Lectures of Specific Relief Act

Lectures of Specific Relief Act

 

What do you mean by the specific relief?

What are the circumstances in which Specific Relief can be granted?

MEANING OF RELIEF: In England, the term ‘relief’ means the remedy,which is granted by court of justice to suitors.when legal rights are infringed by the commission of the civil injuries,the person injured entitled to redress, for there is no specific relief confirmed to that class of remedy which a suitor seeks to obtain and court of justice seeks to give him the very relief to which he is entitled . specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

MEANING  OF  SPECIFIC  RELIEF:Specific relief may be understood as a relief “in specie”, which aims at the exact fulfilment of an obligation or  specific performance of a contract. It is directed to the obtaining of very thing .which a person is deprived of  and ought to be entitled  to ask for . It is a remedy by which a party to a contract is compelled  to do or omit the very acts,which he has undertaken to do or omit. The remedies  which have been administered by civil courts of justice against any wrong or injury fall broadly into two classes;

  • Those by which the suitor obtains the very thing to which he is entitled
  • Those by which he obtains not that very thing but compensation for the loss of it.

The former is the specific relief while latter is compensatory relief. The specific relief is  an obligation.it is remedial for instance ,where the court directs the specific performance of a contract and protective when, the court makes a declaration or grants an injunction.  

SPECIFIC PERFORMANCE OF CONTRACT

The following conditions must be fulfilled before granting specific performance of contract:

  • The contract must have the essentials of a contract valid and binding at law in order to be enforceable
  • It must be a concluded contract
  • There must have been a dual mutual understanding and a passive assent on both side as to the term of the contract.
  • It must be sufficiently definite and certain.
  • The parties must have capacity to contract.
  • It must be upon a valuable consideration.
  • It must not be illegal

 

 

      WHAT IS THE  NATURE  & SCOPE OF S.R.A. ?

  Basically, the mission of the Specific Act is to assure that whenever there is a wrong there must be a Remedy.

Remedies are generally provided by the branch of substantive law which defines its rights and duties for its own purposes. The law of contract provides the remedy of damages for breach of contract. Similarly the law of tort provides for recovery in cases of tortuous wrongs. However, substantive laws can never afford to be exhaustive in terms of their remedies and reliefs. Scope of the Act remains specific to provide a network of relief. The Act does not confer any Rights on itself. Specific relief is only provided for the violation of a legal right. The network of reliefs allowed by this Act falls under the following outlines

 

 

 

 

 

 

 

 

                                             (SECTIONS 1-4)

Define the extent and commencement of S.R.A.?

 

  1. Definitions.-

In this Act, unless the context otherwise requires,-

(a) “obligation

(b) “settlement

(c) “trust

Interpretation-clause(Sec 3) of Indian Trusts Act 1882—“trust”.—A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner: “author of the trust”; “trustee”; “beneficiary”; “trust property”; “beneficial interest”; “instrument of trust”.—The person who reposes or declares the confidence is called the “author of the trust”; The person who accepts the confidence is called the “trustee”; the person for whose benefit the confidence is accepted is called the “beneficiary”; the subject-matter of the trust is called “trust property” or “trust money”; the “beneficial interest” or “interest” of the beneficiary is his right against the trustee as owner of the trust property; and the instrument, if any, by which the trust is declared is called the “instrument of trust”; “breach of trust”.—A breach of any duty imposed on a trustee, as such, by any law for the time being in force, is called a “breach of trust”;

(d) “trustee” includes every person holding property in trust; (e) all other words and expressions used herein but not defined, and defined in the Indian Contract Act, 1872 (9 of 1872), have the meanings respectively assigned to them in that Act.

  1. Savings.-

Except as otherwise provided herein, nothing in this Act shall be deemed-

(a) to deprive any person of any right to relief, other than specific performance, which he may have under any contract; or

(b) to affect the operation of the Indian Registration Act, 1908 (16 of 1908), on documents.

  1. Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws.-

Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

It is merely a declaratory provision and it declares that specific relief Act has to play complementary role only with the right conferred by civil law and it will not complement those cases where a pure criminal proceeding has been brought about merely for enforcing the right conferred by criminal law.however if the suit is substantially for the enforcement of civil rights than specific relief act will apply even if incidently the right created by criminal law are also involved.

 

 

 

 

 

PAHUJA LAW ACADEMY

SPECIFIC RELIEF ACT-1963

PRE QUESTIONS

1.Specific relief can be granted for

(a) enforcing individual civil rights

(b) enforcing penal laws

(c) both civil rights and penal laws

(d) neither civil rights nor penal laws.

 

  1. Under the Specific Relief Act, a suit for recovery of possession can be filed

(a) only in respect of movable property

(b) only in respect of immovable property

(c) in respect of both movable and immovable property

(d) neither movable nor immovable property.

 

  1. Specific Relief Act, 1963 is the product of

(a) 8th Report of Law Commission of India on Specific Relief Act of 1877

(b) 9th Report of Law Commission of India on Specific Relief Act of 1877

(c) 10th Report of Law Commission of India on Specific Relief Act of 1877

(d) none of above.

 

  1. A suit for possession of an immovable property, under section 6 of Specific Relief Act can be filed within

(a) 1 year of dispossession

(b) 6 months of dispossession

(c) 3 years of dispossession

(d) 12 years of dispossession.

 

 

  1. A suit for recovery of possession of an immovable property under section 6 of Specific Relief Act can be filed against

(a) a private individual only

(b) a government

(c) both a private individual and a government

(d) neither (a) nor (b).

 

  1. Burden to prove adverse possession is on

(a) court

(b) defendant

(c) plaintiff

(d) none of above.

 

  1. To maintain suit under section 6 of the Act, the possession must be

(a) actual judicial possession

(b) symbolic possession

(c) constructive possession

(d) either actual or symbolic or constructive.

 

  1. An order or decree under section 6 of the Act is

(a) appealable

(b) reviewable

(c) neither appealable nor reviewable

(d) both appealable and reviewable.

 

  1. A suit under section 6 can be brought by

(a) trespasser

(b) tenant holding over

(c) servant

(d) manager.

 

 

 

  1. In a suit under section 6

(a) title of the plaintiff is relevant

(b) title of dispossessor is relevant

(c) the defendant is allowed to prove his title

(d) none of the above.

 

  1. A suit for possession under section 5 of Specific Relief Act, can be filed within

(a) 3 years

(b) 6 months

(c) 12 years

(d) 30 years.

 

  1. In a suit under section 6, the court can

(a) adjudicate on the title

(b) direct the defendant(s) to remove the structures

(c) permit the plaintiff to pull down the structure

(d) neither (a) nor (b) nor (c).

 

  1. The question of title is

(a) relevant under section 6 of the Specific Relief Act, 1963

(b) irrelevant under section 6 of the Specific Relief Act, 1963

(c) question of title is not a provision under the Specific Relief Act, 1963

(d) none of above.

 

  1. The object of section 6 of the Specific Relief Act, 1963 is to

(a) restrain a person from using force and to disposes a person without his consent

(b) is not to restrain a person to dispossess a person

(c) only (b) is correct

(d) none of above.

 

 

 

  1. A suit under section 7 may be brought by a person

(a) who is not the owner of the property

(b) who may not have the possession of the property

(c) from whose possession the goods may not have been removed

(d) either (a), (b) or (c).

 

  1. For application of section 7 of the Act, the goods must be

(a) in original form

(b) capable of identification & delivery

(c) without alteration

(d) all the above.

 

  1. Section 7 does not apply to

(a) money & currency notes

(b) wrongful taking of the property

(c) wrongful detaining of the property

(d) wrongful disposal of the property.

