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Drafting, Pleading and Conveyancing

Unit I: Fundamental Rules of Pleadings (Lectures 06)


a. Plaint Structure
b. Description of Parties
c. Written Statement and affidavit
d. Application for setting aside ex-part decree

Unit II: Ordinary suit for Recovery (Lectures 06)


a. Suit under Order XXXVII of CPC and the difference between the two suits
b. Suit for Permanent Injunction
c. Application for temporary injunction Order XXXIX of CPC
d. Suit for Specific Performance
e. Petition for eviction under the Delhi Rent Control Act

Unit III: General Principles of Criminal Pleadings (Lectures 06)


a. Application for bail
b. Application under Section 125 Cr.P.C.
c. F.I.R. under Section 154 Cr.P.C.

Unit IV: Model Draft (Lectures 15)


Forms
i. Notice to the tenant under section 106 of Transfer of Property Act
ii. Notice under section 80 of CPC
iii. Reply to notice
iv. General Power of Attorney
v. Will
vi. Agreement to SELL
vii. Sale deed
viii. Suit for Dissolution of Partnership
ix. Petition for grant of probate / Letters of Administration
x. Application for appointment of receiver/Local Commissioner
xi. Application for Compromise of Suit
xii. Application for Appointment of Guardian
xiii. Application to sue as an indigent person under Order 33 CPC
xiv. Appeal from original decree under Order 41 of CPC
xv. Appeal from orders under order 43 of CPC
xvi. Revision Petition
xvii. Review Petition
xviii. Application under section 5 of Limitation Act
xix. Application for execution
xx. Application for caveat section 148A of CPC
xxi. Writ Petition
xxii. Application under section 482 of CPC
xxiii. Compounding of offences by way of compromise under section 320(i) Cr.P.C.
xxiv. Lease deed
xxv. Special Power of Attorney
xxvi. Relinquishment Deed
xxvii. Partnership Deed
xxviii. Mortgage Deed
xxix. Reference to Arbitration and Deed of Arbitration
xxx. Deed of gift
xxxi. Notice under section 434 of the Companies Act
xxxii. Notice for Specific Performance of Contract
UNIT-1

Fundamental rules of pleading

Plaint Structure

Drafting is an essence of any litigation Legal Drafting can be defined as the crystallization and
expression of a legal right, privilege, function, duty, or status in a definitive form.

IMPORTANCE OF DRAFTING IN LITIGATION:

It helps in meeting the clients goal and carry out the clients instructions.
It helps in maintaining the standard of care which protects the interests of the client.
It helps in accurately addressing all the relevant legal and factual issues.
Precedents form an essential part of drafting and the same can be very helpful in litigation

Meaning of Pleadings

Pleadings are statements in writing drawn up and filled by each party to a case stating what
his contentions will be at the trial and giving all such details as his opponent needs to know in
order to prepare his case in answer.

Pleadings Generally

Order VI Rule 1, Code of Civil Procedure 1908, provides that, Pleading means plaint or
written statement.
Order VI Rule 14, Code of Civil Procedure 1908, provides that Every Pleadings shall be
signed by the parties and his pleader (if any)
Order VI Rule 15, Code of Civil Procedure 1908, provides that Every Pleadings shall be
verified at the foot by the party or by one of the parties pleading.

What is pleading?

Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and
defenses. The plaintiff submits a complaint stating the cause of action -- the issue or issues
in controversy. The defendant submits an answer stating his or her defenses and denials. The
defendant may also submit a counterclaim stating a cause of action against the plaintiff.

Pleadings serve an important function of providing notice to the defendant that a lawsuit
has been instituted concerning a specific controversy or controversies. It also provides notice
to the plaintiff of the defendant's intentions in regards to the suit.

Background:-
Old common law rules of pleading were complicated and rigourous. Meritorious complaints
were often thrown out of court for technical flaws in form rather than substance. Today, in
most if not all states, a pleading must no longer conform to archaic formats but may be a
simple petition or complaint setting forth the relevant facts and asking for a remedy.

Pleading in a Suit:-
Pleading is defined in the code of civil procedure in O 6, RULE 1.as given below :-
"pleading" shall mean plaint or written statement."
Order 6 Rule 2 says pleading to state material facts and not evidence.

Order 6, Rule 2 (1) every pleading shall contain and contain only a statement in concise form
of the material facts on which the party pleading relies for his claim or defence as the case may
be, but not the evidence by which they are to be proved.
Basic principle of pleading is that "pleading should refer to fact alone, it should not be
argumentative averment."(M/s strong construction v. state of up. AIR 2005 ),

Case Law :-
1. Jitu Patnaik versus Sanatan Mohakud & Others 2012 (1) U.A.D. 767 (SC).
A distinction between "material facts" and "particulars", however, must not be overlooked.
"Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the
defendant in support of the case set up by him either to prove his cause of action or defence.
"Particulars", on the other hand, are details in support of material facts pleaded by the party.
They amplify, refine and embellish material facts by giving distinctive touch to the basic
contours of a picture already drawn so as to make it full, more clear and more informative.
"Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise.
All "material facts" must be pleaded by the party in support of the case set up by him. Since the
object and purpose is to enable the opposite party to know the case he has to meet with, in
the absence of pleading, a party cannot be allowed to lead evidence.
Failure to state even a single material fact, hence, will entail dismissal of the suit or petition.
Particulars, on the other hand, are the details of the case which is in the nature of evidence a
party would be leading at the time of trial."

