SPECIFIC RELIEF ACT

INTRODUCTION 

The 1963 Specific Relief Act took care of a large number of remedial aspects of law. This act is a replacement of the earlier act of 1877. The Specific Relief Act, 1963 of the result of the central government’s approval of the recommendations made by India’s Law Commission. In Lok Sabha, a bill to repeal the 1877 Act was introduced and passed by both Parliament houses and approved by the President. The scope of the Specific Relief Act is to provide relief network in some specific terms. Specific relief means of some species, i.e. an exact or specific relief, named, fixed or determined. The term is generally recognized as providing relief of a certain nature rather than a common relief or payment or injuries. It is a remedy aimed at accurately fulfilling a contractual obligation or specific performance. For instance, if someone illegally dispossesses an individual without his permission in peaceful ownership of the estate, then specific relief may acquire him to retain the same property rather than seeking pecuniary damages. The act extends to the whole of India, except the State of Jammu and Kashmir. The network of reliefs allowed by the act falls under the following categories:

  1. Recovery of Possession of Property

  2. Specific Performance of Contracts

  3. Rectification and Cancellation of Instruments and Rescission of Contracts

  4. Preventive Relief

  5. Declaratory Relief

RECOVERY OF POSSESSION OF PROPERTY 

  1. Recovery of Possession of Immovable Property

Section 5 of the Specific Relief Act, 1963 provides that a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Civil Procedure Code, 1908. 

There are three types of actions which can be brought in law for the recovery of specific immovable property:

(i). a suit based on title by ownership;

(ii). a suit based on possessory title; and

(iii). a suit based merely on the previous possession of the plaintiff, where he has been dispossessed without his consent, otherwise than in due course of law.

 

The last remedy is provided in Section 6 of the Act. The suits of the first two types can be filed under the provisions of the

Civil Procedure Code. The essence of this section is ‘title,’ i.e. the person who has better title is a person entitled to the possession. The title may be of ownership or possession. Thus, if ‘A’ enters into peaceful possession of land claiming his own although he might have no title, still he has the right to sue another who has ousted him forcibly from possession because he might have no legal title but at least has a possessory title.

It is a principle of law that a person, who has been in a long continuous possession of the immovable property, can protect the same by seeking an injunction against any person in the world other than the true owner. It is also a settled principle of law that owner of the property can get back his possession only by resorting to due process of law(suit for ejectment on the strength of his title and can get a decree for ejectment on the basis of title within 12 years of the date of possession). The section states that a suit for possession must be filed having regard to the provision of the Code of Civil Procedure

Section 6 of the act provides that a person disposed may bring a suit under section 6 of the act, for recovery of possession irrespective of whether he has any title to the suit of property or not. The purpose of this section is to restrain a person from using force and to dispossess a person without his consent. The section is based on the principle that the disputed rights are to be decided by due process of law and no one should be allowed to take law into his own hands, however good his title may be. 

Essential condition of section 6:-

  • A person should have been in possession of the property in dispute;

  • The possession should be of immovable property;

  • There should be a dispossession otherwise than in due course of law;

  • The suit should be for recovery of possession;

  • The suit must be filed within 6 months of the date of possession. 

No appeal shall lie from any order or decree passed in any suit instituted under section 6, nor shall any review of any such order or decree is allowed. 

In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Raoit was observed that persons are not permitted to take forcibly possession. They must obtain such possession as they are entitled through a Court. 

  1. Recovery of Specific Movable Property

Section 7 of Act with the head ‘recovery of Specific movable property’ provides that, “a person entitled to the possession of the specific movable property may recover it in the manner provided by the Code of Criminal Procedure, 1908 (5 of 1908).

Explanation 1: A trustee may sue under this section for possession of the movable property to the beneficial interest he is entitled.

Explanation 2: A temporary or special right to the present possession is sufficient to support a suit under this section.”

 

The main ingredients of section 7 are as follows.

