The Specific Relief Act, 1963

ORIGIN OF SPECIFIC RELIEF :

Specific Relief is a product of Equity courts in England.
Law of Equity was developed in England to fill up the deficiencies
found in Common Law of England.
The principles underlying the Specific Act are really the same as those
originated and prevailed in the Courts of Equity in England.
Therefore, ‘Specific Relief, as a form of judicial redress, belongs to the
law of procedure, and in a body of written law arranged according to
the natural affinities of the subject-matter would find its place as a
distinct part or other division of the Civil Procedure Code.’
POLLOCK AND MULLA.
Thus the highest form of relief which may be expected from the law is
to see that no one encroaches upon the right of another, failing which
the law should give the same thing which the suitor has been deprived
of, or one which is nearly equivalent or similar to it as possible. This is
the essence of Specific Relief which this Act aims to provide.
This Act came into force on March 1st, 1964. replacing the Old Act of
1877.

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 The Specific Relief Act, 1963
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OBJECT OF THE ACT AND MEANING OF SPECIFIC RELIEF;
Object of the Act:
The object is confined to that class of remedies which a suitor seeks
to obtain and a Court of justice seeks to give him the very relief to
which he is entitled.
The Law of Specific Relief seeks to implement the idea of Bentham
who said – “The law ought to assure me everything which is mine ,
without forcing me to accept equivalents, although I have no
particular objections to them.”
Specific Relief means a relief in species.
Specific Relief can be granted only for the purpose of enforcing
individual civil rights and not for the mere purpose of enforcing a
penal law. (Section 4 S.R.Act)
This is because Specific Relief is purely a civil remedy.
It is a remedy which aims at the exact fulfillment of an obligation..
The expression ‘Specific Relief ” is used in contrast to compensatory
relief. Such relief may either be positive or negative.

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 The Specific Relief Act, 1963
EQUITY COURTS AND DEVELOPMENT OF PRINCIPLES OF
EQUITY.
Equity is a concept that connotes fairness and humanity.
In the context of administration of Justice equity signifies the opposite
of the mechanical application of technical legal rules.
It refers to the system of justice administered by the Court of Chancery,
which was established during the 14th century by the English Kings to
supplement and bridge gaps in the formal structure of Common Law.
Hence the term Equity came to be used interchangeably with the word
Chancery to the court and the system of law administered by it.
The Chancery Court developed a number of new Judicial remedies for
private wrongs.
These remedies had one common denominator. The Chancellor could
enforce them in personam i.e., by an order direct the offender to carry
out mandate of the Court personally.
One such order required a party to fulfill the terms of his contract. This
order was called a decree for Specific performance.

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 The Specific Relief Act, 1963
EQUITY COURTS AND DEVELOPMENT OF PRINCIPLES OF EQUITY
(continued)
Definitions of Equity:
Taking into consideration the manner of functioning of the equity
courts there are many definitions of equity each distinct from the other
but all agree on the nature of Equity which is synonymous with ‘natural
justice’, ‘honesty’ and ‘right’.
PLATO: “Equity is indispensable to any intelligent administration of
justice”
ARISTOTLE: “Eq1uty is the correction of the law which is defective on
account of its generality.”
BLACKSTONE: defines Equity as :the soul and spirit of all law; positive
law is construed and natural law is made by it. In this way Equity is
synonymous with justice in that it is the true and sound interpretation of
the rule.”
WEST,J says, “Equity is an intellectual energy. It is influenced by the
gradual changes in their mental standpoint taken by successive
generation. It thus moulds its deductions from one set of data as the
Common Law to another into continued adaptation in the growing
needs of the society” IN RE KAHANDAS NARENDAS,1880 5 Bom.
154,172.
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 The Specific Relief Act, 1963
EQUITY COURTS AND DEVELOPMENT OF PRINCIPLES OF
EQUITY (continued)
Definitions of Equity: (continued):
SNELL: says that “in its technical sense, “Equity may be defined as a
portion of nature justice which, although of a nature suitable for
judicial enforcement, was for historical reasons no9t enforced by the
Common Law Courts, there was an omission which was supplied by
the Court of Chancery.”
STORY: “Equity jurisprudence may properly be said to be that portion of
remedial justice which was exclusively administered by a Court of
Equity as contradistinguished from that portion of remedial justice
which was exclusively administered by a Court of Common Law.”
SIR HENRY MAINE: “Equity as a body of rules, the primary source of
which was neither customary nor written law, but the imperative
dictates of conscience and which had been set forth and developed in
the Courts of Chancery”.

