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doctrine of laches inapplicable to this kind of litigation! The correctness of this view is doubtful, and until the matter is made clear by the Legislature, it will be safer to hold that when the plaintiff's laches is such as to amount under the circumstances to an abandonment on his part of the contract, and the defendant has not waived the delay, specific performance should be refused.
9. As the jurisdiction is against the person of the defendant on the equity arising from the contract, the Courts in England can entertain a suit for specific performance of a contract relating to land where the subject-matter of the contract is not within the local limits of the jurisdiction. But in India the Presidency High Courts are precluded by their Letters Patent, cl. 12, from entertaining such suits ?, and the Mufassal Courts have been thought incapable of enforcing such contracts.
Chapter III deals with the subject of the rectification of instru- Rectificaments, when through fraud or a mutual mistake of the parties to tion of in
struments. any instrument in writing, it does not truly express their intention as to its meaning and legal effect at the time of its execution. It is taken from the draft New York Civil Code, and concludes with declaring that a contract in writing may be first rectified so as to bring it into conformity with the intention of the parties, and then if the plaintiff has so prayed in his plaint, and the Court thinks fit, specifically enforced.
Chapter IV deals with a proceeding exactly the opposite of the Rescissio specific performance of contracts. It declares that any person in
tracts, terested in a contract in writing may have it rescinded in the following three cases :
(a) where the contract is voidable or terminable by the plaintiff;
2 Mad. H. C. 114, per Scotland C.J., 270, per Holloway J. Mr. Lewin, Trusts, 873, thinks that 'the legislature itself having prescribed a term of limitation which it deems sufficiently short, the Court ought not further to abridge that term. In 10 Cal. 1061, however, the Court thought that there might be circumstances under which a delay of three years or even less may be fatal to the suit. But the Madras decisions were not cited, nor was Mr. Lewin's opinion. As to the English doctrine, see Fry, 474 et seq.
L. R., 8 Ch. 864. But the proviso in
2 Fry, 45.
5 Cal. 82, per Pontifex J. * Collett, 69, citing Hart v. Heruig,
(6) where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff;
(c) where the contract is for sale or to take a lease, and a decres for its specific performance has been made, and the purchaser or lessee fails to pay the purchase-money or other sums which the
Court has ordered him to pay. Cancella
Chapter V declares that any person against whom a written tion of instruments. instrument is void or voidable, who has reasonable apprehension
that if left outstanding it may cause him serious injury, may obtain an adjudication that it is void or voidable and an order that it be delivered up and cancelled. The relief extends to a forged instrument, and also to one originally valid but which has subsequently become forged. The Chapter applies to cases not unfrequent in India, where a party gets possession of a document, on which he might not indeed be able to found a claim in a Court of Justice, but which might give him such prima facie right against the other as would expose him to vexatious demands and litigation.
When an instrument is evidence of different rights or different obligations, the Court may cancel it in part and allow it to stand for the residue (sec. 40). Thus a forged endorsement on a bill may be cancelled, and the bill be left to stand in other respects. When cancelling an instrument the Court may require the party for whom this is done to make such compensation to the other as justice may require. If a cancelled instrument has been registered, the Court cancelling it may cause the fact of the
cancellation to be noted in the Registry Office. Declara- Chapter VI took the place of Act VII of 1859, sec. 15, and tory de
differs from the English and the former Indian law on the subject crees.
in barring the Courts from making declaratory decrees only in cases where the plaintiff, being able to seek further relief than a mere declaration of right, omits to do so. It authorises the Court to make declaration of future rights, provided only such rights are vested. It allows the Court to make a declaratory decree where there is no right to any consequential relief, and thus fills a gap in Indian law which gave us power to file a suit to perpetuate testimony. This important and useful change, the Indian reflex of the Scotch action of declarator, was suggested by Mr. Pitt Kennedy, who was Standing Counsel to Government when the Bill (now Act I of 1877) was before the Council. Mr. Kennedy said:
It is generally of grave importance for every man to know
precisely his pecuniary position, and serious difficulties might often be avoided if this could be accomplished. I confess myself unable to discover why, when others advance a claim to property which one believes to be his, whether in possession or not, he should not have the power of settling the point at the earliest period instead of being obliged to wait till his evidence may be lost, and to keep his arrangements for his family uncertain. The old rule was based, so far as I can discover, on the (possibly not unnatural) dislike of Judges to be troubled with the decision of a point of difficulty if they could in any way avoid it. One singular illustration of the length to which this was carried is to be found in Bull v. Pritchard, in which the same will was construed as respects the personalty by Lord Giffard in 1826 (1 Russ. 213), and as regards freeholds by Sir J. Wigram twenty years afterwards (5 Hare 567), with a precisely similar result.'