  • First, the plaintiff must be entitled to the possession of the movable property. A person may be entitled to the possession of a thing either by ownership or by virtue of a temporary or a special right as provided under explanation 2 of section 7. A special or temporary right to an individual may arise by either act of the owner of goods i.e. bailment, pawn etc. or not by the act of the owner of goods i.e. a person may be the finder of goods and finder of goods enjoys special right to possession except against true owner. Only those persons can maintain a suit under section 7, who has the present possession of the movable property. A person who does not have present possession of the movable property cannot maintain a suit under this section.

 

Illustration: ‘A’ pledges some jewels to ‘B’ to secure for the loan he had taken. ‘B’ disposes those jewels to ‘C’ before he is entitled to do so. ‘A’ without having paid the amount of loan sues ‘C’ for possession of jewels. The suit shall be dismissed as he is not entitled to immediate possession of jewels.

  • Further, the property in question must be specific movable property means that property should be ascertained or ascertainable. Specific property means the very property not any property equivalent to it. The disputed specific movable property must be capable of being delivered and seized. Where the goods have been ceased to be recoverable or are not in control of the defendant, the plaintiff is not entitled to a decree for recovery.

Article 91(b) of the Limitation Act, 1963 provides a period of three years for the filing of suit computable from the date when the property is wrongfully taken or when the possession becomes unlawful.

Section 8 of the act provides that any person who is having the possession of a particular article of movable property which he is not the owner may be compelled specifically to deliver it to the person entitled to immediate possession in 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 adequate relief for the loss of the thing claimed.

  3. When it would be extremely difficult to ascertain the actual damage caused by its loss.

  4. When the possession of the thing claimed has been wrongfully transferred from the plaintiff.

Requisites of Section 8:-

  • The defendant must have the possession or control over the particular article claimed;

  • Such article must be a movable property;

  • The defendant is not the owner of the article;

  • The plaintiff must be entitled to immediate position;

  • Anyone of the conditions laid down in section 8 clause (a) to (d) must exist.

 

In Kizhakkumpurath v. Thanikkuzhiyil there was oral and documentary evidence that the plaintiff was the owner of certain scheduled items and the defendant had trespassed into those items. The plaintiff was held entitled to recover those items from the defendants, and also the mesne profits or compensation as well.

SPECIFIC PERFORMANCE OF CONTRACT

Specific performance is a reasonable remedy provided by the court in the event of a breach of  contract in the context of a decision that the plaintiff is actually performing the contract in   accordance with its terms and conditions.

Section 10 provides for specific contract results in situations where there is no standard to  determine damages or where the compensation can not provide sufficient redress for non-performance. 

The two particular conditions in which the agreement can be enforced:

A). where there is no standard for ascertaining actual damage: It is the case in which the plaintiff can not assess how much damage he has sustained.If the damage caused by the contract breach can be ascertained and the liquidated liability can be determined which will be enough to maintain the status quo ante of damages and not specific performance of the contract.

In Ramji Patil v. Rao Kishore Singh it was held that where monetary compensation would be an adequate relief for non-performance, the proper relief is decree for damages, not specific performance. 

B). when compensation of money is not adequate relief: In following cases compensation of money would not provide adequate relief:

  1. In all cases where the contract is for the transfer of immovable property

  2. In cases of movable property where:

  • Such property or goods are not an ordinary article of commerce i.e. which could be sold or purchased in the market.

  • The article is of special value or interest to the plaintiff.

  • The article is of such nature that is not easily available in the market.

  • The property or goods held by the defendant as an agent or trustee of the plaintiff.

  • In Jainarain v. Surajmal it was held that where shares are limited in numbers and are not ordinarily available in the market, it is quite proper to grant decree for specific performance of contact of sale of shares. 

 

Section 11 (specific performance of contract connected with trusts enforceable)-  It provides that the contracts made by a party on the basis of trust and promise, the other party does or refrains from any act, then the party acting on the promise shall have the right to seek  specific performance.

