The
Specific Relief Act, 1963
Q.
1― What are the provisions
available to a person dispossessed of Immovable property?
Ans― Sec
5 & 6 of the S.R. Act 1963 provide the right to recover the possession
of immovable property.
Sec
-5 provides that:- who is entitled for specific immovable
property can recover the possession according to the process of C.P.C 1908 i.e
it gives the ground of title suit.
S -6 says― If any person is
dispossessed without his consent from immovable property, otherwise than in due
course of law, he or any person claiming through him, may by suit recover
possession thereof.
S
-6 of S.R. Act 1963 is based on the principle that no one can take law into his
hands for taking possession, even if he may be lawful owner of immovable
property in question. S -6 restrains a person from using force and to disposes
a person without his consent otherwise than in due course of law. Question of
title is irrelevant in a proceeding U/S -6 of S.R. Act 1963, all that plaintiff
has to show is that he has been dispossessed of immovable property otherwise
than in due course of law, within 6 months prior to filing suit.
Here
possession means legal possession which may exist with or without actual
possession and with or without a rightful origin. Thus where a trespasser is
allowed to continue on the property and the owner sleeps upon his rights and
makes no efforts to remove him he will gain possession U/S -6. The possession
of a tenant after the termination of the tenancy continues to be a juridical
possession. His right to possession remains unless the owner gets a decree of
eviction against him. Till then if he is dispossessed he is entitled to seek
restitution of his possession.
Thus
vide S -6 of S.R. Act 1963 ― 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, by suit may seek restitution of his possession, within 6
months of his dispossession, on proving his legal possession on immovable
property in question.
Q.
2― When specific performance of
contract can be enforced and when not?
Ans― Specific performance of contract― means
actual execution of the contract according to its stipulation and terms.
Under the S.R. Act 1963, contracts are two type:-
1.
Contracts which are specifically enforceable by law provided
u/Ss-10,11(i), &14(iii).
2.
Contracts which are not specifically enforceable by law provided u/Ss- 11(ii),
14 (i) & (ii) and 17.
Contracts when specifically enforced
S -10 of S.R. Act 1963 says― The
specific performance of any contract may in the discretion of the Court, be
enforced―
(a) When there exists no standard for
ascertaining actual damage caused by the non performance of the act agreed to
be done; or
(b) When
the act agreed to be done is such that compensation in money for its non
performance would not afford adequate relief.
Explanation:-Unless and until the
contrary is proved the court shall presume –
(I)
that the breach of contract to
transfer immovable property cannot be adequately relived by compensation in
money; and
(II) that
the breach of a contract to transfer
movable property can be 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 market.
(b)
Where the property is held by the defendant as the agent or trustee of the
plaintiff.
Examples
(a) A
agrees to buy and B agrees to sell, a picture by a dead painter and two rare
china vases. Here 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.
(b) A
contracts with B to sell him a house for Rs. 1,00000/- B is entitled to a
decree directing A to deliver the house to him by paying the purchase money.
Contracts When not specifically
enforced:-
S -14 of S.R. Act 1963 Says― The following
contracts cannot be specifically enforced:―
(a) A
contract for the non-performance of which compensation in money is an adequate
relief.
(b) A
contract, which runs into such minute or numerous details or which is so
dependent on the personal qualifications or volition of the parties or
otherwise from its nature is such that the Court cannot enforce specific
performance of its material terms.
(c) When
a contract is of the nature that it is determinable i.e. a contract which can
be determined or put to an end by a party to the contract. e.g.― In case of
partnership at will, any partner can put to an end.
(d) A
contract, the performance of which involves the performance of a continuous
duty which the Court cannot supervise, cannot be specifically enforced. e.g.:
(1) A
Contract to give maintenance.
(2) A
Contract to execute a deed every year.
cannot be specifically enforced.
As
per S -14 (2) ― except as provided by the Arbitration Act 1940, ― No contract
to refer present or future differences to arbitration shall be specifically
enforced but any person who has made such a contract and has refused to perform
it ,sues in respect of any subject which has contracted to refer the existence
of such contract shall bar the suit .