2. Union of India versus Ibrahim Uddin & Anr 2012 (2) U.A.D. 566 (SC)
The court cannot travel beyond the pleadings as no party can lead the evidence on an
issue/point not raised in the pleadings and in case,such evidence has been adduced or a finding of
fact has been recorded by the court, it is just to be ignored.
Object of Pleading:-
It is well settled position of law that the whole object of pleading is to give fair notice to each
party of what the opponent's case is, and to ascertain, with precision, the points on which the
parties agree and those on which they differ, and thus to bring the parties to a definite issue.
The purpose of pleading is also to eradicate irrelevancy.
In order to have a fair trial it is imperative that the party should state the essential facts so that
other party may not be taken by surprise.
The parties thus themselves know what are matters left in dispute and what facts they have to
prove at the proceeding and are thus given an opportunity to bring forward such evidence as may
be appropriate.
The main object of pleadings is to find out and narrow down the controversy between the
parties.
Contention which are not based on the pleadings cannot be permitted to be raised either at
the time of arguments or at the appellate stage."The New India Assurance Co. Ltd. vs.
Surender singh & others. (HC) UAD 2007

Description of Parties:-
There are two types of pleading mainly in a suit:
1. Plaint
Order 7 Rule 1 of civil procedure code says that plaint shall contain the following particulars:-
1. The name of the court in which the suit is brought.
2. The name, description and place of residence of the plaintiff.
3. The name, description and place of residence of the defendant, so far as they can be ascertained.
4. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect
5. The fact constituting the cause of action and when it arose.
6. The fact showing that the court has jurisdiction;
7. The relief which the plaintiff claim;
8. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or so relinquished :and
9. A statement of the value of the subject matter of the suit for the purposes of jurisdiction and of
court fees, so far as the case admits.

2. Written Statement:
A 'defence' called the written statement, in general this is a reply of plaint ,in which
defendant deny or admit the each and every allegation or facts given in the plaint. Denial or
admission must be Para wise and clear.
It is settled law that denial for want of knowledge is no denial at all. The provisions contained
in Order 8 Rule 5 require pleadings to be answered specifically in written statement.
Muddasani venkata narsaiah versus Muddasani sarojana. In the written statement
defendant can put his case also under the heading additional plea, and can states new facts or
ground which is necessary to defeat the opponent. If defendant want to put his own claim
against the plaintiff he can put it by way of set- off and counter claim u/o 8 Rule 6 and 6A
of C.P.C.

NOTE:-The facts which remain unanswered by the defendant, it will be presumed that the
said fact was admitted by the defendant. In general the fact which is taken to be admitted need
not be proved. Pleading must be unambiguous clear and correct .Carelessly prepared pleading
can spoil the suit.
Time for Filing of Written Statement:
Order, 8 Rule 1:-Time for filing written statement is fix for 30 days from the date of service
of summon on him and maximum time limit from the date of service of summons is ninety
days.

Provision of Order 8, Rule 1, are directory in nature even after expiry of stipulated period
court can extend time to file written statement. (Rameshwar Lal v. Daya Nand AIR 2005.)
Frame of Suit:
Order 2 Rule 1 says:- "Every suit shall as far as practicable be framed so as to afford ground
for final decision upon the subject in dispute and to prevent further litigation concerning
them.
" There are two important things in order 2 rule 1, firstly, before framing a suit pleader should be
remembered that "as far as practicable, it should be so framed as to afford ground for final
decision of the subject in disputes." and secondly, to prevent further litigation concerning them.
Order 2 Rule 2 says:- that "every suit shall include the whole of the claims which the plaintiff
is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion
of his claim in order to bring the suit within the jurisdiction of any court.
Actually the main object of this rule is to avoid the multiplicity of suits, so its requires that every
suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause
of action" If he omits or relinquishes any portion of his claim he shall not afterwards sue in
respect of the portion so omitted or relinquishes ( Order 2 Rule2 sub rule 3 ) but if he omits or
relinquished any relief with the permission of the court he shall afterward can sue for the relief so
omitted or relinquished ( Sub rule 3 of Rule 2 C.P.C.)

Fundamental Rule of Pleading:-


1. No amount of evidence can be looked into, upon a plea which was never put forward in the
pleading. A question which did arise from the pleadings and which was not the subject matter of an
issue cannot be decided by the court.
2. It is well settled that no amount of evidence can be looked into to find a case for which there has been
absolutely no foundation in the pleadings. (Siddik Mohammed Shah v. Mt. Saran and others,
Elizabeth v. Saramma - 1984 , Trojan & Co., v. Nagappa - AIR 1953 SC 235 , Bhagwadi Prasad v.
Chandramaul - AIR 1966 ).
3. A court cannot make out a case not pleaded , the court should confine its decision to the question
raised in pleading nor can it grant a relief which is not claimed and which does not flow from the facts
and the cause of action alleged in the plaint .
3. A factual issues cannot be raised as considered for the first time in a second appeal.( Bachhaj
Nahar vs. Nilima Mandal and others. )

Written Statement and affidavit

Order VI Rule 15 CPC,


Verification of pleadings.- (1) Save as otherwise provided by any law for the time being in force, every
pleading shall be verified at the foot by the party or by one of the parties pleading or by some other
person proved to the satisfaction of the court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what
he verifies of his own knowledge and what he verifies upon information received and believed to be
true.

(3) The verification shall be signed by the person making it and shall state the date on which and the
place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.

Sub rule (4) of the aforesaid provision came to be inserted by the Amendment Act 46 of 1999 w.e.f.
01.07.2002. Prior to the amendment to Rule 15 CPC, there was no provision regarding verification
of the pleadings in a plaint by way of an affidavit.

Section 26 of the CPC that deals with institution of suits prescribes as below :-
26. Institution of suits - (1) Every suit shall be instituted by the presentation of a plaint or in such other
manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit.

