24 The Speciftc Relief Act, 1963

subiect.
construction of the building. The
matter of the tenancy was completely
destroyed and the lease automaticallv
terminated. But even so the landlord
could claim and recover possession only
through the court process.
The Court explained the basic
Ramchandra Sakharam the
(4)
Mahajan . Damodar requirements of the suit. It is for
Trimbak Tanksale plaintiff to prove his own case and the
weakness in the case of the defence does
not entitle the plaintiff to any benefit.

POINTS TO REMEMBER
Possession impiics to elements
possess an apparent
0 corpus, 1.e. some actual power over the object
COntIol over t

() animus, i.e., a will to avail oneself of that power,

Possession constitutes alimited title to the property in the sense that
title ofthe person in possession is good against all except the rightful
Ownet.
AMere possession of the title is enough to maintain an action under
section 5 of the specifiC1elief act 1963.
suit for possessionundersection5 of Specific Relief Act, can be filed
within12 years.
Section 5 of the Specific Relief Act, entirles a personto the possession
of speciticimmoyable property, which he may recover nthe manner
providedby Code of Civil Procedure,1908.(C.PC

QUESTIONS
What is the difference berween injunction and specific perfornmance
Is mere possession before being dispossessed enough to prove wnership?
Explaín with illustrarion.
What are the types of actionable claims in a suit for recovery Of
immovable property? Which of these claims are covered under this
Act?
What is the meaning of adverse possession?
Y Wht are the remedics available for recovery of possession to a perSOE
entitledtoan immovable
 SECTION 6 BY P'ERSON DiSPossESSED OF IMMOVABLE PROPERTY

Section 6 of the act deals with the suit by persondispossessed of immovable

property
(1) If any person is dispossessed without bis consent of immovable
property otherwise than in due course of law, he or any person
claiming through bim may, by suit, recover possession thereof
notwithstanding any other title that may be set up in such suit.
) No suit under this section shall be brought- (a) after
the expiry
of six months from the date of dispossession; or (b)
against the
Government.
(3) No appeal shal lie from any order or decree passed in any suit
instituted under this section, nor shall any review of any such order
or decree be allowed.
4) Notbing in this section shall bar any person from suing to establish
bis title to such property and to recover possesSi0n
thereof.
Obiect

The object of section 6 of the Specific Relief Act, 1963 is to restrain a

person from using force and to dispose aperson without his consent.
The purpose of Section 6 is to retrain aperson from using force and
to dispossess a person without his consent otherwise than in due
COurse of law
Section 6 is based on the principle that disputed rights are to be
decided by due process of law and no one should be allowed to take
law into his own hands, however good his title may be.
In Midnapur Zamindari Co. Lid. v. Naresh Narayan Rao's It was
observed, that "persons are not permitted to take forcible possession.
They must obtaín such possession as they are entitled through a
Court."

Essentials conditions of Section 6

person should have been in possession of the property in
dispute;
i East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2)
15 SCC 29.
AIR 1924 PC 144.
 1963
26 The Specifc Relief Act,

w2 The possession should be of immovable property;

There should be a dispossession otherwise than in due COurse
of law;
L. The suit should be for recovery of possession;
of the date at
The suit must be filed within 6 months
dispossession.
Theoperation of Section 6 is not excluded incases between landord.
and tenants where there is no question of title involved.
In asuit under Section 6neither of the below mentioned is
relevant
(a) title of the plaintiff
(b) title of dispossessor
() the defendant is not allowed to prove his title
Section 6 provide summary and speedy remedy through the medium
of Civil Court for the restoration of possession to a party
dispossessed
by another, within6 months of its dispossession, leaving them to fight
out the question of their respective titles in a competent Court if
are so advised 7 they
In Nritto Lall Matter v. Rajendra Narain Deb, It was held:
Where the plaintiff alleged that he was in
room, as representing his father and uncle, who possession of a certain
were not parties to the suit, and that he had beenwere alive but who
such room within six months of the dispossessed from
his possession not being juridical institution the present suit
of
maintain a suit under Section 9 of possession did not entitle him to
the Specific Relief Act."
Possession under this Section means legal
exist with or without actual
possession and
possession, which may
with or without a
rightful
where a trespasser is allowedpossession. Thus, Asettled possession gives
to continue on a right to possession sucb
the property and the owner does not
effort to remove him, he will gain make an 0wner that even the righiful
under Section 6. The possession of possession it by taking may only recover
the termination of the tenant after recourse to
tenancy continues to be law.
16 Bai Dani v. A.G. Barot,
17 AIR 1974 Guj. 106.
Wali Mohd. v. Ajodhya Kunda; ILR 13
18 ILR 22 Cal 562 (A). ALL 537.
 Specific Relief Act, 1963
32 The
possession may be instituted under section 6 of
No suit for recovery of
Government.
Specific Relief Act against
order of decree passed in any suit institured
No appeal shall lie from any Relief Act, 1963, not shall any review
of the Specific
under section 6
be allowed [section 6 (3)1.
of any such order or decree
question of dispossession may atise only it it is established 4
The
the plaintiff had the possession.
Specifie Relief Act, 1963
In a suir brought under sectiotn 6 of the derermined inder sectios
question of title can never be raised nor
question
The mainquestion for determination is of possession and the
of title is not considered.
Title is an exclusive defence in all suits.
A tenant having possessory title can recover pOssession even trom his
landlord who has wrongfuly dispossessed him.

OUESTIONS
What is the main objective of this section?
What are theessential conditionsprescribedfor possession under this
section
Can legal possession cxist without actual possession Give examples.
Will dispossession by Government be covered by this section?
How can an order or decree under this section be
contested?
SECTION 7 RECoVERY OF SPECIFIC MoVABLE PROPERTY
Recovery of specific movable property.- Aperson entitled to the possession
of specific movable property may recover it in the
Code of Civil Procedure, 1908 (5 of 1908). manner provided by the
sue under this section for the possession of Explanation 1-A trustee may
interest in which the person for whom hemovable property to the benefica.
is trustee is entitled.
wplanation 2-A special or temporary right to the present possesion of
movable property is sufficient to support a suit
under this section.
ability of person in possesston, not as owner, to
to immediate possession. deliver to persons entiice

SCOPE AND OBJECT

This Section provides Specific
Relief for
of movable property.
wrongful aking or detention
 Recovering lPossesSLOn 0f 1roperty

form of Specific Relief is therefore applicable only when the

This
Irrecoverable. The relief sought is consequently
goods themselves arce special damage for their
limited to the delivery of the goods and any
detention.
under this Section must
The detention necessary for secking relief
be and adverse or wrongful detention, it
must be not only that the
defendant holds the goods, but also should prevent the plaintiff from
having their possession.
demanded the goods from
The plaintiff must therefore show that he
the defendant who, however, refused to deliver
the same.
specific and
The goods that are to be recovered must be
ascertainable, and if the goods are not so specific, the
claimant can
get only compensation.
plaintiff
In aSuit under this Section, it is not necessary that the
have
should have been previously in possession or the goods should
that
been removed from his possession It is enough to find the right,
he has acquired a right to present possession. Such right may arise
out of title, where the plaintiff is the owner or it may be a special or
created
temporary right, which may have been granted by the owner or
act of the
by law. A special right to possession when arising out of the
lien.
oWner may take the formn of a Bailment or a
Property of every description which is not immovable property is
movable property.
Explanation 1
property vested in him
A trustee may sue for the possession of the
interested,
trom a third party as he represents the persons beneficially 33
when the suit is concerning property vested in the trustee."
observed that
In Naganada Davay v. Bappu Chettiar34 the Court Section
the word 'possession' is intended to be restricted, as used in
178 of the Contract Act and is intended to have the same meaning as
in Section 108, though the words 'notwithstanding any instructions In
of
the owner to the contrary' are not repeated in the former section.
these circumstances the pledgee of a jewel hired is not, in my opinion,
protected.

