EQUITY
Equity its Nature and Definition
Q. 1 (a). What do you understand by Equity? Describe the nature and scope of Equity.
Or
Discuss the meaning, nature and scope of Equity.
Ans. Introduction. The term ‘Equity’ is a derivation from the Roman term, acquitas, which means equalization or levelling Etymologically, therefore, Equity is that which levels down any arbitrary reference or denial of justice. Equity is the means whereby the law and its administration are made to approximate as closely as possible to the ideals of justice. There have been three manifestations of it. Firstly, there is justice and reasonable interpretation of law. Secondly, there is the need to temper the law in its applications to the individual case. Thirdly, there is need to supplement the shortcomings of the law. Equity fulfils the gaps of law, as no law can provide provisions for all the situations.
The term ‘Equity’ is used in various senses. Out of many the four main senses in which the term is used are: (i) Literal sense, (ii) General sense, (iii) Roman sense, and (iv) English sense. They are dealt with hereunder in more detail:
Literal sense.- The literal meaning given to Equity is a right as founded on the “laws of nature”, “fairness” and “justice”. This is also the most popular notion about this expression.
General sense.- In the most general sense we call the Equity, which in human transactions is founded on natural justice, in honesty and right. In this sense it means that one should do to all men as he expects to be done to him
Roman sense.- Sir Henry Maine, interpreting, it has observed that in progressive societies social necessaries and social opinions are always more or less, in advance of law. The gulf that is thus created between the social opinions and the existing law is bridged up by three instrumentalities. namely (i) Legal Fictions, (ii) Equity, and (iii) Legislation. When law becomes rigid, legal fictions liberalise it, when legal fictions also become outdated. Equity softens the rigour of law, till finally a point is reached when expansion of Equity ceases.
It would be better if this observation of Maine be explained with reference to the Roman legal system. In the earliest period of Roman Law
the ‘Praetor’ was the supreme judicial Magistrate of the Roman Republic Each Praetor on entering upon his judicial functions set out a list of the rights and remedies which he would recognise during his tenure of office and gave public notice of the modes in which he intended to give relief against the rigidity of the established system. Whenever an application of the old “Jus Civile” would do a moral wrong and produce a result inequitable, the Praetor conforming his decision to the law of nature provided a remedy by means of an appropriate action of defence. Gradually, the cases as well as the modes in which the Praetor thus interfered became more and more common and thus a body of moral principles was introduced in the Roman Law which constituted Equity (aquitas) by the side of “Jus Civile”, Le… Civil law.
Sir Henry Maine keeping this background of Roman legal system says.” Equity means any body of rules existing side by side of the original civil law, founded on distinct principles and claiming incidentally, to supersede the civil law by virtue of a superior sanctity inherent in those principles.”
English sense. – ‘Equity’ in English sense means the body of rules formulated and administered by the Court of Chancery to supplement the rules and procedure of the common law. The law administered in England, by the middle of the thirteenth century was in part Customary Law and in part Statute Law. On account of the narrowness, extreme rigidity and formalism of the Common Law it gave either an inadequate remedy or no remedy at all. In such cases a petition was made to the King-in-Council to exercise his extra-ordinary judicial powers. A custom developed of referring these petitions to the Chancellor, who was the Chief of the King’s Secretaries. It was in dealing with these petitions that the Chancellor began his judicial functions and the Court of Chancery was established besides the Court of Common Law. The Chancellor acted according to his judicial conscience on the principles of natural justice. The principles and rules thus arising through the administration of justice in the Courts of Chancery were called ‘Equity in contradistinction to Common Law. Up to 1873 there remained two separate sets of courts, namely. Common Law Court and Chancery Court, but in 1873 through the Judicature Act. both the Courts were amalgamated and were assigned with the power of enforcing all the rights and remedies be it legal or equitable
Equity in its technical sense may be said to be “part of natural justice. which was omitted to be enforced by the Common Law Courts, and it was an omission which was supplied by Chancery Court.”