 

  1. Section 8 of Specific Relief Act can be invoked

(a) against a person who has possession or control over the article

(b) against a person who is the owner of the article claimed

(c) by a person not entitled to the possession of the article

(d) in respect of an ordinary article.

 

  1. Section 8 can be invoked

(a) if compensation in money is an adequate relief

(b) if the damages can be easily ascertained

(c) if the article is held by the person as agent or trustee of the claimant

(d) if the article has been rightly transferred from the claimant.

 

 

 

 

  1. Suit under section 8 is not competent

(a) against a person who is the owner of the article claimed

(b) against a person who has the possession or control over the article

(c) in respect M of an article for which compensation in money is not an adequate relief

(d) in cases where ascertainment of damages is extremely difficult.

 

  1. What is true of Specific Relief Act

(a) it is a procedural law

(b) it supplements the Code of Civil Procedure

(c) it is founded on English Law

(d) all the above.

 

RECOVERING POSSESSION OF PROPERTY

(SECTIONS 5-8)

Properties are of two type:

  • Immovable
  • Movable

The Act provides the mode to recover possession of property.

Recovery of possession of property is dealt with in sec (5 to 8)

  • POSSESSION OF IMMOVABLE PROPERTY

Section 5: Recovery of specific immovable property.-

Section 5 is mere declaratory provision and even if sec 5 had not been there  a suit for possession of immovable property could be possible under sec 9 of c.p.c read along with the corresponding substantive law.

Possession of any specific immovable property may be recovered under the provisions of the code by filling a suit for ejectment on the basis of title within 12 years of the date of dispossession. After a decree has been obtained actual possession may be recovered by executing the decree under order XX1,R 5 &36.

CASE:    kalu v. dajod,1 LR  (1958)Raj

Section 6: Suit by person dispossessed of immovable property.-

  • The summary remedy  in case of dispossession is provided by sec 6 of the Specific  Relief Act.

The essential requisites of a suit under sec 6 are

  • The person suing was in possession.
  • The person suing must have been dispossessed.
  • The dispossession must have been without his consent.
  • The dispossession must be of immovable property.
  • The dispossession must be otherwise than in due course of law.
  • The suit must be brought within a period of six months from the date of dispossession.
  • No suit under this section can be brought:
  • After expiry of 6 months from the date of dispossession ; or
  • Against the Government; nor does an appeal or review lies from any order or decree passed in any suit instituted under this section.
  • Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

Cases:

Jadunath singh v. Bishunath singh. 1950 ALS 288

Babu Ram v. Bashiruddin,1946 MLJ 30

Nair Services Society v. Alexander

R.C Inder kumar pvt ltd v. State of Orissa, AIR 1972 orissa

Possession in the country is protected and relief is available under sec 6 of S.R.A  to protect possession against illegal dispossession made even by the true owner.

  • DISTINGUISHED BETWEEN SEC 5 AND SEC 6

(a) under sec 5, the plaintiff has to file a long drawn regular suit for ejection whereas sec 6 gives  a summary remedy .

(b) under sec 5 , claim is based on title while under sec 6 , the claim is based on previous possession and no proof of title is required and even a rightful owner may be precluded from showing his title to the land

(c) the period of limitation  in sec 5 is 12 years while in sec 6 it is only for six  months from the date of dispossession.

Sec 6 does not bar any person from suing to establish his title to immovable property and  to         recover possession of such property .aggrieved person can bring a suit on title for possession . such a  suit can be brought within 12years(Art 64 of limitation act)  from the date of dispossession under    c.p.c.

  1. RECOVERY OF MOVABLE  PROPERTY

Section 7 & 8 of specific relief act ,1963 deals with the circumstances under which a person holding movable property  of the plaintiff without lawful justification, can be sued for the recovery of it.

The principle of sec 7 &8 embody the English rule as to an action of detinue. Detinue may be defined as an action by a plaintiff  who seeks to recover the goods in species or on the failure thereof the value, and also damage for wrongful detention. Detinue is a kind of conversion.

Section 7. Recovery of specific movable property.-

A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).

Explanation 1.-A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.

Explanation 2.-A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.

Section 7  provides  for the recovery of movable property in species i.e the very property itself and not its substitute of money equivalent.the present section and the following section i.e section 8 embody the English common law DOCTRINE OF DETINUE. The plaintiff must have acquired a right to present possession .the plaintiff may not be the owner of the movable property but may have temporary  or special right independently of ownership by virtue of being a trustee,bailee or pownee.

Section 7 corresponds to sec 10 of the old S.R.A.1877. that section carrird the following illustrations:

  • A bequeaths land to B or his life , with remainder to C .A dies.B enters on the land but C,without B’s consent,obtains possession of the title-deeds.B may recover them from C.
  • A pledges certain jewela to B to secure a loan .B disposes of them before he is entitled to do so.A, without having paid or tendered the amount of loan,sues B for possession of the jewels .the suit should be dismissed , as A is not entitled to their possession,whatever right he may have to secure their safe custody,[Based on Donald v Suckling,(1866)LR 1 QB 585].in this illustration,it is to be noted that as A is not entitled to the possession , he cannot cause an action under S.7.
  • A received a latter addressed to him by B.B gets back the letter without A’s consent .A has such a property therein as entitled him to recover it from B.[Based on Oliver v Oliver,(1861) 11 CB NS 139: 132 RR 505]
  • A deposite books and papers for safe custody with B.B loses them and C finds them, but refuses to deliver them to B when demanded. B may recover them from C,subject to C’s right,if any, under section 168 of the Indian Contract Act,1872.
  • A,a warehouse-keeper, is charged with the delivery of certain goods to Z , which B takes out of A’s possession , A may sue B for the goods.

Specific movable property?

Conversion of movable property:

There are three distinct methods in which one may deprive other of his property-

(1)by wrongly taking it

(2) by wrongly detaining it

(3)by wrongly disposing it

Under English law similar provisions are as under:-

  • Trespass de bonis as portatis
  • Detinue
  • Trover

Person entitled to the possession

The expression “ the person entitled to the possession” means tha the person must have right to the immediate possession.the plaintiff  need not be the absolute the owner and can sue under sec 7 provided he is entitled to immediate possession,though he has only a special or temporary right to such present possession .if the plaintiff  had never had a ‘right to possession’ of the specific movable property,his suit is not competent.it is not necessary that the plaintiff should have been previously in possession or that the goods should have been removed from his possession.

Manner prescribed by CPC

The plaint for recovery of specific movable property must contain the perticulars provided in form no.32 given in schedule 1,Appendix A, civil procedure code. The usual decree will follow  under O.20 R.10 which shall state the amount of money to be paid as an alternative if delivery cannot be had. This decree is to be executed under O.21,R. 31  by

  • The seizure of movable or share and by the delivery to the wining party
  • By imprisonment of the judgment debtor or by attracting his property or attracting his property, or ,
  • By both.

Section 8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate possession.-

ESSENTIALS OF SEC 8

In order that section 8 may be applicable the following conditions must be fulfilled along with either of the clauses (a) to (d) mentioned in the section, viz.,

  • the defendant has the possessions  or a control of a particular Article claimed
  • such article is movable property
  • The defendant is not the owner such article;  and
  • The plaintiff is entitled to its immediate possession .
  • The thing claimed is held by the defendant as plaintiff’s agent or trustee,

OR

Unless and until the contrary is proved, the court shall in respect of any article of movable property claimed presume that;

(a)Compensation in money would not afford adequate relief for the loss of thing claimed.

(b)It would be extremely difficult to ascertain the actual damage caused by the loss of the thing claimed.

