Justice Sunil Dutta Mishra dismisses civil review at the stage of admission in a case under Section 16(c) of the Specific Relief Act, 1963

In Radha Krishna Prasad vs. Ram Bilash Prasad & Ors. (2026), Patna High Court's Justice Sunil Dutta Mishra delivered a 10-page long judgement dated January 30, 2026.  The review application was filed under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 against the judgment dated October 21, 2024 passed by the High Court in a First Appeal of 2008 whereby the appeal preferred by the review petitioner/appellant was dismissed affirming the judgment and decree dated November 29, 2007 passed by the Trial Court in a Title Suit of 2004 filed by the review petitioner/appellant. 

Justice Mishra judgement concluded:"13. This Court also finds no merit in the submission that the impugned judgment suffers from an error apparent on the face of the record. The findings returned in the First Appeal are reasoned findings based on appreciation of evidence and application of settled legal principles governing suits for specific performance. An alleged erroneous conclusion or a possible alternative view does not constitute an error apparent warranting review under Order XLVII Rule 1 of the C.P.C. 14. In view of the foregoing discussion, this Court is of the considered opinion that none of the grounds urged in the review application satisfies the statutory parameters laid down under Order XLVII Rule 1 of the C.P.C. The petitioner has failed to point out any error apparent on the face of the record or any other sufficient reason warranting interference with the judgment under review. Consequently, the review petition is devoid of merit and is liable to be dismissed. 15. Accordingly, the instant civil review is dismissed at the stage of admission. 16. There shall be no order as to costs."

The Court recorded that it was apparent from the record that the review petitioner/appellant had filed the suit for specific performance of contract for sale on the basis of agreement for sale dated January 25,  2002 claiming that defendants/respondents failed to comply the terms of the said contract and avoided the execution and registration of sale deed, while the plaintiff (petitioner/appellant) was always willing and ready to perform his part of contract to pay the balance consideration of money. As per the defendants, defendant no.1 had received Rs.60,000/- as advance from plaintiff and executed an agreement for sale dated 18.09.2001 in his favour for a total sum of Rs.2,70,000/-. The said agreement was prepared in duplicate, one copy remained with plaintiff and one copy with defendant. The case of the defendant was that he signed the document dated January 25, 2002 for extension of period believing the words of plaintiff and he had not received any amount of Rs.60,000/- as advance from the plaintiff. The Trial Court dismissed the Title Suit of 2004 on contest filed by petitioner/appellant/plaintiff vide judgment and decree dated November 29, 2007 wherein it was held that the agreement for sale of the suit land between the parties was executed on September 18, 2001 after receiving Rs.60,000/- as advance amount, for consideration amount of Rs.2,70,000/- for two kattha i.e. at the rate of Rs.1,35,000/- per kattha and alleged agreement of sale dated January 25, 2002 was indirectly extension of time period of the agreement of sale dated September 18, 2001 which was done taking trust under the circumstances whereby inserting the less rate of agreed consideration amount and accordingly, the agreement of sale dated January 25, 2002 was not a valid and legal document.  

The First Appeal No.15 of 2008 was filed by the petitioners was dismissed by the High Court vide a 25-page long judgment dated October 21, 2024 by Justice Mishra. He had relied on the decision of the Supreme Court in Aloka Bose vs. Parmatma Devi & Ors. reported in AIR 2009 SC 1527 wherein it was noted that all agreements of sale are bilateral contracts as promises are made by both. The vendor agreeing to sell and purchaser agreeing to purchase. It cannot be said that unless agreement is signed both by vendor and purchaser, it is not a valid contract. Even an oral agreement of sale is valid. If so, a written agreement signed by one of the parties, if its evidences such as oral agreement will also be valid. Moreover, in India, an agreement of sale signed by vendor alone and delivered to the purchaser and accepted by the purchaser has always been considered to be a valid contract and in the event of breach by the vendor, it can be specifically enforced by the purchaser. He had observed: "23. The law is now well settled that even where the agreement of sale is not registered, the document can be received as evidence for considering the relief of specific performance and the inadmissibility will confine only to the protection sought under Section 53-A of the Transfer of Property Act. The Hon’ble Supreme Court in R. Hemlata Vs. Kashturi reported in 2023 SCC OnLine 381 observed that unregistered agreement to sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49. In K.B. Saha and Sons Pvt. Limited Vs. Development Consultant Limited reported in (2008) 8 SCC 564, the Hon’ble Supreme Court held that a document is required to be registered, but if unregistered can still be admitted in evidence of a contract in a suit for specific performance." 