For example, A holds certain stock in trust for B. A wrongfully disposes of the stock in favor of another party. A shall be under the legal obligation to restore the same quantity of stock to B, and there can be specific performance enforceable against A.

 

Section 12(specific performance of part of contract)-this section prohibits specific performance of a part of a contract except in the certain circumstances: 

  • If the part of the contract that can not be fulfilled is the conveyance of an object that is  only a small part of the total cost and accepts compensation in money. The failure to enforce the contract may be due to lack of quantity of the subject-matter, value variation, name fault or some other contractual limitation or loss of time.

  • Where a contracting party is unable to execute the whole part of the contract and the  section that must be left unfulfilled both —

(a) Forms a considerable part of the whole, though admitting of compensa­tion in money; or

(b) Does not admit of compensation in money;

 Is not entitled to receive a decree for specific performance; however, the court may, at the  request of the other party, order the party in default to enforce as much of its part of the contract as it can, if the other party —

(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), pays or has paid the consideration for the whole of the contract without any abatement; and

(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

  • Where a contract consists of several parts which are separate and independent from each other and some of which can not or should not be executed, those parts or parts which  can and should be executed can be specifically enforced by themselves.

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED (SEC 14)

In the following contracts the relief of specific performance cannot be allowed:

  1. When compensation is an adequate relief: Courts will not order the specific performance of contract where the aggrieved party can be adequately compensated in terms of money. 

In Meenakshisundara v. Rathnasamiit was held that an ordinary contract to lend or borrow money whether with or without security is an example of contract which cannot be specifically enforced.

  1. Contract involving personal skill: it is not possible for the court to supervise the performance of a contract which runs into minute and numerous details or is dependent upon the personal qualifications of the promisor or is otherwise of violation of nature. If a contract requires continuous acts and involves watching of those acts by the court, the same cannot be specifically enforced. 

 

In Geeta Pump Ltd. v. District Judge, Saharanpura consumer of electricity field seeking permanent injunction directing the electricity board to supply electricity to all everyday for 24 hours in all the three phases. It was held that the supply of electricity is a technical matter and has so many details and hence cannot be specifically enforced. 

  1. Contracts of Determinable Nature: specific performance is not ordered of a contract which is in its nature determinable. Thus no order of specific performance is likely to be passed when the contract is revocable at the option of the opposite party.

 

In Jawarhar Sao v. Shatrughan Sonarit has been held that where a contract of sale is determinable at the option of seller within a specified period on repayment of the consideration, the other party cannot get decree of specific performance of the agreement. 

  1. Contract of Arbitration: According to Section 14(2), a contract to refer present or future differences to arbitration shall not be specifically enforceable.

Despite the section 14(1), the court may enforce specific performance in the following circumstances:

  1. A contract to execute a mortgage or furnish other security for repayment of any loan which the borrower is not willing to repay at once, the court would grant specific performance to execute mortgage or to give any other security.

  2. A contract to take up and pay for any debentures of a company.

  3. A contract to execute a formal deed of partnership at will when the business has already commenced.

  4. A contract for the construction of any building or the execution of any other work on land if;

  5. Detailed or the terms of the contract has been sufficiently explained & the court can determine the exact nature of building or work.

  6. The plaintiff has a substantial interest in performance of the contract and compensation in money is not an adequate relief.

  7. The defendant has in accordance with the contract, obtained possession of whole or part of the land on which the building is to be constructed or other work is to be executed.

WHO MAY OBTAIN SPECIFIC PERFORMANCE OF CONTRACT 

Under section 15 of the Specific Relief Act 1963 the following persons can obtain the specific performance of the contract;-


Any party of the contract.

  1. The representative-in-interest or the principal of any party thereto. 2where the learning skill solvency or any personal quality of such party is a material ingredient in the contract or where the contract provides that this interest shall not be assigned his representatives in interest or his principal shall not be entitled to specific performances of the contract unless where his part thereof has already been performed.