The object of this section is to provide special remedy so that persons having the  possession or control of particular articles of movable property, although not their owner, may be compelled specifically to deliver them to the persons entitled to their immediate  possession. Possession is the foundation of the suit though a suit  is not competent under this section against one who is the owner of the movable property . Possession and control of the defendant must therefore be clearly alleged in the plaint and proved.

Illustration in preceding act

Section 8 corresponds with section 11 of the repealed S.R.A 1877. That section carried the following illustrations :

Illustration as to clause (a) – A, proceeding to Europe, leaves his furniture in  charge of B, as his agent  during his absence . B, without A’s authority, pledges the furniture to C, and C, knowing that B had no right to pledge the furniture, advertises it for sale, C may be compelled to deliver the furniture to A, for he holds it as A’s trustee. [based on Wood v Rowcliff, (1844) 3 hare 304:64ER 303.]

Illustration as to clause (b)-Z has got possession of an idol belonging to A’s family, and of which A is the proper custodian. Z may be compelled to deliver the idol to A.

Illustration as to clause (c)-A is entitled to a picture by a dead painter and a pair of rare china vases. B has possession of them. The articles are of too special a character to bear an ascertainable market value. B may be compelled to deliver them to   A. [based on Falcke V Gray,(1859)4 Drew 651:113 RR 493.]

DISTINGUISHED BETWEEN  SEC 7 & SEC 8

  • Under sec 8 a suit is not competent against the owner of the movable property while under sec 7 a person having temporary or special right to possession can maintain an action against the owner of the article.
  • In a suit under sec 7 the decree framed,being under order XX, Rule 10, it is for the return of movable property or for money value thereof in the alternative whereas it is for return of the article under sec 8.
  • Both sec 7 and 8 represent what is called an action of detinue in England,but while sec 7 represents the common law rule, sec 8 represents the equitable rule subsequently laid down for this purpose.
  • If the decree under this sec 7 is satisfied by the payment of damages,the defendant becomes the owner of the property , but in a suit under sec 8 the decree will be either for a preventive relief or for the delivery of specific movable property and will be executed under Order 21 ,Rule 31,32 of C.P.C.
  • The relief under sec 7 is general and independent of the nature of the property or the relationship between the parties. The relief under sec 8 ,on the other hand is special and dependant on the nature of the property or the relationship between the parties as given under four clauses of sec 8.that is to say that under sec 7 relief is for the delivery of specific movable property or alternatively for compensation, but for relief under sec 8 , it is for the very property i.e delivery of specific movable property only.

  1. Can the following contract be enforced:

(i) A contract to execute a mortgage

(ii) A contract to construct building

(iii) A contract to translate book into another language

  1. Can following contracts be enforced specifically:

(i) A contract for sale of property which is under attachment by Court’s order.

(ii) Mere agreement to enter into contract.

(iii) Contract to marry.

(iv) ‘A’ contracts to write book for ‘B’. He write the book bat refuses to assign copy right and hand over the manuscript to who then sues A for specific performance.

  1. Can the following contracts be specifically enforced?

(i) A contract to execute mortgage.

(ii) A contract to lend money.

(m) A contract to construct a building.

(iv) A contract to translate a book into other language.

(v) Arun, the owner of a hotel, contracts with Balwant, to give him accommodation therein for the sale of his hosiery products and to furnish the accommodation with necessary furniture. Arun refuses to perform the contract.

  1. Can the following contracts be specifically enforced? Give reasons for your answer.

(a) A contracts to sell certain lands to B, and also agrees to pay Rs. 1,000 to B in case of default. A subsequently refuses to perform the contract. B sues A for specific performance of the contract and pays Rs.1000 into Court.

(b) A and B contracted to sell certain property belonging to them and C to X. C was not contemplated as an inevitable party to the deal. Can the contract be specifically enforced against A and B despite C’s refusal to join in it?

(c) A and B contracted to sell two ancestral houses jointly held by them who were brothers to C for a consideration of Rs. 2,250.00, out of which Rs. 200/- were paid as earnest money. There was no separate oral agreement. Can a contract be specifically enforced either against A or against B alone?

 CHAPTER 2

          Specific performance of contracts        

(sections 9-25)

INTRODUCTION:

What is “specific performance?

 

Doctrine of specific performance of contracts- A contract is an agreement upon sufficient consideration to do or not to do a particular thing, and if the person on whom this contractual obligation rests , fails to discharge it, this results to the other party averring a right either to insisit on the literal and actual performance of the contract or to obtain compensation for the non-performance of it.

Section 9 : Defences respecting suits for relief based on contract.

Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts.

 

 

Specific performance of contract are classified into following heads:

  • Contracts which  may be specifically enforced
  • Contracts which cannot be specifically enforced
  • Discretion of the court
  • Defences to an action for specific performance
  • Parties to an action for specific performance

 

 

  • Contracts which  may be specifically enforced:-
  • Section 10:Cases in which specific performance of contract enforceable.-

 

The remedy of  specific performance being an equitable remedy is at the  discretion of the court. But in the exercise of this dicreation , the court may governed by certain principles and before the court may use its dicreation it must be shown that the contract is valid in law and provable at the courts of law.

According to this section , specific performance of any contract may be enforced in the following three types of cases.

  • No standard for ascertaining damages

 

  • Pecuniary compensation not adequate relief- In England .the courts of equity decree the specific performance of contract not upon any distinction  between “reality” and “personality”( immovable and movable)but because damage at law may not in the particular case afford a complete remedy.

The distinction between  real and  personal property is entirely subordinate to the question whether an adequate remedy can be afforded. Where compensation is merely an adequate relief to the plaintiff ,a decree for the specific performance should  not be made;the proper decree is one for damage,which should be calculated on the price of the property at the date of breach of the contract.

IN INDIA the following types of cases arise under this head:

  • Share in company
  • Building contracts

Pecuniary compensation not recoverable-The insolvency of a defendant is generally a ground for specific relief to the plaintiff  under this head. Where there is a probability that pecuniary compensation if awarded cannot be recovered,specific  performance may be granted, thus , insolvency of the defendant seems  to be a ground  for granting specific relief to the plaintiff. But in india it is doubtful. Under clause (d) of old sec 12 of the specific performance  could be enforced when it was probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done.this clause hs been omitted on the recommendation of the law commission.

 

CASE IN WHICH SPECIAL PERFORMANCE OF  CONTRACTS  CONNECTED WITH TRUST ENFORCEABLE :SECTION 11

 

  • SPECIFIC PERFORMANCE OF A PART OF CONTRACT: SECTION 12

 

  • RIGHT OF PURCHASER OR LESSEE AGAINST PERSON WITH NO TITLE OR IMPERFECT TITLE :SECTION 13

 

  • Section 13 of S.R.A applies only where the matter is still in the stage of contract. It has no application to cases where an actual transfer has been made in respect of the property to which the vendor or lessor has no title or has only an imperfect title.
  • This section also applies to contract for sale or lease of immovable property , and contract for sale or hier movable property , which is in existence. It does not apply to those properties  which are not in evidence, on the other hand , sec 43 of T.P.A , aaplies  to transfer of immovable property while it has no application to movable properties.

 

  • It also applies to contract for sale , let or hier properties , movable or immovable , while section 43 T.P.A , applies to transfer which include within their ambit not only sales and lease but also mortgages, charges or other transfers for valuable consideration.

 

 

  • POWER TO AWARD COMPENSATION IN CERTAIN CASE :

 SECTION  21

 

Discretion of court

A court of equity  is not bound to grant a decree for specific performance of an agreement even though the agreement is proved and the plaintiff has performed and is ready and willing to perform his part of the bargain. The court has to take into consideration the transaction itself  and the circumstances surrounding the transaction to decide whether specific performance should be decreed.