It may be noted that sub rule (2) of Section 26 was also inserted by way of the amendments that were
given effect from 01.07.2002

When the aforesaid provisions are read conjointly, what clearly emerges is that a suit is instituted upon
presentation of the plaint or in such a manner as maybe prescribed in the CPC and the facts stated in the
plaint are to be proved by affidavit.

In the case of Salim Haji Abdul , the provisions of Order VIII Rule 1, post amendment were held to
be directory in nature by applying the oft quoted maxim that rules of procedure are handmaids of
justice and while the language employed by the draftsman of the processual law may be liberal or
stringent, the object of the prescribing procedure is advance the cause of justice.
Application for setting aside ex-part decree
Format of an application to set aside a decree passed ex parte
Important points
an ex parte decree is a decree that is passed by the court in absence of any response
from the defendant as per Order 9 Rule 6 of CPC.

As per Order 9 Rule 13, the defendant may apply before the court that passed the decree to set it
aside on the following grounds:

If he satisfies the court that the summons was not duly served
He was prevented by any other sufficient cause from attending the hearing. For
example, bona fide mistake as to the date or hearing, late arrival of train, etc. are
sufficient causes for absence of the defendant.
Such an application for setting aside may be made within 30 days from the date of
decree as per Section 123 of Limitation Act.

Article 123 of limitation Act 1963

The period of limitation for an application to set aside a decree passed ex parte or to re-hear an appeal
decreed or heard ex parte {Explanation: For the purpose of this article, substituted service under Rule 20
of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service] is thirty days,
the time of limitation starts to run from the date of the decree or where the summons or notice was not
duly served, when the applicant had knowledge of the decree.
Article 123 applies not only to set aside the decree passed ex parte but also rehear an appeal
decreed or heard ex parte.

According to Order IX Rule 13 of Civil Procedure Code the Court can entertain an application by a
defendant to set aside a decree passed against him ex parte. Though the Article 123 governs only
suits, it is made applicable to application by reason of Section 141 of the Civil Procedure Code. The
Art. 123 is not restricted to an application to set aside the ex parte decree passed in a suit. If an
order is passed ex parte and has the force of a decree, then an application to set it aside will also be
governed by the Art. 123. An application to set aside an ex parte final decree is governed by the Art.
123.

The provisions of Order IX Rule 13 of the Civil Procedure Code would be applicable to a probate
proceeding to recall an ex parte order granting probate of a Will. For setting aside an ex parte decree by
the High Court original side Order IX, Rule 13 of the Civil Procedure Code is attracted by Art. 123 of
the Limitation Act.

The expression knowledge of the decree means something more than a mere knowledge that a
decree has been passed in some suit in some Court against the applicant. It means that the applicant
must have knowledge not merely that a decree has been passed against him, ex parte by some Court
against him, but that a particular decree has been passed against him in a particular Court for a particular
sum as relief.
In M. Narasimha Reddy v. Begari Samuel, [AIR 2003 NOC 357 (AP)], it has been held that the
substituted service under Order V, Rule 20 of the Civil Procedure Code should not be deemed to be due
service for the purpose of the Article 123. It is observed that the Explanation to Art. 123 is a specific
provision which is mandatory in nature, but, in exceptional circumstances or if the Court feels basing on
facts and circumstances of the case including the conduct of the party to draw an inference regarding
service, then the presumption can be held to be rebutted, however, it is a rare phenomenon and such
inference of due service cannot be drawn in normal circumstances.

ADVERTISEMENTS:

It is also pointed out that an inference of due service may be drawn in the facts and circumstances of the
case where it appears that the defendant is deliberately pleading ignorance of the knowledge of the
proceeding and trying to take advantage of the Explanation to Art. 123 of the Limitation Act, 1963 and
that in such a case the Court can call upon the parties for adduce evidence in its discretion which shall be
exercised sparingly.

In regard to an application for setting aside an ex parte decree in a suit, the starting point of limitation
runs from the date of decree where the summons have been duly served but where the summons was not
served then from the time the applicant had the knowledge of the decree. Similarly, the limitation for
filing an application of the appeal decreed ex parte, the limitation would start from the date when the ex
parte decree is passed where there was a service of the notice of the appeal.

The expression knowledge of the decree means something more than a mere knowledge that a decree
has been passed in some suit in some Court against the applicant. It means that the applicant must have
knowledge not merely that a decree has been passed against him, ex parte by some Court against him,
but that a particular decree has been passed against him in a particular Court for a particular sum as
relief.

FORMAT:-
In the Court of Civil Judge Class - I at Indore

Suit No. 1234 / 2009


A. B. s/o B. C.
123, A B Road, Indore, MP ............................................ Plaintiff

Vs.

M. N. s/o O. P.
456, A B Road, Indore, MP .......................................................... Respondent/Applicant

Application under Order IX Rule 13 of CPC, 1908

The respondent/applicant respectfully states as follows: -


(1) The Plaintiff filed the above suit which was decreed ex-parte against the applicant on 10/10/2009.

(2) The applicant came of know of this fact on 15/10/2009, when a demand notice was served on him by
the plaintiff for the decretal amount.

(3) The plaintiff obtained the decree by suppression of material facts.

(4) The summons in the said case was not served at all on the respondent/applicant.

(4) The respondent/applicant could not enter appearance in the said case by reason on non-service of the
summons.

(5) Relief Claimed: The applicant accordingly prays that the decree passed ex parte on 10/10/2009
against the applicant in the afore mentioned case be set aside and the aforementioned case be tried in
presence of the applicant.

Place: . (Signature of the applicant)


Date: ..

YYY
Advocate for
Respondent/Applicant

Verification

I, M. N. s/o O.P. do hereby verify that the contents from paras 1 to 5 are correct and true to the best of
my knowledge and the rest of the contents are based on legal advice, which I believe to be true.
Affirmed at Indore this 4th Day of September 2009.