Vide
S- 11(2)- A contract made by a trustee in excess of his power or in breach of
trust cannot be specifically enforced.
Similarly
vide S- 17 contract to sell or let property by one who has no title is not
specifically enforceable.
Q.
3― Discuss the enforceability of
the following contracts: ―
(1) A an author, contracts with B, a publisher,
to complete a literary work.
(2) A contracts to sell and B contracts to buy
ten tones of iron rods at Rs. 5000/- per tone.
(3) A contracts to sell and B contracts to buy
one residential building at Chandigarh for Rs. 90,000/-
(4) A contracts for the sale of property which
is under attachment by Court’s order.
(5) Mere agreement to enter into a contract.
(6) Contract to marry.
(7) A contracts to write a book for B. He
writes the book, but refuses to assign copyright and handover the manuscript to
B, who then sues A for specific performance.
Ans― (1) S -14 (1) (b) of S.R. Act 1963 lays
down that ― “Whenever in a contract, personal skill
or volition is involved, the Court would not enforce specific performance of
such a contract”
In
the case, in hand, the author has contracted to complete a literary work for
the publisher. Such a contract involves personal skill or volition of the
author. Therefore, this contract cannot be specifically enforced.
(2) S -10 of the S.R. Act 1963 Says ―
The specific performance of any contract may, in the discretion of Court, be
enforced ― When the act, agreed to be done, is such that compensation in money
for its non-performance would not afford adequate relief.
So
in the present case, B cannot claim specific performance of the contract. The
obvious reason is that the contract is an ordinary commercial contract and iron
rods are easily obtainable in the market. The pecuniary compensation would
relieve the breach of contract.
(3) S -10 of S.R. Act 1963 provides that:―
the specific performance of any contract may in discretion of the Court be
enforced ― When the act, agreed to be done, is such that compensation in money
for its non-performance would not afford adequate relief.
Then
the explanation provides that ― unless and until the contrary is proved, the
Court shall presume ― that the breach of contract to transfer immovable
property cannot be adequately relieved by compensation in money.
Thus
it becomes clear that in a suit to enforce the contract to transfer immovable
property the Court will grant specific performance unless special reasons to
the contrary appear.
In
the case in hand, A has contracted to sell his residential house at Chandigarh
and B has agreed to purchase the same for Rs. 90,000/-. There are no special
reasons as to why the specific performance ought to be refused. Therefore, B is
entitled to the specific performance of this contract.
(4) When some property has been
attached under the order of Court, the same cannot be sold without the
permission of that Court. Thus, a
contract for the sale of property, which is under attachment by Court’s order
only after the permission or approval of the Court. If permission is refused,
there is no contract in the eyes of law, which can be enforced.
(5) In Govind Laxman Vs Hari Chand, AIR 1919 Bomby H.C held ― A mere
agreement to enter into contract is determinable by either of the parties and
does not create any mutual rights or obligation between the parties. Therefore,
the same cannot be specifically enforced.
(6) S -14 (1) (b) of the S.R. Act, 1963 Says ― A
contract which is dependent on personal skill or volition of the parties cannot
be specifically enforced. Performance of contract of marriage is dependent on
the volition of parties to marriage. So Court cannot enforce specific
performance of contract of marriage.
(7) In the given problem, the
contract is of personal qualification/skill within the meaning of S -14 (1) (b)
of the S.R. Act 1963. So Court cannot enforce specific performance of its
material terms. So the contract in question cannot be specifically enforced.
Q.
4― What are the main principles on
the basis of which specific performance of a contract is decreed or Refused.
Ans.― Ss -20 to 24 of the S.R. Act 1963
provides discretion and powers of Court.
S -20 provides ― Discretion as to decreeing specific performance: ―
(1) The
jurisdiction to decree specific performance is discretionary and the Court is
not bound to grant such relief merely because it is lawful to do so; but the
discretion of court is not arbitrary, but sound and reasonable, guided by
judicial principles and capable of correction by a court of appeal.
