Equity is a legal system for obtaining a fair result when existing laws do not provide solution. It is a set of legal principles that supplement strict rules of law where their application would operate harshly. Plato termed equity as “equity is a necessary element supplementary to the imperfect generalization of legal rules.” The maxims of equity may fairly be described as a set of general principles which are said to govern the way in which equity operates. They tend to illustrate the qualities of equity in contrast to the common law more flexible and responsive to the needs of the individual and more inclined to take account of the parties’ conduct and worthiness.
Equity is a sort of justice, which was emerged in England besides from Common Law, which was the responsibility of the Common Law Courts. There were many issues, which were not fallen in the jurisdiction of the Common Law Courts. They were referred towards King who was responsible to provide justice. He decided the cases on the principles of natural justice. Natural Justice is based on good consciousness, honesty, equality, truth, uprightness, good faith, fairness, ethics, and morality etc. Later on when the cases exceeded then King delegated this power of administration of justice on his behalf to the Chief of the House of Commons named as Chancery.
Rationale behind Equity:
Basic principle of the equity is that one must be given that for which he is entitled. Courts are responsible to enforce right which is protected legally. Right is always qualified or conditional. It is connected with obligation. If you are entitled for the right of life then you must protect other’s right of life. Any person who is suffering from losses must be protected from loss. He must be compensated and granted his right is called natural justice.
Why natural justice needs to apply:
- Aggrieved party needs relief, which does not fall within the jurisdiction of common civil courts.
- Aggrieved party must be compensated with appropriate relief.
Where common law and equity conflict equity should prevail:
The law of equity began in the court of chancery which was set up because a fair and just remedy could not be given through common law as monetary compensation was not suitable and sometimes a well deserving plaintiff was denied because the writs where quite narrow and rigid. Courts were guided by the previous decisions and that’s how the twelve maxims were formulated. These maxims limit the granting of equitable remedies for those who have not acted in an equitable manner. The decisions of the court of chancery and common law were constantly conflicting. This rivalry was ended in The Earl of Oxfords case 1615. In which the king stated ‘Where common law and equity conflict equity should prevail’. The two courts are now unified and the same judges give decisions out common law and equity.
Law relating to equity is largely built on precedent:
The law relating to equity is largely built on precedent. The rules have been built upon by previous situations which they have dealt with. Although there has been a lot of disagreement about changing laws and adding to the law of equity the rules that have been accepted by proceeding judges became precedent and are now known as maxims and are used as guidelines by the court.
The following is a list of maxims together with some of the instances of their application and Pakistani case laws is as follows:
- Equity will not suffer a wrong without a remedy.
- Equity follows the law.
- Where there is equal equity, the law shall prevail.
- Where the equities are equal, the first in time shall prevail.
- He who seeks equity must do equity.
- He who comes into equity must come with clean hands.
- Delay defeats equities.
- Equality is equity.
- Equity looks to the intent rather than the form.
- Equity looks on that as done which ought to be done.
- Equity imputes an intention to fulfil an obligation.
- Equity acts in personam
Maxim No 1:
He who seeks equity must do equity:
The maxim that he who seeks equity must do equity, together with the next two maxims concerning ‘clean hands’ are aspects of this discretionary quality. It should not be supposed that the discretion is entirely unfettered. So, the person who seeks an equitable remedy must be prepared to act equitably and the court may oblige him to do so. This maxim refers to the plaintiff’s future conduct, whereas the next refers to his past behavior.
2012 Y L R 557:
MIRA JAN and 32 others—Petitioners
DEPUTY LAND COMMISSOINER, MARDAN and others—Respondents
Person seeking equity must do equity and come to court with clean hands. The suppression of
material fact by a party alone would be sufficient for refusal of discretionary relief.
Facts of the Case:
- The Member Federal Land Commission Islamabad passed order by directing the Land Commission to resume further property of the respondent equal to 4764 P.I.Us. under the Land Reforms Act II of 1977 and be allotted to the deserving tenants in accordance with law and policy. Also The landed property of Mst. Gohar Taja Bibi respondent in Writ Petition No.273 of 2002 was resumed under MLR 64 and thereafter MLR 115 of 1972.
- The Deputy Land Commissioner, Mardan vide order dated 8-3-2001 resumed the land equivalent to 4764 P.I.Us. under the Act of 1977.
- The order of Deputy Land Commissioner was challenged through an appeal before the Land Commission who vide its order dated 17-4-2001 allowed the same and by setting aside the order of Deputy Land Commissioner remanded the case back to Deputy Land Commissioner with the direction to decide the case afresh by re-evaluating the schedule of the property as some excess land measuring 1148 Kanal 17 Marla equivalent to 5681 P.I.Us. owned by Mst. Sultan Parwara, the sister of respondent which was wrongly included to the schedule of the property of the respondent.