(Signature)
Respondent/Applicant

Unit II: Ordinary suit for Recovery (Lectures 06)

Suit under Order XXXVII of CPC and the difference between the two suits
ORDER (37) XXXVII: SUMMARY PROCEDURE
Court and classes of suits to which the Order is to apply
(1) This Order shall apply to the following Courts, namely:-
(a) High Courts, City Civil Courts and Courts of Small Causes: and
(b) Other Courts:
Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification
in the Official Gazette, restrict the operation of this Order only to such categories of suits as it
deems proper, and may also, from time to time, as the circumstances of the case may require, by
subsequent notification in the official Gazette, further restrict, enlarge 6r vary, the categories of
suits to be brought under the operation of this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits,
namely

(a) Suits upon bills of exchange, hundis and Promissory notes;


(b) Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money
payable by the defendant, with or without interest, arising;
(i) On a written contract, or
(ii) On an enactment, where the sum sought to be recovered is a fixed sum of money or in
the nature of a debt other than a penalty; or
(iii) On a guarantee, where the claim against the principal is in respect of a debt or
liquidated demand only.]
[2. Institution of summary suits
(1) A suit, to which this Order applies, May if the plaintiff proceed desires to desires here under, be
instituted by presenting a plaint which shall contain,-
(a) A specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule; has been claimed in the plaint;
and
(c) the following inscription, immediately below the number of the suit in the title of the suit,
namely :-
"(Under Order XXXVII of the Code of Civil Procedure, 1908)."
(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may,
from time to time, be prescribed.
(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance
and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted
and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the
summons, together with interest at the rate specified, if any, up to the date of the decree and such sum
for costs as may be determined by the High Court from time to time by rules made in that behalf and
such decree may be executed forthwith.]
3. Procedure for the appearance of defendant
(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2,
serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time
within ten days of such service, enter an appearance either in person or by pleader and, in either case,
he shall file in Court and an address for service of notices on him.
(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be
served on the defendant, shall be deemed to have been duly served on him if they are left at the
address given by him for such service.
(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant
to the plaintiff's pleader, or, if tile plaintiff sues in person, to the plaintiff himself, either by. Notice
delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the
plaintiff, as the case may be.
(4) if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgement in Form No. 4A in Appendix B or such other Form as may be prescribed
from time to time, returnable not less than ten days from the date of service supported by an affidavit
verifying the cause of action and the amount claimed and stating that in his belief there is no defence
to the suit.
(5) The defendant may, at any time within ten days from the service of such summons for
judgement, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him
to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to
him unconditionally or upon such terms as may appear to the Court or Judge to be just:
Provided that leave to defend shall not be refused unless the Court is satisfied that the facts
disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence
intended to be put up by the defendant is frivolous vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the
defendant to be due from him, leave to defend the suit shall not be granted unless the amount so
admitted to be due is deposited by the defendant in Court.
(6) At the hearing of such summons for judgement,-
(a) if the defendant has not applied for leave to defend, or if such application has been made and
is refused, the plaintiff shall be entitled to judgement forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or
Judge may direct him to give such security and within such time as may be fixed by the Court or
Judge and that, on failure to give such security within the time specified by the Court or Judge or to
carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be
entitled to judgement forthwith.
(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the
defendant in entering an appearance or in applying for leave to defend the suit.]
4. Power to set aside decree
After decree the Court may, under special circumstances set aside the decree, and if necessary stay or
set aside execution, and may give leave to the defendant to appear to the summons and to defend the
suit, if it seems reasonable to the Court so to de, and on such terms as the Court thinks fit.
5. Power to order bill, etc., to be deposited with officer of Court
In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is
founded to be forthwith deposited with an officer of the Court, and may further order that all
proceedings shall be stayed until the plaintiff gives security for the costs thereof.
6 Recovery of cost of noting non-acceptance of dishonoured bill or note
The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for
the recovery of the expenses incurred in noting the same for non-acceptance or non-payment, or
otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of
such bill or note.
7. Procedure in suits
Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in
suits instituted in the ordinary manner.

Difference between ordinary suit and Summary suit


A cheque is certainly a bill of exchange under Order 37 but the provisions of Summary Procedure
will apply only when the cheque is in favour of the plaintiff. The differences between a summary suit
and an ordinary suit on cheques is as below:-

In a summary suit, the defendant is not entitled as a right to defend the suit as he is in an
ordinary suit and he must apply for leave to defend. If no leave is granted then the plaintiff is
entitled to a decree.
To obtain such a leave the defendant will have to state on affidavit such facts as it would make
incumbent on the Plaintiff to prove consideration.
In a summary suit, the defendant must prove his facts within ten days from the service of
summons for judgement. However in an ordinary suit, he has a time limit of 30 days for filing a
written statement.
Generally speaking, summary suits are much easier to establish for the Plaintiff and much
tougher for the Defendant to defend than ordinary suits. This is because of the fact that the
Defendant has an added burden of proving as to why he should be allowed to put up a
defense.
In theory, a summary suit is supposed to be a faster remedy than an ordinary suit. Sometimes
multiple summons are served on a defendant before an ex parte decree in favour of the Plaintiff
is passed. In a summary suit however, if the defendant fails to establish as to why he should be
allowed to defend within 10 days, an ex parte decree is immediately given.

Hence it is my humble opinion that a summary procedure should always be opted for whenever the
circumstances allow, as compared to an ordinary suit.