(2) The
following are cases in which the court may properly exercise discretion not to
decree specific performance―
(a) Where
the terms of the contract or the conduct of the parties at the time of entering
into the contract or the other circumstances under which the contract was
entered into are such that the contract, though not voidable, gives the
plaintiff an unfair advantage, over the defendant; or
(b) Where
the performance of the contract would involve some hardship on the defendant,
which he did not foresee, whereas its non-performance would involve, no such
hardship on the plaintiff; or
(c) Where
the defendant entered into contract under circumstances, which though not
rendering the contract voidable, makes it inequitable to enforce specific
performance.
(3) The
court may properly exercise discretion to decree specific performance in any
case where the plaintiff has done substantial acts or suffered losses in
consequence of a contract capable of specific performance.
(4) The
court shall not refuse to any party specific performance of a contract merely
on the ground that the contract is not enforceable at the instance of other
party.
In
Sardar Singh Vs Krishna Devi 1994
the S.C held ― The circumstances specified in S -20 are only illustrastrative
and not exhaustive. The Court would take into consideration, the circumstances
in each case, the conduct of the parties and the respective interest under the
contract.
In
M.N. Mirza Vs B. Subhan 1993 All H.C
held ― Under the S.R. Act 1963, the Court exercises equitable jurisdiction. S
-20 of the Act makes it clear that the jurisdiction to decree specific
performance is discretionary and there is no obligation on the part of court to
grant relief sought, merely because it is lawful to do so. But the discretion
has to be exercised by the Court guided by sound judicial principles. It is
settled law that false allegation in the plaint disentitled the plaintiff for
the relief of specific performance.
Q.
5― Whether all “contracts” can be
specifically enforced? If not, state exceptions.
Ans― Ss -10 to 14 of the S.R.
Act 1963 provide the cases in which the specific performance of a contract may
be enforced or cannot be enforced.
S
-20 of the Act provides that the jurisdiction to decree specific performance is
discretionary, and the Court is not bound to grant such relief merely because,
it is lawful to do so, but the discretion of the Court is not arbitrary but
sound and reasonable guided by principles.
In
Satya Narayan Vs Yellogiroa, AIR 1965
the S.C held that the relief of specific performance of contract is
discretionary. The circumstances specified in S 20 are illustrative not
exhaustive. The Court should take into consideration the circumstances of the
case, the conduct of parties and their respective interests under the contract
mere delay is no ground for refusing relief.
It
was further observed that it is not possible or desirable to lay down the
circumstances under which a Court can exercise its discretion against the
plaintiff. But they must be such that the representation by the conduct or
neglect of the plaintiff is directly responsible to the defendant to change his
position to his prejudice or such as to bring about a situation when it would
be inequitable to give him such a relief.
So,
specific performance of contract shall not be granted―
(a) Where
damages would be sufficient compensation
(b) Where
the contract is dependent on the personal qualifications or volition of the
parties.
(c) Where
the Court is unable to supervise the performance, or
(d) Where
the contract is determinable in its nature, specific performance may be
refused―
(i) Where
the contract gives the plaintiff an unfair advantage over the defendant.
(ii) Where
the performance would involve unforeseen hardship on the defendant, or
(iii) Where
it is inequitable to do so.
However,
where the plaintiff has done substantial acts or suffered losses in consequence
of a contract, capable of specific performance, the Court may decree specific
performance.
Q.
6― What is rectification of an
instrument. When instrument may be rectified?
Ans.― “Rectification of
Instrument” denotes correction of an instrument in order to give effect to the
real intention of the parties. Thus the rectification of an instrument consists
in making it conform to the intention of the parties or the executants. So when
the Court is of the opinion that a deed as executed is not in accordance with
the intention of the party, it will rectify the deed in order to bring it into
conformity with the actual intention.
The circumstances when a Court can
order rectification have been enumerated in S -26 of the S.R. Act 1963 which
provides as under:―
When Instrument may be rectified: ―
(1) When,
through fraud or a mutual mistake of the parties to contract or other
instrument in writing does not express their real intention, then―
(a) Either
party or his representative in interest may institute a suit to have the
instrument rectified; or
(b) The
plaintiff may, in any suit in which any right arising under the instrument is
in issue, claim in his pleading that the instrument be rectified; or
(c) A
defendant in any such suit as is referred to in clause (b) may, in addition to
any other defence open to him, ask for rectification of the instrument.
