Report No. 9

91. Section 42.-

We are of the opinion that in view of the development of this highly efficacious remedy both in England and in the USA, the scope of section 42 of our Act requires to be enlarged. The increasing importance of this remedy in modern times is best expressed in the following words of Prof. Jennings. "The declaratory judgment is the symbol of twentieth century conception of law1".

1. Jennings Declaratory Judgments against Public Authorities, (1932) 41 Yale LJ, p. 407, 416.

92. The first point on which our law differs from the present day English and American law is that a mere declaration is not available where further relief is not asked for, the plaintiff being able to claim it.

In England Order 25, rule 5 of the R.S.C. provides-

"No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not."

Similarly, the Federal Ad and the Uniform Declaratory Judgments law in the USA. empower courts to declare rights, status and other legal relations, whether or not further relief is or could be claimed.

In the USA, the provision relating to further relief is an enabling provision.1 It is left to the option of the plaintiff whether he should ask for further relief in the declaratory suit itself or reserve it for a separate action.

1. 62 Harvard Law Review, p. 826.

As has been observed by American writers a simple declaratory decree without further relief, where it has to be sought for, is not necessarily useless, for, "this possibility of further relief gives, in practice, an immediate coercive effect to the declaration itself1". If the defendant voluntarily complies with the declaratory decree by giving up his unlawful interest, the parties need not incur further expense in litigation concerning consequential relief. This would particularly be the case where the defendant is a responsible person or some public body or the State itself. In such cases, it can hardly be presumed that the defendant would not set matters right as soon as a declaration is made by the Court and that some coercive decree from the Court should still be necessary.2

1. Ibid., pp. 788, 789.

2. (1955) 18 MLR 138.

But the Proviso to section 42 of our Act expressly prohibits such a decree where the plaintiff, being able to seek further relief, has omitted to do so.

It is to be noted that the Proviso marks a retrograde step in the development of our law, for, at a very early stage, it had been provided in section 29 of Act (VI of 1854) and, then, in section 15 of the Code of Civil Procedure of 1859 that-

"No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby and it shall be lawful for the civil courts to make binding declarations of right without granting consequential relief."

The Proviso was introduced by the Specific Relief Act with the object of preventing multiplicity of proceedings.1 The Proviso has, however, given rise to a mass of case-law as to what is 'further relief's and whether 'further relief'2 is such relief as could be sought for in the suit in which or in the court before which the declaration is sought. It leads to injustice in many cases and it only results in an addition to the revenue to a certain extent.

1. Kombi v. Aundi., (1890) 13 Mad 75, per Muthuswami Iyer, J. p. 78.

2. In Some cases (e.g., Midnapore Zemindary Co. Ltd. v. Secretary of State, (1917) 44 Cal 352, it has been held that a second declaration asked on the basis of the first declaration was a further relief [contra Tewary v. Bhupat, (1919) 50 IC 298 Pat].

We cannot, however, adopt the American provisions in their entirety by reason of the fact that, we have, in our Civil Procedure Code, a provision in Order II, rule 2, which is salutary and which has been accepted in our country, without any criticism, for a fairly long time. Sub-clause (3) of that rule provides that if a person is entitled to more than one relief in respect of the same cause of action, he may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for any of such reliefs, he shall not afterwards sue for the relief so omitted.

Hence, if the plaintiff sues merely for a declaration in respect of a present right and omits other reliefs to which he is entitled in respect of the same cause of action, he will be debarred from suing for it. The expression "able to seek" in the Proviso to section 42 has however a larger import and includes not only the reliefs which arise out of the same cause of action but also those which would follow from the declaration sought by the plaintiff. In other words, the 'further relief' referred to in the Proviso to section 42 includes "such relief as he would be in a position to claim from the defendant in an ordinary suit by virtue of the title which he seeks to establish and of which he prays for a declaration."1

1. Abdulkadar v. Mahomed, (1892) 15 Mad 15 (18).

Our intention is not to affect the principle of 0. II, r. 2 of the Code in cases where it is properly attracted except as regards suits for declaration as to the validity or the invalidity of statutes.