Equity as a Branch of Law.- Equity as a branch of any legal system, may, therefore, be said to mean the principles or rules emerging from the administration of justice through a power and duty vested in the judges in those cases which are not covered or adequately provided for by the existing law of the land. The system of law prevailing in State springs upon the basis of past cases or those that may be anticipated for future. It is impossible to prepare such a comprehensive Code so as to cover every possible case.
Similarly, the equitable remedies like specific performance or injunction did not destroy the common law remedy of damages but were either additional or alternative.
Nature and scope of Equity.- Equity is an equivocal term and it has been used in different senses. The literal meaning of the term ‘Equity’ is ‘right as founded on the laws of nature’, ‘fairness’, ‘justice’ and this corresponds with the popular notion about this expression. It is, however. difficult to ascertain the meaning of equity, as a scheme of jurisprudence.
According to Aristotle, “Equity is the correction of the law where it is defective on account of its generality.”
Maitland defines equity as that body of rules administered by the English Courts of Justice which were if not for the operation of the Judicature Acts, would be administered by those Courts which would be known as Courts of equity.
Henry Levy Ulman defines equity as a body of rules, the primary source of which was neither custom nor written law, but the imperative dictates of conscience which had been set forth and developed in the Courts of Chancery.
“Equity is an intellectual energy, it is influenced by the gradual changes in the mental standpoint taken by successive generations. It thus moulds its deductions from one set of data as the common law to another into – continued adaptations to the growing needs of society-West Jin-In re: Kundhandas Narrandas, [(1880) 5 Bom 154, 172.]
The following may be stated as the possible views on the place or scope of equity jurisdiction in any legal system:
(1) The most general and extensive view on the domain of equity appears to be that given by Aristotle, “It is equity to pardon human failings. and to look to the lawgiver and not to the law; to the spirit and not to the letter; to the intention and not to the action; to the whole and not to the part, to the character of the actor in the long run, and not in the present moment, to remember good rather than evil, and the good that one has received rather that the good that one has done, to bear being injured, to wish to settle a matter by words rather than by deeds, lastly to prefer arbitration to judgments for the arbitrator sees what is equitable, but judge only the law, and for this an arbitrator was first appointed in order that equity might flourish.”
Probably the jurisprudence of no civilised nation ever attempted so wide a range of duties for any of its judicial tribunals. Even the Roman Law, which has been justly thought to deal to a vast extent in matters ex acquio et bona, never effected so bold a design. It need always be remembered that an unrestricted equitable jurisdiction would defeat the most important object or aspect of the law. It would introduce at least uncertainty in law and Insecurity in legal rights and most likely arbitrariness in the administration of justice.
(2) A more limited view on the domain of equity is that ascribed by Blackstone:
“Equity, in its true and genuine meaning is the soul and spirit of all law, positive law is construed and notional law is made by it. In this, equity is synonymous with justice, in that, it is the true and sound interpretation of the rule.”
This statement, on the meaning and province of equity, h: in the words of Story, “the sanction of jurists in ancient as well in modern times,” and in this sense equity must have ” a place in every rational system of jurisprudence if not in name, at least in substance.” (Story’s Equity Jurisprudence).
It is submitted that the correct scope of equity jurisdiction ought to be that defined by the Maxim,” Equity will not suffer a wrong to be without a remedy.”
Q. 1 (b). Writé short note on the position of equity under the Indian legal system.
Ans. Position of equity under the Indian legal system.- Equity has had its due place and importance in the development of law under the Indian legal system. This is clearly noticeable not only in the Anglo- Indian law but equally in the Muslim and Hindu laws.
Hindu law has never been static and has consequently introduced equitable principles to meet the exigencies of the time.