(2) If,
in any suit in which a contract or other instrument is sought to be rectified
under sub-section (1), the Court finds that the instrument, through fraud or
mistake, does not express the real intention of the parties, the Court may, in
its discretion, direct rectification of the instrument, so as to express that
intention, so far as this can be done, without prejudice to rights acquired by
third person in good faith and for value.
(3) Any
contract in writing may be first rectified, and then if the party claiming
rectification has so prayed in his pleading and the Court thinks fit, may be
specifically enforced.
(4) No
relief for the rectification of an instrument shall be granted to any party
under this section unless, it has been specifically claimed:
Provided
that where a party has not claimed any such relief in his pleading, the Court
shall, at any stage of the proceeding, allow him to amend the pleading on such
terms as may be just for including such claim.”
Illustration
A intending to sell to B
his house and one of three godowns adjacent to it, executes a conveyance,
prepared by B, in which through B’s fraud, all three godowns are included. Of
the two godowns which were fraudulently included, B gives one to ‘C’ and lets the
other to ‘D’ for rent, neither C nor D having any knowledge of fraud. The
conveyance may, as against B and C, be rectified so as to exclude from it the
godown given to ‘C’, but it cannot be rectified so as to affect D’s lease.
Q.
7― where rescission may be adjudged or refused?
Ans.― S -27 of the S.R. Act 1963
provides―
Where rescission may be adjudged or
refused:―
(1) Any
person interested in a contract may sue to have it rescinded and such
rescission may be adjudged by the Court in any of the following cases namely:―
(a) where
the contract is voidable or terminable by the plaintiff;
(b) where
the contract is unlawful, for causes not apparent on its face and the
defendants is more to blame than the plaintiff.
(2) not
withstanding anything contained in sub-section (1) the Court may refuse to
rescind the contract:―
(a) where
the plaintiff has expressly or impliedly rectified 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.
Illustration
A Sells a field to B. There
is a right of way over the field of which A has direct personal knowledge, but
which he conceals from B. B is entitled to have the contract rescinded.
In
Hungerford Investment Trust Vs Haridas,
AIR 1972 the S.C held ― A party has an option to rescind a contract and no
aid of the Court is necessary in this behalf. The Court only adjudicates upon
the antecedent right of the parties. By grant of declaration that a contract
has been validly rescinded the Court, does not create a right in favour of a
party.
Distinction between rectification &
Rescission:―
In case of rectification
the contract subsists and can be specifically enforced after rectification but
in case of rescission, the contract is cancelled and the parties are not liable
for any obligation there under in future.
Q.
8― what is declaratory Remedy
under the S.R. Act 1963?
Ans.― S -34 of the S.R. Act, 1963
deals with―
Discretion of Court as to declaration of
status or right: ― it says ―
Any person entitled to any
legal character or to any right as to any property, may institute a suit
against any person denying or interested to deny, his title to such character
or right and the Court may in its discretion make therein a declaration that he
is so entitled, and the plaintiff need not in such suit ask for any further
relief:
Provided
that no court shall make any such declaration where the plaintiff, being able
to seek further relief than a mere declaration of title, omits to do so
Explanation: ― A trustee of property is
a “person interested to deny” a title adverse to the title of someone, who is
not in existence, and whom, if in existence, he would be a trustee.
In Bala
Krishna Agarwal Vs. State of Assom AIR 1994 Gauhati H.C
held that ― The object of the proviso to the section 34 is to prevent
multiplicity of suits by preventing a person from getting a mere declaration of
right in one suit and then seeking in another suit the remedy without which the
declaration would be useless and which could have been obtained in the first
suit.
Essentials for relief U/S -34 are:―
(1) That
the plaintiff is entitled to a legal character at the time of suit, or to any
right as to any property, or as to entitlement to property on family partition.
(2) The
defendant has denied these or he is interested in denying that character or
right of the plaintiff, and
(3) The
plaintiff is not in position to ask for relief consequential upon the
declaration.