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 The Specific Relief Act, 1963
EQUITY COURTS AND DEVELOPMENT OF PRINCIPLES OF EQUITY
(continued)
MAXIMS OF EQUITY:
The subject-matter of Equity can be grouped round the twelve maxims
which embody general principles on which the Court of Chancery
exercised it jurisdiction.
They are based upon and derived from those essential principles of rights
and obligations which have a judicial relation with the events of the society
These judicial principles constituting the sources of equitable doctrines are
commonly known as “Maxims of Equity.”.
The maxims of Equity are as follows;
1) Equity will not suffer a wrong to be without a remedy.
2) Equity follows the Law.
3) He who seeks Equity must do Equity.
4) He who comes to Equity Court must come with clean hands
5) Delay defeats Equities, or Equity aids the vigilant and not the indolent..

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 The Specific Relief Act, 1963
EQUITY COURTS AND DEVELOPMENT OF PRINCIPLES OF
EQUITY (continued)
MAXIMS OF EQUITY: (continued):
6) Equality is Equity.
7) Equity looks to the intent rather than to the form.
8) Equity looks upon that as done which ought to have been done.
9) Equity imputes an intention to fulfill an obligation.
10) Equity acts in personam.
11) Where the Equities are equal, the first in time shall prevail.
12) Where there is equal Equity, the law shall prevail.
Besides the above maxims the Equity court followed the following
THREE principles in the course of dispensing justice. They are:
1) Doctrine of Mutuality (now given up as per Section 20 (4) of S.R.Act.
2) Contracts for personal services.
3) Contracts req1uiring personal supervision.

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 The Specific Relief Act, 1963
RECOVERY OF POSSESSION OF PROPERTY
Chapter II (Sections 5 to 8)
 This chapter provides that if a person is deprived of his property or of
any right or interest therein, he more as a rule than by way of an
exception , is entitled to get the very property or to have and enjoy the
very right or interest which is his, and of which he has been deprived,
rather than to have the pecuniary satisfaction in the form of damages.
 Section 5: “A person entitled to the possession of specific immovable
property may recover it in the manner provided by the Code of Civil
Procedure Code, 1908’.
MEANING OF POSSESSION:
 The word ‘Possession’ is a combination of two words i.e., ‘corpus’ and
‘animus’.
 ‘Corpus’ means some actual power over the object possessed and
apparent control over it, whereas ’animus’ means some amount of will
to avail oneself of the power.
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 The Specific Relief Act, 1963
RECOVERY OF POSSESSION OF PROPERTY
Chapter II (Sections 5 to 8) (Continued)
MEANING OF POSSESSION: (continued)
 Possession may be of various kinds as de facto possession, de jure
possession. Corporeal possession. Incorporeal possession immediate
or direct possession.
 Sir Fredrick Pollock: “ In common speech a man is said to possess or
to be in possession of anything of which he has the apparent control or
from the use of which he has the apparent power of excluding others”
 Possession is a prima facie evidence of title. In SATYANARAYANA v
KONDURU, 1953 SCJ 283 the Supreme Court held that if the property
belongs in fact, to some one else, the title required by possession is
good against the whole world, except the true owner.
‘ENTITLED TO POSSESSION’:
 The words ‘entitled to possession’ mean, having a legal right to title to
possession on the basis of ownership of which the claimant has been
dispossessed. KARTAR SINGH v DAYAL DAS, AIR 1939 PC 201.

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 The Specific Relief Act, 1963
RECOVERY OF POSSESSION OF PROPERTY
Chapter II (Sections 5 to 8) (Continued)
Section 6: Section 5 deals with recovery of possession based on title while
section 6 deals with recovery of possession of immovable property based
on ‘possession’ alone.
 The object of Section 6 is to discourage people from taking the law into
their own hands, however good their title may be.
 It is to prevent a person after taking forcible possession to smack his
fingers at the man from whom he acquired forcible possession and say, you
had better right to file a suit to establish your title. Ordinarily, in these sort
of cases question of ownership is not relevant.
 The plaintiff has to merely prove his possession.
 The operation of this section is not excluded in cases between landlords
and tenants where there is no question of title involved. BAI DANI v A.G.
BAROT, AIR 1974 Guj 108.
 This section contemplates a summary and expeditious remedy
 Sections 5 and 6 provide for alternative and separate remedies, but where a
suit is filed under Section 6, the question of title cannot be raised