33 Sathianama v, Saravanabhagi, ILR (1 893) 18 Mad 268,

34
ILR (1903) 27 Mad 424.
 Section7 provides for the recovery of movable property in specie
Asuit under section 7 may be brought by any person:
(a) who is not the ownet of the property
(b) who may not have the possession of the property
(c) from whose possession the goods may hot have been removed
For application of section7of the Act, the goods must be
(a) in originalform
(b) capable of identifiçation &delivery
(c) without alteration
Section 7 docs not apply to money & currency notes

QUESTIONS
What kind of goods can be recovered under this section?
Is possession/dispossession required to be provcd for movable
ProperCIes?
Who can bring a suit of wrongful possession in case of a baifment

SECTION 8 LIABILITY OF PERSON IN PosSESSION, N T AS OWNER, TO

DELIVER TO PERSONS ENTITLED TO IMMEDIATE PosSESSION

Any person baving the possession or control ofa particular article of movabl:
property, of which he is not the owner, may be compelled specifically to
deliver it to the person entitled to its immediate posession, in any of the
following Cases:
cas
when the thing claimed is held by the defendant as the agent or
trustee of the plaintiff;
wben compensation in money would not afford the plaini
adequate relief for the lss of the thing claimed;
when it would be extremely difficult to ascertain the actual damage
caused by its loss;
hen the possession of the thing claimed has been wrongfuly
transferred from the plaintiff
Explanation. Unless and until the contrary is proved, the clause
count (0 r
1m respect of any article of' movable property claimed under
clause (c) of this section, presume
 Recovering Possession of Property 37

la) that compensation in money would not afford the plaintiffadequate

relief for the loss of the thing claimed, or, as the case may be;
(6) that it wonld be eNtremely difficult to ascertain the actual damaze
caused by its loss.

OBJECT
The relice under this section can only be granted against a person
having the possession control of the particular article claimed by the
plaintiff.
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 owners, may be compelled specifically
to deliver them to the persons entitled to their immediate possession.
Possession is foundation of that suit though a suit is not competent
under this section against one who is the owner of the movable
property.

SCOPE AND APPLICABILITY

In a Suit under this Section, it is not necessary that the Plaintiff

should have been previously in possession or the goods should have
been removed from his possession. It is enough to find the right, that
he has acquired a right to present possession. Such right may arise
out of title, where the Plaintiff is the owner or it may be a special
or temporary right, which may have been granted by the owner or
created by law.
A special right to possession when arising out of the act of the
owner mnay take the form of a Bailment or a lien.
Property of every description which is not immovable property is
movable property.
In State of Gujrat v. Biharilal:" there was agreement between
Biharilal and occupants of land, in 1964 authorizing Biharilal to cuc
and remove trees standing oncertain land, for period of two years. The
forest authorities did not grant permission to cut and remove trees a
period expired. There was no fresh agreement between the parties, nor
was the period of authority in favour of Biharilal exended. Biharilal

36
AIR 1999 SC 1999.
 44 The Specific Relief Act, 1963
(1) The partjes have clearly agreedthat the agreement shall not be
complete unless agreed upon and executed in writing. 4
Privy Council in Motilal v. Nanbelal, for coming to the conclusion
that there was a completed contract between the parties and that the
condition in the agreement that the vendor would obtain the sanction
of the Chief Conmissioner to the transaction of sale did not render
the contract incomplete.

POINTSTO REMEMBER
The law relating to specific performance, was developed in England by
equity courts.
Section 9 of the Specific Relief Act 1930, lays down that in a suit
for specific performance of a contract the defendant can plead all the
defences available to the defendant in a suit for damages for breach of
a contract.
t the terms of the contract are uncertath or
nconmpiete, the parties
cannot have reached an agreement.

QUESTIONS
List the remedies available under
suit
contract law for a specific pertormance
NAcontract has to be entorceable by law to maintain a suit of specatic
pertormance. What are the essential ingreaients for a valid contract!
What would De the conscquences of an
invalid provision of a vahd
contract in a sut for spectfic performance?
How does a void contract affect
specitic performance?
CONTRACTS WHICH CAN BE SPECIFICALLY ENFORCED
(SECTIONS 10-13)
SECTION 10 CASES IN WHICH SPECIEIC PEREORMANCE OF CONTRACI
ENFORCEABLE
Cases in which specificperformance of
contract enforceable
Except as otherwise provided in this Chapter,
any contract may, in the the specific performance
discretion of the ourt, be enforced
4

5
Simon v. Haji Shaikh, 24 Bom LR 466.
I.L.R. (1930) IndAp 333.
 Specific Performance of Contracs 45

wben there exists yo standard for ascertaining the actual damage

caused by the non-performance of the act agreed to be done; or
4) wben the act agreed to be done is such that compensation in money
W for its non-perfornance would not afford adequate relief
Esplanation-Unless and until the contrary is proved, the court shall
presame
) that the breach ofa contract to transfer immovable property cannot
be adequately relieved by compensation in money; and
f) that the breach of a contract to transfer movable property can be
so relieved except in the following Cases

(a) where the property is not an ordinary article of comnerce,

or is of special value or interest to the plaintiff or consists of
goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or
trustee of the plaintiff

OBJECT & SCOPE

Section 10 provides for specific.performançe.of.contract in those cases

where there is. no standardfor-ascertaining-damages or where the
money cannot form adequate relief for the. non-performance.
CONDITIONS FOR APPLICABILITY OF SECTION 10
contract;
1, The suit must relate to the specific performance of
sub-sections (a) and (b);
2 The case must fall within any of the
court, be fit one to
3, The case must in the discretion of the
warrant specific performance; and
Section of Chapter
4 The case must not fall within any of the
II which prohibits specific performance.
Explanation to Section 10 carries presumption in favour of plaintiff
and declares that it should be presumed that compensation does not
attord adequate relief in following cases:
A. In all cases where the contract is for the transfer of immovable
property.
B. In case of movable property where:
 Specifte Performance of Contracts 47

gotto,be proved. If there is no concluded conttact specific performance

shall not be granted.
Thee are Two Situations whcn a Contact may be Specifically
Fntorced.
These are:
(a) When there cxists no standard for ascertaining actual
iamage.
Specific pertormance of a contract is not possible when it is
not possible to ascertain actual liquidated damages caused by
the breach of contract which should be sufficient to restore the
status quo ante tor the claimant. Where monetary compensation
would be an adequate relief for non-performance, the
proper
relief is a decree for damages, not specific performance.' If the
damage caused by the breach of contract is ascertainable and
it is possible to calculate the liquidated damages which will
be sufficient to restore the restore the status guo ante for the
claimant, the appropriate remedy will be a claim for damages
and not specific performance of the contract.
Illustration
Aagree to buy, and Bagrees to sell, a picture by a dead painter
and two rare China vases, A may compel B specifically to
perform this contract, for, there is no standard for ascertaining
the actual damage which would be caused by its non
performance.
6 When the act agreed to be done is such that compensation
in money for its non-performance would not afford adequate
relief
This condition is also dependent upon the fact of calculation of
liquidated damages i.e. if it is not possible to determine proper
amount of damages so as to adequately compcnsate a person
for the loss suffered pursuant to the breach of contract be the
counter party, then in that case, a suit tor specific pertormance
of contract will be maintainable. In Jainarain v. Surajmal It

