SPECIFIC RELIEF ACT, 1963 (with amended provisions)

VARIOUS RELIEF PROVIDED UNDER THE SPECIFIC RELIEF ACT

The Act provides for specific relief by way of –

1. Recovery of possession of property, movable and immovable

2. Specific performance of contracts
3. Rectification of instruments
4. Rescission of contracts
5. Cancellation of instruments
6. Declaratory decrees, and
7. Preventive relief, i.e., by way of injunctions

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RECOVERING POSSESSION OF PROPERTY (IMMOVABLE PROPERTY)

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

The right depends upon the legal right to title and possession on the basis of ownership. It is to be in
accordance with the provisions of the Civil Procedure Code which prescribes for the institution of suit
and the execution of decree in accordance with the provisions of order 21, rules 35 and 36.

If any person is dispossessed without his consent of immovable property, otherwise than in due course
of law, he or any person claiming through him, may, by suit, recover possession thereof,
notwithstanding any other title may be set up in such suit. (Section 6)

Section 6 provides for a summary remedy for unlawful dispossession of immovable property.
“Possession” is said to be a good title against all but the true owner and entitles the possessor to
maintain an action in ejectment against all persons, except the true owner, who might dispossess him.

A suit under Section 6 shall not be brought against the Government. A period of limitation is also
prescribed by which no suit under the section shall be brought after the expiry of 6 months from the
date of dispossession. No appeal shall lie from any order or decree passed in any suit instituted under
Section 6. So also no review of any such order or decree is allowed. The provisions of this section will
not bar any person from suing to establish his title to such property and to recover possession thereof.

SUKHJEET SINGH V. SIRAJUNNISA AIR 2001 MP 59

The tenant handed over possession of premises to the landlord for marriage of former’s son. The
landlord failed to hand over the possession again to the tenant after his son’s marriage. It was held that
even though the tenant may have been deceived later on but since he handed over the possession of his
total volition, he could not claim the possession again under Section 6 as the section was not attracted
in that situation.
 RECOVERING POSSESSION OF PROPERTY (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. (Section 7)

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 8: Any person having the possession or control of a particular article of movable property, of
which he is not the owner, may be compelled specifically to deliver it to the person entitled to its
immediate possession in any of the following cases:

1. When the thing claimed is held by the defendant as the agent or trustee of the plaintiff
2. When compensation in money would not afford the plaintiff adequate relief for the loss of the
thing claimed
3. When it would be extremely difficult to ascertain the actual damages caused by its loss
4. When the possession of the thing claimed has been wrongfully transferred from the plaintiff.

Explanation – Unless and until the contrary is proved, the court shall, in respect of any article of
movable property claimed under the above circumstances (1) and (2), presume –

i) That compensation in money would not afford the plaintiff adequate relief for the loss of
the thing claimed, or, as the case may be,
ii) That it would be extremely difficult to ascertain the actual damage caused by its loss.

STATE OF GUJARAT V. BIHARILAL AIR 1999 SC 1999

There was an agreement between Biharilal and the occupants of the land in 1964, authorising Biharilal
to cut and remove trees standing on certain land for a period of two years. The forest authorities did
not grant permission to cut and remove the trees and the period expired. There was no fresh
agreement between the parties nor was the period of authority in favour of Biharilal extended. Biharilal
filed a suit for declaration of his right to cut and remove the trees and also for the necessary permission
to do the needul. It was held that since the right in respect of the trees had already expired the suit filed
by Biharilal could not be decreed.

SUBBARAYULU V. ANNAMALAI CHETTIAR AIR 1946 Mad. 174

R delivered to A a cinematograph projector. A was to pay the price in instalments. If there is default R
was given the option to demand the return of the machine. A committed default and R exercised his
option, and demanded the return of the machine. It was held that A was holding the machine in a
fiduciary capacity, though he was not a trustee in a strict sense, he was directed to deliver the machine
to B.
 SPECIFIC PERFORMANCE OF CONTRACTS (When can Specific Performance of a contract be enforced
and cannot be enforced?)