 

POWER TO GRANT RELIEF FOR POSSESSION ,PARTITION,REFUND OF EARNEST MONEY, ETC-SECTION 22

 

  • LIQUIDATION OF DAMAGES NOT BAR TO SPECIFIC PERFORMANCE: SECTION 23

 

  • SPECIFIC PERFORMANCE WITH A VARIATION: SECTION 18

 

Performance on variation- The plaintiff could not obtain specific  performance, except on variation because by fraud or mistake of fact the contract id different from that which the defendant supposed to be  or because the object of the parties was to produce a certain legal result which the  contract as framed  was not calculated  to produce.

section 18 deals with cases in which the contract entered into a valid contract . in other words , it is one in respect of which the remedy of damages is available . section 18 does not apply unless there is complete contract , it sets out cases in which contracts  cannot be enforced except with a variation and there are three particular cases set out in which a contract may be enforced subject to a variation, such a variation being in favour of the defendant, but the remedy of specific performance will be available when plaintiff is prepared to accept the variation pleaded by the defendant.

  • Contracts which cannot be specifically enforced:
  • CASES IN WHICH SPECIFIC PERFORMANCE OF CONTRACT ENFORCEABLE :SECTION 14

(1) The following contracts cannot be specifically enforced, namely:–

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise

from its nature is such, that the court cannot enforce specific performance of its material terms;

(c) a contract which is in its nature determinable;

(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall

bar the suit.

(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:-

(a) where the suit is for the enforcement of a contract,-

(i) to execute a mortgage or furnish any other security for security for securing the repayment of any loan which the borrower is not willing to repay at

once:

Provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or

(ii) to take up and pay for any debentures of a company;

(b) where the suit is for,-

(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or

(ii) the purchase of a share of a partner in a firm,

(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land:

Provided that the following conditions are fulfilled, namely:-

(i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;

(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance

of the contract is not an adequate relief; and

(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or

other work is to be executed.

  • Contract dependent on personal Qualification

Where there is a mere breach of a contractual obligation terminating a contract of master and servant,the dismissal being in breach of contract would only sound in damages and the servant  would not be entitle to a declaration that the dismissal is invalid and that he continues in the employment of his master since that would amount to enforcementof a contract of  personal service. But where there is a breach of a statutory obligation which prevents the termination of  the contract. Except in the manner prescribed by the statute, the dismissal being in breach of the statute  is null and void and that he continues in the employment of the master . there is in such a case of enforcement of the contract of personal service.

  • Enforceability of contract of personal services

It is well settled that a contract of person service cannot be specifically enforced. A declaration by the court that the termination has no effect and the servant still continuous in service and directing that he be reinstated ordinarily cannot be made as that will amount to enforcing a contract of personal service

 

  • Contract dependent on volition of the parties

If a person enters into a contract  the performance  of a part of which depends upon his volition and he performs that part and then refuses to perform the remaining  part which does not  depend upon his volition, he cannot resist a suit for specific performance of the remaining part on the ground that the agreement, on the date when it was made, depended partly on his volition. If he has already performed that part of the contract which depended  upon his volition , he can be compelled to perform  the remaining part which he did not perform.

  • Contract for personal sevices

Contract of personal services will not be enforced by an order of specific performance nor will it be open for a servent to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been  terminated .the remedy of the employee ia a claim  for damages  for wrongful dismissal or for breach of a contract. This is  the normal rule. But when a statutory  status is given to an employee and there has been violation of the provisions of statute while terminating the service of such an employee , the later will be eligible to get the relief of a declaration that the order is null and void and he continues to be in service, as it will not be a mere case of a master terminating the services of a servant.

  • Other contracts which equity will not specifically enforce

Beside the above Snell supplements the list by pointing out certain other contracts which equity will not specifically enforce . these are : (i)illegal or immoral contracts ;(ii) agreement without consideration;(iii) contracts to transfer goodwill alone of a business unconnected with the business premises;(iv) contracts wanting in mutuality.

  • Mutuality of contract

The doctrine of mutuality means that the contract must be mutually enforceable by each party against the other. Mutuality does not mean equalityand exact arithmetical correspondence. It means each party to the contract must have the freedom to enforce the right under the contract against the  other.the doctrine of mutuality ia an English doctrine. According to it a contract to be specifically  enforced by the court must be mutual. This doctrine is not applicable in india. Section 20(4) of the specific relief act,1963 does not throw out the consideration of the doctrine  of mutuality its rigour has been toned down by the parliament by introducing the section 20(4).

Section 20 of the act apecifies the following  cases in which the court may properly exercise discretion not to decree specific performance-

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was

entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific

performance.

 

  • CONTRACT TO SELL OR LET PROPERTY BY ONE WHO HAS NO TITLE, NOT SPECIFICALLY ENFORCEABLE: SECTION 17

(1) A contract to sell or let any immovable

property cannot be specifically enforced in favour of a vendor or lessor

(a) who, knowing himself not to have any title to the property, has contracted to sell or let the property;

(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.

(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

   DEFECT IN TITLE:

The plaintiff cannot give a title “free from reasonable doubt” when a vendor’s title depends not upon question of law but upon proof of disputed fact , that fact must be proved and if the vendor does not prove it , he cannot be held to have made out a good title according to the provision of section 17(b) of S.R.A.

            

 

 

  • DISCRETION AND POWER OF COURT

Discretion as to decreeing specific performance.- section 20

 

The court would grant specific  performance on following general principles:

  • Specific performance will not be granted where damages are an adequate remedy.
  • To grant a specific performance of a contract is at direction of the court
  • The plaintiff must prove the following :
  • That there was a concluded and valid contract between him and the defendant
  • That he performed or he is ready and willing to perform the terms of contract on his part
  • That he was ready and willing to do all matters and things on his part thereafter to  be done.

          Applicability:the section gives to the court discretion in the matter decreeing specific performance . this discretion is not arbitrary, but sound and reasonable , guided by judicial principles. under no circumstances , the court should exercise its discretion , where it would be improper.

  • DEFENCE TO A SUIT FOR SPECIFIC PERFORMANCE:

Defence in law means a denial by the defendant of the truth or validity of the plaintiff’s claim and includes anything that may be setup to defeat the plaintiff’s case. The defendant may set up the following defence in a suit for specific performance:

(1)where unperformed part is large [s.12(3)].

(2)  Money adequate compensation14(a)].

(3)Contract dependent on personal qualification or volition of parties-[s 14(1) (b)].

(4)Uncertainty-

(5)Excess of powers [s 14(d)].

(6)The contract was made by the corporation or public company in excess of its power.

(7)Continuous duty over three years- [s.14(d)].

(8)Non existence of material part-

(9) Unfair advantage-.[s.20(2)(a)].

(10)Hardship- [s.20(2)(b)].

(11)Satisfaction-

(12)Settlement of subject matter

(13)Defect in title [s.17] .

(14)Performance on variation-

(15)Inadequate compensation

(16)Assent obtained by misrepresentation-

(17)Assent under influence of mistake of fact

(18)Wanting in mutuality

(19)Wanting in good title-

(20) Without consideration-.

(E) PARTIES TO AN ACTION  FOR SPECIFIC PERFORMANCE

  • Who may obtain specific performance: Section 15

Necessary parties to suit- The general rule with regard to suits to enforce specific performance is that the parties to the contract, or their representatives, are the necessary and sufficient parties to the suit – that all the parties to the contract should be parties to the suit and no one else.