8 Ramji Patil v. Rao Kishore Singh, AIR 1929 PC 194.

(1949) FLJ 216.
 Specific Performance of Contracts 51

the shares of a private company, specific performance will be an

appropriate remedy and not damages.
In Swiss Bank Corporation v. Lloyds Bank Ltd," the plaintiff loaned
2.1m Swiss Francs to the third defendant (IFT) on terms that certain
securities (PIBI securities) would be purchased, deposited with an
authorised depository, and held as cover for the loan. The securities
were purchased and deposited, but then charged to Lloyds Bank at a
time when Lloyds had no notice of the terms of the plaintiff's loan.
Later, after being given actual notice of those terms, Lloyds sold the
securities without the permission of the Treasury. It was held that the
plaintiff was at all material times entitled to specific performance of
clause 3 (b) of the loan agreement.
In the light of the above discussion it can be said that the following
are the requisites which are required to be proved by a party in order
to get a relief of specific performance from the court:
(a) A valid and concluded contract existed between the parties;
and
(b) That the claimant was ready, willing and capable to perform
his part of the obligations of the contract; and
() The defendant refused or was unable to perform his part of the
obligations in the contract and such refusal/non-performance
by the defendant has resulted in a loss for which monitory
compensation is not an adequate relief or where the breach of
contract pertains to a moveable property, the moveable property
in question was not an ord1nary article of commerce or is not
casily obtainable in the market.
When can Specific Performance be Refused?
Court would not be inclined to pass a decreg ef specific performance
of contract when the passing of(such a deerée will cause hardship
to the partieçor pasAg of guch decree may result in multiplicity of
proceedingsor fwhere the plaintiff was not capable of performing
his obligations under the contraCt such as where the purchaser had
Anity Unversity
20 New Town, Kolkata, W.B.
21
(1979] Ch 548.
Sabirthusen Yusufbhai v. Reva e Ors., 1999 AlHC 1373 194,
Date...8.470.l6
 1963
52 The Specific Relief Act,
the land in dispute or where the plaintif
ho money to purchase willingness to perform his
readincss or
himself was not showing any
part of the contract.
not Made to be Specifically Performed?
When can an Agreement
Banwari Lal Agarwalla v. Ram Swaroop Agarwalla the plaintiff
In was clear understanding between
alleged that as per the agreement there
plaintiff and the defendant that the plaintiff appellant would
the performance of
continue in possession of the shop premises in part
the agreement and the defendant was
required to erect a wall towards
observed
Court
castern inside the shop premises of the plaintiff.
that the plaintiff was always ready and willing to perform his part
money
of the agreement and also to pay the balance consideration
but the defendant with mala fide intention has failed and neglected
such
to perform his part of the agreement. Court observed that in
circumstances, if the decree for specific performance is passed for the
agreed amount the plaintiff appellant would be in very advantageous
position. In other words, without stipulation in the agreement the
plaintiff appellant would be allowed to occupy the shop premises
without any rent. Moreover by reason of lapse of about 8 years since
the date of agreement the market value of the property has certainly
been increased.

Doctrine of Mutuality
The contract to be specifically enforced must be mutual. No one
can sue for specific performance if he cannot be sued for it, whether
because he is ninor or tor any other reason.
The contract must be mutually enforceable by each party against the
other to establish the doctrine of mutuality. Each party to the contrac
must have the freedom to enforce his right under the contract against
cach other 24
The doctrine of mutuality though a technical on is founded on
common sense and amounts to this that the party to the contract

22 Mohd. N. Sabib v. Sardar R. Singh, 1999 AIHC 4439 (Mad).

23

24
AIR 1998 Pat 88, 1998 (46) BLJR 1361.
Dasdràth Gayan v. Satyanarain Ghose, AIR 1963 Cal 325.
 Specific Performance of Contracts 53

should not be bound to that contract, when he could not enforce it

against the other.
Time essence of Contract

The contract for transter of property should specify the time within
which the performance of the obligations contemplated in such contract
is expected to be fulfilled. In the event the contract does not specify the
time period within which the performance of the obligations should be
completed, then it is deemed that time is not essence of contract.
When, concededly, the tine was not of the essence of the contract,
the appellant-plaintiff was required to approach the court of law within
areasonable time.26 The aforesaid principle was elaborately discussed
by the Hon'ble Supreme Court in Chand Rani v. Kamal Rani7
wherein it was held that in case of sale of immovable property there is
no presumption as to time being of the essence of the contract. Even
if it is not of the essence of contract, the court may infer that it is to
be performed in a reasonable time if the conditions are:
() from the express terms of the contract;
(ii) from the nature of the property; and
(ii) from thesurrounding circumstances, for example, the object of
making the contract. For the purposes of granting relicf. the
reasonable time has to be ascertained from all the facts and
CIrcumstances of the case.

LIMITATION FOR SUIT OF SPECIFIC PERFORMANCE

The limitation period applicable to a suit of specific performanc,

Of contract is governed by Article 54 of the Limitation Act, 1963
("Limitation Act).Article 54 of the Limitation Act provides chat a
Suit for specific performance can be filed within 3 ((hree) years trom
either:
(a) The date fixed for performance; or
(b) If no such date has been fixed, then whenever the plaintiff gets
the knowledge of non performance.
NOC 18 (AP).
26
Are Venkateshwarlu v. Matupalli Anjaneyulu, 2002 AlHC
Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134.
27
(1993) 1 SCC 519.
 60
The Specific Relief Act, 1963
A party to a contract who claims specific performance of contract has
ho
to prove that an enforceable contract isin existence.