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 The Specific Relief Act, 1963
RECOVERY OF POSSESSION OF PROPERTY
Chapter II (Sections 5 to 8) (Continued)
Section 6: Essential requisites :
1. The person suing has been in possession.
2. He must have been dispossessed of his immovable property.
3. The dispossession must have been without his consent.
4. The dispossession must be otherwise than in due course of law; and
5. The suit must be brought within 6 months from the date of
dispossession. Section 6 (2) (a).
6. That the dispossession has not been made by the Government but by
any person. (Section 6 (2).(b)
7. No Appeal shall 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. (Section 6 (3)
8. Nothing in this section shall bar any person from suing to establish
his title to such property and to recover possession thereof.

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 The Specific Relief Act, 1963
RECOVERY OF POSSESSION OF PROPERTY
Chapter II (Sections 5 to 8) (Continued)
Recovery of specific Movable p0roperty: Sections 7 & 8:
 Sections 7 & 8 of the S.R.Act, deal with the circumstances under which
a person holding movable property of the plaintiff without lawful
justification, can be sued for the recovery of it.
 The principle behind these two sections embody the English rule of as
in an action of detenue.
 Detenue may be defined as an action by a plaintiff who seeks to recover
the goods in specie or on this failure thereof the value, and also
damages for wrongful detention.
 Detinue was a kind of conversion.
 According to Salmond, “The common law was that a claim in detenue
lay at the suit of a person who has an immediate right to the possession
of goods against another who is in actual possession of them, and who
upon proper demand failed or refused to deliver them up without lawful
excuse.”

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 The Specific Relief Act, 1963
RECOVERY OF POSSESSION OF PROPERTY
Chapter II (Sections 5 to 8) (Continued)
Recovery of specific Movable property: Sections 7 & 8:
Section 7 (continued):
 Section 7 provides for the recovery of movable property in specie i.e.,
the thing itself.
 The things to be recovered must be specific in the sense they are
ascertained and capable of identification.
 The nature of the things must continue without alteration.
 However, relief cannot be sought for the recovery of money as it has no
earmark.
Explanations attached to Section 7: Explanation I:
 Under this Explanation a trustee may sue for the possession of the
property vested in him from a third party. COLLET has described that
a trustee has the fiduciary ownership and though it may be a barren
title yet he is entitled to possession even as against the person who has
the who has the immediate beneficial interest.
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 The Specific Relief Act, 1963
RECOVERY OF POSSESSION OF PROPERTY
Chapter II (Sections 5 to 8) (Continued)
Recovery of specific Movable property: Sections 7 & 8:
Section 7 (continued)
Explanation II: If, a temporary or special right to the present possession
is sufficient to support a suit under this section. Thus the bailee, the
pawnee, the unpaid vendor of property :and the finder of goods, have
all rights to bring a suit under this section.
Section 8: Liability of person in possession not as owner, to deliver to
person entitled to immediate possession: Ingredients:
a) When the thing claimed is held by the defendant as the agent or
trustee of the plaintiff.
b) When the compensation in money would not afford the plaintiff
adequate relief for the loss of the thing claimed.
c) When it would be extremely difficult to ascertain the actual damage
caused by the loss.
d) When the possession of the thing claimed has been wrongfully
transferred from the plaintiff.
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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25)
 A contract is an agreement upon consideration to do or not to do a
particular thing.
 If the person on whom this contractual obligation rests, fails to
discharge it, other party has a right either to insist on the literal and
actual performance of the contract or to obtain compensation for the
non-performance of it. The former is called ‘specific performance’.
 In the words of FRY, “the specific performance of a contract is its
actual execution according to the stipulations and terms; and is
contrasted with damages or compensation for the non-execution of the
contract”
 HALSBURY explains “Specific Performance,” as an equitable relief
given by the Court in cases of breach of contract, in the forms of a
judgment that the defendant do actually perform the contract
according to the terms and stipulations.”