In P. Ravindranath & Anr. vs. Sasikala & Ors. reported in 2024 SCC OnLine SC 1749, teh Supreme Court observed: “Relief of specific performance of contract is a discretionary relief. As such, the courts while exercising power to grant specific performance of contract, need to be extra careful and cautious in dealing with the pleadings and the evidence in particular led by the plaintiffs. The plaintiffs have to stand on their own legs to establish that they have made out case for grant of relief of specific performance of contract. The Act, 1963 provides certain checks and balance which must be fulfilled and established by the plaintiffs before they can become entitled for such a relief. The pleadings in a suit for specific performance have to be very direct, specific and accurate. A suit for specific performance based on bald and vague pleadings must necessarily be rejected. Section 16(c) of the 1963 Act requires readiness and willingness to be pleaded and proved by the plaintiff in a suit for specific performance of contract. The said provision has been widely interpreted and held to be mandatory.”  

The law is well settled that relief of specific performance, the plaintiff has to prove that he was ready and willing to perform the part of contract. It has been held in U.N. Krishnamurthy (since deceased) thr. LRs. Vs. A.M. Krishnamurthy (2022) SCC OnLine SC 840. 

Supreme Court in His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar reported in (1996) 4 SCC 526 has made a distinction between ‘readiness’ and ‘willingness’ and the manner in which the said parameters are to be scrutinized in deciding a suit for specific performance. It is observed therein that by readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price for determining his willingness to perform his part of the contract, the conduct has been properly scrutinized. The factum of readiness and willingness to perform plaintiff’s part of contract is to be adjudged with respect to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances where the plaintiff was ready and was always ready and willing to perform his part of the contract. Both readiness as well as willingness have to be established by the plaintiff on whom the burden is cast in a suit for specific performance of an agreement. Therefore, the question would arise as to “whether the plaintiff discharged such burden in the instant case”. The plaintiff has failed to discharge his burden to prove that he was ready and willing to perform his part of contract. The plaintiff never agreed to pay the remaining consideration amount i.e. Rs.2,10,000/- as per the agreement of sale dated 18.09.2001.

Supreme Court in K.S. Vidyanadam & Ors. vs. Vairavan reported in (1997) 3 SCC 1 has held that every suit for specific performance need not be decreed because it is filed within the period of limitation by ignoring the time limits stipulated in the agreement. The Court will also “frown” upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser. These observations were reiterated in Saradamani Kandappan vs. S. Rajalakshmi and Ors. reported in (2011) 12 SCC Justice Mishra noted: "32. In my view, the conduct of plaintiff was not reflective of his readiness as well as willingness on his part to pursue the agreement of sale of the suit land, in terms of Section 16(c) of the Act." 

Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and willingness” on part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. The Courts will apply greater scrutiny and strictness when considering whether the purchaser was ready and willing to perform his part of contract.

The Supreme Court in Basavaraj vs. Padmavathi & Anr. reported in (2023) 4 SCC 239 referred to the judgment in  Ramrati Kuer vs. Dwarika Prasad Singh reported in AIR 1967 SC 1134 : 1967 (1) SCR 153, Indira Kaur & Ors. vs. Sheo Lal Kapoor reported in (1988) 2 SCC 488 and subsequent decision in Beemaneni Mahalakshmi vs. Gangumalla Appa Rao (since dead) by LRs. reported in (2019) 6 SCC 233 (para-14) on the aspect of readiness and willingness on the part of buyer. It was observed and held that unless the plaintiff was called upon to produce the passbook, accounts or documentary evidence either by the defendant or the Court orders him to do so, no adverse inference can be drawn against the plaintiff as to whether he had the means to pay the balance consideration. 

Upon perusal of judgment of the Trial Court, considering facts and circumstances of the case and materials available on record, the High Court had upheld the judgment of the Trial Court that the agreement of sale (Bai Beyana) with respect to suit land was executed by defendant in favour of the plaintiff on September 18, 2001 in which consideration amount with respect to the suit land was Rs.1,35,000/- per kattha. It was observed by this Court that the petitioner herein was not entitled to get the decree of specific performance on the basis of alleged agreement of sale dated January 25, 2002 and accordingly, the suit was liable to be dismissed. The counsel for the petitioner submitted that the impugned judgment suffered from error apparent on the face of the record and was passed with material irregularity in exercise of its jurisdiction. The counsel assailed the finding recorded by the High Court in the First Appeal to the effect that the  Trial Court had rightly held the agreement for sale dated September 18, 2001, fixing the consideration at Rs.1,35,000/- per kattha and that the plaintiff was not entitled to a decree for specific performance on the basis of the agreement dated January 25, 2002. It was submitted that the said finding suffers from an error apparent on the face of the record inasmuch as this Court proceeded on the erroneous premise that the agreement for sale dated January 25, 2002 on which the plaintiff case is based is not a valid and enforceable document and the original agreement for sale dated September 18, 2001 was a valid document. 