QUESTIONS
Under what citcumstances can the Court enforce specific performance
of contracts connected with trusts?
Who are the trusteces under this section?
In what cases will the contr¡ct be rendered unenforceable pursuant to
this section?
When can a conditional contractbe specifically entorced? llustrate
with case law.
Can specific performance be granted where plaintiff is guilty of making
material alterations in the contract? Illustrate with case law

SECTION 12 SPECIFIC PERFORMANCE OF PART OF CONTRACT

Specific performance of part of contract

() Except as otherwise bereinafter provided in this section, the court
shall not direct the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the wbole of
his part of it, but the part which must be left unperformed beas
ony asmall proportion to the whole in value and admis of
compensation in money, the court may, at the suit of either party,
direct the specific performance ofso much of the contract as can be
performed, and award compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of hs
part of it, and the part which must be left unperformed either
l4) forms a considerable part of the whole. though admitting of
compensation in money; or
(b) does not admit of compensation in money: be is not entihied
to obtain a decree for specific performance: but the court may,
at the suit of the other party, direct the party in defauit to
perform specifically so much of bis part of the contract as he
can perform, if the other party
() in a case falling under clause (a), Pays or has paid the
agreed consideration for the whole of the contract reduced by
the consideration for the part wbich nmust be left wnperformed
and in a case falling under clause
 Specific Performance of Contracts 61

(b), I"[pays or bas paid] the consideration for the whole of

the contract without any abatement; and (ii) in either case,
relinquishes all claimns to the performance of the remaining
part of the contract and all right to conpensation, either for
the deficiency or for the loss or damage sustained by him
through the defanlt of the defendant.
4) When a part of acontact which, taken by itself, can and ought
to be specificaly performed, stands on a separate and independent
footing from another part of the same contract which cannot or
ought not to be specifically performed, the court may direct specific
performance of the former part.
Explanation-For the purposes of this section, a party to a contract shall
be deemed to be unable to perform the whole of his part of it if a portion
of its subject-matter existing at the date of the contract has ceased to exist
at the time of its performance.
SCOPE AND OBJECT
Section 12 (1) prohibits specific performance of apart of a contract
except in the circumstances under sub-sections (2), (3) and (4).
The general rule of equity is that the court will not compel specific
performance of a contract unless it can enforce the whole contract. A
court cannot specifically perform the contract piecemeal, but it must
be performed in its entirely if performed at all. A court40of equity is
not concerned to make the new contract for the parties.

APPLICABILITY

Section 12() is the general rule and the circumstance provided in sub
sections (2), (3) and (4) are exceptions to the general rule provided
in sub-section (1).
Section 12(2) shall be applicable when the part of contract which
cannot be performed is the conveyance of an item which is ouly a smal
portion of the whole in value and admits of compensation in nioney.
An inability to perform a contract may be by reason of deficiency in

40
Merchants Trading Co. v. Banner, 1871 (12) EQ 21
 title, then the d.
gets dismissed for want of proper
performance
i.e. the purchaser has a right to get arefund defendant
of the deposited amou
defend the suit of amount
along with inte and cost incurred to
interest
performance. Further, in the event a suit for specitic performa.
filed by the vendor or the lessor is dismissed pursuant to the lack of
specific
proper title then, in that case, the purchaser, in addition to the refund
of deposit and interest thereon, will also be entitled to lien for such
deposit, interest and cost on the right, title of interest of the vend
or the lessor in the property agreed to be sold of let.
POINTS TO REMEMBER
Section 13 of the Specific Relief Act, 1963 has no application when the
transfer has been affected in respect of a property to which the vendor
nas no titie or nas an title.

QUESTIONS
What is doctrine of estoppel? What is its impact on this
section?
V What are the rights that a purchaser or lessee has against a
promisor with no title or imperect title?
What are the limitations to the applicability of this section?
Under what conditions can third parties caim their right under
this section?
What is the effect of encumbrance on specific pertormne
under this provision?
CONTRACTS WHICH CANNOT BE SPECIFICALLY
ENFORCED
SECTION 14 CONTRACTS NOT SPECIFICALLY ENFORCEABLE
14. Contracts not specifically enforceable
(1) The following contracts cannot be specifically enforced, namey
a contract for the non performance of which compensation
yoney is an udequate relifi
 Specific Performance of Contracts 75

a contract which runs into such minute or numerons details

or wbich is so dependent on the personal qualifications
volition ofthe parties, or otherwise from its nature is such, that
the court cannot enforespecific performance of its material
terms;

a rontract which is in its nature determinable;

acontract the performance of wbich involves the performance
1ofa continuos duty which the court cannot supervise.
2) Save as provided by the Arbitration Act, 1Á0 (10 of 1940), no
contract to refer present or future differences to arbitration shall
be specificaly 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
sues in respect of any subject which he has contracted to refer, the
existence of such contract shall bar the suit.
3) INotwithstanding anything contained in clause (a) or lause
( or clause (d) of sub-section (), the court may enforce specific
performance in the following Cases;
(a) where the suit is for the enforcement of a contract
for
() to execute_ a mortgage or turnish any other security
securingthe repayment of any loan wbich the borrower is
not willing to repay at 0nce:
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
(i) to take up and pay for any debentures ef a company;
(b) where the suit is for
the
() the execution afaformal deed onofthepartnersbip.
business of the
parties having commenced to carry
partnerhip: or
() the purchase of a share of a partner in afirm,
( where the suit is for the enforcement
of a contrat for the
of any other
construction of any building or the execution
work on land:
conditions are fulfilled,
Provided that the following
namely:
 84 The Specifc Relief Act, 1963

Wyhere the suit is for the enforcement of a contract

{lo execute a mortgage or secure the repayment of any loan which .
borrower is not willing to repay at once Provided that where only
part of the loan has been advanced the lender is willing to advance
the remnaining part of the loan in terms of the contract; or to take
and pay for any debentures ofa company;)
s)Where the suit is for the execution of aformal deed of partnersbip
The parties having commenced to carry on the business of the
partnership: or the purchase of a share of a partner in a firm;
(i)Çonditions where specific performance for work canbe ordered
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.
Where the work is described in the contract in terms precise enough
for the court to determine the exact nature. of work, it must be
established that:
() the plaintiff has a substantial interest in the performance of the
contract and the interest is of such a naure that compensation
in money for non-performance of the contract is not an adequate
relief; and.
(ii) the defendant has, in pursuance of the
contract, obtained
possession the whole or any part of the land on which the
of
building is to be constructed or other work is to be executed.

POINTS TO REMEMBER
Contracts notspecifically enforceable have been enumerated in secte
14 of the Specific Relief Act, 1963.
Jurisdicrion of the court to enforce specific performance of a contra
is discretionary,
An agreement to torm a
partnership is
part pertormanceof the contract carriedenforced where parties hav
on the Dartnership busine
A contract tor the sale of a
patent can be specifically enforced.
>A contract to assign acopyright is
specifically enforceable.
 Specific Performance of Contracts 85

QUESTIONS
Tist out the types of contfacts which cannot be
J What are the exceptions provided?
specifically enforced.
SWhy are service conttacts not
exceptions to this tule?
specifically enforceable? What are the
What are the principles which guide the Court in decree of
performance? specific
Dnder. what conditions can a conttact for arbitration be
enforced? specifically