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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
 The subject of Specific Performance may be classified under the
following heads:
A. Contracts which may be specifically enforced (Section 10).
B. Discretion of the Court in ordering Specific Performance (Section 20).
C. Specific Performance with a variation (Section 18).
D. Contracts which cannot be specifically enforced (Section 14).
E. Parties to an action for Specific Performance. (Sections 15 & 16).
F. Defenses open to a suit for Specific Performance (Section 9)
 It is to be noted that where there is no subsisting agreement, specific
performance cannot be granted.
 The plaintiff will be successful in maintaining a suit for specific
performance after the contract is determined. MUNICIPAL
CORPORATION, UDAIPUR v MAHENDRA KUMAR, 2008 12
SCC 771..

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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which may be specifically enforced (Section 10).
 In the following instances the specific performance of any contract
may, in the discretion of the Court, be enforced:
(a) When there exists no standard for ascertaining the actual damage
caused by the non-performance of the act agreed to be done. PUSEY
v PUSEY, 1684 23 ER 465 – ‘Horn containing inscriptions” –
specific performance was granted.
(a) OR when the act agreed to be done is such that compensation in
money for its non-performance would not afford adequate relief.
 The Explanation provided to this section are to be followed when
specific performance is permitted as regards movable properties.
 This Explanation spells out certain presumptions and it is said
that the court is to adopt the interpretation of ‘shall presume’,
which means that the Court has to mandatorily follow what has
been stated in this Explanation unless and until the contrary is
proved.
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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which may be specifically enforced (Section 10). Expln: (contd).
The following are the presumptions:
 (i) That the breach of a contract to transfer immovable property cannot
be adequately relieved by compensation in money, and
 (ii) 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 commerce, 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

B. Discretion of the Court in ordering Specific Performance (Section 20).

 Though under the above circumstances specific performance may be
granted, grant of the same is subject to the principle enshrined in
Section 20 which states that grant of specific relief is discretionary.
.

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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which may be specifically enforced: Specific performance of a
PART of a contract: Section 12:
 The general of equity is that the court will not compel specific
performance of a contract unless it can enforce the whole contract
 Romilly, M.R. in MERCHANTS TRADING CO. v BANNER, 1871 12
EQ 21, observed that “this court cannot specifically perform the
contract piecemeal, but it must be performed in its entirety if
performed at all”.
 The rule laid down in the above case is contained in Section 12 (1)
of the S.R.Act. This clause lays down that “the Court shall not
direct the specific performance of a part of a contract, except in
cases coming under one or the other of the three exceptions set out
in clauses (2) to (4).
 The reason for the above rule is that when parties enter into a
contract they do not contemplate a partial or lopsided
performance of it. Therefore, equity requires that it there is to be
a specific performance it should be that of the contract in its
entirety.

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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which may be specifically enforced: Specific performance of a
PART of a contract: Section 12 Exceptions to Clause (1):
 1st exception: Clause (2): Where a party to a contract is unable to perform
the whole of his part of the contract, but the part left unperformed bears
only a small portion to the whole in value and admits of compensation in
money, 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.
 This clause is based on the English Law and summed up by the Privy
/council in RUTHERFORD v ACTON ADAMS, AIR 1915 PC 113 in the
following words: “If a vendor sues and is in a position to convey
substantially what the purchaser has contracted to get, the Court will
decree specific performance with compensation for “any small and
immaterial deficiency, provided that the vendor has not, by
misrepresentation, or otherwise, disentitled himself to his remedy.
 The principle on which Section 12 (2) is based is that “equity looks to the
substance rather than to the mere letter of contract.

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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which may be specifically enforced: Specific performance of a
PART of a contract: Section 12 Exceptions to Clause (1):
• 2nd Exception : Section 12 (3): Features:
1. The part unperformed must be a considerable portion of the whole or
2. Does or does not admit compensation in money ;
3. Not either of the parties, but the party who is not in default may sue for
part performance.
4. Provided that the Plaintiff relinquishes, (i) claims to further
performance and also (ii) all rights to compensation on account of
default of the defendant.
• The equitable principle underlying this section is that specific
performance of a contract will not be enforced against the purchaser
where a material or substantial part of the subject-matter is wanting.
 This section is enacted for the benefit of the purchaser and cannot
operate to his detriment.
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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which may be specifically enforced: Specific performance of a
PART of a contract: Section 12 Exceptions to Clause (1):
3rd Exception: Section 12 (4): Features:
a. There is a part of the contract which taken by itself can and ought to be
specifically performed; and
b. Part of a contract stands on a separate and independent footing from the
other part of the contact, which admittedly cannot be performed.
 The ordinary presump0tion is that a contract is intended to be dealt with
as a whole and not piecemeal. But this section permits the Court in
certain cases where the presumption is rebutted to afford relief by way of
partial performance.
 Whether the contract is divisible or not so as to be capable of being
specifically enforced to the extent of a part of the contract is a question
of fact and must be determined upon the facts and circumstances of the
case.
 Explanation: The Explanation appended to this section states that 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 performance.