A supplementary affidavit has been filed on behalf of petitioner in the Review Application to bring on record a copy of “List of Document produced by the accused (defendant/respondent no.1) on September 16, 2004 in Complaint Case of 2003” to show that original copy of Bai Beyana deed dated September 18, 2001 was in custody of defendant no.1 and falsify the case of defendant no.1 that he executed Bai Beyana deed on September 18, 2001 in favour of plaintiff and handed over the original copy of the same to the plaintiff. 

The counsel for the petitioner submitted that the original copy of alleged Bai Beyana deed dated September 18, 2001 was never given to the plaintiff and the same is false and fabricated by defendant no.1 and the plaintiff did not conceal the fact regarding the previous agreement to sell. He also submitted that the finding in para 36 of the judgment with respect to concealment of fact regarding the previous agreement to sell was apparently an error on the face of record. He further submitted that non-consideration of this crucial circumstance materially affected the finding recorded in the impugned judgment and, therefore, the present case squarely falls within the permissible parameters of review.

The settled legal position is that the scope of review under Order XLVII Rule 1 of the C.P.C. is extremely limited, and that a review court does not sit in appeal over its own judgment, nor can it re-appreciate evidence or correct an alleged erroneous decision on merits, unless the error complained of is manifest, patent, and apparent on the face of the record. A judgment may be reviewed only on discovery of new and important matter or evidence, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason analogous thereto.

In Malleeswari vs. K. Suguna & Anr. reported in 2025 SCC OnLine SC 1927, the Supreme Court  enumerated the scope of civil review under Order XLVII Rule 1 read with Section 114 of the C.P.C. as herein under:
“15. It is axiomatic that the right of appeal cannot be assumed unless expressly conferred by the statute or the rules having the force of a statute. The review jurisdiction cannot be assumed unless it is conferred by law on the authority or the Court. Section 114 and Order 47, Rule 1 of CPC deal with the power of review of the courts. The power of review is different from appellate power and is subject to the following limitations to maintain the finality of judicial decisions:
15.1 The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC.
15.2 Review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.
15.3 In exercise of the jurisdiction under Order 47 Rule 1 of CPC, it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise. 
15.4 The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power.
15.5 The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors. 
16. To wit, through a review application, an apparent error of fact or law is intimated to the court, but no extra reasoning is undertaken to explain the said error. The intimation of error at the first blush enables the court to correct apparent errors instead of the higher court correcting such errors. At both the above stages,
detailed reasoning is not warranted.
17. Having noticed the distinction between the power of review and appellate power, we restate the power and scope of review jurisdiction. Review grounds are summed up as follows:
17.1 The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.
17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one which is manifest on the face of the record. Such an error is a patent error and not a mere wrong decision. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
17.3 Lastly, the phrase ‘for any other sufficient reason’ means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.”
10. This Court has given anxious consideration to the submissions advanced on behalf of the petitioner and has carefully examined the supplementary affidavit, perused the materials on record and considered the settled principles governing the scope of review jurisdiction.

Drawing on these parameters, Justice Mishra observed:"....this Court finds that the document filed and relied upon by the petitioner herein in this review application, i.e., ‘List of Document produced by defendant in Complaint Case No.291(C) of 2003’ to show that the original Bai Beyana dated 18.09.2001 was in custody of defendant no.1, does not conclusively establish that the agreement for sale dated 18.09.2001 was not executed or that it was fabricated, nor does it, by itself, dislodge the concurrent findings recorded by the learned Trial Court and affirmed by this Court in the First Appeal. The mere fact that the original Bai Beyana deed was produced from the custody of the opposite party no.1/defendant at a later point of time or was summoned from another court does not necessarily negate its execution or invalidate the findings arrived at on the basis of oral and documentary evidence already considered. Such a contention, in substance, seeks a re-evaluation of evidence and reassessment of factual conclusions, which is impermissible within the limited scope of review jurisdiction. 12. Furthermore, this Court is of the considered view that the said document filed on behalf of petitioner in this Review Application by way of supplementary affidavit does not have such determinative evidentiary value as would have inevitably altered the conclusion reached in the First Appeal. The findings recorded therein were based on a holistic appreciation of pleadings, evidence and surrounding circumstances, and not solely on the aspect of custody of the original agreement dated 18.09.2001." 