The later Smriti-kars, viz., Narada and Brihaspati have categorically acknowledged the importance of equitable principles. Brihaspati has said that “Decision should not be made merely on scriptures. There would be failure of justice if the principles based on reason are not followed:
“केवलं शास्यमाश्रित्य मा कर्तव्यो हि निर्णयः ।
युक्तिहीने विचारेतु धर्महानिः प्रजायते ॥” – बृहस्पति
The ‘Yukti Vichar’ was necessarily the principle of equity which was based on justice and right.
According to Dr. K.P. Jayaswal, “we may recall Kautilya’s provision that if the Dharma-text is found opposed to judicial reason, the Dharma-text fails and there the authority of reason prevails. Yajnavalkya says that where there is conflict between two smriti texts, reason (or equity, as Mandlik puts it) is there stronger Yajnavalkya does not permit a possibility of conflict between reason and text. He limits the superiority of Reason or Equity to a conflict between the Shastras themselves”. (Manu and Yajnavalkya by K.P. Jayaswal, p. 80).
As regards the Muslim law, the Privy Council observed, “The Chapter on the Duties (Adab) of the Kazi in the principal works on Mussalman law clearly shows that the rules of equity and equitable considerations commonly recognised in the Courts of Chancery in England, are not foreign to the Mussalman system, but are in fact often referred to and invoked in the adjudication of cases.” [Hamira Bibi v. Zubaida Bibi, (1916) 43 IA 294]
The Muslim law also partly owed its origin to the principles of equity. These principles embodied in the Muslim law are known as Istihsan (Juristic equity). Abu Hanifa, who was founder of Hanafi sect of Sunni law expounded the principle that the rule of law founded on analogy could be set aside at the option of the ‘Judge’ on a liberal construction or juristic preference to meet the exigencies of a particular case.
Under the British rule and administration of justice the Law Commissioners preparing a body of substantive law for India recommended that the Judges should decide those cases for which there is no provision in law “in the manner they deem most consistent with the principles of justice, equity and good conscience.”
Most of our statutory law and the administration of justice are based on English law and its legal structure and as the things are or may be normally anticipated for the near future it is unlikely that any substantive change or divergence would be introduced even if such a change-over in fundamentals may be deemed necessary or expedient.
Resort to the principles of justice, equity and good conscience for the decision of a particular case is permissible only where the point is not covered by the statutory or the general law of the land.
The rule of justice, equity and good conscience is subject to certain exceptions identical with rules of English law. [Shiv Ratan Singh v. Karan Singh, AIR 1924 All 857]
English law or equity is not applicable in India:
(I) where it is local in character and is not suitable to the Indian society and circumstances,
(II) where it is in a state of uncertainty,
(III) where its merits are not such as to command it to universal acceptation.
It is hardly open to an Indian Court to invent a new rule of equity for the first time contrary to the principles of English law. If the law is clear in England and there is no statutory enactment to the contrary in India, one should hesitate to introduce any supposed rule of equity in conflict with that law.
Even in giving effect to Hindu and Muslim laws of property and family law, equitable rules derived from the English Courts have been brought to bear on its development in the exigencies which have been arisen in course of time.
Origin and Development of Equity
Q. 1 (c). Discuss the important aspects of origin and development of Equity.
Or
State briefly the causes that led to the rise of Equity jurisdiction in England.
Ans. Introduction. In England, Equity can be traced from the time of the Norman conquest. After the Norman conquest body of rules was developed and called the Common Law, that is to say, a law common to the whole country. The law was effected under the high centralised system of the Normans. By the time of Edward I the so-called Common Law has taken a definite shape and was circumscribed by clean outlines. The Common Law was administered in three separate Courts which had grown up during the same period.
By the end of 13th Century we find three great courts established in England. They were as follows:
(i) the King’s Bench,
(ii) the Court of Common Pleas, and
(iii) the Exchequer.
The law which these courts administered was, apart from Statutory Law, the customary Law which by the time of Edward I was already called. “Common Law”.