DERSONS FOR OR AGAINST WHOM CONTRACTS MAY BE

SPECIFICALLY ENFORCED
SECTION 15 WHO MAY OBTAIN SPECIFIC PERFORMANCE

Who may obrain specific performance - Except as otherwise provided

by this Chapter, the specific performance of a contract may be obtained

a) any party thereto;

b) the representative in interest or the principal, of any party
thereto:
Provided that where the learning, skill, solvency or any personal
contract, or
quality of such party is a material ingredient in the assigmed,
be
where the contract provides that his interest shall not entirled o
principal shall not be
his representative in interest of his such party has already
specific performance of the contract, unlessperformance thereof by
performed bis part of the contract, or the
representative in interest, or bis principal, has been acepted
his
by the other party;
marriage. or a compromise
where the contract is a setlement on family. any person
between members of the same
of doubtful rights
beneficially entitled thereunder;
in
contract has been entered into by a tenant for life
1(ewbere the remainderman;
dueexercise ofa power, the agreement is a covenant
possession, where the
a reversioner in reversioner is
predecessor in title and the
entered into with bis covenant:
entitled to the benefit of such
 86 The Specific Relief Act, 1963

a reversioner in remainder, where the agreement is such a

cOvenant
and the reversioner is entitled to the benefit thereof and will s ,
material injury by reason of its breach;
wben a company has entered into a contract and subseauesd
becomes amalgamated with another company, the new
company
which arises out of the amalgamation;
(b) wben the promoters of a company have, before its
Wmtered into a contract for the purposes of the company, and incorporation,
such contract is warranted by the terms of the incorporation, the
company:
Provided that the company has accepted the contract and has
communicated such acceptance to thbe other party to the contract.
SCOPE
Who may obtain specific performance
(1) Any party thereto
(2) The representative in interest or the
principal, of any party
thereto: Provided that where the learning, skill, solvency or any
personal quality of such party is a material in ingredient in the
contract, or where the contract provides that his interest shall
not be assigned, his representative in
shall not be entitled to specific interest or his princ1pal
performance of the contract
unless such party has already performed
or the performance thereof by his
his part of the contract,
his principal, has been accepted byrepresentative in interest, O
the other party;
(3) Where the contract is a
settlement of
of doubtful rights between membersmarriage, or a comproms
of the same family, any
person beneficially entitled thereunder;
(4) Where the contract has been entered into by a tenant for lite
in due exercise of power, the
(5) A remainderman,
reversioner in possession, where the agreement is a couY
entered into with his predecessor entitled and the reversion
entitled to the benefits of such
covenants;
 APTEK

Rectification of Instruments

SECTION 26 WHEN INSTRUMENT MAY BE RECTIFIED

When instrument may be rectified -

() When, through fraud or a mutual mistake of theparties, 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
(6) the plaintiff may, in any suit in which any right arising
under thbe instrunent is in issue, claim in bis pleading that
the instrument be rectified;
() a defendant in any such suit as is referred to in clause (b).
may, in addition to any other defence open to bim, ask for
rectification of the instrument.
(2) I, in any suit in wbich acontract or other instrument is sought
to be rectified under sub-section (1), the court finds that the
1nstrument, through fraud or mistake, does not express the eal
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
third persons in good faith and for value. acquired oy
(3) A contract in writing may first be rectified, and then if the
par
claiming ectification has so prayed in his pleading and the court
thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shallbe
any party under this section unless it has been granted to
Provided that where a party specificaly claimea:
has not claimed any such relief in bs

144
 Rectification of Instruments 145

pleading, the court shal. at any stage of the proceedimg, alow him
to amend the pleading on such terms as may be just for including
such claim.

DOCTRINE OF RECTIFICATION
Rectrification means cOrreCtion of an error in an instrument in order
-to give ctfect to the real intention of the parties. Where a contract has
been reduced intowIting, in pursuance of a previous engagement and
the writing, owning to fraud or mutual mistake, fails to express the real
intention of the parties, the court will rectify the writing instrurment in
axcordance 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
true intent. In such a case to enforce the instrument as its stand must
be to injure at least one party to i; to rescind it all together 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 confirmable to the intention of the parties
without such offer or submission.
The Court in administering quitable principles permits mistakes
of
to be proved where they are common; that is where the expression
parties. In
the contract is contrary to the concurrent intention of the
to
Dagduv. Bhana it was observed that a mistake known at the time
accordance wich
the other party may be proved and performance Inalso said that this
the terms of the error will not be compelled. He
supposed chat
rule appliced when the party could not have reasonably
parties. If such mistakes
the words expressed the real intentions of the rectificaion, but what
be established, then the court can give relief of
mistaken expression of it.
IS rectified is not the agreement, but the

(1904) 28 Bom 420.

 Retification of Instruments
llet. It will not be open to the ITO to refuse to look at such
rectificd instrument of rust and to insist that the trustees of the
rust should ignore the said rectificd obËccts and should stick to the
intrumcnt as it cxisted prior to its rectification. The ITO will have to
ake the instrument as it cxists in its actual amcnded form when it is
prcscd into service for framing the asscss1ncnt concerning the relevant
asscssmcnt ycar in which such rectified instrumcnt holds the field3

Who can Apply for Rectification

The following persons may apply:
a) Eithcr party or his representative in interest
(b) The plaintiff in any suit
(oA defendant in such suit
Çonditions necessary for obtaining rectification
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 stages: (i) an agreement, verbal or written,
which clearly expresses the final intention of the parties, and
(i) instrument which purports to embody that intention.
2. Both the parties must have intended, and still intending, that
the exact terms of the prior contract should be reduced to
writing
3. Clear evidence of mistake common to both parties or of
fraud.
The principle on which the Courts act in correcting instruments is
that the parties are to be placed in the same position as that in which
they would have stood if no error had been committed, and there is no
doubt to my mind that the law on the point is quite well settled, viz.,
that the Court can correct the terms of the document if it is proved
to the satisfaction of the Court that any of such terms are inaccurate
OWing to a mutual mistake.°

3 ibid.
Durga Prasad v. Bhujan, 31 Cal 614 (P.C).
AlR 1937 Assam 49: AlR 1954 Nag 328.
Ladha Singh v. Munshiram, AIR 1927 Cal 605.
 Rescission of Contracts

SECTION 27 WHEN RESCISSION MAY BE ADJUDGED OR REFUSED

When rescision may be adjudged or refused

() Any person interested in acontract may sue to bave it rescinded.
and such rescission may be adjudged by the court in any of the
following cases, namely:
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 plaintif.
2) Notwithstanding anytbing 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 tken
place since the making of thecontract (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
) where third parties have, during the subsistence of the contract.
acquired rights in good faith without notice and for value:
0r

(a) 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 territoris w
which the Transfer of Property Act, 1882 (4 of 1882), does oxtend,
means a contract in writing,
 Rescission of Contracts 151

RESCISSION
If a partyto a contract commits a breach of contract, the aggrieved
aarty can seck a remedy of rescission under scction 27 of the Specific
Relief Act. It means that the aggrieved party can withdraw fron the
contract and in this way he can free himself fromn all the obligations
of the contract.
The aggrieved party can, by way of specific relief, seek a direction
from the Court to rescind the contract. The primary objective of the
relief of rescission is to extinguish all the rights and liabilities of the
narties to the contract and restore the status co-ante of the parties to
the contract.
In a suit for specific performance of açontract the plaintiff may also
seek an alternative relief of rescissionSo if the Court hasrefused to
grant specitic pertormance of the contract, it may allow the party to
withdraw from the same in accordance with section 29 of the Specific
Relief Act, provided that the aggrieved party has made a prayer to
this effect If the contract is rescinded, the Court may ask the party
to restore benefits he received from the contract in accordance with
section 30 of the Specific Relief Act.)Thus where a contract, therefore.
is voidable or terminable by the pláintiff or where it becomes unlawful
for causes not apparent on its face, and the defendant is more to blame
then the plaintiff, such contract can be rescinded under section 27!
Rescission is available in the following cases:
(g Where contract is voidable or terminable by the plaintiff A
contract is voidable under section 19-19A of the Indian Contract
Act when it is vitiated by fraud, misrepresentation, coercion,
and undue influence. Though mistake makes the contract
void, under section 20 of the Indian Contract Act, this is also
-a ground for rescission. (S. 27(1)(a));
bWhere the contract is unlawful for causes not apparent on is face
and the defendant is more to blame than the plaintiff: If a contract is
unlawful on its very face or the party seeking equitable relief is more
to blame than the plaintiff, there is no question of granting chis relietf.
But it would be granted in other cases of unlawful agreements.