If
these conditions are satisfied, the plaintiff need not ask for any further
relief than a mere declaration. But the Court shall not make any such
declaration, if he, being able to seek further relief than a mere declaration
of title, omits to do so.
S
-35 of S.R. Act 1963 deals with ― Effect
of declaration:― It Says―
A
declaration made under this chapter VI, S -34 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
declaration, such parties would be trustees.
In
American Exp Bank Ltd. Vs Calcutta Steel
Co. 1993 the S.C held that ― the plaintiff cannot claim the relief as of
right. It has to be granted according to sound principles of law. While
exercising its discretionary power, the Court must keep in its mind the well
settled principles of justice and fair play.
Q.
9― What is injunction. When
different kinds of injunction are granted.
Ans.― According to Halsbury ― An
Injunction is a judicial process whereby a party is ordered―
(i) To refrain from
doing or
(ii) To do particular
act or thing.
Thus injunction order is an order of
court, whereby a party to suit is ordered to do any particular act or to
refrain from doing any particular work/act.
As per S -36 of the S.R. Act 1963 ― A
preventive relief is granted at the discretion of court by injunction ―
temporary or perpetual.
S –37
deals with Temporary and perpetual injunction. It says―
(1) 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 CPC 1908.
(2) A
perpetual injunction can only be granted by the decree made at the hearing and
upon the merits of the suit: the defendant is thereby perpetually enjoined from
the assertion of a right or from commission of an act, which would be contrary
to the rights of the plaintiff.
The
grant of injunction is discretionary; the same must be exercised on settled
principles of law to advance the cause of justice. It is subject to correction
by the appellate Court.
In
Surya Nath Singh Vs Khedu Singh 1994
the S.C held ― The High Court has an equitable jurisdiction to issue injunction
in appropriate cases independent of power under CPC 1908.
In
Ravi Singhal & Ors Vs Manali Singhal
& Ors 2002 the S.C held that ― In a suit for the specific enforcement
of a family settlement, granting interim relief is discretion of court.
Therefore, where the court below had exercised the discretionary power in such
a manner, which cannot be said to be perverse or irrational. The S.C cannot
interfere in the matter.
S
-38 of the S.R. Act tells ―
Perpetual Injunction when
Granted: ―
(1) A
perpetual injunction may be granted to the plaintiff to prevent the breach of
an obligation existing in his favour, whether expressly or by implication.
(2) When
any such obligation arises from contract, the court shall be guided by the
rules and provisions contained in chapter II.
(3) When
the defendant invades or threatens to invade the plaintiff’s right to, or
enjoyment of, property, the court may grant a perpetual injunction in the
following cases, namely: ―
(a) Where
the defendant is trustee of the property for the plaintiff:
(b) Where
there exists no standard for ascertaining the actual damage caused or likely to
be caused, by the invasion
(c) Where
the invasion is such that compensation in money would not afford adequate
relief
(d) Where
the injunction is necessary to prevent a multiplicity of judicial proceedings.
Principles governing temporary injunction:―
The
principles on which temporary injunctions will issue or will be continued
pending the final disposal of the suit are well settled. These are as follows:
―
Party
to litigation, who seeks an injunction, must satisfy the court that these is
serious question to be tried at the hearing of the suit and every probability
lies in his favour for the relief sought for that it is prima facie in his
favour. However at this stage, prima facie case may not be confused with prima
facie success, but simply there is a serious question to be tried, if the test
of prima facie is satisfied and further court’s reference is necessary without
which a right accrued in favour of the party concerned cannot be protected from
species of injury, which is known as irreparable injury and comparative
mischief which is likely to cause in the absence of the injunction will be
greater and not compensable, thus balance of convenience also tilts in his
favour.
In
Padmanabhan Vs Thomas AIR 1989
Karnataka H.C held that ― A suit for injunction is an equitable remedy and the
primary requirement for grant of an equitable remedy is that the person who
claims the remedy, must come before Court with clean hands.
S -39 of S.R. Act 1963 deals with― Mandatory Injunction: ― It Says ―
When
to prevent the breach of an obligation, it is necessary to compel, the
performance of certain acts which the court is capable of enforcing, the court
may in its discretion grant an injunction to prevent the breach complained of,
and also to compel performance of the requisite acts.”