Common Law. Common law denotes the body of legal rules, the primary source of which was the general immemorial custom and which had its source mainly in the judicial decisions of the old Courts of King’s or Queen’s Bench, Court of Common Pleas, and Exchequer Court which had been established in England in the reign of Edward I.
The Exchequer. One of the three courts, the Exchequer was not only a Court of law but was also an administrative department of the Government. Its Secretariat Office was called the “Chancery and the head of the Chancery was called the Chancellor”.
The Chancellor. The Chancellor, was not originally a judge but was the King’s Prime Minister and the most important member of the King’s Council. He was “the King’s Secretary of State for all the departments”. He kept the King’s great seal. All the writings which were to be done in the King’s name were done under his supervision.
Issue of Writs. The Chancellor, besides other duties, had a very important duty of issuing writs. If a person wanted to bring an action in Common Law, he had first to obtain a writ from the Chancery. Such writs were prescribed long ago and were granted to a suitor on payment of the prescribed fee. Thus, the whole Common Law was dancing round the recognised writs. The remedies for wrongs were totally dependent upon them, and the dictum was that “where there is no writ there is no remedy”. The writs were limited in number but the wrongs to the public were limitless. So, there were many wrongs for which writs were not available. Absence of writs meant absence of remedies.
Statute of Westminster II, 1285.- Before the Statute of Westminster 11, 1285, the Chancellor had no power to issue fresh writs excepting those which were prescribed and called “writs of course”. In case the Chancellor wanted to issue a new writ, he had to seek consent of the King-in-Council.
It was by virtue of the Statute of Westminster II, 1285, that the Chancellor was given limited powers of framing new writs in consimili casu; that is to meet new cases. This Statute was passed to remedy the defect of the Common Law procedure which required each action to be commenced by a special writ, and refused relief to a suitor who chose the wrong writ or could not find a suitable writ.
Deficiencies in Common Law. The Common Law, at that time was deficient in the following three respects:
(1) Remedies were not available in all cases for many wrongs remained unredressed for want of proper writs. The writs were limited and many claims could not be covered under any of them. Hence, there were insufficiency of writs under the Common Law to redress the grievances of the suitors.
(2) The relief granted by the Common Law Courts was not always adequate. They gave relief only in damages for breach of a contract but did not provide for specific performance; and lastly
(3) The Common Law being a reminiscence of the feudal period the procedure in the Common Law Court was defective, unsatisfactory and formal. The procedure at Common Law was tardy, formal and defective, so it failed to provide satisfactory relief to the litigants.
Petition to the King. Due to the deficiencies in the Common Law and Statute Law and from the inadequacy of the remedies in the prescribed forms, a custom was developed of submitting petitions to King “for the love of God and in the way of charity.” These petitions were made to redress the wrongs, for which no remedy was available under the Common Law.
The King was regarded as the fountain of justice. Naturally, with the greater amount of such petitions pouring in, he delegated the function of deciding such cases to the Chancellor. This custom was confirmed by an order of Edward III in 1474.
Chancellor’s Judicial functions- The Court of Conscience. The Chancellor acted at first in the name of the King-in-Council, but in 1474 a decree was made authorising the Chancellor to receive and entertain the petitions directly, and this practice continued thereafter so that there came to be a Court of Chancery as an institution independent of the King and his Council.
It was in dealing with these petitions that the Chancellor began his judicial function. He had the respect and goodwill of the public, for he was a Common Law Judge as well as high ecclesiastic well versed in both Civil and Common Law and from his position, eminently fitted to introduce statutory changes without innovations. For the Chancellor did not consider himself bound by precedents, and the “rules of justice, equity and good conscience” which he administered, were mostly drawn from the Chancellor’s individual notion of natural justice. The Court of Chancery was, therefore, called the Court of Conscience.
15th Century. In the 15th Century, the practice of creating “trust” grew popular and it was acknowledged by the general consent that the Chancellor was doing useful work in enforcing them. Thus “one great field of substantive law fell into the hands of the Chancellor.”