2
Thomas v. Hanuman Prasad, AIR 1929 AIl 837.
Sarkar on Specific Relief Act, 16" Edn., 2012, p. 438.
 19b3
152 The Speific ReliefAct,
af
Where a decree of specific performance of a contract of sale, or
lease has been made and the purchaser or the lessee makes default in
to pay, the
payment of the sum which the Court has ordered him party
cannot get a lease or sale without the payment of the consideration
directed to be paid by the Court.
Where the defendant did not disclose a material defect in the
have known it wil
property sold by him, and the buyer would not
ordinary care, the buyer is entitled to the returns of purchase money
such acat
This remedy is independent of3 a suit for rescission and in
he may also sue for damages.
Limits to the Right of Rescission of Voidable Contract
[sub clause (2)]:
(a) Affirmation of contract: Where the party, who has the option
to rescind the contract, by way of either an act or omission,
affirms the contract, then such party looses the right to seek
rescission of contract under this section 27. Thus where a
transfer was made by a person in favour of his mistress and
after keeping her for several years, he fell out and wanted to
rescind the transfer on account of immoral purpose, the Court
will not assist such a person responsible for the immorality to
get back what he has given. Similarly where third parties have
been misled by the inactivity of the person having the right o
rescind, lapse of time would amount to affirmation.
Ratification relates back to the date of making the contract
and therefore a contract which was then yoid cannot be made
valid by subsequent ratification.
Restitution in interim imposible: The relief of rescission is granted so
as to restore the status co-ante of the parties to the contract. Howeve
this relief of rescission cannot be granted by che Court where there ub
Were
no way of restoring the status of the parties to the state thcy
before the execution of the contract because the subject matter of the
contract has been destroyed.

3 Sravan v. Kashiram, ILR 4 Bom 29.

4 Kamar Bai v. Badrinarayan, AIR 1977 Bom 228.
5
Hardei v. Bhagwan Singh. (1919) 24 CWN 10S PC.
 Rescision of Conracts 155
B$fraud, all three godowns are included. Of the 2 godowns which
fraudulently included B gives Ito C and leases the
for rent, ncither C nor D having any knowlerlge of the other
fraud.toThe
wCte
D
conveyancc may, as aganst B and C, be rectified so as to exclude
Coan) it the godoWn given to C; but it cannot be ratified so as to
aftect D's lease.

RECESSION - WHEN MAY BE AD[UDGED OR REFUSED

Soction 27 of the Specific Relief Act provides for where recession nay
he adiudged or retused - Any person interested in a contract may sue
to have it rescinded, and such recession may be adjudged by che 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 plaintif.
POINTS TO REMEMBER
Relief of rescission is granted in cases, which may be both void &
voidable contracts.
Rescission cannot be granted
a) where the plaintiff has ratified the contract
1(6 where there is a valid contract
( where the third party have acquired any interest under the
Contract

(a) in severable contracts

(b) where the restitution to original position not possible
(c) contract stands ratified

QUESTIONS
Y Whar is the naturc of relicf under this section?
V In what cases is the remedy of rescission available?
YWhat are the limitations to the right of rescission?
V What are the kinds of contracts under which rescission may be
granted?
Will the Cour nccessarily restore bencfits under a conract in case of
its rescission?
 Cancellation of Instruments 167

though not necessary to be set asIde may, if left

outstanding, be a
sOurce of potential mischief3
Sub-section 2 of this section provides that after
the canccllation of
aregistered instrument, the Court shall send a copy of its decree
to
Registering Officer, so that he may make an entry showing the
cancellation of the instrument. The civil courts are
expected to pass
ree directing the Sub-Registrar (Registration) to sCore out frorm the
registers, the exIStence of such sale deed...the cancellation of which
it is filed for all time to come in order to adjudicate the matter
between the parties finally.
DIFFERENCE BETWEEN CANCELLATION AND RESCISSION
OF ACONTRACT

Cancellation Rescission
The relief of cancellation is granted In contract law, rescission has been
hefore any violation of the plaintiff's defined as the unmaking of
rights takes place and though no cOntract between parties. It reverts
actual injury has been sustained the contract to the day it had not
been signed as if the contract had
not been made.
Cancellation of a contract is in Rescission of a contract terminates
effect a declaration that the rights liability and restores the parties to
and liabilities of the party(s) to the their former positions by requiring
contract never existed. each party to return whatever
benefits he or she received during
the subsistence of the contract.
Certain documents may be An instrument may fail to express the
|mistakenly executed, such category intention of the involved parties
of documents which are at a later
point found to be void or which
become void. These documents
ought to be cancelled.

3
4
Muppudarhi v. Krishnaswamy, AIR 1960 Mad I (FB).
Khema v. Bhagwan, AIR 1995 Raj 94, 97.
Xhhangalal v. Dhondu, ILR 27 Bom 607
 Cancellation of Instruments 171

The Court may refuse to grant a relief to the plaintiff if the Court
hasthe reason to believe that there exists delay on the part of the
plaintiffwhich may have altered the position of the defendant. 26
Written nstrument

Theexpression in S.31 means an instrument which has not already

been adjusted for any formal court on tribunal. Areceipt is an
/nstrument within the meaning of this Section. Hence, a suit lies for
cancellation of a forged receipt. 28
"Reasonable Apprehension of Serious Injury
The specific relief given under this Section is founded upon the
administration of the protected justice for fear; and where there is no
reasonable apprehension
29
of any serious injury; the suit shall not be
maintainable.

POINTS TO REMEMBER
Cancellation ofinstrument can be granted if the instrument isvoidor
voidable.
Cancellation under section 31 can be claimed
(a) by party to the instrument
(6) by any person against whom the instrument is void or voidable
(c) in respect of any instrument not necessarily a contract
Conditions requisire for the exercise of the jurisdictionto cancelan
Instrument are:
2Y the instrument is void or voidable against the plaintiff;
plaintiff may reasonably apprehend serious injury by the instrument
being left outstanding;
18 in the circumstances of the case the Court considers it proper to
grant this relief of preventive justice.

Vulley Mahomed v. Dattubhoy, ILR (1901) 25 Bom 10 (23).