  2. Where the contract is settlement on marriage or a compromise of doubtful right between members of the same family any person beneficially entitled there under.

  3.  Where the contract has been entered into by a tenant for life n due exercise of a power the remainder 

  4. A reversioner in possession where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant.

  5.  A reversioner in remainder where the agreement is such a covenant and the reversioner is entitled to the benefit and will sustain material injury by reason of its breach.

  6.  When a public company has entered into a contract and subsequently becomes amalgamated with another public company the new company which arises out of the amalgamation.

  7.  When the promoters of a public company have before its incorporation entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation the company.

 

INJUNCTION

Injunction is a process whereby a party is ordered to restrain from doing or to do a particular act or thing. Grant of preventive relief by way of injunction is within the discretion of court and such discretion is to be exercised in favor of the plaintiff only if it is proved of the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreplaceable loss or damage will be caused to the plaintiff during the pendency of the suit. The thing restrained is a wrongful act. 

Following types of Injunctions are granted by the Court under the Specific Relief Act, 1963

1. Temporary and Permanent Injunctions (Sections 36 & 37)

2. Perpetual Injunctions (Section 38)

3. Mandatory Injunctions (section 39)

4. Damages in lieu of or in addition to Injunction (Section 40)

5. Injunction to perform a negative covenant (section 42)

 

TEMPORARY AND PERMANENT INJUNCTION: Temporary injunctions and temporary injunctions are those that remain in force until the period  and place of the next trial of the lawsuit, or until more court orders have been given. These injunctions may be issued at any point of the trial and are regulated by Order 39 of the  1908 Code of Civil Procedure and not by the 1963 Special Relief Act.

In Morgan Stanley Mutual Fund v. Kartick Dasthe court laid down certain guidelines for grant of temporary injunction beside others:

  • When irreparable or extremely serious injury will be caused to the appellant.

  • The court shall examine the time when the plaintiff got notice of the act complained.

  • If the plaintiff has acquiesced to the conduct of the respondent then the ex-parte temporary injunction shall not be passed.

  • The appellant shall be acting in utmost good faith.

  • Such an order shall be for a temporary period.

On the other side, permanent injunctions are given in a judicial decree upon full hearing of the lawsuit. Such an injunction continuously forbids the defendant from exercising a privilege and committing an act that would be detrimental to the claimant's privileges. It is based on the finishing suit. For all time to come, it remains in force.

 

PERPETUAL INJUNCTION: At the discretion of the judge, it may be provided to avoid the violation of a contract in the favor of the plaintiff, whether directly or indirectly.

Where the defendant invades or even threatens to invade the right or enjoyment of the plaintiff's property, the court may grant the plaintiff a Perpetual Injunction in the following four cases;

1. Where the defendant is a trustee of the property for the plaintiff.

2. Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to the plaintiff, by invasion of his rights.

3. Where the invasion of the plaintiff’s right is such that compensation in money would not afford adequate relief.

4. Where injunction is necessary to prevent multiplicity of judicial proceedings.

If the defendant is not adequately compensated for the cost of costs, the court may extend an injunction unless there is a particular reason against it. In the following cases, if the harm is  (i) minor or (ii) worthy of being measured in money and reasonably paid by a sum of money and the grant of injunction would be excessive, the court the deny injunction and award damage. An injunction may also be refused on the ground of the plaintiff’s acquiescence and delay. Similarly, injunctions should not be granted where they inflict more injury on the person sought to be injected than advantage on the applicant. 

Perpetual Injunction when refused (section 41) in following cases perpetual injunction cannot be granted;

1. To prohibit another individual from bringing a complaint pending at the establishment of the litigation in which the injunction is requested, unless such prohibition is necessary to prevent multiplicity of legal cases.

2. To bar any person from assaulting or initiating any court proceedings that are not subject to the proceedings from which injunction is sought.