- The Deputy Land Commissioner Mardan after the remand vide its order dated 27-12- 2001 directed that the above said excess land owned by the sister of respondent be excluded from the holding of Mst. Gohar Taja Bibi
- The petitioners in Writ Petition No. 273 of 2002 have sought the implementation of the order of Federal Land Commission Islamabad dated 8-4-2000 and has also sought that the order dated 27-12-2001 of the Deputy Land Commission be declared as nullity in the eye of law being in contravention of the order of the Federal Land.
- The second writ petition was filed as the tenants Muhammad Munir and others had again moved an undated application clandestinely before the Deputy Land Commissioner, Mardan for allotment of the land situated in Khazana Dheri owned by the petitioner of second writ petition which he had received through gift from his mother Mst. Gohar Taja Bibi vide different mutations.
- The Deputy Land Commissioner vide his order dated 10-7-2004 on the said application had directed the resumption of land first to the Provincial Land Commission and then to be allotted to the deserving tenants. This order of the Deputy Land Commissioner was challenged before the Revenue Appellate Court, Mardan who vide its interim order dated 5- 8-2004 ordered that status quo be maintained till the date fixed.
- The order of Deputy Land Commissioner dated 27-12-2001 passed after remand in favour of respondent of first writ petition was not challenged through any appeal/revision in the proper forum and straightaway the Writ Petition bearing No. 273 of 2002 was filed by seeking implementation of the order dated 8-4-2000 of Federal Land Commission Islamabad.
- Whether this Court can execute the orders passed by the Federal Land Commission, Islamabad?
- Does the Suppression of material fact by a party alone would be sufficient for refusal of discretionary relief?
- Whether the implementation of orders of Federal Land Commission is maintainable or not?
It was held in this case the disposal of Writ Petition No. 273 of 2002 and Writ Petition No. 1511 of 2004 are having the common questions of law and same subject matter hence the Court cannot act as an executing Court of the orders of Federal Land Commission. Petitioners could have challenged the order of Deputy Land Commission or could have moved the Federal Land Commission for violation of its order but nothing of the sort was done by the petitioners whereas the instant writ petition asking for implementation of orders of Federal Land Commission is not maintainable and is liable to dismissed.
It was held for the second connected writ petition filed by the affected landowners that it is not maintainable not only on the ground that the petitioners had availed the proper remedy available under the law by filing revision petition before the Federal Land Commission which was dismissed in default vide its order dated 2-10-2004 but suppressed this material aspect of the case while filing instant writ petition by challenging the order dated 2-8-2004 of vacation of status quo passed by Senior Member Board of Revenue. Both the writ petition being meritless are dismissed and hence the Petition is dismissed.
Rationale used by the Court:
It is settled law of the land that the person seeking equity must do equity and come to the court with clean hands whereas in this case it was observed that the suppression of material fact by a party alone would be enough for refusal of discretionary relief. Similarly, a party once challenging an order by availing a proper and statutory remedy cannot be allowed to challenge the same order before the High Court in constitutional jurisdiction.
Maxim No 2:
He who comes into equity must come with clean hands:
This maxim bars relief for anyone guilty of improper conduct in the matter at hand. It operates to prevent any affirmative recovery for the person with “unclean hands,” no matter how unfairly the person’s adversary has treated him or her. The maxim is the basis of the clean hands doctrine. Its purpose is to protect the integrity of the court. A court will ask whether the bad conduct was intentional. This rule is not meant to punish carelessness or a mistake. It is possible that the wrongful conduct is not an act but a failure to act. For example, someone who hires an agent to represent him or her and then sits silently while the agent misleads another party in negotiations is as much responsible for the false statements as if he himself or she herself had made them. The bad conduct that is condemned by the clean hands doctrine must be a part of the transaction that is the subject of the lawsuit. It is not necessary that it actually have hurt the other party. For example, equity will not relieve a plaintiff who was also trying to evade taxes or defraud creditors with a business deal, even if that person was cheated by the other party in the transaction. Equity will always decline relief in cases in which both parties have schemed to circumvent the law.
PLD 1998 Kar 262:
SmithKline Consumer ………… Plaintiff
Kamal and others……… Defandant.
He who comes into equity must come with clean hands.
Facts of the case:
- The Plaintiff were claiming themselves to be the owners of the copyright in the precision moulds used for manufacturing toothbrushes under the name and style of DR. BEST, AQUAFRESH FLEX.