Minor – where the guardian is a de-jure guardian and is competent to bind by his contract and the contact is also for the various benefits of the minor can bring a suit.

Representative in interest-the expression “representative in interest” includes “transferee, executor, administrator, assignee in insolvency, committee in lunacy”.

  • PERSONAL BARS TO RELIEF: SECTION 16
  • PERSONS AGAINST WHOM CONTRACTS MAY BE SPCIFICALLY ENFORCED: SECTION 19-
  • BAR TO SUIT FOR COMPENSATION FOR BREACH AFTER DISMISSAL OF SUIT FOR SPECIFIC PERFORMANCE: SECTION 24

The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff’s right to sue for compensation for the breach of such contract or part, as the case may be, but shall not bar his right to sue for any other relief to which he may be entitled, by reason of such breach.

 

 

 

 

 

 

PAHUJA LAW ACADEMY

SPECIFIC RELIEF ACT-1963

PRE QUESTIONS

 

  1. Under section 10 of Specific Relief Act, the specific performance of the contract cannot be granted

(a) if there is no concluded contract

(b) if there is a concluded contract

(c) if the compensation in money is not an adequate relief

(d) if there exists no standard for ascertaining the actual damages.

 

  1. Under section 10 the specific performance can be granted

(a) if there is a concluded contract

(b) if there exists no standard for ascertaining the actual damages

(c) if compensation in money is not an adequate relief

(d) all the above.

 

  1. Under section 10 which of the following can be specifically enforced

(a) contingent contract

(b) to form a partnership

(c) chattel of special value

(d) separation deeds.

 

  1. In case of specific performance of part of contract the purchaser

(a) may relinquish claim to further performance of the remaining part of contract and has right to compensation

(b) may not relinquish claim to further performance of the remaining part of contract and has no right to compensation

(c) specific performance of part of contract not possible

(d) none of above.

 

  1. Section 13 of the Specific Relief Act, 1963 has no application when the transfer has been affected in respect of a property

(a) in which vendor has no title or has an imperfect title

(b) in which vendor has title

(c) in which vendor has imperfect title

(d) none of above.

 

  1. Within the meaning of section 15 of the Specific Relief Act, 1963, the assignee falls

(a) within the meaning of representative in interest or principal

(b) representative of interest only

(c) representative of principal only

(d) none of above.

 

  1. Remedy of rectification available under section 26 relates to

(a) mistake in expression of contract only

(b) the contract itself i.e. the formation of the contract

(c) matters which were overlooked by the parties

(d) addition of terms in the agreement which was not considered.

 

  1. What are the limits within which a court may permit rectification? Whether the relief in this regard is discretionary or mandatory upon the court?

RECTIFICATION OF INSTRUMENT

WHEN INSTRUMENT MAY BE RECTIFIED?

SECTION 26:

(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956), applies) does not express their real intention, then-

(a) either party or his representative in interest may institute a suit to have the instrument rectified; or

(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or

(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.

(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:

Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.

DOCTRINE OF RATIFICATION

Rectification means correction of an error in an instrument in order to give effect to the real intention of the parties. Where a contract has been reduced into writing, in pursuance of a previous engagement and the writing, owing to fraud or mutual mistake fails to express the real intention of the parties, the court will ractify the writing instrument in accordance with their true intent. Here the fundamental assumption is that there exists, in between the parties a complete and perfectly unobjectionable contract, but the writing designed to embody it, either from fraud or mutual mistake,is incorrect or imperfect and the relief sought is to rectify the writing so as to bring it into conformity with the true intent. In such a case to enforce the instrument as it stands must be injure at least one party to it, to recined it altogether must be to injure both , but  rectify it and then enforce it is to injure neither but to carry  out the intention of both. In cases of rectification the court does not put it to the other party to submit to the variation alleged but makes the instrument conformable to the intention of the parties without any  such offer or submission . it may be noted that relief of rectification is granted by the court because what is rectified, is not the agreement, but the mistaken  expression of it. The process of rectification consists in bringing the document in conformity with this prior agreement.

WHO CAN APPLY FOR RECTIFICATION-

The following persons may apply for rectification-

  • Either party or his representative in interest;
  • The plaintiff in any suit
  • A defendant in such suit

CONDITIONS NECESSARYthe conditions necessary for rectification are-

(1)There must have been a complete agreement reached prior to the written instrument, which is sought to be rectified. There must be two distinct stage:

  • An agreement verbal or written, which clearly expresses the final intention of the parties, and
  • An instrument which purports to embody that intention

2)both the parties must have intended, and must still intendi, that the exact  terms  of the prior contract  should be reduced to writing.

(3).clear evidence of mistake common of both parties or of fraud.

PRINCIPLE“the principle on which the court  acts in correcting instrument is that the parties , are to be placed in the position  they would have stood if no error had been committed.

ILLUSTRATION:

A, intending to sell to B his house  and one of three godowns adjacent to it , executes a conveyance prepared by B, in which, through B’s fraud, all three godowns are included. Of the two godowns which were fraudulently included, B gives one to C and let the other to D for a rent, neither C nor D having any knowledge of fraud. The conveyance may, as against B and C, be rectified so as to exclude from it the godown given to C, but it cannot be rectified so as to affect D’s lease.

Pre Questions

  1. Remedy of rectification available under section‘ 26 relates to

(a) mistake in expression of contract only

(b) the contract itself i.e. the formation of the contract

(c) matters which were overlooked by the parties

(d) addition of terms in the agreement which was not considered.

 

  1. Mistake contemplated under section 26 is

(a) mutual mistake

(b) bilateral mistake

(c) mistake in framing of the instrument

(d) all the above.

 

  1. Section 26 fixes the time limit for discovery of mistake or fraud to be

(a) six months

(b) three months

(c) 1 year

(d) no time limit is fixed.

  1. Distinguish between rectification and rescission of a contract.

 

  1. A had agreed to sell the house to B for 15 lacs Rs. 5 lacs are paid as advance. After one month further Rs. 5 lacs are paid and A put B in possession of house and balance amount of Rs. 5 lacs is to be paid on completion of paper work and registration of sale deed. A fails to keep his commitment. B files suit for specific performance of contract which is decreed. Court allows ‘B’ period of2 months to make the balance payment. However B fails to make payment of Rs. 5 lacs within the time allowed by Court decree. A then applies for rescission of decree and contract? Will he succeed?

 

  1. What do you understand by cancellation of instrument? When cancellation may be ordered? What is the principle of compensation on cancellation.

 

 RESCISSION OF CONTRACTS

  • Where recession may be adjudged or refused-SECTION 27

(1) Any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the court in any of the following cases, namely:-

(a) where the contract is voidable or terminable by the plaintiff;

(b) where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff.

(2) Notwithstanding anything contained in sub-section (1), the court may refuse to rescind the contract-

(a) where the plaintiff has expressly or impliedly ratified the contract; or

(b) where, owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant himself), the parties cannot be substantially restored to the position in which they stood when the contract was made; or

(c) where third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or

(d) where only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract.

Explanation.-In this section “contract”, in relation to the territories to which the Transfer of Property Act, 1882 (4 of 1882), does not extend, means a contract in writing.