Suit for Permanent Injunction

Permanent Injunction
A permanent injunction can be granted by the court by passing a decree made at the hearing and upon
the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the
assertion of a right, or from the commission of an act, which would be contrary to the rights of the
plaintiff.
When can a permanent injunction be granted?
A permanent injunction may be granted:


To the plaintiff in a suit to prevent a breach of an obligation existing in his favour, whether
implicit or explicit. However, in a case where such an obligation arises out of a contract, the
court follows the rules as specified by Chapter II of the Act. Chapter II, under Section 9 provides
that a person may claim relief in respect to a contract, by pleading in his defense, any of the
ground available to him under any law relating to contracts.
In a case where the defendant invades or threatens to invade the plaintiffs right to, or enjoyment
of, property, the court may grant a permanent injunction where:

1. The defendant is trustee of the property for the plaintiff;


2. there exists no standard for ascertaining the actual damage caused, or likely to be caused, by
the invasion;
3. the invasion is such that compensation in money would not afford adequate relief;
4. the injunction is necessary to prevent a multiplicity of judicial proceedings.

In Municipal Corporation of Delhi v. Suresh Chand Jaipuria, , their Lordships of the Supreme
Court held that permanent injunction cannot be granted when an alternative efficacious
relief is obtainable in any other usual mode or proceedings. But in that case remedy for the
plaintiff was available under Delhi Municipal Corporation Act. When Section 41 (h) of
the Specific Relief Act lays down that an injunction cannot be granted when equally efficacious
relief can certainly be obtained by any other usual mode or proceedings.

Application for temporary injunction Order (39)XXXIX of CPC


An injunction is an equitable remedy in the form of a court order that compels a party to do or
refrain from specific acts.

It is a court order which restrains one of the parties to a suit in equity from doing or permitting
others who are under his control to do an act which is unjust to the other party. An injunction
clearly forbids a certain type of conduct.

It is a remedy that originated in the English courts of equity. Like other equitable remedies, it
has traditionally been given when a wrong cannot be effectively remedied by an award of money
damages. Injunctions are intended to make whole again someone whose rights have been
violated. Nevertheless, while deciding whether to grant an injunction, courts also take into
account the interests of non-parties (that is, the public interest). When deciding whether to
give an injunction, and deciding what its scope should be, courts give special attention to
questions of fairness and good faith.

One manifestation of this is that injunctions are subject to equitable defenses, such as laches
and unclean hands. Injunctions are given in many different kinds of cases. They can prohibit
future violations of the law, such as trespass to real property, infringement of a patent etc.

Taking in to consideration the duration and the stage, they can be classified in to
Temporary injunctions
and Perpetual injunctions.
Otherwise, an injunction that requires conduct is called a "mandatory injunction." An injunction
that prohibits conduct is called a "prohibitory injunction.

Many injunctions are boththat is, they have both mandatory and prohibitory components, because they
require some conduct and forbid other conduct. When an injunction is given, it can be enforced with
equitable enforcement mechanisms such as contempt. It can also be modified or dissolved (upon a
proper motion to the court) if circumstances change in the future. These features of the injunction allow
a court granting one to manage the behaviour of the parties.
Indian law:-

In Indian legal system the law of injunctions is mainly governed by Order XXXIX and section 36 and
42 of the Specific relief Act. Section 94(c) of the Civil Procedure Code also gives supplemental
provision for grant of temporary injunction. It is also settled that there is no bar in granting injunction or
supplementary orders under Section 151 of the Civil Procedure Code for compliance of injunction in
just cases. The later provision of inherent powers increases the scope of civil courts for granting
injunctions.

TEMPORARY INJUNCTION
When the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in suit, the Court may grant a temporary injunction to
restrain such an act or make other order for the purpose of preventing the dispossession of the
plaintiff or for the purpose of preventing the causing of injury to the plaintiff in relation to any
property in dispute.
If the defendants are creating third party interest/rights as he is trying to dispose of part of the
property, the plaintiff can claim the injunction.

Temporary injunction is a provisional remedy that is invoked to preserve the subject matter in its
existing condition. It's purpose is to prevent dissolution of the plaintiff's rights. The main reason
for use of a temporary injunction is the need for immediate relief.

Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court
may in order to prevent the ends of justice from being defeated, grant a temporary injunction or
make such other interlocutory order as may appear to the Court to be just and convenient.

Section 95 of Civil Procedure Code further provides that where in any suit a temporary
injunction is granted and it appears to the Court that there were no sufficient grounds, or the
suit of the plaintiff fails and it appears to the Court that there was no reasonable or
probable ground for instituting the same, the Court may on application of the defendant award
reasonable compensation which may be to the extent of the pecuniary Jurisdiction of the Court
trying the suit.

While granting temporary injunction the tests be applied are

(1)Whether the plaintiff has a prima facie case,


(2) Whether the balance of convenience is in favour of plaintiff and
(3) Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is
disallowed.
The court while granting or refusing to grant injunction should exercise sound judicial discretion to find
the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction
is refused, and compare it with that which is likely to be caused to the other side if the injunction is
granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court
considers that, pending the suit, the subject matter should be maintained in status quo, an injunction
would be issued.

Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit. At the stage of deciding the application for temporary injunction,
the Court is not required to go into the merits of the case in detail.
Generally, before granting the injunction, the court must be satisfied about the following aspects:
* ubi jus ibi remediam.Whenever there is right there is remedy.
* One who seeks equity must come with clean hands.
* One who seeks equity must do equity.
* Where equities are equal, the law will prevail.
* Equity follows the law.
* Equity aids the vigilant, not those who slumber on their rights.
* The power to grant a temporary injunction is at the discretion of the court.
* This discretion, however, should be exercised reasonably, judiciously and on sound legal principles.
* Injunction should not be lightly granted as it adversely affects the other side.
* The grant of injunction is in the nature of equitable relief, and the court has undoubtedly power to
impose such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as
not to make it impossible for the party to comply with the same and thereby virtually denying the relief
which he would otherwise be ordinarily entitled to.