Section 10: The specific performance of a contract shall be enforced by the court subject to the
provisions contained in sub-section (2) of Section 11, Section 14 and Section 16.

Section 11: Cases in which specific performance of contracts connected with trusts enforceable: When
the act agreed to be done is in the performance, wholly or partly of a trust, specific performance of a
contract shall be enforced. But a contract made by a trustee in excess of his powers, or in breach of
trust cannot be specifically enforced.

Illustrations:

1. A holds certain stock in trust for B. A wrongfully disposes of the stock. The law creates an
obligation on A to restore the same quantity of stock to B and B may enforce specific
performance of this obligation.
2. A is a trustee of land with power to lease it for 7 years. He enters into a contract with B to grant
a lease of the land for 7 years, with a covenant to renew the lease at the expiry of the term. This
contract cannot be specifically enforced.
3. The Directors of a Company have power to sell the concern with the sanction of a general
meeting of the shareholders. They contracted to sell it without any such sanction. This contract
cannot be specifically enforced.

Section 14: Contracts not specifically enforceable –

The following contracts cannot be specifically enforced, namely:

1. Where a party to the contract has obtained substituted performance of contract in accordance
with Section 20;
2. A contract, the performance of which involves the performance of a continuous duty which the
court cannot supervise;
3. A contract which is so dependent on the personal qualifications of the parties that the court
cannot enforce specific performance of its material terms; and
4. A contract which is in its nature determinable.

RYAN V. MUTUAL ASSOCIATION 1893 1 Ch. 116

The contract was by the lessor to appoint a resident porter who would regularly perform certain duties
for the benefit of the tenants. It was held that the court could not grant specific performance as it
would require constant supervision of the court.

Illustrations:

1. In a contract between A and B, A has committed a breach and due to his non-performance, B
who is at suffrage, get the work done by a third party C. B is having every right to exercise the
 option of substituted performance and also have the right to recover the expenses and other
costs actually incurred, spent or suffered by him, from A. Under such circumstances, a party
who has obtained substituted performance cannot come to the court seeking for a relief of
specific performance of a contract.
2. A and B contract to become partners in a certain business, the contract not specifying the
duration of the proposed partnership (take it to be a case of partnership at will). This contract
cannot be specifically enforced, for if it were so performed, either A or B might at once dissolve
the partnership.

Section 16: Personal bars to relief

Specific performance of a contract cannot be enforced in favour of a person:

1. Who has obtained substituted performance of a contract as per Section 20;

2. Who has become incapable of performing the contract or has violated any of the essential terms
of the contract;
3. Who has not averted in the pleadings and who has failed to prove that he has performed the
essential terms of the contract which are to be performed by him.

DARSHAN SINGH V. RAMSINGH AIR 2008 P & H 222

In a suit for specific performance of a contract it was shown that the plaintiff agreeing to purchase the
property from the defendant was ready with money on the date when the sale deed was to be executed
but the seller did not turn up before the Sub-Registrar and it was also shown that the plaintiff served a
notice on the same day and filed the suit without any delay, the plaintiff is entitled to a decree of
specific performance.

PUSHPARANI S SUNDARAM V. PAULINE MANONMANI JAMES 2002 9 SCC 582

When the purchaser had not sent any communication to the vendor regarding his readiness and
willingness, had paid only an insignificant amount as advance, had not obtained permission from Ceiling
Authorities, had taken no steps towards the valuation of the superstructure on the land as required
under the Sale Agreement, neither led an evidence nor entered the witness box in support of his
willingness, the Supreme Court held that the High Court had rightly upheld the dismissal of his suit for
specific performance.

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WHO MAY OBTAIN SPECIFIC PERFORMANCE?

