application of Muslim Personal Law where the parties to a lis were Muslims, and the share
prescribed by the Islamic Law of Inheritance could not be enhanced depriving the rights of the
rest of the sharers. This is a clear depiction of an instance, where both the constitutional courts of
the country resorted to “judicial legislation” and resorted to the principles of equity to override
the clear dictate of statutory law.

HASSAAN SIDDIQUI
01-1771192-025
CONCLUSION

Does Equity have precedence over our legal system?

As we know that Equity is a crucial aspect of the Legal Systems in many countries, aimed at
achieving justice and fairness in cases where the application of strict legal rules might lead to
unjust outcomes. Maxims of equity are principles that have developed over centuries to address
cases where legal rules might lead to an unjust outcome. They serve as guiding principles to
ensure fairness and justice.
As thoroughly discussed earlier, Equity does have precedence in Pakistan's Legal System. It is
primarily based on Common Law principles, which include the principles of Equity which is
recognized as an important component of the legal framework. The Constitution of Pakistan
itself upholds the principles of justice, equity, and fair play.
In Pakistani Courts, Equity is often seen to be invoked to ensure fairness and justice when
Statutory Laws are not able to provide adequate remedies or when strict application of the Law
may lead to unjust outcomes. The principles of Equity, including the maxims of Equity, are
considered by the Courts to supplement and guide the interpretation and application of laws.
Equity is applied as an auxiliary source of Law to fill gaps, provide remedies, and ensure
fairness, but it does not override or replace Statutory Laws.
The august Supreme Court of Pakistan has repeatedly emphasized the importance of Equity in
delivering justice, as has been discussed above. The Court has recognized that Equity provides
flexibility and allows for the consideration of individual circumstances to ensure equitable
outcomes. The Judiciary in Pakistan, like many Common Law jurisdictions, aims to strike a
balance between the principles of Equity and the letter of the law.
However, this was not always the case, there were times where the Courts did not apply the
principles of Equity but rather the tenants of the Shariat. In Mst. Khurshid Jan v Fazal Dad21,
where the court considered whether the courts can differ from the views of Imams and other
juris-consults of Muslim Law on grounds of public policy, justice, equity and good conscience.
Justice Yaqub observed that “Istihsan and Istislah are Doctrines of Equity.”22
It is important to note that the exact precedence of equity over statutory law may vary depending
on the specific circumstances and judicial interpretation. Here are some examples of occurrences
where equity has been invoked in Pakistan's legal system:
1. Equitable Remedies: Pakistani Courts have recognized the availability of equitable
remedies in cases where the strict application of statutory laws may not provide adequate
relief. For example, in the case of Al-Jehad Trust v. Federation of Pakistan (1996), the
Supreme Court of Pakistan acknowledged the power of the court to grant equitable
remedies such as injunctions to prevent injustice.

2. Family Law: Equity plays a significant role in family law matters in Pakistan. For
instance, in cases involving child custody or maintenance, courts consider equitable
factors such as the best interests of the child and the financial capabilities of the parties
involved. The courts exercise their equitable jurisdiction to ensure fairness and protect
the rights of vulnerable individuals.

3. Public Interest Litigation: Equity is frequently invoked in public interest litigation cases
in Pakistan. These cases often address issues of social justice, human rights, and
environmental protection. The courts utilize equitable principles to provide relief and
remedy systemic injustices that affect a larger section of society.

It is important to note that the precedence of equity over statutory law in specific cases can
depend on the facts, circumstances, and judicial discretion exercised by the courts. The courts
aim to strike a balance between the principles of equity and the application of statutory laws to
ensure fair and just outcomes.
Recommendations for Future

Promoting Equity in Pakistan's Legal System requires comprehensive reforms and targeted
initiatives. These are some recommendations which can possibly enhance Equity in Pakistan:
21
PLD 1964 (W.P.) Lahore 558
22
Ibid.
 1. Strengthen Legal Education: Improving legal education is crucial for promoting equity.
Law schools should incorporate courses on Equity and its principles to educate future
lawyers and judges. Additionally, practical training in applying equitable principles can
help legal professionals better understand and apply them in practice.

2. Judicial Training and Sensitization: Regular training programs for judges should be
organized to enhance their understanding of Equity and its Maxims. These programs
should focus on promoting a nuanced understanding of Equity, its application, and the
importance of considering context and fairness in delivering justice.

3. Clear Guidelines and Standards: Develop clear guidelines and standards for the
application of Equity. This can help ensure consistency in judicial decisions and
minimize potential discrepancies in the interpretation and application of maxims of
Equity. The development of guidelines can be done through collaboration between the
judiciary, legal scholars, and relevant stakeholders.

4. Review and Reform Legislation: Conduct a comprehensive review of existing

legislation to identify and address any discriminatory provisions that hinder equitable
outcomes. Amendments should be made to align the law with equitable principles and
ensure that laws are interpreted and applied in a manner that promotes fairness and
justice.

5. Monitoring and Evaluation: Establish mechanisms to monitor and evaluate the

application of Equity principles in judicial decisions. Regular evaluation can identify
areas where improvements are needed and help address any inconsistencies or biases in
the application of maxims of Equity. Monitoring can be done through the establishment
of dedicated committees or bodies responsible for reviewing and analyzing court
decisions.

By implementing these recommendations, Pakistan can take significant steps towards fostering a
legal system that upholds the principles of equity and ensures fair and just outcomes for all its
citizens.
In summary, equity holds precedence in Pakistan's legal system as an important component of
the common law tradition. It is invoked by the courts to supplement statutory laws, provide
remedies, and ensure fairness and justice. However, it operates within the framework of existing
laws and does not supersede or replace statutory provisions.

REFERENCES

 Hussain, N. (2015) Maxims of equity and its applications in Pakistan, Academia.edu.

Available at:
 https://www.academia.edu/10026338/Maxims_of_Equity_and_its_Applications_in_Pakis
tan (Accessed: 31 May 2023).
 (No date) Principles of equity including Maxims. Available at:
https://www.nasirlawsite.com/llb2/equity.htm (Accessed: 31 May 2023).
 (No date a) Ubi Jus Ibi remedium - university of Peshawar. Available at:
http://www.uop.edu.pk/ocontents/where%20there%20is%20right%20there%20is
%20remedy.pdf (Accessed: 31 May 2023).
 PLD 1964 (W.P.) Lahore 558
 Batool, Anglicization of Shari‘ah, 44.
 [1886-1887] 14 L.R.I.A. 89.
 28 A I R 1914 Mad. 58
 PLD 1963 (W.P.) Karachi 450; PLD 1966 (W.P.) Quetta 25; PLD 1981 Peshawar 57
 Munir, Amr Ibn, Equity in Pakistan: Origin, Evolution and Application from the Time of
The British India Till Today (December 26, 2022). Available at SSRN:
https://ssrn.com/abstract=4312224 or http://dx.doi.org/10.2139/ssrn.4312224
 Pir Saleh Shah v The Custodian of Evacuee Property [1971] SCMR 543.

 Esha javed, ‘Equity follows the law’ (2021) Studocu <

https://www.studocu.com/row/document/university-of-the-punjab/law/2-equity-follows-
the-law/46850218?shared=n&sid=01685471381> accessed 30th May 2023
 PLD 1982 SC 139
 1993 SCMR 1185

 PLD 1983 Lahore 546