- AQUAFRESH FLEX ‘N’ DIRECT have had filed suit against the defendants for an injunction restraining them from manufacturing, selling and or offering for sale toothbrushes having dimensions like the toothbrushes CELLO FLEXY or any other toothbrush having dimensions substantially similar thereto or any other manner whatsoever infringing the copyrights of the plaintiffs in respect of the drawing and moulds for the DR. BEST and mould for the Flex ‘N’ DIRECT toothbrushes.
- Plaintiffs have also claimed an injunction restraining the defendants from manufacturing, selling or offering for sale toothbrushes which were identical in appearance to the AQUAFRESH FLEX toothbrush or any other toothbrush confusingly similar in appearance to the plaintiffs DR. BEST, AQUAFRESH FLEX and/or AQUAFRESH FLEX ‘N’ DIRECT toothbrushes or manufacturing toothbrushes under or by reference to the mark FLEXY or any other mark confusingly similar to the plaintiffs mark FLEX.
- It was submitted that a certain moulded toothbrush manufactured for plaintiff No. 1 is sold by it in German-speaking countries under the name DR. BEST SCHWINGKOPF (‘DR BEST’). Another moulded toothbrush claimed to be a modification of DR. BEST SCHWINGKOPF design is allegedly sold by plaintiff No. 3 under the name AQUAFRESH FLEX ‘N’ DIRECT. It was further stated that DR. BEST was test marketed in Germany in 1993 and FLEX ‘N’ DIRECT was test marketed in Pakistan in 1998 and the plaintiffs would start manufacturing the same shortly in Pakistan.
- The suit at first instance was not directly concerned with the toothbrushes, but the defendants had infringed the copyright of the plaintiffs 1 and 3 in precision moulds used for manufacturing the toothbrushes.
- The AQUAFRESH FLEX ‘N’ DIRECT toothbrush was alleged to be a modification of DR. BEST toothbrush. It was submitted that in late 1992 plaintiff No. 3 decided to develop a modified version of the DR. BEST toothbrush. According to the proposal, the modified version was to be a two-component plastic and rubber toothbrush based in apart upon the DR. BEST toothbrush. However, the handle was proposed to be of a modified shape. The toothbrush is stated to have become known as the FLEX ‘N’ DIRECT toothbrush’. On the instructions of plaintiff No. 3, Studio Halm was stated to have designed the modification of DR. BEST toothbrush for market outside Germany and an initial sketch was allegedly made in 1993. It is submitted that throughout the design process, plaintiffs 1 and 3 and Studio Halm were in regular communication regarding the execution of the brief. On approval of the design by plaintiff No. 3 and Halm, it was introduced to Schiffer who prepared a mould in the same manner as was prepared in the case of DR. BEST toothbrush. Sample toothbrush handles were stated to have been produced by Boucherie by injection moulding during June, 1993 for approval by plaintiff No. 3. On approval of the sample toothbrush handles, instructions were given to prepare drawings for the production moulds. It is submitted that there was no material change between the pilot and the production mould. The toothbrush made by the use of the aforesaid production mould was stated to have been launched in Great Britain in 1993 as the FLEX ‘N’ DIRECT toothbrush.
- It was submitted by the plaintiffs in the plaint that defendants 1 to 3 are trading and claiming themselves to be the Directors/Proprietors/owners of the trading style Cello Oral Hygiene Products.
- The defendants were carrying on business as manufacturers of and/on dealers in and/or sellers of toothbrushes. Defendant No. 4 is the stockist of defendants 1 to 3 and is stated to be selling the toothbrushes manufactured and sold by defendants 1 to 3 on commercial scale in Karachi as well as other parts of Pakistan.
- It was submitted that prior to the commencement of the suit, defendants 1 to 3 had manufactured, offered for sale and/or sold and were threatening and intending to sell toothbrushes under or by reference to the mark CELLO FLEXY.
- It was alleged that the defendants had not only copied the moulds of their DR. BEST, FLEX ‘N’ DIRECT toothbrushes but also the descriptive matter appearing on the reverse panel of the AQUAFRESH FLEX toothbrush being manufactured and marketed by plaintiff No. 2 continuously and extensively since 1996.
- The defendants in the written statement denied all the allegations levelled by the plaintiffs against them.
- It is submitted that the defendants toothbrushes are sold under the trade mark CELLO and the word FLEXY was used only to highlight the flexible neck feature of the toothbrush. It is submitted that even otherwise there was no assignment in favor of the plaintiffs nor the persons who had filed the suit were authorised to file the same.