Section 15: Except as otherwise provided by this chapter, the specific performance of a contract may be
obtained by:

1. Any party thereto;

2. The representative in interest or the principal, of any party thereto;
 3. Where the contract is a settlement on marriage, or a compromise of doubtful rights between
members of the same family, the beneficiary thereunder;
4. Where the contract has been entered into by a tenant for life in due exercise of a power, the
remainderman;
5. A reversioner in possession, where the agreement is a covenant entered into with his
predecessor in title and the reversioner is the beneficiary of such covenant;
6. A reversioner in remainder, where the agreement in such a covenant where the reversioner, a
beneficiary of such covenant will sustain material injury by reason of its breach;
7. When a LLP has entered into a contract and subsequently becomes amalgamated with another
LLP, then the new LLP;
8. When a Company has entered into a contract and subsequently becomes amalgamated with
another company, then the new Company;
9. The promoters of a Company for the contracts entered into before the incorporation of the
company and which is warranted by the terms of incorporation.

Tenant for Life and Remainderman:

A is the owner of a property. He transfers it to B for life and then to C. Here B is the Tenant for Life and
C is the Remainderman. Usually B cannot bind C by his acts beyond his (B’s) lifetime. Suppose A has
conferred on B a power to deal with the property (eg. To lease it for 50 years). In pursuance of this
power if B has acted, then C can enforce the covenant (ie., the contract) of the lease to pay rent.

Privity of Estate: (The relationship of landlord and tenant)

A is the owner of a property. He makes B a tenant for life. Then A is the Reversioner. A dies and C is his
legal representative. Between B and C there is privity of estate and C can enforce B’s covenant to pay
rent by virtue of this privity of estate. (REVERSIONER IN POSSESSION)

If in the above example, C transfers his interest to D and B transfers his interest to E. Between D and E
there is no privity of contract but there is privity of estate. So the covenants are enforceable.
(REVERSIONER IN REMAINDER)

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PART OR PARTIAL SPECIFIC PERFORMANCE OF A CONTRACT

The Court shall not direct the specific performance of a part of a contract except as otherwise provided
in the Section. (Section 12)

To this general rule, there are four exceptions:

UNPERFORMED PART – SMALL: Where a party to a contract is unable to perform the whole of his part
of it, the court may, at the suit of either party, direct the specific performance of so much of the
contract as can be performed and award compensation in money for the deficiency. The two conditions
for the application of this provision:
 i) The part which must be left unperformed is small; and
ii) It admits of compensation

Re BETCHAM AND GAWLEY’S CONTRACT

The existence of two sewers belonging to the local authority and running along the back of the premises
agreed to be sold was not disclosed to the buyer. It was nevertheless held that the vendor was entitled
to specific performance subject to compensation. The reason being the existence of the two sewers
does not cause the property to be substantially different from that agreed to be sold and accordingly,
the purchaser is not entitled to rescission, but he is entitled to compensation.

UNPERFORMED PART – LARGE

Part unperformed is large but compensation can be estimated:

When a person is unable to perform his contract in its entirety and the part unperformed is large, he
cannot obtain a decree for specific performance. The other party to the contract, who was not in
default, however, can require specific performance with proportionate abatement in price.

Part unperformed is large but does not admit of money compensation:

When a person is unable to perform his contract in its entirety and the part unperformed is large, and
also if it cannot be estimated in terms of money, then he cannot demand specific performance. The
other party to the contract, who was not in default, can enforce specific performance provided he is
prepared to pay the entire consideration and to relinquish all claims to compensation in respect of the
unperformed part.

TATA INDUSTRIAL BANK V. RUSTOMJI 57 IC 957

The plaintiff contracted to purchase a property specified as comprising 1418 sq. yards for 7 lakhs. It was
found that the area was only 1218 sq. Yards. The plaintiff claimed specific performance and
compensation. It was held that the deficiency in area was 1/7th of the whole (part unperformed was
large) and the plaintiff could obtain specific performance and he would be required to pay the price
subject to abatement.

INDEPENDENT PARTS

A contract may consist of divisible parts, which are independent of one another. In such a case, though
the contract cannot be performed in toto, specific performance of one independent part may be
decreed.

HARENDRA V. NANDA LAL

The agent of the five principals entered into a contract with the plaintiff for sale of the latter’s shares.
Three of the principals ratified the contract, but two did not. The agent had acted beyond his powers.
So the principals not ratifying were not bound. The plaintiff sued for specific performance. It was held
that the contract was divisible and could be specifically enforced as against the shares of the ratifying
principals.