Mr. Kennedy then referred to one of the illustrations in the Bill, which supposed A to be in possession of land and B to be threatening him with litigation, and which proceeded on the theory that A would have no right to declaratory relief. And he continued thus :
* Illustration (e) does clearly illustrate the section, but why should A not have the power to quiet his title? The claim is a serious invasion of his rights, and would no doubt lower the selling value of his property ; why should he not have the power of putting B to the alternative of renouncing or proving his claim, at the cost of B, if B had advanced it rashly or maliciously? Doubtless, this section does follow the decisions on the English Act and the Procedure Code, but this Bill is to amend as well as to define; and so far as I can discover, such powers would be no novelties in law; the Scotch action of declarator is, I believe, precisely pointed at such cases. In my own experience, I have known of great difficulties being imposed on a family by the existence of a supposed defect of title in a portion of the family property, which much complicated the testamentary arrangements of the father, and which could easily have been set at rest if effective powers analogous to the Scotch declarator had existed, though the doubt was quite insoluble for the time under English procedure.'
Mr. Hobhouse, when presenting the report of the Select Committee, said that he could not answer Mr. Pitt Kennedy's argument, and he could add something to it from his own experience. When he was practising at the Chancery Bar, it not unfrequently happened that people desired to have some question settled for the purpose of family arrangements, and that there was extreme difficulty, sometimes insuperable, sometimes superable only by the exercise of great professional craft, in finding out how to get up an actual conflict of present rights, so as to compel the Court to decide the question at issue.
The Committee had therefore made an alteration in the Bill, bringing it more in accord with Scotch law than with English. In order to avoid multiplicity of actions and to prevent a man getting a declaration of right in one suit and immediately afterwards a remedy in another, they had provided that if he was able to seek more substantial relief beyond a declaration, he should do 80; but that the mere circumstance of his right being a present right should not prevent him from obtaining relief by way of declaration.
As Mr. Collett remarks in his commentary on the Specific Relief Act, to found a suit for a declaratory decree three things seem essential :
1. There must be a present existing interest, however distant the actual enjoyment may be:
2. There must be some present danger or detriment to be averted by the declaration":
3. He who seeks only a declaratory decree must not be at the time entitled to an executory decree.
Chapter VII merely declares that the appointment of a receiver of the subject matter of litigation pending a suit rests in the discretion of the Court and refers to the Code of Civil Procedure for the mode and effect of his appointment and for his rights, powers, duties and liabilities. See the Code, secs. 503-505. The jurisdiction to appoint a receiver, especially in partnership cases, often raises questions of great difficulty, and it would be desirable to add to this chapter some illustrations for the guidance of the Mufassal Courts.
Chapter VIII enumerates the cases in which the High Courts at Calcutta, Madras and Bombay may make an order equivalent to the old prerogative writ of mandamus', the issue of which hereafter is expressly forbidden by section 50. The operation of the powers conferred by this chapter is confined to the local limits of
Appointment of receivers.
Enforcement of public duties.
* See 2 Story's Equity Jurisprudence, 1511.
2 Kerr on Receivers, and ed., pp. 63-78.
3 The right to issue this writ was enjoyed by the Presidency High
Courts as part of their ordinary original civil jurisdiction. Hence Chapter VIII does not apply to the High Court at Allahabad or to the Chief Court of the Panjáb, which do not possess that kind of jurisdiction,
the ordinary original civil jurisdiction of the Court exercising it. The power might usefully be extended to Mufassal municipalities; but the necessary legislation would probably be opposed by the local governments concerned. The Court may require any specific act to be done or forborne by any person holding a public office or by any corporation or inferior Court of Judicature, provided that the following conditions are fulfilled :
(a) An application for the order must be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing of the act.
(6) The doing or forbearing is under any law for the time being enforced clearly incumbent on the person, court or corporation in his or its public or corporate character.
(c) Such doing or forbearing is in the opinion of the High Court consonant to right and justice.
(d) The applicant has no other specific and adequate legal remedy.
(e) The remedy given by the order applied for will be complete.
The Secretary of State for India in Council, the GovernorGeneral in Council, and the three local Governments concerned are exempt from this power.
Preventive relief is granted at discretion of the Court by in- Preventive junction temporary or perpetual.
relief. Temporary, or as they are sometimes called interlocutory, injunctions are simply intended to preserve the status quo pending the decision of the suit. They may be granted at any period of a suit, are treated as of the nature of procedure, and are therefore regulated by the Code of Civil Procedure, secs. 492, 493.
Perpetual injunctions are only granted by the decree made at the hearing and upon the merits of the suit.
A perpetual injunction may be granted to prevent the breach Perpetual of an obligation existing in favour of the applicant. When such
tions. obligation arises from contract, the Court is guided by the rules and provisions contained in Chapter II relating to specific performance.
Where 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 five cases :
(a) Where the defendant is trustee of the property for the plaintiff.
1 This is explained to include a Manufacturing Co. v. Wilson, 2 Ch. trade-mark, a matter on which Singer Div. 449, had thrown some doubt.