 RESCISSION- ITS MEANING- The equitable remedy of rescission is exactly the opposite of specific performance. It means putting an end to contract and making it null and void ab ignition. Rescission of contract is one of the species of the reverse of specific performance. It is that form of specific relief which the party claims not for the purpose of specific enforcement of the contract but for the purpose of avoidance of contract which is either voidable  at his option or terminable at his choice. The object of this relief is that the parties may be restored or put back to their original position . Benerji in the Tagore Law Lactures says, “ This species the specific relief is the reverse of specific performance ; the one grants relief by enforcing the performance of contract which binds the party, the other by discharging him when it is not just to bind  him.” According to smell,

rescission is not a judicial remedy but the act of a party entitled to rescind. It is a right which a party to a transaction sometimes has to set the transaction aside and restore to its former position”

Principle and scope-

It is a maxim of law “ he who seeks equity must do equity” in the transaction in respect of which  relief is sought. So where a court is rescinded, the court may in its dicretion , requires the party to whom such relief is granted to make the compensation  to the other party  which justice may require that , in cases where rescission is adjudged  against a party who is perfectly innocent and the court considers that in order to restore  the parties to their original position , compensation should be given to the defendant the court should award him such compensation , as the justice of the case may require.

                         CANCELLATION OF INSTRUMENTS

  • When cancellation may be ordered-

(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

SCOPE:

“ the relief  of cancellation of instruments is founded upon the administration of protective justice for fear that the instrument may be vexatious or injurious used by the defendant against the plaintiff when the evidence to impeach it may be lost or that it may throw a cloud of suspicion over his title or interest”

The relief of cancellation  of an instrument is based on the equitable doctrine “ one who seeks equity must do equity”. To cancel a document means the removal of written character of  a record . it means that the document is made imperative and invalid by the the act cancellation.

  • WHEN CANCELLATION MAY BE ORDERED

Section 31 of the S.R.A lays down that any person against whom a written instrument is void or voidable, who has  reasonable apprehension that such instrument, if left  outsanding, may cause him serious injury , may sue to have it  adjudged void or voidable;and the court may , in its decretion, so adjudged it , and order it to be delivered up and cancelled.

Condition for the relief-before  a person can claim relief or cancellation, he must show

  • That the written instrument is either void or voidable against him;
  • That he has reasonable apprehension of serious injury from the instrument if it is left outstanding.
  • That in view of all circumstances of the case, the court considers it reasonable and proper to administer protective and preventive justice asked for and that the court ought,in the exercise of its discretion ,(a) adjudged the instrument void or voidable in his favour,and (b) order itto be delivered up and cancelled.

Section 31 corresponda with sec 39 of the repealed act. That section contained the following illustrations:

  • A, the owner of a ship, by fraudulently representing her to be seaworthy, induces B, an underwriter , to insure her. B may obtain the cancellation of policy.
  • A, conveys land to B, who bequeaths it to C and dies. Thereupon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him . C may obtain the cancellation of the forged document.

Principle-The party is relieved upon the principle , as it is , technically called, ‘quia tincit’ that is for fear that such agreement , securities , deeds or other  instruments may be vexatiously or injuriously used against him, when the evidence to impeach  may be lost; or they may now throw a cloud of suspicious over his tittle or interest.

 

SPECIFIC RELIEF ACT-1963

PRE QUESTIONS

 

  1. Mistake contemplated under section 26 is

(a) mutual mistake

(b) bilateral mistake

(c) mistake in framing of the instrument

(d) all the above.

 

  1. Section 26 fixes the time limit for discovery of mistake or fraud to be

(a) six months

(b) three months

(c) 1 year

(d) no time limit is fixed.

 

  1. Remedy of rescission of contract

(a) is the same as specific performance

(b) is opposite of specific performance

(c) does not affect specific performance

(d) makes specific performance easy.

 

  1. Relief of rescission is granted in cases

(a) where the contract is void

(b) where the contract is voidable

(c) both void & voidable contracts

(d) neither void nor voidable contracts.

 

  1. Rescission cannot be granted

(a) where the plaintiff has ratified the contract

(b) where there is a valid contract

(c) where the third party have acquired any interest under the contract

(d) all the above.

 

  1. Rescission cannot be granted

(a) in severeable contracts

(b) where the restitution to original position not possible

(c) contract stands ratified

(d) all the above.

  1. Cancellation of instrument can be granted

(a) if the instrument is void or void-able

(b) if the instrument is valid

(c) both (a) & (b)

(d) neither (a) nor (b).

 

  1. Section 31 in its application is

(a) based on protective or preventive justice

(b) restricted to contracts only

(c) restricted to the parties to the contract

(d) mandatory in nature.

 

  1. Cancellation under section 31 can be claimed

(a) by party to the instrument

(b) by any person against whom the instrument is void or voidable

(c) in respect of any instrument not necessarily a contract

(d) all the above.

 

  1. In case of cancellation under section 31 the relief of specific performance

(a) can be supplemented

(b) can be in the alternative

(c) out of question

(d) all the above.

 

  1. Cancellation under section 31 relates to

(a) mistake in expression of any instrument

(b) formation of the instrument

(c) ratification of the instrument

(d) all the above.

  1. What is the ambit and the extent of declaratory action under the Specific Relief Act? Can declaratory action be granted outside the Act.

(B) A is husband of W. A files a suit for declaration that a two years old boy allegedly born to defendant wife (W) was not his son. An objection is taken that the suit was premature as no maintenance and rights in A’s estate were being claimed against him and that the interest of minor should not be prejudiced by deciding a question which will arise in future. Can a declaration be granted to A?

(C) A a worshipper files a suit for declaration that certain properties belonged to the deity. Here it is clear that the worshipper A is not claiming for himself any legal character or right in the property. The suit does not come within the purview of Section 34 and 35 of Specific Relief Act. Is the worshipper entitle to maintain the declaratory suit.

  1. A is dispossessed of certain land by B, A brings a suit against B for mere declaration of his title to the land. Can the Court grant the declaration prayed for

 

DECLARATORY DECREE

                                            ( SECTION 34- 35)

 Discretion of court as to declaration of status or right: Section 34-

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.

Explanation.-A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.

MEANING OF DECLARATORY DECREE:

A ‘ declaratory decree’ is a mode of relief where there is no specific  performance and no award of compensation. There is only a declaration  of the rights of the parties without any consequential relief which can be enforced by the execution  of the decree. In other words, declaratory decrees are those where some right is declared in favour of the plaintiff but nothing is sought to be paid or performed by the defendant. Further, the declaratory does not confer any new rights upon the plaintiff, it merely declares what he had before.

OBJECT:

The object of such decrees is that where a person’s status or legal character has been denied or where  a cloud has been caste  upon his tittle to the right and interests in some property, he may have the cloud removed by having his legal status or rights declared by the court,but it is not a matter of absolute right to obtain the declaratory decree.it is discretionary with the court to grant it or not and in every case the court must exercise a sound judgment as to whether it is reasonable or not  to grant the relief.

WHEN COURT CAN PASS A DECLARATORY DECREE

This section lays down circumstances under which the court may pass a declaratory decree. The section lays down, “ 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”.

SECTION 34 EXPLAINED :

The meaning of this section is that any person, who has a right to any status or title, may bring a declaratory action against any one who  denies such status  or title. And the court may , in the exercise of its sound discretion , make the declaration asked for ; and in such a suit the plaintiff, need not ask for any further relief. But the court shall  refuse to make the declaration  asked for,if it finds that plaintiff being able to seek for further relief than the mere  declaration has omitted to do so.

Who may sue- According to section 34 as given above any person:

  • Entitled to any legal character , or to;
  • Any right as to any property , may institute a suit to obtain declaratory decree.

AGAINST WHOM SUIT CAN LIE

A suit can lie against any person-

  • Denying, or
  • Interested to deny, his title to such character or right. A trustee of a property is a  ‘person interested to deny’ a title adverse to the title of someone who is not in exercise, and for whom, if in existence, he would be a trustee.