Suit for negative declaration that defendant is not legally married to plaintiff is maintainable: Bombay High Court

In Haridas Mahadev Sasne vs. Tejasvini Krushna Bhosale (2025), Bombay High Court's Justice N.  J. Jamadar held that "a suit for a negative declaration that the defendant is not legally married to the plaintiff is maintainable Consequently, the civil Judge can not be said to have committed any error in rejecting the application for rejection of the plaint" and rejected the civil revision application in its order dated March 6, 2025. The case was filed on February, 6, 2024. 

It is a case wherein the plaintiff, the complainant sought a declaration that no marriage occurred between her and the defendant, who falsely claimed marital status. 

The Court observed: the submission that a suit for mere declaration without any consequential relief, is not maintainable also does not carry much conviction. In a case of the present nature, the declaration about the marital status itself assumes the character of a substantive relief. The plaintiff in such a case is not required to seek any further relief. The declaration of marital status bears upon the rights and obligations of the parties and also serves the purpose of vindication of legal character."

A pivotal question of law which arose for consideration, in the revision application, was “whether a suit for declaration simpliciter that there is no marital relationship between the plaintiff and the defendant, is maintainable” ? 

The plaintiff and the defendant were residents of the same village. They were acquainted with each other. The defendant took undue advantage of the proximity, and falsely claimed that defendant’s marriage was solemnized with the plaintiff on September 21, 2018 at Janjagruti Matrimonial Alliance Center, Chiplun. Asserting that no valid marriage was ever solemnized between the plaintiff and the defendant and the latter was falsely claiming that the plaintiff is the wife of the defendant, the plaintiff instituted a suit for a declaration that no marriage was solemnized between the plaintiff and the defendant on September 21, 2018 or on any other day, at Janjagruit Matrimonail Alliace Center, Chiplun or at any other place. The defendant appeared and resisted the suit. The defendant also filed an application for rejection of the Plaint under Order VII Rule 11 of the Civil Procedure Code asserting that the plaintiff was seeking a negative declaration that no marriage was solemnized between the plaintiff and the defendant. Such a negative declaration cannot be granted under the provisions of Section 34 of the Specific Relief Act 1963. Thus, there was a bar to the Suit seeking negative declaration. Resultantly, the Plaint was liable to be rejected under Order VII Rule 11 of the Code.

The plaintiff resisted the application for rejection of the Plaint contending that if the averments in the plaint are read as a whole, it cannot be said that the plaintiff is seeking a negative declaration. Moreover, the Suit cannot be said to have been instituted under the provisions of Section 34 of the Act of 1963 only. The plaintiff was entitled to seek declaratory relief under Section 9 and Order VII Rule 7 of the Code de hors the provisions contained in Section 34 of the Act of 1963. At any rate, the plaintiff was seeking a declaration as to her status, and, therefore, the purported bar under Section 34 of the Act of 1963 was inapplicable. 

The civil judge was persuaded to reject the application observing that a suit of the present nature for negative declaration was maintainable. The relief sought by the plaintiff was of a substantive nature. Thus, there was no substance in the application. Being aggrieved, the defendant has invoked the revisional jurisdiction.

The counsel for the respondent took the Court through the Plaint, averments in the application for rejection of the Plaint and the reply. He urged

that a person is not entitled to seek a negative declaration under Section 34 of the Act of 1963. It was submitted that the text of Section 34 of the Act of 1963 warrants that the person seeking a declaration must claim to be entitled to any legal character, status or right. A declaration that the plaintiff is not married to the defendant does not

fall within the ambit of the main part of Section 

In the case at hand, the plaintiff is seeking a mere declaration without any consequential relief. Therefore, the proviso to Section 34 of the Act, 1963 precludes the Court from granting a mere declaration. In these circumstances, according to counsel for the respondent a declaratory suit of the present nature is clearly barred. He urged that though there is a conflict of views of the different High Courts on the aspect of maintainability of such a suit, a Division Bench Judgment of Karnataka High Court in the case of Bhuvaneshwari vs . Revappa Alias Rani Siddaramappa Kolli (Since Deceased) by L.Rs 2009 SCC OnLine Kar 738 has categorically ruled that a relief seeking negative declaration as to marriage is beyond the scope of the provisions contained in Section 34 of the Act of 1963. The decision to the contrary by Calcutta High Court in the case of Joyita Saha vs. Rajesh Kumar Pande, AIR 2000 Calcutta 109 does not adequately deal with this aspect. Therefore, the decision in the case of Bhuvaneshwari case commands more persuasive value.