This object will be achieved if we omit the Proviso to section 42 and make the first paragraph of the section subject to the provisions of 0. II, r. 2.

93. Under the existing law, a declaratory decree can be obtained, apart from cases involving a legal character, only in respect of a proprietary right. But there is no reason, except an apprehension as to multiplicity of declaratory suits, why this beneficial remedy should not extend to all legal rights.

In the United States, both in the Federal and Uniform laws, the word "right" alone is used, so that a party may obtain a declaration as to any legal rights which, of course, mean justiciable rights1 The word 'right' has been interpreted to include 'liability' also, so that actions have been entertained against the Government and other public bodies, to determine their liability,2 duty or power.3 Right also includes immunity, e.g., that a statute is not applicable to the plaintiff.3 Since the word 'right' is not confined to proprietary right, the Courts have had no difficulty in making a declaration as to a contractual right4 or a right to practise a profession or the like.4

1. Cf. Ashwander v. Tennessee Valley Authority, 297 US 288 (325): L ED 688 (699).

2. Cf. 62 harvard Law Review, pp. 875-6.

3. Ibid, p. 873.

4. Ibid, pp. 848-9.

On the other hand, the first paragraph of section 42 of the Specific Relief Act speaks only of a 'right as to any property', there has been a prolonged controversy as to whether section 42 is exhaustive or declaratory actions lie in cases not covered by it, and whether any particular right is a right as to property or not. Declarations under section 42 have been refused in regard to pecuniary1 and contractual rights.2

1. Gopaldas v. Mul Raj, AIR 1937 Lah 389.

2. Ramakrishan v. Narayana, (1914) 39 Mad 80.

In our view, if the relief is extended to legal rights of all kinds, it might, instead of multiplying litigation, lead to its reduction. Doubtless, a large number of persons would give up a contest as soon as the dispute as to the existence of the right is settled by a Court of law. Moreover, certainty and security with respect to ordinary legal rights are as important as in the case of proprietary rights. The purpose of laws similar to section 42 is, as the Uniform Declaratory Judgments Act puts it, to afford relief from uncertainty and insecurity with respect to rights.

We, therefore, recommend that the word 'as to any property' in the first paragraph of section 42 be omitted.

94. Section 42 is also deficient in its omission to make any express provision for a declaration as to the constitutionality of a law.

Under the Constitution, the Supreme Court has decreed a declaratory suit on appeal1 and declared the impugned law to be unconstitutional. The basis of the declaratory action was, of course, not determined in this case, but since the Court held that the plaintiff's fundamental right tinder Article 31 had been violated, the suit fell clearly within the language of section 42 because a 'right as to property had been denied. The Court observed' that only a person "whose own right or interest" had been violated or threatened could impugn the law.

1. Dwarkadas v. Sholapur Spinning Co., 1954 SCR 674 (721-2).

On principle, there is no reason why a person whose rights, are affected or likely to be affected by an unconstitutional statute or bye-law should not be entitled to obtain a declaration from the Court that it is invalid. Even under the existing law, it has been held1 that when a person's rights are affected by an ultra vires governmental act, he need not ask for any relief other than a declaration that the executive act or order is null and void.

The State being the defendant, it is presumed that once the order is declared null and void, the plaintiff's rights will be restored. We think this principle should apply with a greater force where the law under which the executive has purported to act, is itself unconstitutional and void. Thus, if an individual's possession has been disturbed under an unconstitutional statute, he may ask for a declaration that the statute is invalid and has not affected his right, without specifically asking for the restoration of possession.

1. Fisher v. Secy. of State, (1898) 22 Mad 270 PC.

We propose to insert a sub-section in section 42 embodying the foregoing principle. We want to make it clear that a plaintiff who seeks to have a law declared invalid need not seek any further relief than that the law is invalid and that his right is not affected by it.

In order to prevent frivolous actions, we have provided that no suit for declaring the constitutionality of a law will lie unless the plaintiffs right or legal character which depends on the validity or invalidity of such law has been invaded or threatened to be invaded by the defendant.

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