Introduction
An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding
the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or
attempting to commit, or restraining him in the continuance thereof, such act being unjust and
inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action fit law.[1]

For example, if it so happens that a person is demolishing a building you have possible claims on, you
may ask the competent court to order such person to not demolish the building until the trial for the
claim of the building is complete and judgement goes in his favour.

The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter, the Act), and
is also regulated by the Code of Civil Procedure, 1908 in India.

Types of Injunctions in the Indian Law

Generally speaking, there are two types of injunctions under the act[2], as mentioned below:

1. Temporary Injunction
2. Perpetual/Permanent Injunction

Both the types of injunctions are discussed below.

Temporary Injunction

Temporary injunctions, as the name suggests, are the injunctions that are given for a specific period of
time or until the court gives further order regarding the matter in concern. They can be obtained during
any stage of the trial and are regulated by the Code of Civil Procedure (CPC), 1908[3]:

Section 94: The section provides for supplemental proceedings, to enable the court to prevent
the ends of justice from being defeated. Section 94(c) states that a court may grant temporary
injunction and in case of disobedience commit the person guilty thereof to the civil prison and
order that his property be attached and sold. Section 94(e) of the Code enables the court to
make interlocutory orders as may appear to it to be just and convenient.

Section 95: If it is found by the court that there were no sufficient grounds to grant the
injunction, or the plaintiff is defeated in the suit, the court may award reasonable
compensation to the defendant on his application claiming such compensation.

Order XXXIX:

Rule 1: It enlists the situations when a court may grant temporary injunction. These are:

o Any property in dispute in a suit is in danger of being wasted, damaged or alienated by


any party to the suit, or wrongfully sold in execution of a decree, or
o the defendant threatens, or intends, to remove or dispose of his property with a view to
defrauding his creditors,
o the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit.

Rule 2: It provides that an interim injunction may be granted for restraining the defendant
from committing a breach of contract or other injury of any kind to the plaintiff.
Rule 3: It states that a court shall direct a notice of application to the opposite party, before
granting the injunction to the plaintiff. However, if it seems to the court that the purpose of
the injunction would be defeated by the delay, it may not provide the notice.
Rule 4: It provides for vacation of already granted temporary injunction.
Rule 5: It states that an injunction directed to a corporation is binding not only on the
corporation itself, but also on all members and officers of the corporation whose personal
action the injunction seeks to restrain.

In the M. Gurudas and Ors. case[4], the Honble Supreme Court of India has opined, while
considering an application for injunction, the Court would pass an order thereupon having regard
to prima facie, balance of convenience and irreparable injury.

Prima Facie Case:

Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N. Banerjee, while discussing
a the meaning of the prima facie case, the court said:

A prima facie case does not mean a case proved to the hilt but a case which can be said to be
established if the evidence which is led in support of the same were believed. While determining
whether a prima facie case had been made out the relevant consideration is whether on the evidence led
it was possible to arrive at the conclusion in question and not whether that was the only conclusion
which could be arrived at on that evidence.

Prima facie case is a must to be eligible to obtain a temporary injunction. However, it is not sufficient
and temporary injunction cannot be granted if the damage that will be caused if the injunction is not
given is not irreparable.
2. Irreparable Injury:

Irreparable injury means such injury which cannot be adequately remedied by damages. The remedy
by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of
success in the suit would not place him in the position in which he was before injunction was refused.[7]

3. Balance of Convenience:

In the case of Anwar Elahi , the court has clearly explained the meaning of balance of convenience.
According to the court:

Balance of convenience means that comparative mischief or inconvenience which is likely to issue
from withholding the injunction will be greater than that which is likely to arise from granting it. In
applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be
done to the applicant if the injunction is refused and compare it with that which is likely to be caused to
the other side if the injunction is granted.

Permanent Injunction

A permanent injunction can be granted by the court by passing a decree made at the hearing and upon
the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the
assertion of a right, or from the commission of an act, which would be contrary to the rights of the
plaintiff..

When can a permanent injunction be granted?

A permanent injunction may be granted:

a. To the plaintiff in a suit to prevent a breach of an obligation existing in his favour, whether implicit or
explicit. However, in a case where such an obligation arises out of a contract, the court follows the rules
as specified by Chapter II of the Act. Chapter II, under Section 9 provides that a person may claim relief
in respect to a contract, by pleading in his defence, any of the ground available to him under any law
relating to contracts.

b. In a case where the plaintiff invades or threatens to invade the plaintiffs right to, or enjoyment of,
property, the court may grant a permanent injunction where:

1. The defendant is trustee of the property for the plaintiff;


2. there exists no standard for ascertaining the actual damage caused, or likely to be caused, by
the invasion;
3. the invasion is such that compensation in money would not afford adequate relief;
4. the injunction is necessary to prevent a multiplicity of judicial proceedings.

Mandatory Injunction

If the court finds it necessary and within its capability, to compel the performance of an act, to prevent
the breach of an obligation, it may do so granting a mandatory injunction to the plaintiff, compelling the
defendant to perform the requisite acts..
Damages In Lieu of, or in Addition to Injunction

If the plaintiff claims for any additional damages along with the injunction sought for, either perpetual or
mandatory, or in substitution of the said injunction, the court may award him such damages, if it thinks
fit[14]. If no damages have been claimed, the court may allow the plaintiff to make the required
amendments to the plaint and claim damages[15].

However, it is highly recommended to claim damages in the plaint before submitting it, as permission
for further amendments rests solely at the discretion of the court.