3. To restraint any person from applying any legislative body.

4. To prohibit any individual from instituting or initiating any criminal proceedings.

5. To preclude breach of an agreement that would not expressly impose the quality of.

6. To stop an act of which it is not reasonably clear that it will be a disturbance on the field of nuisance.

7. To stop an alleged violation in which the claimant decided.

8. An equally effective relief may definitely be achieved through any other usual method of continuing, except in the case of loss of trust.

9. If plaintiff's behavior or his lawyer is such that he is disentitled to trial assistance.

The provisions of Section 41 is not exhaustive a refusal of injunction will depend on the discretion of the court.

MANDATORY INJUNCTION: (Section 39) It sometimes occurs that it is appropriate to require the execution of certain actions which the court is able to enforce in order to avoid the violation of a duty. In such a situation, in its discretion, the court can issue an injunction I to avoid such a violation, and (ii) to force the execution of the appropriate actions.

Such protection extends for violations of any duty, whether arising from a contract or tort. It may be permanent or indefinite, although it will be given in rare cases of this kind of temporary  injunction.

In its essence, an injunction is prohibitory. First, the accused is called up to return the place to the state in which it was before the act was committed, and then he is prevented, when he has recovered it, from doing anything that would be a violation of his duty. In any case, the object is to force the defendant to restore things to their former condition. This type of injunction will be granted to prevent more injury and damages to the plaintiff.

Damages in lieu of, or in addition to, injunction ( section 40) If a plaintiff sues for a perpetual injunction or a mandatory injunction, the claimant may also claim damages, either in relation for, or in lieu of, the injunction, and the judge, if it finds appropriate, the payment of such damages. An injunction or injury is not an adequate remedy but can be issued at the court's discretion.The damages cannot be granted unless the plaintiff has claimed damages in the plaint or in proceedings he will be allowed to amend the plaint by incorporating clause for damages.

Injunction to perform a negative covenant (section 42) some time in a given contract, there may be affirmative agreement to do certain act, coupled with a Negative Covenant, express or implied, not to do a certain other act. Now the fact that the court is unable to compel specific performance of the affirmative part does not mean that it cannot grant an injunction in respect of the negative part. It is necessary in this case that the plaintiff has performed its part mentioned in the contract.

RECTIFICATION OF INSTRUMENTS

Section 26 of the Specific Relief Act, 1963 contains the law as to ratification of instruments. Rectification means correction of an error in order to give effect to the real intention of the parties. The law provides for relief to parties in case the real intention of the party is not reflected in the document executed because of a bona fide mistake of fact. 

The aggrieved party may institute a suit to have the deed rectified. The court can direct the rectification of the instrument, if it is satisfied that the deed does not express the real intention of the parties. This relief is entirely discretionary. The relief won’t prejudice the rights acquired by a third party in good faith for value.

Thus, where a contract reduced into writing in pursuance of a previous agreement, fails to express the real intention of the parties, the court will rectify the instrument in accordance with their true intention. 

 

Conditions necessary for obtaining rectification:  

  1. There must have been a complete agreement reached prior to the written instrument which is sought to be rectified. There must be two distinct stages

  • An agreement, verbal or written, which clearly express the final intention of the parties.

  • Instrument which purports to embody that intention.

  1. Both the parties must have intended, and still intending, that the exact terms of the prior contract should be reduced to writing.

  2. Clear evidence of mistake common to both the parties or of fraud. 

In Ladha Singh v. Munshiramit was held that the court can correct the terms of document if it is proved to the satisfaction of the court that any of such terms are inaccurate owing to the mutual mistake. 

 

RESCISSION OF CONTRACTS

If a party to a contract commits a breach the aggrieved party has the remedy of Rescission. He can rescind the contract. It means that he can withdraw from the contract. In this way, he can free himself from all the obligations of the contract. The party can by way of Specific Relief seek a direction from the Court to rescind the contract. The main aim of the relief of rescission is to put an end to the contract and bring back the parties to their original position.