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RECTIFICATION OF INSTRUMENTS

Section 26:

Rectification of a contract can be granted when the written contract does not represent the real
intention of the parties on account of fraud or a mutual mistake of the parties. If the real intention of
the parties is correctly recorded, there is no scope for rectification. In order to invoke this provision, the
mandatory condition is there should be fraud or mutual mistake.

USA V. MOTOR TRUCKS LTD.

There was a contract by which title to certain property of the company was to vest in the Government of
America. The properties were mentioned in a schedule. By the mistake of the parties one building was
omitted in the schedule though it was intended to be covered by the contract. The US Government
sought rectification of the contract. It was held that since there was an inadvertent omission, the
contract could be rectified to bring into conformity with the original intention of the parties.

Even unilateral mistake short of fraud affords no ground for the relief of rectification.

FREDERIC ROSE (LONDON) LTD. V. WOM. PRIN. JUNIOR & CO. LTD.,

There was a written contract for the sale of horsebeans. The buyers really wanted feveroles, which was
a special medium size variety of the horsebeans. So they sought the remedy of rectification. It was held
that the contract correctly represented the agreement between the parties and so there was no scope
for rectification.

Who can make a claim for rectification?

(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.

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RESCISSION OF CONTRACTS

Section 27:

The circumstances in which the court can direct rescission of a contract:

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.

REDGRAVE V. HURD

The defendant entered into a contract for purchasing the business of the plaintiff who was a solicitor on
the representation that the business was yielding an annual income of 300 pounds. This was, however,
not fraud. The plaintiff sued for specific performance. The defendant counter-claimed for rescission
and damages. The counter claim for rescission was allowed but not the counter claim for damages since
there was only an innocent misrepresentation.

The circumstances in which the court may refuse to grant an order for rescission of a contract:

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.

PREM RAJ V. DLF HOUSING AND CONSTRUCTION (PRIVATE) LTD., AIR 1968 SC 1355

A person who sues for rescission of contract cannot claim alternative relief of specific performance but a
person who files the suit for specific performance can alternatively make a claim for rescission of
contract.

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CANCELLATION OF INSTRUMENTS

Section 31:

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.

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.

TEKULAPALLY VEERA REDDY V. TEKULAPALLY NARAYAN REDDY AIR 2008 AP 60

Where a suit is filed seeking the cancellation of the sale deed which is alleged to have been fraudulently
executed in respect of the property belonging to the adoptive mother, legally adopted son would have
locus standi to continue the legal litigation after the death of the adoptive mother.

Section 32:

Where an instrument is evidence of different rights or different obligations, the court may, in a proper
case, cancel it in part and allow it to stand for the residue.

Illustration:

A executes mortgage deed in favour of B. A is able to procure the deed from B by fraud and makes
therein an endorsement of receipt of Rs. 2 lakhs appearing to have been signed by B. Thus here
signature of B is forged and B is entitled to get the endorsement cancelled and may leave the deed to
stand valid in other respect.

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DECLARATORY DECREES

The purpose of a declaratory decree is to set at rest future disputes. Such a decree perpetuates
testimony, which might otherwise be lost owing to the passage of time.

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;
 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.

SADUT ALI KHAN V. ABDOOL GUNNEE 3 Sarr 229 (PC)

The plaintiff sued for a declaration of his title as Zamindar. No other relief was prayed for. Still the bare
declaration sought was granted because on the basis of that declaration the plaintiff could apply to
Revenue Court for enhancement of the rent payable by the tenants.

Section 35:

Effect of declaration: 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 persons
for whom, if in existence at the date of the declaration, such parties would be trustees.

The effect of declaratory decree is to eliminate future controversy, perpetuate evidence of the claim and
to quieten titles to property. A cloud on title can be effectively removed by means of a declaratory
decree.