- whether the plaintiffs had come to seek equitable remedy to the court with clean hands?
- Whether an assignment was made in favour of the plaintiffs or not? Were the plaintiffs authorized to dp so?
It was held in the present suit the plaintiffs have claimed relief on the ground that they have a copyright in the moulds from which the toothbrushes are manufactured however the fact remains that in the plaint the plaintiff has claimed relief of injunction restraining the defendants from manufacturing, selling and/or offering for sale toothbrushes which are identical in appearance to the CELLO FLEXY toothbrushes of the defendants or any other toothbrush allegedly similar in appearance to the plaintiffs DR. BEST, AQUAFRESH FLEX and AQUAFRESH FLEX ‘N’ DIRECT and from manufacturing toothbrushes under or by reference to the mark FLEXY or any other mark confusingly similar to the plaintiffs mark FLEX. Though the plaintiff has also claimed an injunction for restraining the defendants from infringing the plaintiffs alleged copyright in the moulds and mould drawings, however, once the plaintiff is seeking relief of an injunction for restraining the defendants from manufacturing and/or offering for sale toothbrushes which are allegedly similar in appearance to the plaintiffs toothbrushes therefore it was incumbent upon them to have disclosed to this Court that certain other parties were manufacturing similar toothbrushes since 1991 when design were registered in their name and non-disclosure of these facts has clearly misled the Court in granting ex parte injunction in favor of the plaintiffs. It is now well settled that a party who approaches the Court to seek the discretionary relief must come with clean hands. If an information which has a bearing on the question of exercise of discretion is withheld from the Court, the Court would be justified in refusing to exercise the discretion in favor of such a party. It is thus clear that in case the plaintiff has approached this Court with unclean hands and had suppressed material facts from the Court, it will not be entitled to an order of injunction and the injunction granted in favor of the plaintiffs will be liable to be revoked. It is also a fact that in the earlier suit filed by the same company, the Court had not granted injunction in favor of the plaintiffs and the arguments on the injunction application were being heard at the time when the present suit was filed. It was the abundant duty of the plaintiffs to disclose to this Court about the pendency of the aforesaid earlier proceedings. If such facts had been disclosed to the Court in this suit, may be the Court would not have granted ex parte injunction in favor of the plaintiffs. Suppression of the aforesaid facts has clearly misled the Court in granting ex parte injunction on 16th December, 1998. plaintiffs have not come to this Court with clean hands and have also suppressed material facts from the Court with a view to gain advantage in this suit. Ex parte injunction in favor of the plaintiffs is liable to be vacated on this ground alone. On merits of the case the plaintiffs are not entitled to any relief. Ex parte injunction was obtained by the plaintiffs by concealment of material facts from this Court and the plaintiffs are therefore, not entitled to any discretionary relief from this Court. Consequently the application of the defendants is allowed and the application of the plaintiffs is accordingly dismissed with costs assessed at Rs. 10,000/-. Injunction granted in favor of the plaintiffs stands vacated, the application for injunction and application for vacation of stay have been decided. Counsel for the petitioner has made an oral prayer for stay of the order passed so as to enable him to file an appeal before the Division Bench of this Court. In view of the fact that the application of the petitioner has been dismissed on the ground that the petitioner has not come to the Court with clean hands and had concealed material facts from the Court so as to take advantage against the respondent.
Rationale used by court:
It is settled law that unless plea is corroborated by pleadings no such plea could be allowed to be taken up for the purpose of deciding an action unless enough material to prove and establish the charge have been placed on record. The action of passing off is an action for mis-representation and deceit and in order to prove such charges strong and cogent material shall have to be available on record and in absence of the same the Court would decline to investigate on the charges. It was clearly held by the Court in the earlier suit that the S-shaped feature was only functional and the same was therefore not capable of any protection and no passing off action would lie if the features are merely functional features. It was also held by the Court that the action of passing off is an action for mis-representation and/or deceit and in order to prove such charges, strong and cogent material has to be available on record and in the absence of the same, the Court would decline to investigate on the charges. For all the foregoing reasons the plaintiffs have not been able to make out any case for the grant of an injunction in their favor.
Maxim No 3:
Delay Defeats Equity:
Equity always assists those who are active in respect of their rights. It does not assist those who are careless in respect of their rights. Once the party knows they have been wronged, they must act relatively swiftly to preserve their rights because delay defeats equity. Everybody has right to demand justice but demand of relief must be made in reasonable time. Courts have always discouraged the multiplicity of litigations. This maxim is designed to promote diligence on the part of suitors. It means that if a person is indolent to claim a remedy for the wrong committed to him then court will refuse to grant him any relief.