WHAT ORDER THE COURT MAY PASS

The court may in its diccretion, make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.

When the court may refuse to act-Proviso to sec 34 lays down that no court shall mak any such declaration  where the plaintiff being able to seek further  relief , than a mere declaration of title, omits to do so. In Ram saran v Ganga devi 1972, the defendant was in possession of some of the suit properties and the plaintiff in their suit did not ask for possession of those properties. They merely prayed for a declaration that they were the owner of the suit properties. It wa held  that the suit was not maintainable  and was hit by section 42 of the Act of 1877(now section 34 ot the S.R.A, 1963)

  • Effect of declaration:SECTION 35-

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the trustees.

SPECIFIC RELIEF ACT-1963

PRE QUESTIONS

  1. Under section 34, a declaration can be sought by

(a) a stranger who has no interest

(b) a person having a legal character or a right as to property which is denied

(c) a person whose legal character or right to property not denied

(d) all the above.

 

  1. Section 34 sanctions

(a) every type of declaration

(b) only a, declaration of a legal character or of a right to property

(c) both (a) & (b)

(d) neither (a) nor (b).

 

  1. Character or right sought to be declared must be

(a) an existing right on the date of the suit or upto the date of decree

(b) legal one

(c) valid one

(d) all the above.

 

  1. Legal character or right under section 34 must be

(a) specific

(b) abstract

(c) contingent

(d) any of the above.

 

  1. Proviso to section 34 relates to

(a) suits for specific performance

(b) suits for declaration

(c) suits for injunctions

(d) all the above.

 

  1. The further relief under section 34 must be

(a) the one available as additional on the date of the suit

(b) the one available after the filing of the suit

(c) the one available as alternative on the date of the suit

(d) the one available as alternative during the pendency of the suit.

  1. The objection as to maintainability of suit of declaration without further relief

(a) must be taken at the earliest stage

(b) can be taken at any step of the proceedings

(c) can be taken for the first time in appeal

(d) all the above.

 

  1. A declaration made is binding on

(a) the parties to the suit

(b) persons claiming through the parties to the suit

(c) where any party is a trustee, in the persons for whom such parties would be trustees

(d) all the above.

  1. What are the principles for issue of injunctions under the Specific Relief Act? How many kinds of injunctions can be granted under the Act?

(B)  A is wife of B, A files a suit for grant of injunction against her    husband restraining him from marrying a second wife. Is A’s suit for injunction maintainable?

(C)  A Municipal Committee issues a notice to B a house owner for removing certain encroachments from the Municipal land. B files a suit for injunction to restrain Municipality from doing so. Can injunction be issue?

 

  1. Consider if any remedy under the Specific Relief A ct is available to B:
  • A denies that B is his son.
  • A agrees to lend B Rs. 20000 on interest but later refuses.
  • A film actress agreed that she would render her exclusive services to B for a certain period and would not during that period render any services to another person. However in breach of agreement, she entered into an agreement to act for another film company.
  • A improperly uses trade mark of B.
  • A and Miss B enter into an agreement that they shall marry each other and none else during their life. A in breach of the agreement is going to marry another woman.
  • A illegally dispossesses B of a plot of land.

 

  1. Define and classify Injunctions. Distinguish between Mandatory and Prohibiting Injunction.

 

  1. Can a permanent injunction be granted to restrain landlord evicting the tenant from premises in his possession

PREVENTIVE RELIEF

CHAPTER 7

INJUNCTION GENERALLY

(SECTIONS 36-42)

 

  • PREVENTIVE RELIEF:

Specific relief afforded by means of injunction , temporary or perpetual is called preventive relief. Injunction is a form of specific relief which the courts grant  when pecuniary compensation would be inadequate or altogether futile.

The object of granting injunction is to restrain the doing of an act in order to prevent future or threatened injuries.

 

 

PREVENTIVE RELIEF HOW GRANTED: SECTION 36

Preventive relief is granted at the discretion of the court by injunction , temporary or perpetual.

 

MEANING OF INJUNCTION:

 

An injunction is a specific order of the court forbidding the commission of a wrong threatened or the continuance of a wrongful injunction ‘commanding active restitution to the former state of thing.

Lord Halsbury is most explicit when he says “ An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing.” In the former case it is called a restrictive injunction and in the latter a mantory injunction.

According to the old chancery practice, an injunction may be described as a prohibatory writ issued by the chancery to restrain the defendant from using some legal right , the exercise of which  would be contrary to equity and conscience. According to Mr. Jermey an injunction is a writ framed according to the circumstances of the case commanding an act which the court regard essential to justice, or restraining an act which it seems contrary to equity and conscience.

Characteristics of an injunction:-  An injunction has three characterstic features:

  • It is a judicial process
  • The object attained thereby is restraint or prevention;and
  • The thing restrained or prevented is a wrongful act.

 

Injunction and specific performance:

Reliefs by way of specific performance and injunction belong to same branch of the law and the ground for granting them by them by a court of equity are  also the same, viz , the inadequacy of the legal remedy the difference between the two ,however, lies in the following respects :

  • Specific performance is designed to order the defendant to do the verying thing that he promised to do under the contact, i.e he is compelled to perform an active duty while injunction is designed to prevent future or threatened injuries or wrongs and as such prevents the violation of a negative duty,
  • Specific performance only relates to contracts, but injunctions relates not only to contracts but also to tort
  • A decree for specific performance aiming to enforce some specific act is, therefore, the converse of a decree for injunction , which forbids the performance of some specific acts.

 

Temporary and perpetual injunctions: SECTION 37

(1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure,1908 (5 of 1908).

(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

 

Distinction between temporary and perpetual injunction

  • A temporary or interlocutory injuction is to continue until a specified time , or until the further order of the court. It is granted at any period of a sut and it regulated by the code of civil procedure. A perpetual  injunction on the other hand  can only be granted  by a decree made at the hearing, and upon the merit of the suit.
  • An interlocutory or temporary injunction is merely provisional in its nature and does not conclude  or determine a right while the perpetual injunction finally determines the rights  of the parties and forms part of the decree made at the hearing , which  perpetually  restrains the defendant fron the assertion of a right or from the commission of an act which would be contrary to the rights of the plaintiff.
  • A temporary injunction can be granted at any period of a suit during its pedency but a perpetual injunction is granted at the final hearing of the suit.
  • A temporary injunction may be granted to the plaintiff on his making out a prima facie case in his support, a perpetual injunction is granted at the final hearing of the suit.
  • A temporary injunction is regulated by the provision of the code of civil procedure; but a perpetual injunction is governed by the provision of the specific relief act.
  • A temporary injunction is a mere order; but a perpetual injuction is a decree, it being granted by the decree made at the hearing and upon the merit of the suit.

 

Temporary injunction

A temporary injuction is an order by which a party to an action is required to do, or refrain from doing, a particular thing until the suit is disposed of or until further order of the court. A temporary  injunction is interim in nature, granted in an interlocutory application of the plaintiff. Its object is to preserve matter in status quo until the case can be tried.  It does not assume finally to dispose of the right, and will only impose such restraint as may suffice to stop the mischief complained of or keep things as they are at the moment. The issue of temporary injunction is governed by the code of civil procedure.[ or. 39 cpc]

The granting of a temporary injunction is a matter of  discretion – which means judicial discretion of the court.