2 Dunialal Dutta v. Nagendra Nath Dutta AIR 1982 Cal 163.
Venkata v. Srinivasa, 7 MLT 270.
Chagganlaly, Dhonde ILR 27 Bom 607.
 CHAPTER

Declaratory Decrees

SECTION 34 DisCRETION OF CoURT AS TO DECLARATION OF

OR RIGHT
STATUS
Any person entitled to any legal character, or to any right as to dny
property, may institute a suit against any person denying or interested tn
deny, his ritle to such character or right, and the court nay 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 wbere the
plaintiff, being able to seek further relief than a nere declaration of til,
omits to do so.

Explanation.-A trustee of property is a "person interested to deny" a

title adverse to the title of someone wbo is not in existence, and for whom,
if in existence, be would be a trustee.

VoBJECT
The object of such decrees is that where a person's status or legal
character has been denied or where a cloud has been cast upon his
titles to rights and interests in some property, he may
have the c
removed by having his legal status or rights declared by the court. Buc
it is not a matter of absolute right to
obtain a
is discretion of the Court. The object of Sectiondeclaratory decree
34 is to perpetua
strengthen testimony regarding title and protect it from advers
attacks. The policy of legislature is not only to secure to a wronged
party possession of the property taken away from him båt also tO sec
that he is allowed to enjoy that
property peacefully.

180
 fresh decision the notinjunction
casernent of claim in the cascment way ground LSectiothrecThfeold
n 34
AIR AlRMohd.
performance A (i) 0) suit In basis be that support Whether plaintiffs of In (3) (2 ) cont
(1) ext
Classification of
1973 1982 fo r D. where rclicf,
Manjural
declaratorywhich A Qabool
right For iscorrect
of right defence Ramanatha that grantcd whatpresentany what of
AlI Kant rclief, right
to could
injunction, of right. the Section
a no a casement it was were
158. and ought declaratory establish
not Singh authorityprayer to alone the to declaration plaintiff
314.Haque
right wi l be get by
Easement is by classification the of the
no
decree only say only the in mercly
34
v. not the allowedis prayerinjunction the v. form
v. award that
necessary th e right of Scope
Bisseswara
to to on Board that
for
standinjunction defendant for Court.
S. by
ishave which decree
th e for right S. restoring of declaratory, the
declaratory Declaratory
of a right." the without question
or is injunction right ofDecrees
compensation. mode been date of as injunction
not. claimed Razaack, Speific
Banerjee, accrued Revenue, the a
position to without in Decdaratory
of but is
of
claimed defence cannot the grant Proof to that scope
AlR
plaintiff
th e by and
made his but
defining Relicf
relief after right a case the deprived
1943 sui t itwithout that be or of
be orway brought
declaration. as in
Therewhere in was considered
existence
retuse by not suit of Relief
filing but has in
allowed being was introductory cffect Act
declaratory ,
Cal the of of by fo r was rights
hel
to d : an defend offence not rights, are:' in
361. is a legally the way gave
only
thereplaint. the also show injunction or
counter or declaration dismissed the
suit on prayer. is put but
a is refused. non-existence whether to in of an d
instarnt
a declared forward
any offence to not relicf Context
declaration no subsidiary is the resist the
specitic notdecree. claim suit lt action of on giving in 181
That ma y the relief relief the
one or an on the byby the the of
 182 The Specific Relief Act, 1963
of rights of the parties without any consequential relief which can be
enforced by the execution of the decree. In other words,
declar
decrees are those where some right is declared in favour of theator y
plainttiff
but nothing is sought to be paid or performed by the defendant.
Shiromani Gurudvara Prabandhak Committee Amritsar v. Shri t
Nath Das. They are as under: On the issue of whether the
Guru
Granth Sahib could be treated as a juristic person ór not. Coe
observed that the very words "Juristic Person" connote recognition of
an entity o be in law a person which otherwise it is not.
ESSENTIAL REQUISITES FOR A DECLARATORY ACTION
The plaintiff must be entitled to aiy legal character or to any
ight as to any property.
In Prabhakar Adsule v. State of M.P wherein the respondent
herein Prabhakar Adsule filed an appeal for declaration that he
was the sole owner in possession of the plot in dispute and also
for injunction restraining the defehdants from interfering with
his possession ovet the said plot in' any manner. The appeal
was dismissed on ground that the docúments were suspicious
in nature and could'not have been relied upon.
The defendant should have denied or be interested in denying
the character or title of the plaintiff. It is this denial which
gives a cause of action for declaratory relief.
eplaintiff is not in a position to claim further relief than
mere declaration of his title, or where he is so able to seek
further relief, he seeking such reliçf also.
In S. Madasamy v. A,M. Arjuna Raja,° it has been held that in a
suit for declaration of title and consequential injunction, the burden
is on the plaintiff to prove his right and possession over
property.
the plaintiff fails to prove his clear title to he is no enticled to such
declaration and consequential injunction.
1f these conditions are satisfied, the plaintiff need not ask for an
further relief then amere declaration. But the court shall not
mas
4
AIR 2000 SC 1421.
AIR 2004 SC 3557.
6
AIR 2000 Mad 465.
 Declaratory Decrees 185

Suitfor declaration simplicitor filed by the plaintiffs is barred by the

provisionsof.Section 344 of the Specific Relief Act.

PROVISO TO SECTION 34 - BURDEN OF PROOF IS UPON

THE PLAINTIFF TO PROVE HIS CASE
section 34 states that no such suit shall be maintainable
The provisoto than mere declaration
wherea plaintiff being able to seek further relief
do so.
of title omits to
In order to seek the relief of declaration plaintiff has to succeed
r fail on the strength of his title that he claims. He cannot merely
aver that defendant has no title to the suit property,
if the plaintiff
character, or
fils to establish a title. Any person entitled to any legal
to any right as to any property, may institute any person denying or
interested to deny his title.
declaration was filed
In Ranjit Singh v. Kanwaljit Singh, a suit for
by the plaintiff claiming that he along with his fathers and brothers
relief of possession such a
is in joint possession and he not seeking a one co-sharer is
possession of
suit was held to be maintainable as the
possession on behalf of all.
POINTS TO REMEMBER
sought by a person having
Under section 34,a declarationcanbe
which is denied.
legal character or a rightas to property
in pesonam (rights primarily
The declaration given in section 34 is relief
in rem(only available against.
available against specific persons) and not
between the parties to a suit.
the world at large) and is binding only
character or ofa right
Section 344 sanctions only a declaration of a legal
to property.
is on the plaintitf.
) Burden to prove adverse possession
Adeclaration made is binding on:
the parties to the suit
the suit
persons claiming through the parties to
persons for whom such parties
where any party is a trustee, in the
would be trustees

AIR 2004 P&H 211:

 CHAPTER7

Injunctions Generally

SECTION 36 P'REVENTIVE RELIEF HOW GRANTE)

Preventive relief is granted at the discretion of the court by injunction,

emporary or perpetual.

OBJECT
The purpose of temporary injunction is, thus, to maintain the status
quo.