1956 C L C 1646
Shad khan and others…. Petitioner/ Plaintiffs.
Mumtaz Ahmad, Riaz Ahmad and others… Respondents / Respondants.
Delay defeats equity.
Facts of the case:
- Petitioner is the original plaintiff. He filed a suit for a declaration and for removal of an encroachment by first constructing a wall in a passage used as a lane for passing and re-passing at points W W-1 and also by dumping some earth from A to A-1 in the sketch referred to by the learned Munsif in his judgment and thereby obstructed the plaintiff from passing and re-passing with cattle and carts from the lane.
- This suit was resisted by the defendants 2 and 3 as per the written statement contending that the compound wall has been constructed at the boundary of the land of their ownership which defendant No. 2 purchased in 1912.
- It was alleged that about 13 years back, defendants Nos. 2 and 3 raised the level of the open land to the west of the wall to a height of one yard because they are owners of the half of the area divided North South of the open space beyond the western wall of their house. The measurements given by the plaintiff were disputed.
- The learned Trial Judge decreed the suit against defendants Nos. 2 and 3 holding that construction of the wall was undertaken few days prior to the filing of the suit and this wall is constructed by defendants Nos. 2 and 3 after encroaching upon the open space which was to be used as passage. It was also held that by raising the level of a part of the land adjacent and to the west of the wall was also an act of encroachment. Accordingly, the learned Munsif gave a mandatory injunction directing the defendants to remove the wall as also lower the level of a portion of the space so that the plaintiff can have a full use of the passage. In reaching this conclusion, the learned Judge implicitly relied upon the reports and the maps submitted by Court Commissioners and recorded a specific finding that defendants Nos. 2 and 3 have encroached into the suit passage to an extend of 21 1/2″ on the southern side and 8″ on the northern side by constructing a wall and also by placing erection adjacent and to the west of the compound wall. The learned munsif accordingly directed removal of encroachment. The suit against the other defendants was dismissed.
- It was evident that the Plaintiff preferred Second Appeal No. 68 of 1977 in the High Court of Lahore The learned Single Judge before whom the appeal came up for hearing observed that the wall W W-1 by which the passage was encroached upon was constructed in 1956 and the suit for removal was filed in 1965.
- The erection of wall in question was constructed by defendants 2 and 3 in 1956 while the plaintiff filed the suit for mandatory injunction in 1965, will such a delay defeat equity?
The learned Appellate Judge held that the wall PW-1 was constructed by defendants 2 and 3 in 1956 while the plaintiff filed the suit for mandatory injunction in 1965. The learned Judge also held that in the plaint as originally filed, there was no prayer for removal of the wall on the ground that it constitutes an encroachment on the passage land and that this was added by an amendment to the plaint in 1969 after the report of the first Commissioner was received. The learned Judge then held that this delay on the part of the plaintiff in approaching the court for such discretionary relief of mandatory injunction is sufficient to deny him the relief for removal of wall on the maxim that ‘delay defeats equity’. The learned Judge accordingly moulded his relief and ordered that the appeal is allowed to that extent only viz., with regard to the relief of mandatory injunction for removing the wall W W-1. With regard to the other reliefs the Judgment and decree of the lower court are confirmed, and the appeal is dismissed with costs.
Rationale used by the court:
The net effect of the judgment is that even though construction of the wall W W-1 by defendants 2 and 3 constituted an encroachment in land used for passage, the plaintiff was held disentitled to a relief of removal of encroachment but the raising of the level by spreading of erection in a portion of land to the west of the wall W W-1 was held to be an encroachment and which the defendants 2 and 3 were directed to remove and keep the passage open. Therefore, the maxim that delay defeats equity was right applied and judgment was given on the above case.
In the light of the above case laws discussed it is purely evident that Pakistani courts follow the equitable maxims and the judgements are purely given on the sole basis of the particular maxim applied to that specific case. The learned judges of Pakistani courts apply these maxims where necessary and required to do so to decide case on merits and to avoid miscarriage of justice.
- Henry Campbell: Black’s Law Dictionary 5th edition.
- J. Bakibinga; Equity and Trust, Professional Books Publishers (2003 J.E Penner: The Law of Trust, 7th edition)
- Jill E Martin: Modern equity, Sweet and Maxwell 19th edition
- Philip H Pettit: Equity and The Law of Trust, 7th Edition
- W Margaret, M Rosalind and L Peter: Equity and Trust
- PLD 1998 Kar 262.
- 2012 Y L R 557.
- 1956 C L C 1646.