Recovery of possession (Impt)

Section 5: Right to Specific Immovable Property: Section 5 of the Specific Relief Act, 1963 grants
the right to recover possession of specific immovable property. It states that a person who is
dispossessed or has been wrongfully kept out of the property can file a suit to recover possession.

• Section 6: Suit by Person Dispossessed: Section 6 deals with suits filed by a person who has been
dispossessed of immovable property without their consent. It allows the person to claim possession and
seeks to restore them to the position they were in before the dispossession

. • Section 7: Actual Possession Essential: Section 7 emphasizes the importance of actual possession
in claims for recovery of immovable property. It states that a person can only seek recovery of
possession if they were in actual possession of the property at the time of dispossession, or they have a
valid title to the property.

• Section 8: Specific Restitution of Immovable Property: Section 8 provides for specific restitution of
immovable property. It empowers the court to order the return of the property to the rightful owner if it
determines that the person in possession of the property is not entitled to it.

Purpose of Recovery of Possession: The provisions related to recovering possession of property aim
to protect the rights of individuals and ensure that they are not wrongfully deprived of their property. It
allows rightful owners to regain possession and prevents unlawful and unauthorized occupation.

Conditions for Recovery of Possession: In order to succeed in a suit for recovery of possession,
certain conditions must be met. These may include establishing the priorpossession, proving wrongful
dispossession, demonstrating a valid title to the property, and complying with any procedural
requirements set forth in the law

. Discretion of the Court: The court has discretionary powers when deciding cases related to the
recovery of possession. It considers factors such as the nature of the property, the conduct of the
parties, the merits of the case, and the overall interests of justice before granting the relief.

Limitations and Exceptions: It is important to note that there may be certain limitations and
exceptions to the recovery of possession. For instance, there may be restrictions on recovery if a person
has acquiesced to the dispossession or if the property is subject to specific laws or regulations.

Remedies Available: If successful in a suit for recovery of possession, the court may order the eviction
of the unauthorized occupant and the restoration of possession to the rightful owner. In some cases, the
court may also award damages or compensation for any loss or harm suffered due to the dispossession.

Importance of Section 5-8: Sections 5-8 of the Specific Relief Act, 1963 provide a legal framework
for individuals to seek the recovery of possession of immovable property. These provisions serve as an
essential safeguard for protecting property rights and ensuring justice in cases of dispossession or
unlawful occupation.

Sections 5-8 of the Specific Relief Act, 1963 play a significant role in protecting property rights and
ensuring justice in cases of dispossession or unlawful occupation. They provide individuals with a legal
framework to assert their rights and recover possession of their immovable property.
 Major Amendments Sec 6: Suit by person dispossessed of immovable property
o In this section after the words “he or any person” the words “through whom he has been in possession
or any person” are inserted. Before the Amendment Act of 2018, Section 6 of the Act permitted a person
forcibly removed from possession, or someone claiming through him, to sue for such dispossession.
o The addition of the word “through whom he has been in possession or any person” widens the scope of
the provision and provides the right to initiate a suit to the person through whom the aggrieved party
had been in possession of the immovable property.
o
 Discretionary to statutory remedy - Sec 10: The substitution of the new section for Section 10
made the enforcement of specific performance mandatory, shifting from a discretionary power of a court
to a more obligatory duty. The specific performance must align with the provisions of section 11(2),
section 14 and section 16, which outlines the certain exceptions and conditions where specific
performance may not be enforced.

o Sec 11: The word “contract may, in the discretion of the court” is substituted by “contract
shall”. Through this amendment, the court's discretion is taken away in order to guide the
courts to enforce specific performance.
 Sec 14: Contracts not specifically enforceable - This section is substituted by a new section and the
Amendment states that substituted performance, contract involving continuous duty, contract depended
on personal qualifications of a party and contacts of determinable nature cannot be specifically
enforced.

 Expert Assistance - Insertion of sec 14A provided that the courts may engage one or more
experts for their opinion to resolve specific issues involved in a suit. The expert’s opinion
becomes part of the court record and parties have the right to examine the expert personally in open
court.