Section 27 of the Specific Relief Act, 1963 deals with this relief. In a suit for specific performance of a contract, the plaintiff may also seek an alternative relief of Rescission. So if the Court has not allowed the specific performance of the contract, it may allow the party to withdraw from the same. This is provided under Section 29 of the Specific Relief Act. If the contract is rescinded the Court may ask the party to restore benefits he received from the contract. This is mentioned in Section 30 of the Act.

 

Recession is available in the following cases:

  • Where a contract is voidable or terminable by the plaintiff: a contract is voidable under contract act if it is vitiated by fraud, misrepresentation, coercion and undue influence. Though mistake makes the contract void, this is also a ground for recession. 

  • Where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff: if a contract is unlawful on its very face or the party seeking equitable relief is more to blame than the plaintiff, there is no question of granting this relief. But it would be granted in other cases of unlawful agreement.  

 

Recession cannot be granted under the following circumstances:

  • Where the plaintiff has ratified the contract. 

  • Where there is a valid contract.

  • Where the third party have acquired any interest under the contract.

  • Where the restitution to original position not possible.

  • Contact stands ratified. 

CANCELLATION OF INSTRUMENTS

Cancellation of instruments is about nullifying a document. If there is a document which is void or voidable due to some reason and any person having reasonable apprehension that the said document is against him and may cause serious injury to him may sue against such document. He can sue to cancel the document. This is called cancellation and is dealt with in Sections 31 to 33 of the Specific Relief Act, 1963 of India.
If the document has been registered under the Indian Registration Act, the court shall send the copy of decree to the office of registration.

 

Conditions for cancellation of an instrument under section 31:

  1. The document must be void or voidable.

  2. The plaintiff must have a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury.

  3. In the circumstances of the case the court considers it proper to grant relief of preventive justice. 

 

Instruments which may be partially cancelled (section 32):

  • When the instrument related to different rights.

  • When it relates to different obligations.

  • The part to be cancelled is severable from the rest. 

 

DECLARATORY DECREE

A declaratory decree is a mode of relief where there is no specific performance and no award of compensation. There is only a declaration of rights of the parties without any consequential relief which can be enforced by the execution of the decree. In other words, declaratory decrees are those where some right is declared in favor of the plaintiff but nothing is sought to be paid or performed by the defendant. Further, the declaration does not confer any new rights upon the plaintiff; it merely declares what he had before.

The object of such decrees is that where a person’s status or legal character has been denied or where a cloud has been cast upon his titles to rights and interests in some property, he may have the cloud removed by having his legal status or rights declared by the court. But it is not a matter of absolute right to obtain a declaratory decree. It is discretion of the Court. The object of Section 34 is to perpetuate and strengthen testimony regarding title and protect it from adverse attacks. The policy of legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy that property peacefully.

 

Essential requisites for a declaratory action.

  1. The plaintiff must be entitled to any legal character or to any right as to any property.

  2. The defendant should have denied or be interested in denying the character or title of the plaintiff. It is this denial which gives a cause of action for declaratory relief.

  3. The plaintiff is not in a position to claim further relief than mere declaration of his title, or where he is so able to seek further relief, he seeking such relief also.

 

Section 35 According to this section the declaratory decree is not binding on everybody in the world. It cannot bind strangers and as such a declaration will not operate as a judgment in rem and will be binding only between parties to the suit and their representatives. Hence, a declaratory decree is binding between the parties inter se and its effect does not bind persons who are not connected with the suit in question.

In Qabool Singh v. Board of Revenue, it was held:

  • For a declaratory decree the plaintiff has to show a subsidiary right not only on the date of the suit but also on the decree.

  • A relief, right to which accrued after filing filling the suit is not one which ought to have been claimed in the plaint. 

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By: Aayushi Devpura

      "Special Student Columnist"

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