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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
( C) Specific Performance with variation: Section 18:
• This section sets out cases in which contracts cannot be enforced
except with a variation.
• This remedy is available when the Plaintiff is prepared to accept the
variation pleaded by the defendant since the contract contains vitiating
factors set out in this section.
Conditions laid down under this section:
a) Where fraud, mistake of fact or misrepresentation is the determining
factor.
b) Where the object of the parties was to produce a certain legal result
which the contract as named is not calculated to produce.
c) Where the parties have subsequently to the execution of the contract
varied its terms.
• The variation cannot be availed by the Plaintiff.
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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which cannot be specifically enforced (Section 14)
 According to Section 14 of the Act, the following contracts cannot be
specifically enforced: Section 14 (1):
a) A contract for the non-performance of which compensation in money
is an adequate relief.
b) (i) A contract which runs into such minute and numerous details that
the Court cannot enforce specific performance iu its material terms.
Ill: The court cannot order the specific performance of a contract to
build or repair a house or building because it involves minute and
numerous details' requiring prolonged watching over supervision.
b) (ii) A contract which is so dependant on the personal qualifications
or volition of the parties. Ill: A contract for painting or writing book
or singing a song in a theatre.
b) (iii) Where the contract from its nature is such that the court cannot
enforce in its material terms. Ill: A Court will not enforce an
agreement to form and carry on a partnership.
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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which cannot be specifically enforced (Section 14): (continued):
Section 14 (1): (continued):
( c) A contract, which is in its nature, determinable. Ill: A and B contract
to become partners in a certain business, the contract not specifying
the duration of the proposed partnership. It cannot be specifically
enforced because, if performed, either A or B might at once dissolve
the partnership.
(d) A contract the performance of which involves the performance of a
continuous duty which the Court cannot supervise.
Section 14 (2):
 Except as provided in the Arbitration Act, no contract to refer (present
or future) difference to arbitration shall be specifically enforced; but if
any person who has made such a contract (other than an arbitration
agreement to which the provisions of the said Act apply) and has
refused to perform it, sues in respect of any, subject to which he has
contracted to refer, the existence of such a contract shall bar a suit.
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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which cannot be specifically enforced (Section14)
EXCEPTIONS SECTION 14 (3):
 These exceptions relate to clauses (a) , (c) or (d) of sub-section (1).
Under these clauses certain contracts are not specifically enforceable;
but even in those contracts if certain conditions are fulfilled such types
of contracts become enforceable.
 They are: (a) Where the suit is for the enforcement of a contract (i)
to execute a mortgage or furnish any other security for securing the
repayment of any loan which the borrower is not willing to repay at
once: provided that where only a part of the loan has been advanced
the lender is willing to advance the remaining part of the loan in terms
of contract OR (ii) to take up and pay for any debentures of a
company (b) Where the suit is for – (i) the execution of a formal deed
of partnership, the parties having commenced to carry on the business
of the partnership or (ii) the purchase of a share of a partner in a firm.