16th Century. In the 16th Century the Chancery began to deal with cases relating to accident, fraud and breach of confidence. Thus rules which developed during the 16th Century were named as “rules of equity and good conscience.”
17th Century. In the 17th Century, a conflict arose between Equity and Common Law and the Chancery successfully overcame in the struggle. James I finally decided the quarrel between Chancellor Ellesmere and Chief Justice Coke, in favour of the Chancellor, empowering him to issue “injunction” for preventing men from going to the Court of Law. Maitland has observed that from this time onwards, the Chancery had an upper hand. Although Chancery did not claim superiority over the Common Law but prevented litigants going to Common Law Courts.
This was the century of transformation of Equity. The ecclesiastical Chancellors had already given place to lawyers. Of these, Lord Nottingham became Chancellor in 1673, who is called the father of Modern Equity. He systematised the rules of Equity and with him commenced a new era of the definite rules and precedents. By now Equity was administered as a recognised part of the law of the Land.
18th Century. The 18th Century is remarkable for a series of great Chancellors. By the end of this Century Equity became a definite system. Report of cases in Chancery were regularly published and text-books were prepared on the subject of Equity. Lord Hardwick (1737) is notable for the work of systematization of Equity. He examined and formulated nearly all the rules of Equity, transforming it from a haphazard collection of rules, some well developed and others hardly yet perceived, into a true and definite system of jurisprudence. By the end of this Century, ‘legislative’ interference began and Equity ceased to expand.
19th Century Judicature Acts. The principle and rules thus arising through the administration of justice in the Court of Chancery were called equity in contradistinction of Common Law. Upto the year 1873 there remained, in England two separate systems of Courts with different jurisdictions. The Common Law Courts were acting on the principles of Common Law while the Chancery Courts were performing on the basis of the principles of Equity.
The double system of the administration of justice mentioned above, was extremely inconvenient which led to the passing of the Judicature Act, 1873. By this Act, the two classes of Courts were amalgamated and reconstituted and such Courts were assigned with the power of enforcing all the rights and remedies be it legal or equitable.
A High Court of Justice with five divisions was established. Since 1181 it had only three divisions, namely, the Chancery, the King’s Bench and the Probate and Admiralty Division. Each of the divisions were to administer both sets of rule, i.e., of Law and Equity; and it was decided that in matters where there was a conflict between them, the rules of equity shall prevail.
Q. 2 (a). ‘Equity came to supplement law not to destroy it.’ Discuss.
Or
What is the relationship between Equity and Common Law ?
Or
Discuss the Statement that “Equity came to develop fully the Common Law and not to abolish it.”
Or
‘Equity is not against Common Law but it is supplementary.’ Discuss.
Or
‘The standard of equity was as variable as the measure of the Chancellor’s foot. Selden. Examine this statement.
Ans. Relation of Equity with Common Law. In England, the Common Law Courts laid down that every kind of civil injury must fall within the limits of some particular form of action and carrying this principles to its logical conclusion, held that unless an injury could be referred to some forms of action, the party was left without a remedy. Cases, therefore, frequently arose for which the Common Law gave no remedy at all.
The equitable jurisdiction grew up from the deficiencies of the Common Law and from the inadequacy of the remedies in the prescribed forms to meet and full exigency of a particular case. Historically the jurisdiction of Equity may be traced to the following:
(a) Inflexible procedure in Common Law;
(b) Inadequacy of remedy at Common Law;
(c) Absence of relief in certain cases at Common Law owing to its defective procedure.
The person who could not get adequate relief owing to the shortcomings of the Common Law resorted to the Court of Chancery. They presented their petitions to the King-in-Council. These petitions were later on referred by the King to Chancellor. The Chancellor could, in such cases, invent new writs and provide the complainant with a means of bringing an action in the Common Law Courts.