 Limited Liability Partnership (LLP) - clause (fa) in sec 15 states that a newly amalgamated
LLP may obtain specific performance of contract entered with one of its component LLP’s.
o clause (ca) in sec 19 states that specific performance of a contract may be enforced against a
newly amalgamated LLP for contract entered with one of its component LLP’s.
o
 Persons bar to relief - Under sec 16 clause(a) which stated that specific performance
cannot be enforced in favour of person who would not be entitled to compensation for its breach
was substituted by person who has obtained substituted performance under sec 20.
o Under clause (c) the party seeking specific performance only needs to prove the same and is not
required to aver in the pleadings and the courts cannot deny the relief if the parties failed to aver.
o
 Substituted performance - The Amendment provided substitution of new section for section 20.
o The amendment removed the court’s discretion to grant or refuse specific performance.
o Due to the breach, the aggrieved party may now seek substituted performance from a third party or one
of its agencies, and it may also recover the cost associated with providing the substituted
performance from the party that violated the agreement. Such performance can only be acquired upon
serving a notice of minimum 30 days to the defaulting party. However, substituted performance
will not be applicable if the Parties have a contract that states otherwise.
o
 Infrastructure projects - The Amendment inserted Sec 20A, 20B and 20C to the Act.
o Sec 20A -has made special provisions for contracts relating to infrastructure projects specified in the
Schedule inserted in the Act by the amendment. It prohibits a civil court from granting an injunction in
relation to such infrastructure projects where grant of such injunction would cause impediment or
delay in progress or completion of such projects.
o Sec 20B- provides for designation of Special Courts to try a suit under the Act in respect of contracts
relating to infrastructure projects.
o Sec 20C provides for expeditious disposal of suits filed under this Act. It states that the suit shall be
disposed of within 12 months from the date of service of summons to the defendant, which may be
further extended for a period not exceeding 6 months in aggregate.
o
o Under sec 41 clause (ha) has been inserted which provides that no injunction can be granted if it
impedes or delays the progress or completion of any infrastructure project or interferes with the
continued provision of relevant facility.
o
 Sec 21: Power to award compensation in certain cases - In this section the words "either in
addition to, or in substitution of" has been substituted by "in addition to" in order to promote
specific performance of contracts rather than claiming compensation in substitution of specific
performance.

Section 12: Specific Performance of Part of Contract

• This section explains that the court will not direct the specific performance of a part of a contract,
except as otherwise provided in this section.

• If a party to a contract is unable to perform the whole of their part of it, but the part that must be left
unperformed is only a small proportion of the whole in value and admits of compensation in money, the
court may direct the specific performance of so much of the contract as can be performed, and award
compensation in money for the deficiency.

• If a party to a contract is unable to perform the whole of their part of it, and the part that must be left
unperformed forms a considerable part of the whole, though admitting of compensation in money, or
does not admit of compensation in money, they are not entitled to obtain a decree for specific
performance.

• However, the court may direct the party in default to perform specifically so much of their part of the
contract as they can perform, if the other party pays the agreed consideration for the whole of the
contract reduced by the consideration for the part that must be left unperformed and relinquishes all
claims to the performance of the remaining part of the contract and all right to compensation, either for
the deficiency or for the loss or damage sustained by them through the default of the defendant.

• If a part of a contract can be specifically performed and stands on a separate and independent footing
from another part of the same contract that cannot or should not be specifically performed, the court
may direct specific performance of the former part.

When the Court Does Not Allow Specific Performance of Part of a Contract

1. Non-Severable Contracts: If the contract cannot be divided into independent parts and the
fulfillment of one part depends on the other.
o Example: A contract to sell a business, including all assets and goodwill, cannot be partially
performed if assets are missing.
2. Material Breach or Default: When the breach of the unperformed part is substantial, rendering
the entire contract unenforceable. Example: A agrees to sell specific land but fails to provide
critical legal ownership documents.
3. Lack of Compensation or Adequacy: If the plaintiff is not adequately compensated for the
unperformed part, specific performance of part of the contract is disallowed..
4. Contracts Requiring Continuous Performance: Contracts involving obligations that need
ongoing performance cannot typically be partially enforced.

 HPA International v. Bhagwandas Fateh Chand Daswani (2004):

 The court allowed partial performance where the unperformed part was minor and could be
compensated.
 Surya Narain Upadhyaya v. Ram Roop Pandey (1973):

 Specific performance of a part of the contract was denied as the contract was indivisible and
fulfilling one part would defeat the intent of the agreement.