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 The Specific Relief Act, 1963
SPECIFIC PERFORMANCE OF CONTRACTS
(Sections 9 to 25) (Continued)
Contracts which cannot be specifically enforced (Section14)
EXCEPTIONS SECTION 14 (3): (continued):
 Section 14 (3) (c): Where the suit is for the enforcement of a contract
for the construction of any building or the execution of any other work
on land: provided the following conditions are fulfilled, namely –
 (i) the building or other work is described in the contract in terms
sufficiently to enable the Court to determine the exact nature of the
building or work;
 (ii) the plaintiff has a substantial interest in the performance of the
contract and the interest is of a such a nature that compensation in
money for non-performance of the contract is not an adequate relief;
and
 (iii) the defendant has, in possession of the contract, obtained
possession of the whole or any part of the land on which the building is
to be constructed or other work to be executed.
**********************
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 The Specific Relief Act, 1963
RECTIFICATION OF INSTRUMENTS
( Section 26 )
Meaning of Rectification :
o Means correction of an error in an instrument.
o The object is to give real effect to the intention of the parties.
o Where a contract has been reduced into writing, in pursuance of a previous
engagement and the writing, owing to fraud or mutual mistake, fails to express
the real intention of the parties, the Court will rectify the written instrument in
accordance with their true intent.
o The relief of rectification is granted by the Court because what is rectified, is
not the agreement, but the mistaken expression of it.
o The process of rectification consists in bringing the document in conformity
with the prior agreement.
PRINCIPLE: STORY observed: “A Court of equity would be of little value if it
could suppress only positive frauds and leave initial mistake innocently made
to work intolerable mischiefs contrary to the intention of the parties. Refusing
relief in such cases where there is an innocent omission or insertion of
material stipulation, contrary to the intent of both the parties and under a
mutual mistake, would be to work o surprise or fraud upon both”.
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 The Specific Relief Act, 1963
RESCISSION OF CONTRACTS
(Sections 27 to 30)
Meaning of Rescission: Withdrawal from the obligations of the contract.
Section 27: When rescission may be adjudged: Section 27 (1):
(a) When the contract is voidable or terminable by the plaintiff.
(b) When the contract is unlawful for causes not apparent on nits face
and the defendant is more to blame than the plaintiff.
Section 27 (2): When Rescission may be refused:
(a) When the contract has been expressly or impliedly ratified by the
contract. OR
(b) When owing to change of circumstances which has taken place since
the time of making the contract (not being due to the act of the defendant
himself) the parties cannot be substantially restored to the position in
which they stood before the contract is made. OR
(c) When the third parties have acquired rights in good faith without
notice and for value. OR
(d) When part of the contract is sought to be rescinded and such part is
not severable from the rest of the contract.

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 The Specific Relief Act, 1963
RESCISSION OF CONTRACTS (Continued)
Section 28: Rescission in certain cases of contracts for the sale or lease of
immovable property, the specific performance of the contract has been
decreed.
(1) Where the Court has directed the payment of money and such
payment has not been effected.
(2) (a) Where the contract has been rescinded in the above manner then
direct the delivery of possession if it is in the hands of the purchaser or
lessee.
(b) The Court may direct payment to the vendor or lessor of all rents and
profits.
(3) (a) Where payment has been effected to execute proper conveyance.
(b) The Court may direct deliver of possession.
(4) No separate suit shall lie.
(5) The costs of any proceedings under this section shall be in the
discretion of the Court.
Section 29: If the contract cannot be specifically enforced then in the
alternative rescind the contract and deliver it up as cancelled.
Section 30: Court may require parties rescinding to do equity.
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 The Specific Relief Act, 1963
CANCELLATION OF INSTRUMENTS
(Sections 31, 32 & 33)
This relief is called ‘protective justice from fear’ – QUIA TIMET
ACTION.
Section 31 (1): When cancellation may be ordered:
(a) When the instrument is void or voidable against the plaintiff, and
(b) he has reasonable apprehension of the injury if it is left
outstanding and that the threatened injury is serious.
Section 31 (2): If the instrument is registered the Court shall also send
a copy of its decree to the Officer in whose office the instrument has
been registered. Such Officer shall note the facts of the Cancellation
on the copy of the instrument.
Section 32: Partial cancellation:
If the instrument evidences different rights or different obligations the
Court may, in a proper case, cancel it in part and allow it to stand for
the residue.
Section 33: While ordering cancellation Doctrine of Restitution is to be
applied.
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 The Specific Relief Act, 1963
DECLARATORY DECREES.
( Sections 34 & 35)
Object:
The object of this section is to dispel a cloud cast upon the title or legal
character of a person.
When declaration is given he can peacefully enjoy title or legal
character without any fear and future disturbance.
Requisites of a Declaratory Decree: Section 34:
(1) The Plaintiff must establish at the time of the suit that he is
entitled to any legal character or as to any right as to any property.
BANSI v KANIA, 1921 43 All 159. – Right to beg has no legal right or
tight to legal character.
(2) The defendant has denied or is interested in denying the character
or the tile of the Plaintiff – i.e., present damage or threat to the
interests of the plaintiff to be proved. This is intended to avoid
declaration being asked for on ‘speculative grounds’.