The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff bars his
right to sue for damages for such breach.[16]

Injunction to Perform Negative Agreement

The court can grant an injuncmtion to not do certain acts, which are prohibited by the contract to do. The
court may do so even if it is unable to compel the performance of the affirmative terms of the contract,
i.e. the terms that requires the defendant to do (perform) certain acts. However, it is subject to the fact,
whether the plaintiff has performed the terms of the contract binding on him or not. Non performance by
the plaintiff dis-entitles him from obtaining such an injunction.[17]

Case Laws Regarding Permanent Injunction

In the case of Jujhar Singh vs. Giani Talok Singh[18] where a permanent injunction was sought for by
a son to prevent his father who happened to be the Karta of the Hindu Undivided Family (HUF), from
selling the HUF property was set aside. It was not maintainable because the son, also a coparcener, had
got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of
the sale.

On the other hand, granting the injunction sought would allow the son to use the injunction to prevent
the father from selling the property even if he is compelled to do so, due to legal necessities.

Where in the case of Cotton Corporation Of India vs. United Industrial Bank, an injunction was
sought for to restrain the defendants from presenting a winding-up petition under the Companies Act,
1956 or under the Banking Regulation Act, 1949, the court dismissed the petition as it was not
competent to grant, as a relief, a temporary injunction restraining a person from instituting a proceeding
in a court not subordinate to it.

The court here was of the view that if a perpetual injunction cannot be granted for the subject matter of
the case under Section 41(b) of the act, ipso facto temporary injunction cannot be granted.[19]

Grounds for Rejection of an Application for Injunction

On the following grounds, an injunction cannot be granted:


1. To restraint a person from prosecuting a pending judicial proceeding, unless it is to prevent
multiplicity of the proceeding.
2. To restraint a person from instituting or prosecuting a judicial proceeding in a court, where
the injunction is sought from a court subordinate to that court.
3. To restrain any person from applying to any legislative body.
4. To restrain any person from instituting or prosecuting any proceeding in a criminal matter.
5. To prevent the breach of a contract the performance of which would not be specifically
enforced (Illustration: a contract between a master and servant, requiring the servant to render
personal services to the master cannot be specifically enforced by the master or the servant.
Hence, an injunction cannot be granted in this situation)
6. Where it is not reasonably clear that an act it nuisance, to prevent such an act on the ground of
nuisance.
7. To prevent a continuing breach in which the plaintiff has acquiesced, as the general rule is
that an acquiescence is an implied consent by remaining silent.
8. Where except in the case of breach of trust, equally efficacious relief can certainly be
obtained by any other usual mode of proceeding.
9. When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the
assistance of the court.
10. When the plaintiff has no personal interest in the matter

Suit for Specific Performance


LAW ON SPECIFIC PERFORMANCE OF CONTRACT
Introductory:-
A contract is an agreement upon sufficient consideration to do or not to do a particular act. The party on
whom this contractual obligation rests must not fails to discharge such obligation. In case of his failure,
the other party will have a right sue for performance of the contract. This is called Specific
Performance. Orders of specific performance are granted when damages are not an adequate
remedy, and in some specific cases such as land sale. Such orders are discretionary, as with all
equitable remedies, so the availability of this remedy will depend on whether it is appropriate in the
circumstances of the case. Under current law, courts grant specific performance when they perceive that
damages will be inadequate compensation. Specific performance is deemed an extraordinary
remedy, awarded at the courts discretion
Sections 9-25 deal with specific performance of contracts: Basic rules.
Decree of specific performance is discretionary relief. [Sukumar vs Susheel, 76 C.W.N 116] [See
section 20 of S.R.Act]
There should be a valid contract.[ Ambica Prasad vs Naziran Bibi, AIR 1939 All 64], [Balram v
Natku, AIR 1928 PC 75]
If damages are an adequate remedy, no specific performance would be ordered.
For the act which requires continued supervision of the Court, no specific performance would be
ordered. (Sec.14 (1) (d))
no specific performance would be ordered for contracts for personal work or service
Equity will insist on the principle of mutuality
The person against whom the relief is claimed may take plea by way of defence under law
relating to contract. (Sec.9)
Question no. 1:- What are the defences available under law of contract?
Answer:- The defences that are available under law of contract are :-
Incapacity of parties
Uncertainty of contract
Absence of concluded contract
Fraud
Misrepresentation
Mistake
Illegality or want of authority to enter into contract
Question no.2 :- When can specific performance of a contract be enforced?
Answer:- According to section 10 of the Act, the specific performance of contract can be
enforced in the following cases:-
If there exists no standard for ascertaining the actual damage caused by the non performance of
the act which agreed to be done
When pecuniary compensation for its non performance would not afford adequate relief.
When it is probable that pecuniary compensation cannot be got for the non performance of the
act agreed to be done
Question no.3 :- Can part of contract be enforced?
Answer:- According to section 12 of the Act, the specific performance of part of contract may be
enforced in the following cases:-
Section 12 of the Act corresponds to Sections 13 to 17 of the Act with certain modifications.
Section 12 (1), (2) and (4) of the Act provide exceptions to the general rule of specific
performance of a part of a contract.
As a general rule, a contract is intended to be deal with as a whole but not piecemeal. However,
section 12(1) is an exception to the general rule. Lord Romilly M.R opined that the Court can
not specifically perform the contract piece meal but it must be performed in its entirety if
performed at all.
The part unperformed must be a considerable portion of the whole; or
It does not admit of compensation in money;
The part to the contract who is not in default can sue for part performance
Question no.4 :- What type of contracts cannot be enforced?
Answer:- Under section 14 of the Act, the following contracts cannot be enforced:
Contracts in which compensation in money is an adequate relief.[ See section 14 (1) (a) of
S.R.Act) , [Devendar Singh vs Syed Khaja, AIR 1973 SC 2457]
Contracts involving personal service.[Vaish Degree College,Shamli vs Lakshmi Narayan, AIR
1976 SC 888]
Contracts with uncertain terms.
Contracts in its nature determinable
Contracts which or not valid in law
Contracts involving continuous supervision of the Court
Contracts to build or repair works ( subject to some exceptions) [Union Construction Co. vs
Chief Engineer,Estern Command,Lucknow,AIR 1960 All 72]
The Contract by Hindu parent or guardian to give a child in marriage cannot be specifically
enforced. [Gumpat Narain Singh inre, ILR 1 Cal.74]
Question no.5:- Who can obtain Specific performance of a contract?
Answer:- Section 15 of the Act says specific performance of a contract may be obtained by
Any party thereto
The representative-in-interest, or the principal, or any party thereto excepting where the earning
skill, solvency or any personal quality of such party is a material ingredient in the court.
If personal skill of one party is essential element of the contract of specific performance is
frustrated with death of that party and legal representative of that party cannot demand specific
performance of the contract
Question no.6 :- What are the defences avialbale to the defendant in suit for specific performance of
contract?
Answer:- The Defendant may set up any one of the follwing defences in a suit for specific
performance of contract.
Compensation in money would be adequate relief
Plaintiffs unperformed part is large
Contract depends on personal qualifications or volition of parties.[Motiram vs Khyli Ram, AIR
1967 All 484]
Wanting title
Wanting in mutuality
Contract is devoid of consideration
Essential part of contract has ceased to exist
Performance of contract would involve hardship to defendant than the plaintiff
Performance of contract involves continuous duty over three years
Uncertainty in terms of contract
Question no.7 :- Personal bars to relief under specific performance of contract under section 16:-
Answer:- Specific performance of contract cannot be enforced in favour of a person in the
following cases:-
Who would not be entitled to recover compensation for its breach; or
Who has become incapable of performing or violates any essential term of, the contract that in
his part remains to be performed or acts in fraud of the contract, or willfully acts at variance with
or in subversion of the relation intended to be established by the contract; or
Who fails to aver and prove that he has performed or has always been ready and willing to
perform the essential terms of the contract.
Question no.8 :- What does discretion and power of court mean?
Answer:- Section 20 of the Act says:-
The jurisdiction to decree specific performance is discretionary.
The Court is not bound to grant such relief merely because it is lawful to do.
The discretion of the Court should be arbitrary but sound and reasonable, guarded by judicial
principles and capable of correction by a Court of appeal.