Court of Chancery and Court of Common Law-No conflict.-
Equity pre-supposed the existence of Common Law at every point. The Court of Chancery never claimed to override the Courts of Common Law. It accepted the Common Law rule on any question that arose but simply added that something was necessary, either because the Common Law rule was inadequate or because it caused hardship. Thus equity was an addendum to the Common Law which never meant to supersede Common Law, but with its distinct set of rules fulfilled the ends of justice. Maitland points out that “Every jot and every title of the law was to be obeyed, but when all this had been done something might yet be needful, something that Equity would require. The relation between Common Law and Equity was, therefore, not one of conflict.”
Equity fulfilled the law-Three ways. The conception of Equity, apart from the Common Law, would have been an impossibility. Maitland, therefore, remarks that “Equity had come not to destroy the law, but to fulfil it. Equity was fulfilling the law in three ways:
(1) By providing relief in cases for which no relief whatever was available at the Common Law Courts.
(2) By providing adequate remedy for wrongs which were inadequately redressed at the Common Law Courts.
(3) By softening the rigid and formal procedure of the Common Law.
Equity provided these reliefs through the exercise of its exclusive, concurrent and auxiliary jurisdictions.
Illustrations- A few illustrations will make it clear that equity had come not to destroy the law but to fulfil it :
(a) Common Law did not recognise a trust and regarded the trustee as the owner of the land. Equity said that the trustee was the owner of the land but added, that he was bound to hold the land for the benefit of the beneficiary.
(b) The equitable remedies like “specific performance” or “injunction” did not destroy the Common Law remedy of damages, but were either additional or alternative.
Equity abates the rigour of law. Dudley Dudley-Lord Talbolt in Dudley v. Dudley. [(1965) 45 ER 118), has observed that “Now equity is no part of the law, but a moral virtue, which qualifies, moderates and reforms the rigour, hardness and edge of the law, and is a universal truth, it does also assist and the law where it is defective and weak in the constitution and defends the law from crafty evasions, delusions and new subleties, invented and contrived to evade and delude the Common Law, whereby such as have undoubted right are made remedies, and this is the office of Equity to support and protect the Common Law from shifts and crafty contrivances against the justice of the law Equity, therefore, does not destroy the law, nor create it, but assists it.”
Conclusion. The above facts show that Equity was performing the ideal functions of the Common Law by providing such relief which were omitted to be enforced to the Common Law Courts and which omission. was supplied by the Court of Chancery. Equity, therefore, came not to destroy but to fulfil the Common Law
Chancery Court
Q. 2 (b). The Court of Chancery was Court of Conscience Discuss.
Or
What kinds of jurisdictions were exercised by the Court of Chancery?
Or
What are the Classification of the Equity Jurisdiction?
Or
Explain the three-fold Jurisdiction of Equity as expounded by Story.
Ans. Jurisdiction of Equity. Before passing of the Judicature Act of 1873, Equity enjoyed three types of jurisdiction. They were:
(1) Exclusive:
(2) Concurrent, and
(3) Auxiliary.
It was usual, before the passing of the Judicature Act, to divide the jurisdictions of Equity by reference to its relation to Common Law, and to classify it it unde under the three heads mentioned above.
The Exclusive Jurisdiction. The first division contained those cases where the Common Law gave no relief. In such cases, therefore, equity came to help those persons who were, although entitled to the rights but Common Law did not recognise those rights. For example the trustee was the custodian of the beneficiary’s interest but the beneficiary was the person for whom the trust was created. In case, the trustee did not provide for the beneficiary, the beneficiary could not claim his right under the Common Law. But equity came to help the beneficiary, and laid down that the trustee was bound to hold the property for the beneficiary. In this way, equity came to help such person under its exclusive jurisdiction.
The “Trust”, “Equity of redemption, or a ‘mortgage’ and ‘equitable rights of married women are included in this jurisdiction.