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 The Specific Relief Act, 1963
DECLARATORY DECREES .

( Sections 34 & 35)

Requisites of a Declaratory Decree: Section 34: (continued):
(3) The declaration asked for is a declaration that the plaintiff is
entitled for a legal character or right to property.
(4) The plaintiff is not in a position to claim further relief other than a
bare declaration to his legal title or character. (Proviso to Section 34).
When Declaratory will be refused?
(1) The Court will not grant relief unless there is substantial injury.
(2) If the person, who seeks to impugn an alienation made by a limited
owner. has only a remote chance of succeeding to property, the Court
will refuse to make a Declaratory decree.
(3) If he defendant has never denied the title of the plaintiff or his
legal character no declaration will be made regarding the title or the
legal character of the plaintiff.
(4)The Declaratory relief cannot be given to a plaintiff whose conduct
is fraudulent or to one who had evaded the Stamp Law.
(5) A bare declaration which declares the disability of the defendant to
do the very act which the Court declines to restrain by an injunction
ought not to be made.
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 The Specific Relief Act, 1963
DECLARATORY DECREES.
( Sections 34 & 35)
Effect of Declaration: Section 35:
A Declaratory binds:
(a) the parties to the suit;
(b) persons claiming through parties to the suit; and
(c) Where any of the parties are the trustees on the person for whom,
if in existence on the date of declaration such parties to the suit.
Judgment given under Section 34 is a judgment in personam and not in
rem. SNP SHIPPING SERVICES PRIVATE LIMITED v WORLD
TANKER CARRIER CORPORATION, AIR 2000 Bombay 34.
The Court’s power to grant declaratory decrees is not limited to the
terms of Section 34. Declaratory decrees can well be made by the
Courts under the general provisions of the Code of Civil Procedure,
i.e., Section 9 or Order VII Rule 7. RAMNARAYANAN v FIRM
MANGERAM RADHESHYAM, AIR 1979 M.P. 61 (D.B.).
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 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
An instance of QUIA TIMET ACTION.
It is Judicial process.
The object is to restrain or prevent.
Thing restrained or prevented is a wrongful act.
Preventive relief as to when granted:
(1) Perpetual injunction when granted: Section 38.
(2) Mandatory injunction when granted: Section 39.
(3) Injunction when cannot be granted Section 4
Classification of Injunction – Based on nature

Prohibitory injunction Mandatory Injunction

(Section 38) (Section 39)
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 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Meaning of Prohibitory injunction: (Section 38):
A prohibitory injunction forbids a defendant from doing a wrongful act
which would be an infringement of some right of the plaintiff, legal
equitable.
Through a prohibitory injunction, a party is restrained from doing or
continuance of some wrongful act, which he is under an obligation not
to do.
For example: Prohibitory injunction says:, “let the defendant be
restrained from building any wall to the injury of the plaintiff ’s right
of light”.
Since the general purpose of injunction is to restrain the commission,
continuance or repetition of some wrongful act which one is under an
obligation not to do, the relief provided by the Court at its discretion to
the plaintiff, is called preventive relief. This is the sole purpose of
prohibitory injunction.

36
 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Meaning of Mandatory injunction: (Section 39).
A mandatory injunction forbids the defendant to permit the
continuance of a wrongful state of things by ordering to undo that
which has been done or to do a particular act to restore things to their
former condition.
It is an order of the Court requiring the defendant to do some positive
act for the purpose of putting an end to the wrongful state of things
created by him.
It is, therefore, restitutory and prohibitory.
For example, mandatory injunction will take the form “let the
defendant be restrained from permitting the continuance of any wall to
the injury of the plaintiff ’s right of light”.
According to SNELL, mandatory injunction is an injunction to restrain
that continuance of some wrongful commission,
Justice can be done by issuing a mandatory injunction ordering the act
to be undone.
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 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Meaning of Mandatory injunction: (Section 39). (continued):
A mandatory injunction would not be granted
i Where the balance of inconvenience is in favour of the defendant.
ii Where the injury can be fairly compensated by damages.
iii Where the alleged obstruction is of temporary character.
iv If the plaintiff stands by and allows the obstruction to be completed
before he comes to the Court.
Classification of injunction:
Based on the duration of the effect of the Order.