Illustrations
(i) A,
being B’s medical advisor, threatens to publish B’s written communication with
him, showing that B had led an immoral life. B may obtain an injunction to
restrain the publication.
(ii) A
by constructing new buildings, obstructs light, to the access and use of which
B has acquired a right under the Indian Limitation Act, part IV. B may obtain
an injunction, not only to restrain A from going on with the buildings, but
also to pull down so much of them as obstructs B’s lights.
A
mandatory injunction forbids the defendant to permit the continuance of a
wrongful state of things that already exists at the time, when the injunction
is issued. Thus purpose of mandatory injunction is to restore a wrongful state of
things to their former rightful order.
The
relief by way of mandatory injunction is discretionary. The court will weigh
the amount of substantial mischief done or threatened to the plaintiff and
compare it with that of the defendant in the event of grant of injunction.
The
relief of interlocutory & mandatory injunction is granted generally to
preserve or restore the status quo of the last non-contested status which
preceded the pending controversy until the final hearing when full relief may
be granted or to compel the undoing those acts that have been illegally done,
or the restoration of that which was wrongfully taken from party complaining.
Since
the granting of interlocutory mandatory injunction to a party who fails or
would fail to establish his right at the trial, may cause great injustice or
irreparable harm, therefore the courts have evolved certain guidelines. These
guidelines are―
(1) The
plaintiff has a strong case for trial. That is, it shall be of a higher
standard than a prima facie case that is normally required for a prohibitory
injunction.
(2) It
is necessary to prevent irreparable or serious injury which normally cannot be
compensated in terms of money.
(3) The
balance of convenience is in favour of the one seeking such relief.
Q.
10- When injunction may be
refused?
Ans.― S -41 of the S.R. Act 1963
provides the following circumstances in which injunction cannot be granted:―
(1) Stay of pending judicial proceedings:― An
injunction cannot be granted to restrain any person from prosecuting a judicial
proceeding pending at the institution of the suit on which an injunction is
sought, unless such restraint is necessary in to prevent the multiplicity of
proceedings. (S -41 (a)
It
means that a perpetual injunction cannot be granted to stay any judicial
proceedings, which is pending in other courts. However, in an exceptional
situation, to prevent a multiplicity of proceedings, an injunction may be
granted.
(2) Stay of proceeding in Court not
subordinate.:― S -41 (b) Says ― An injunction cannot be
granted to restrain any person either (i) from instituting or (ii) from
prosecuting, any proceeding in a court, not subordinate to that from which the
injunction is sought.
It
means that an injunction can only be granted to stay proceedings in courts
which are subordinate to the court from which the injunction is sought.
Therefore no injunction can be granted to stay proceedings before the same
court from which injunction is sought.
(3) Restraining any person from applying to
legislative body:― As per S -41 (c) ― An injunction cannot be
granted to restrain any person from applying to any legislative body.
(4) Stay of proceedings in a criminal matter:― As
per S -41 (d) ― An injunction cannot be granted to restrain any person from
either- (i) instituting (ii) prosecuting any proceeding in a criminal matter.
However
the High Court has a power to stay criminal proceedings in the Court of a
Magistrate until the disposal of civil proceedings in which the issue of
criminal proceedings is to be decided.
(5) No injunction order to prevent a breach of
contract:― As per S -41 (e) ― An injunction cannot be
granted to prevent the breach of a contract, the performance of which would not
be specifically enforced.
It
means that if the contract is of such a nature that the same cannot be
specifically enforced, a Court will not grant an injunction to prevent the
breach of such a contract.
(6) As per S -41 (f):― An
injunction cannot be granted to prevent on the ground of nuisance, an act of
which it is not reasonably clear that it will be a nuisance.
(7) As per S -41 (i):― An
injunction cannot be granted when the conduct of the plaintiff or his agent has
been such as to disentitle him to the assistance of Court.
(8) As per S -41 (j):― An
injunction cannot be granted when the plaintiff has A no personal interest in
the matter.