SCOPE AND APPLICABILITY

Injunction. is a process whereby, a,, party, is, ordered to restrain from
doing or to do
do a particular ,act o, thËng., Grant of preventive relief
by way of injunction is, within the,discretion;of the court and such
discretion is to be exercised in favour of the plaintiff only if it is proved
of the satisfaction of the court that unless, the defendant is restrained
by an order of injunction, an irreparable loss or damage will be caused
restrained
to the plaintiff during the pendency of the suit. The thing
or prevented is a wrongful act.
PREVENTIVE RELIEF BY INJUNCTIONS
of the contract do nQt allow
Ihere can be cases where the nature
specitic pertormance.
damages to likely serve any purpose nor admit to parey who chreatens
to restrain the
n such cases, the court may have
breach, to the possible cxtent. For example, aperson underakes a
Che also undertakes no to sng
Contract to sing at a particular place and
çase the singer threatens
anywhere else during the same period. In
positive side of the
breach, the court cannot force him to sing. The
 192 The Specific Relief Act, 1963
bargain is not specifically enforceable. But the negative undertaking ie
not to sing elsewhere, can be enforced by restraining him from
elsewhere. When he is prevented from resorting to other openings, it singing
may exert some pressure upon his mind and he may be persuaded to
go ahead with the performance of his contract. This type of remedy is
known as preventive relief. This is granted by issuing an order known
as injunction. Injunction is an order issued upon the party concerned
directing him/them to omit the performance of a particular duty
or act. This is also known as a mandatory injunction. Such relief is
granted under the provisions of Part III of the Act.'

ESSENTAL INGREDIENTS OF INJUNCTIONS

ka) It is a judicial process.
(b) The object attained thereby is to restraint or prevention.
There are the following Categories of Injunctions
(a) Temporary injunction: A temporary injunction means an

ínjunction which is to continue until a specific time or until

the further orders of the court. It may be granted at any stage
of the suit and does not conclude or determine the right.
Temporary injunctions is
() A preventive relief granted at the discretion of the Court;
(ii) Such as to continue until a specified time or until the
further order of the Court regulated by the Code of Civil
Procedure
(ii) Can be granted at any stage of a suit
Temporary injunction is also known as interlocutory or interim
injunction. Section 37 (2) of Specific Relief Act, 1963 clearly
states that a perpetual injunction can only be granted by the
decree made at the hearing and upon the merit of the suit.
6 Perpetual Iujunction: A permanent injunction is only granted
when (aa material injury to a clear legal tight; and (b) damages
must not be aa sufficient compensation. A perpetual
injunction
at the
Can be granted by the Court under a decree made
AIR 2007
Adbunik Steels Ltd v. Orissa Mangenese Mineras (P) Ld (2007) 7 SCC 125:
SC 2563.
 194 The Specifc Relief Act, 1963
LMandatory Injunction: Sometirme to prevent the breach of an
Vobliation, it may be necessary to compel the performance of
certain acts. If a court is capable of enforcing the performance
of those acts, it máy grant ah injunction to prevént the
breach conmplained of and also to compel the performance
of the requisite act. This injunction is known as mandatory
injunction.
(d) B-parte Injunction: Order XXXIX Rule 3of the Code of Ciil
Procedure, 1908,provides for exparte temporary injunction in
the cases of extremeurgency. Where the facts and circumstances
of the case that an injunction should be granted in
require ta
favour Or one party without nearing tne otner, partys the court
may do so. This is known as ex-parte injunction.
WDifference between Permanent Injunction (Perpetual Injunction) &
Temporary Injunction (Interim Injunction)
Subject Permanent Injunction Temporary Injunction
Matter. (Perpetual Injunction)!s2 (fnterim Injunction)
Grant A permanent injunction- Can Atëmporarý injunction
only be granted by a decreeis:to continuê untia
made at the he¡ring and upon specifid time, or until the
the merits of .the suit.iwoiloi urthet order of the Court.
It is granted at any period
of suit.
Governing Permanent injunction isTemporary injunction is
Statutes regulated by the Specific |regulated by Rules 1 to 5
Relief Act, 1963 in Sections of Order 39 of C.PC.
38 to 42.
Objective Permanent injunction finally It isprovisional in its
determines the rights of thenature
parties and forms part of the
decree made at the hearing.
Stage of l can only be granted at final| It çan be granted at any
granting Stage/hearing of the suit. A stage of the suit. lt may
the said
perpetual injunction is a be granted to the plaintiff
injunction decree. on his making out a prima
facie case in his support.
 196 The Specific Relief Act, 1963

thereby perpetnaly enjoined from the assertion of a righ, or from

the commission of an act, which uwould be contrary to the rial.
of the plaintiff
Section 37() of the SpecificRelief Act, 1963, deals with the temporary
iniunctions which are such as are to continue until a specified time
or until further orders of the Court and they may be granted at any
stage of the suit or proceedings and are regulated by the Code of Civi
Procedure, 1908.
Section 37(2) of the Specific Relief Act, 1963, provides that 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.
INGREDIENTS FOR THE GRANT OF INJUNCTION

Important ingredients for the grant of temporary injunction are:

a prima facie case,
(b balance of convenience, and
irreparable injury.
It should also be borne in mind that injunction is an cquitable
relief and it should be granted even for a temporary period after due
consideration of the parties' convenience and inconvenience: Salen
Seth v. Steel Authority of India Ltd.
facie
Even where the three well known concurrent conditions (prima
case, balance of convenience and irreparable injury) requisite tor grat
circumstances
of the relief exist, the Court, on the facts and in the
still retuse tne
of the case, in exercising its discretion judicially, mayapplying for the
relief as where there has been delay and the party
relief has not come with clean hands.

4
AIR 1988 Cal. 312.
National Airport Authority v. Vijaydutt, AIR 1990 M.P. 326.
 In cases where plaintiff's right to enioy vroperty is in danger, when
does a COurt grant perpetual
injunction?
What considerations decide that a perpetual
granted instead of a temporary injunction should be
injunction?
SECTION 39 MANDATORY INJUNCTIONS
Mandatory injunctions.-When, to prevent the breach of an obligation, it
eceary to compel the performance of certain acts which the court is
ohable of enforcing, the court may in its discretion grant an injunction
t0 prevent the breach complained of and also to compel performance of
the requisite acts.

MANDATORY INJUNCTION, WHEN MAY BE GRANTED

Two elements have to be taken into consideration for granting a
mandatory injunction under S. 39 of the Specific Relief Act. In the
ficst place, the Court has to determine what acts are necessary in order
to prevent a breach of obligation; in the second place the requisite
acts must be such as the Court is capable of enforcing. Caution
required in the grant of preventive relief. The exercise of power
to grant mandatory injunction must be attended with the greatest
possible caution and is strictly confined tocases where the remedy of
damage is inadequatefor the purposes of justice and the restoring of
meet
things to their former condition is the only remedy which will
except in
the requirements of the case. The Court will not interfere
which cannot
cases where there are extreme serious damage caused
be compensated.
ndatory injunction
a) compels performance of certain positive acts
nmeaningless
(b) is awarded where the temporary injunction is former
restores things to their
(C) Is retrospective in nature as
conditions.

2001 Ker. 101.

G. Kunbammad y. CH. Abamad Haji, AIR