The counsel for the respondent, submitted that the declaration sought in the instant case cannot be said to be negative in character. Section 34 of the Act of 1963 is not the sole source of a declaratory relief. Section 9 of the Code is expansive enough to include a Suit for declaration that the defendant, who falsely claims to be married to the plaintiff, is not the husband of the plaintiff. Therefore, the very premise of the application for the rejection of the Plaint on the count that Section 34 of the Act of 1963 bars a Suit of the present nature, is flawed. He also submitted that the judgment of the Karnataka High Court can not be construed to lay down the ratio that a Suit for a declaration that the plaintiff is not married to the defendant cannot be instituted. The controversy in the case before the Karnataka High Court was regarding the maintainability of a Suit seeking a declaration that the defendant was not the wife of the plaintiff, before the Family Court. Adverting to the provisions contained in Section 7 of the Family Courts Act, 1984 the Karnataka High Court ruled that a relief in the nature of a negative declaration in respect of a marriage does not fall within the ambit of the provisions contained in the Explanation to Section 7 of the Family Courts Act, 1984. 

He further submitted that the Division Bench of Karnataka High Court has made a passing observation that the relief of the instant nature is beyond the scope of section 34 of the Act, 1963. The Court has not considered the issue elaborately. The provisions and precedents which govern the field have not been considered. Thus, the said decision can be said to be a precedent sub silentio. To this end, reliance was placed on a Supreme Court judgment in the case of A-One Granites vs. State of U.P. and Ors. (2001) 3 SCC 537.

According to him, as a matter of principle, it cannot be said that a suit for negative declaration is not at all maintainable. The Court essentially deals with the legal character, right or status. The form of declaration is not material. He placed reliance on a judgment of Andhra Pradesh High Court in the case of Narhar Raj (died) by L.Rs and Ors. vs. Tirupathybibi and Anr. 2002 SCC OnLine AP 1032. wherein the Andhra Pradesh High Court held that a suit for a relief of negative declaration is maintainable.

The Court took note of the nature and contours of a declaratory decree. A declaratory decree, in effect, cements and strengthens the legal character, right or status a person asserts, and denied by another. A declaration as to legal character or status protects from adverse attacks on title to such right, character or status and obviates further litigation by putting a judicial imprimatur over such right, character or status. Ordinarily a declaratory relief is accompanied by the consequential relief. However, it is not inconceivable that, in a given case, declaration itself assumes the character of a substantive relief. Undoubtedly, in a vast majority of cases, declaratory relief is sought under section 34 of the Act, 1963. However, that is not the sole repository of the power to grant a declaration. A civil Court in exercise of its ordinary civil jurisdiction, referable to section 9 of the Code, may grant a declaration dehors the provisions contained in section 34 of the Act, 1963.

In order to appreciate the submissions of the  counsel for the applicant, the provisions of section 34 of the Specific Relief Act, 1963 was cited. It reads: "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.

A bare perusal of the provision indicates that any person entitled to any legal character or any right in relation to any property, may sue for declaration. The words “character” and “property” are of expansive nature. To illustrate,

“character” may include the status and relation qua another person. The character may encompass within its scope an office, privilege and position with regard to a given entity. All attributes which the law vests in a person on account of an office, position, status or relation may fall within the ambit of the term “legal character”.

Secondly, the declaration can be sought against any person denying the first person’s title to such character or right, and also against any person interested to deny first person’s title to such legal

character or right.

Thirdly, the proviso to section 34, precludes the Court from granting a declaration simpliciter where the plaintiff though able to seek further consequential relief, than a mere declaration omits to do so. The proviso thus warrants a further inquiry whether in the facts of the case, the plaintiff is able to seek further consequential relief and yet omitted to do so. Obliviously the necessity and adequacy of consequential relief, in addition to declaration, would hinge upon the facts and circumstances of each case.