It will not be out of place to mention here that in case of trust, the Common Law regarded a “Trustee” as the owner of the land because they applied this possession theory that he who has got the possession of a thing is owner thereof but Equity regarded the beneficiary, ie. he who is to be benefited by the trust, the true owner.
The Concurrent Jurisdiction. The second division, i.e. concurrent jurisdiction comprised cases of two kinds. –
(a) The cases in which the right was to be enforced for which the remedy granted by Courts of law was totally inadequate and the Chancellor granted adequate relief. As in case of compensation that was merely granted by the Common Law Courts, but it was Equity which enforced such order through its order of specific performance, such cases included injunction, rectification and so forth.
(b) Those cases where the right in question was a legal right and the relief to be granted was the same in the Court of Equity and in Common Law Court. But the remedy granted by Equity was in a direct manner whereas Common Law Courts granted in an indirect manner. In these cases, the suitor had a choice between the remedies granted by the two Courts.
Under concurrent jurisdiction, equity made the remedies available under Common Law adequate. Where a person was in possession of a property, if another person challenged that possession, equity provided that the person in possession, will keep the possession intact and could fight the case in a Court against the person who challenged his possession, because possession was nine-tenth of ownership.
The Auxiliary Jurisdiction. The matter coming under the Auxiliary jurisdiction depended upon the legal principle, “The Court of Chancery merely lent its aid, as by compelling discovery towards the enforcement of legal remedy for a legal right which owing to deficiency of administrative power of machinery the Common Law Courts were unable practically to grant” (Snell on Principles of Equity).
Ashburner splits Auxiliary Jurisdiction into two classes:
(a) Those wherein the jurisdiction of the Court was exercised by a judgment which affected or might affect the property, the subject- matter of the suit. The Court of Equity in such cases either prevented multiplicity of suits or prevented the injury by issuing injunction.
(b) Those cases in which the Court of Chancery merely cleared the way for the proceedings. In such cases the plaintiff in equity asked no relief by his will and no judgment was pronounced by the Court which could affect the rights of parties. Examination of witnesses, etc., came under this class.
To sum up. Strahan has given a comprehensive definition covering all the three jurisdictions. He says that “Where the right to be enforced and the remedy sought was equitable, it was within the exclusive jurisdiction; where both the rights to be enforced and the remedy sought were legal and an additional remedy was provided it was concurrent jurisdiction. Equity only intervened to help the plaintiff to meet the legal remedy, by reforming the procedure, it was within the auxiliary jurisdiction.
Q. 2 (c). “Equitable remedies cannot be claimed as a matter of right. They depend upon the discretion of the Court.” Examine.
Ans. The equitable remedies are discretionary in nature. The Court in granting these remedies is guided by certain considerations which more or less depend upon their subjective satisfaction. For example, in equitable relief is refused to those who had unclean hands or who are not willing to do equity, or who slept over their rights, or whose claim would produce unfair results. Even where the plaintiff has explained his conduct the Court may or may not grant remedy.
The general principles upon which an equitable relief could be granted or the limitation within which it could be available may be stated as follows:
1. The basis of equitable jurisdiction being the inadequacy of the remedy at law, equity, in a prayer for specific relief, interfered only where the common law relief was not adequate. Equity did not accordingly, grant specific relief if there was a legal relief which gives a party full compensation to which he is entitled and places him in a position as beneficial as that through a specific relief.
2. The exercise of this jurisdiction by the Chancellor was discretionary and it continues to be so even today both under the English and the Indian law. In Mst. Aisha Bi v. Muhammad Sadiq, 5 PR (1891), Plowden J. has observed, “where a plaintiff resorts to an Indian Court he has not an absolute right to insist upon the assistance of the Court”.
The mere fact that the legal remedy is not an adequate relief is not in itself sufficient to give a plaintiff a claim as of right to the assistance of a Court of Equity. The discretion is, however, not capricious or arbitrary. depending upon the mere pleasure of the Judge but is exercisable on sound and established principles of equity in its relation to the facts and circumstances of each case.