 

Essential conditions  of temporary injunction

Principles governing issue of temporary injunction- before a court issue a temporary  injunction it must be satisfied with regard to the following matters:

  • The court will first see that there is bonafide contention between the parties and then which side in the event of success , will lie the balance of inconvenience if the injunction doed not issue.
  • The court must be satisfied that the applicant has made out a prima facie case for the issue of an interim injunction .
  • The court must be satisfied that there is a likelihood of the plaintiff suffering from an irreparable injury if the injunction is not granted.
  • The court must exists as to the right and when an injunction might ba a grant hardship on the defendant, an interlocutory injunction will be refused on the defendant undertaking to keep an account.
  • The court will ordinarily decline to grant a temporary injunction if the plaint and the affidavits filed by the parties show on the face of them that the case is not for a perpetual injunction.

 

perpetual injunction when granted.-section 38

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) where the invasion is such that compensation in money would not afford adequate relief;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Sec 38(1) of the specific relief act lays down that subject to the other orovisions in or refered by this chapter , a perpetual injunction may be granted to the plaintiff prevent the breach of an obligation existing in his favour, whether expressly or by implication . obligation includes every duty enforceable by law

When any such obligation arises from contract , the court shall be guided y the rules and provisions  contained in chapter II.

When the defendant invades or threatens to invade the plaintiff’s right to , or enjoyment of property, the court may grant a perpetual injunction in the following cases, namely:-

  • where a defendant is trustee of the plaintiff’s property.
  • Where there exists no standard for ascertaining the actual damage caused, or likely to be caused , by the invasion.
  • Where the invasion is such that the compensation in money would not afford adequate relief.
  • Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

 

Illustration:

  • A lets certain land to B, and contracts not to dig or gravel thereout.A may sue for an injunction to restrain B from digging in violation of his contract.
  • The directors of a fire and life insurance company are about to engage in marine insaurance. Any of the shareholders may sue for aninjunction to restrain them.

 

Principles of grant of perpetual injunction:-

The relief of perpetual injunction is equitable and discretionary and he who seeks equity must come with clean hand. The party seeking injunction must possess some right which the opposite party is trying to invade ot there must exist anobligation in its favour whether contractual or otherwise in respect of which the opposite party is trying to commit a breach. If injunction is the only means of enforcing a right an injunction will be granted.

 

MANDATORY INJUNCTION: SECTION 39

When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

A ‘mandatory’ injunction is an order requiring the defendant to do some positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise in fulfilment of his legal abligation. It is a command to undo that which has been  done or to do a particular act to restore things to their former condition. In comparison,when a party threatening to invade the legal/equitable rights of another is restrained from continuing or commencing such wrongful act,the injunction so issued is termed a prohibitory injunction as it incorporates a negative act.

An  illustration will make the point clear .A is B’s medical advisor. He demands money from B , which A declines to pay . A then threatens to make know the effect of B’s  communication to him as patient. This is contrary to  A’s from so doing, but also obtain a mendatory injunction ordering A to destroy all written communications made by B as a patien of A.

 

Damages in lieu of, or in addition to, injunction.-section 40

(1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:

Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3)The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.

This is a new section, not incorporated in the old act. Damages in lieu of injunction can be granted under sec 40, but it is for the plaintiff to claim damages. If he does not so claim, the question of awarding damages does not  normally arise. Where the court allowed the plaintiff’s an apportunity to amend the plaint under the proviso to sec 40(2), but they failed to avail of that apportunity, the court has no option but to dismiss the suit [Chandra bhan  singh v sheo shankar AIR1984].

The conditions for giving  damages instead of an injunction are:

  • Injury to plaintiff’s right is small
  • Is one capable of being estimated in money
  • Is one which is capable of being compensated by a small money payment,and
  • The case is one in which it would be oppressive to the defendant to grant an injunction i.e when the equity is in the favour of defendant

[ Meux’s Brewery co. v City of London Electric Lighting Co.(1895)]

 

Injunction when refused:section 41  An injunction cannot be granted-

(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) to restrain any person from applying to any legislative body;

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) to prevent the breach of a contract the performance of which would not be specifically enforced;

(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;

(g) to prevent a continuing breach in which the plaintiff  has acquiesced;

(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) when the plaintiff has no personal interest in the matter.

Sec 41 gives a list of cases in which a perpetual injunction cannot be granted. It must , however, be remembered that the jurisdiction to grant  injunction is discretionary and an injunction , therefore, may be refused  even if the case be one not covered by the present section.

 

Injunction to perform negative agreement. section 42

Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:

Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

 

ESSENTIALS :

  • The contract consist of two agreements i.e an affirmative agreement to do a certain act and a negative agreement not to do a certain act.
  • The negative part is capable of being separated from the rest of the contract .
  • The applicant must not have failed to perform the contract so far as it is binding on him.

 

Illustrations:

  • A contract to sell to B for Rs. 1,000 the goodwill of a certain business unconnected with business premises, and further agrees not to carry on that business in Calcutta. B pays A the Rs.1,000 but A carries on the business in Calcutta .the court cannot compel A to send his customers to B , but B may obtain an injunction restraining A from carrying on the business in Calcutta.
  • A contracts with B to sing for twelve months at B’s theatre and not to sing in public elsewhere. B cannot obtain specific performance to sing, but he is entitled to an injunction restraining A from singing at any otherplace of public entertainment.

 

SPECIFIC RELIEF ACT-1963

PRE QUESTIONS

 

  1. Injunctions cannot be granted in a suit
  • in which the specific performance cannot be enforced
  • for breach of negative contract to enforce specific performance
  • for declaration where the plaintiff is in possession
  • neither (a) nor (b) nor (c).

 

  1. What is true of temporary injunction
  • continues until a certain specific time
  • is permanent between the parties
  • concludes the right
  • cannot be granted ex-parte.

 

  1. Which is incorrect of temporary injunctions
  • continues until a specific time
  • finally settles the mutual rights of the parties & directs a party for al time to do or obtain from doing a thing
  • can be granted ex-parte
  • preserves the property in dispute in status qua till the disposal of the suit.

 

  1. The general principles on which the perpetual injunctions could be granted are contained in
  • Section 37
  • Section 38
  • Section 39
  • Section 40.

 

  1. What is true of perpetual injunction
  • it is a judicial process
  • preventive in nature
  • the thing prevented is a wrongful act
  • all the above.

 

 

  1. Injunction is granted
  • to prevent torts
  • to restrain breaches of contracts
  • both (a) & (b)
  • neither (a) nor (b).

 

  1. What is true of mandatory injunction
  • compels performance of certain positive acts
  • is awarded where the temporary injunction is meaningless
  • is retrospective in nature as restores things to their former conditions
  • all the above.

 

  1. Perpetual injunction can be granted under section 38 of the Act
  • when there exists standard for ascertaining the actual damages caused
  • when compensation would afford adequate remedy
  • when it is necessary to prevent multiplicity of proceedings
  • when the defendant is not a trustee of property for the plaintiff.

 

  1. Perpetual injunction under section 38 can be granted
  • when there exists no standard for ascertaining the actual damages caused
  • when compensation would not afford adequate relief
  • when the defendant is a trustee of the property for the plantiff
  • all the above.

 

  1. A claim for damages in suits for injunction can be laid
  • under section 38
  • under section 39
  • under section 40
  • under section 37.

 

  1. Damages in suits for injunctions cannot be granted
  • if the plaintiff has not claimed damages
  • if the suit of the plaintiff is dismissed
  • both (a) & (b)
  • neither (a) nor (b).

ABOUT PLA

PLA offers extensive Training Programmes to help you succeed in fiercely competitive examinations like CLAT and other Law entrance exams in India. Our passion is to help you create a successful career in Law.

Who’s Online

There are no users currently online
top
Copyright © 2017. Pahuja Law Academy
Designed & Developed By : Asap Comm Ind
Registration Opens For Judiciary Coaching


X