The declaration under section 34 of the Act, 1963 is, however, not exhaustive of the power of the civil Court to grant declaratory reliefs. A profitable reference, in this context, can be made to a judgment of the Supreme Court in the case of Vemareddi Ramaraghava Reddy and Ors. vs. Konduru Seshu Reddy and Ors. AIR 1967 Supreme Court 436 wherein the Supreme Court traced the development of the law with regard to declaratory action and enunciated that section 42 of the Specific Relief Act, 1877 (Old), was not exhaustive of cases in which a declaratory decree may be made and the civil Courts have the power to grant such declaration independent

thereof. The observation in the paragraph 11 reads: "In our opinion, s. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the

plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of S. 42 of the Specific Relief Act."

The Supreme Court further expounded the law in the case of M/s. Supreme General Films Exchange Ltd. vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors. AIR 1975 Supreme Court 1810.  The Court enunciated that section 42 of the Specific Relief Act, 1877 merely gives statutory recognition to well recognized type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42.

The edifice of the submission of counsel for the applicant is that section 34 of the Act, 1963, bars the declaration, as sought in the instant case, and, therefore, the plaint deserves to be rejected stands dismantled. A civil Court is competent to grant a declaration regarding the marital status dehors the provisions contained in section 34 of the Act, 1963.

The Court examined as to whether a negative declaration as to marital status can be granted. First and foremost, from the phraseology of section 34 of the Act, 1963, an inexorable inference can not be drawn that such a negative declaration, cannot be made. The term legal character is of wide amplitude. The ‘marital status’ as a personal attribute and qua a particular person, squarely falls within the ambit of legal character. If a person can seek a declaration that he is legally weeded to the defendant, a fortiori , there does not seem any impediment in seeking a declaration that he is not married to the defendant. The negative form

of declaration is nothing but assertion of a particular positive marital status. If the defendant denies or is interested in denying such marital status asserted by the plaintiff, a declaration can be legitimately sought under the provisions of section 34 of the Act, 1963 itself.

The Court observed: "there seems to be a cleavage in the judicial opinion of the High Courts on the tenability of such a suit for negative declaration as to marital status." In the case of Bhuvaneshwari which constituted the sheet anchor of submission of counsel of the applicant, a Division Bench of Karnataka High Court while deciding the question as to whether a suit seeking declaration that the defendant is not the wife of the plaintiff is maintainable before the Family Court, after considering the provisions contained in section 7 of the Family Courts Act, 1984 which confers the jurisdiction upon a Family Court, held that the relief in the nature of negative declaration in respect of a marriage, is not tenable before the Family Court. After recording this view, the Division Bench ventured to add that the relief of such nature was even beyond the scope of section 34 of the Act, 1963. The observations in paragraph 22 of the judgment are relevant and hence extracted. It reads:-"In fact, we find a relief of this nature is even beyond the scope of Section 34 of the Specific Relief Act as a negative declaratory relief to declare that the marriage had never taken place, is not one that can come within scope of Section 34 of the Specific' Relief Act. Accordingly, when it is a relief that cannot be granted in law, there is no way the civil court can grant a declaratory relief."

A Division Bench of Calcutta High Court, in the case of Joyita Saha case ruled that since the marriage itself was denied and the prayer was made in the suit for a declaration that there was no marriage between the parties, the suit as framed was quite maintainable in law. The controversy, however, seems to have been settled by a decision of the Supreme Court in the case of Balram Yadav vs. Fulmaniya Yadav (2016) 13 SCC 308. In this case, the High Court of Chattisgarh had allowed an appeal against a decree passed by the Family Court to the effect that the respondent was not the legally married wife, on the ground that a negative declaration was outside the jurisdiction of the Family Court. Referring to the provisions contained in sections 7 and 8 of the Family Court Act, 1984 the Supreme Court held that in case there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative or negative relief. What is important is a declaration regarding marital status. 

The observations in paragraph 7 are material and hence it is extracted. It reads: "Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws."

The counsel of the applicant attempted to distinguish this judgment by canvassing a submission that the ratio in this decision is restricted to the Family Court, and that a civil Court would not be empowered to grant negative declaration as to marital status. 

Bombay High Court observed: "The submission simply does not merit countenance." The High Court underlined that "the civil Court has power to grant declaratory relief even independently of section 34 of the Act, 1963. The principle that the form of declaration does not matter and it is the status or legal character with regard to which the Court makes the declaration that is of substance, applies with even greater force to the proceedings before the civil Court which has inherent jurisdiction to decide all suits of civil nature unless their cognizance is either expressly or impliedly barred."