BISHWANATH MANDAL V. AJAY KUMAR AIR 2008 Jhar 12

The plaintiff sought declaration from the court that she did not adopt the defendant and the deed of
adoption relied by the defendant was void and it was shown that the defendant continued to live with
his natural parents and also in the school records of the defendant, the names of the natural persons
were shown, the finding by the trial court that the defendant was not adopted by the plaintiff and the
adoption deed fraudulently got registered is proper.

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PREVENTIVE RELIEF

Preventive relief is a mode of specific relief. When the court prevents a party from doing that which he
is under an obligation not to do, it is said to be preventive relief. Such a relief is granted in the form of
injunction. The purpose for which an injunction is granted is usually to restrain the breach of contract or
the violation of the rights arising otherwise than by contract.

Section 36:

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

Illustration: A is constructing a wall in B’s land. At the suit of B, the Court may provide B preventive
relief by granting an injunction against A prohibiting A from constructing the wall.

This relief cannot be granted or obtained as a matter of right. The granting of relief of injunction is
discretionary. The relief has to be granted by the court according to sound legal principles.

TEMPORARY AND PERPETUAL INJUNCTIONS

Section 37:
  Temporary injunctions are such as are to continue until a specific 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.
 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.

A perpetual injunction is a form of specific relief granted by the court after the suit is heard on the
merits. Pending the disposal of the suit a temporary injunction may be granted. This is done on the
balance of convenience without prejudice to the final disposal of the claim in the suit.

MUNICIPAL COUNCIL UDAIPUR V. MAHENDRA KUMAR AIR 2008 SC 2507

A suit was filed by the Licensee seeking an injunction to restrain the Licensor from enhancing the rent of
suit property, the license period having been expired there has to be a fresh agreement between the
parties on the agreed terms and the enhancement of rent unilaterally does not arise.

Section 38:

Circumstances in which the court may grant an order of perpetual injunction:

 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.
 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:—
i) where the defendant is trustee of the property for the plaintiff;
ii) where there exists no standard for ascertaining the actual damage caused, or likely to
be caused, by the invasion;
iii) where the invasion is such that compensation in money would not afford adequate
relief;
iv) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

VED PRASAD RASTOGI V. NAGAR PALIGA, BUYDAUN AIR 2008 All 27

Where a person was threatened in any form within by way of dispossession or by way of trespass,
nuisance, etc., it is always open to him to approach the civil court for seeking relief of permanent
injunction against such other person by showing that he is the owner and in possession and by
establishing his title and possession, the civil court would be duty bound to grant the relief of injunction.

BACHASPATI BHATTACHARYA V. SMT. MIRA BHATTACHARYA AIR 2008 Cal 68

The petitioner who was a co-sharer in the joint family property sought a permanent injunction
restraining the other co-sharer from interfering with possession and occupation of part of property, it
was held that the petitioner is not entitled for permanent injunction as she has a remedy to file a suit for
a partition.
 MANDATORY INJUNCTIONS

Section 39:

The conditions to be fulfilled for the grant of a mandatory injunction –

 it is necessary to prevent the breach of an obligation

 for preventing the breach of the obligation it is necessary to compel the performance of certain
acts
 the court is capable of enforcing those acts

KREHEL V. BURRELL 1878 (7) Ch. 551

An action was brought to restrain the erection of a building on a passage over which the plaintiff
claimed a right of way. The defendant continued the construction and completed the building. It was
held that it was a clear case for a mandatory injunction and the defendant was directed by a mandatory
injunction to demolish the building.

DISTINCTION BETWEEN MANDATORY INJUNCTION AND PROHIBITORY INJUNCTION

A mandatory injunction compels the performance of certain acts. The acts may be positive (i.e., to do
something) or negative (i.e., not to do something). When the act the performance of which is compelled
is a negative act, the injunction is said to be a prohibitive injunction. It forbids the defendant from doing
something; e.g., an injunction requiring the defendant not to trespass upon the plaintiff’s land.

AN INJUNCTION WHEN CAN BE 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 sub-ordinate 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;

(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere
with the continued provision of relevant facility related thereto or services being the subject matter of
such project

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

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

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