Temporary injunction Permanent injunction

(Section 37) (Section 38)

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 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Meaning of Temporary injunction: Section 37:
An interlocutory or temporary injunction is an injunction granted on an
interlocutory application, after the commencement of an action, to
preserve the status quo pending trial and judgment..
It holds good until the trial of the action on its merits or until further
orders.
In ERINFORSD PROERTIES LTD, v CHEHSIRE COUNTY COUNCIL,
1974 Ch.D 261, it has been held that an interim injunction may be granted
which endures for some shorter specified period, although of course such
an injunction remains in force until the trial of the action.
Ina temporary or interlocutory injunction, the plaintiff has to show, firstly,
that there is a strong prima facie case for the existence of his legal right,
and secondly, that there is a case of infringement of his right that is
reasonably capable of succeeding as has been laid down in DONMAR
PRODUCTIONS LTD., V BART, 1967 1 WLR 740.
Temporary injunction may be granted at any stage of the suit and are
regulated by the Code of Civil Procedure,1908.

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 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Meaning of perpetual injunction:
A perpetual injunction is issued after the trial of the case, when the
plaintiff has established his right.
This injunction holds good for ever, and restrains the defendant for
ever,
It is in the nature of a Decree.
It is granted where there is involved a question of substantial damage
which cannot be compensated by money and also where a legal right
has been broken.
It is given on the merits of the case.
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.

40
 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Perpetual injunction: When granted: Section 38:
1) Perpetual injunction may be granted to the plaintiff to prevent the breach
of an obligation existing in his favour, whether expressly or by
implication.
2) When any such obligation arises from contract, the Court shall be guided
by the rules and provisions contained in Chapter II.
3) When the defendant invades or threatens to invade the plaintiff ’s right to,
or enjoyment of property, the Court may grant a perpetual injunction in
the following cases, namely: -
a) Where the defendant is a trustee of the property of the plaintiff.
b) Where there exists no standard for ascertaining the actual damage caused
or likely to be caused by the invasion.
c) Where the invasion is such that pecuniary compensation would not afford
adequate relief.
d) When the injunction is necessary to prevent multiplicity of judicial
proceedings.

41
 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Perpetual injunction when cannot be granted: Section 41:
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 multiplicity of proceedings.
b) To restrain any person from instituting or proceeding any proceeding in a
Court not subordinate to that from which the injunction is sought.
c) To restrain any person from applying to a legislative body.
d) To restrain any person from instituting or prosecuting any proceeding in a
criminal case.
e) To prevent the breach of a contract the performance of which cannot 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 case of breach of trust.

42
 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Perpetual injunction when cannot be granted: Section 41: 9continued).
i) When the conduct of the plaintiff or his agents has been such as to
disentitle him to the assistance of the Court.
j) When the plaintiff has no personal interest in the matter.
Injunction to perform a Negative agreement: Section 42:
 The general rule, which is embodied in Section 41 (e) is that an
injunction cannot be granted to prevent the breach of a contract the
performance of which would not be specifically enforced.
 In other words, when a decree for specific performance cannot be
given, no injunction shall be granted for breach of such a contract.
 Although it is not within the powers of the Court to grant relief by
directing specific performance of the positive agreement, the Court
will grant as much relief as possible in the circumstances and restrain
by an injunction the breach of a negative covenant. This principle is
known as RULE IN LUMLEY v WAGNER, 1852 21 LJ Ch.898.

43
 The Specific Relief Act, 1963
PREVENTIVE RELIEF
(Sections 36 to 42)
Damages in lieu of, or in addition to, injunction: Section 40:
 The plaintiff in a suit for perpetual injunction under Section 38, or
mandatory injunction under Section 39, may claim damages either in
addition to, or in substitution for, such injunction and the Court may, if
it thinks fit, award such damages.
 No relief of damages shall be granted under this Section unless the
plaintiff has claimed such relief in his plaint.
 In case it has not been claimed in the plaint, the Court shall at any
stage of the proceedings, allow the plaintiff to amend the plaint on
such terms as may be just for including the claim.
 The dismissal of a suit to prevent the breach of an obligation existing
in favour of the plaintiff shall bar his right to sue for damages for such
breach.
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