Question no.9 :- What are the circumstances in which the Court can exercise its discretion properly ?
Answer:-
If the terms of contract give the plaintiff unfair advantage over the defendant; or
If the conduct of the parties of contract or other circumstances, gives the plaintiff unfair advantage over
the defendant
If the performance of contract would involve hardship on the defendant which he did not foresee,
whereas its non performance would involve no such hardship on the plaintiff; or
Where the defendant entered into the contract under circumstances which, though not rendering the
contract voidable makes it inequitable to enforce specific performance
Question no.10 :- What do the terms Ready and willing to perform mean? Whether the conduct of the
plaintiff is to be considered in a suit for Specific Performance Suit?
Answer:- In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. MANU/SC/0025/1996 : (1995) 5
SCC 115 at para 5, this Court held:
Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has
always been ready and willing to perform the essential terms of the contract which are to be performed
by him, other than those terms the performance of which has been prevented or waived by the defendant.
The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the
relief of specific performance. This circumstance is material and relevant and is required to be
considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or
prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of
the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to
the filing of the suit alongwith other attending circumstances. The amount of consideration which he has
to pay to the defendant must of necessity be proved to be available. Right from the date of the execution
till date of the decree he must prove that he is ready and has always been willing to perform his part of
the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is
to be adjudged with reference to the conduct of the party and the attending circumstances. The court may
infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his
part of the contract.
Question no.11 :- Is specific performance of contract by Minor enforceable?
Answer:- Sri Kakulam Subrahmanyam and another Vs. Kurra Subba Rao, AIR1948PC95, Held: A
minors agreement being now decided to be void, it is clear that there is no agreement to be specifically
enforced; and it is unnecessary to refer to former decisions and distinctions, following English
authorities which were applicable only on the view now overruled by the Privy Council.
Question no.12 :- Is specific performance of contract by Agent enforceable?
Answer:- An agent cannot personally enforce contracts entered into by him on behalf of his principal not
is he personally bound by them in the absence of any contract to that effect. See section 230 of Indian
Contract Act,1872.
Question no.13 :- Can Legal representative enforce specific performance of contract?
Answer:- The legal representative of a deceased party can enforce a contract of sale . see ruling 1972 (2)
MLJ 281, Dorai Swany vs Kanuiappa.
Question no.14 :- Whether specific performance of contract can be granted with doubtful title?
Answer:- No. Where the doubtfulness of the title cannot be resolved except by proving certain intruinsic
facts or by agitating against the parties other than the parties to the contract; the court cannot grant the
relief of specific performance; A doubtful title is one regarding which some doubt persists but a bad
title one defective in its nature. See Ahmedbhoy vs Sir Dinshaw.
Question no.15 :- When Time is essence of contract?
Answer:- In AIR2011SC3234, 2011(5)ALD100(SC), Mrs. Saradamani Kandappans case, it was
observed that the legal position is clear from the decision of a Constitution Bench of this Court in Chand
Rani v.Kamal Rani MANU/SC/0285/1993 : 1993 (1) SCC 519, wherein this Court outlined the principle
thus:
It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as
the essence of the contract. In fact, there is a presumption against time being the essence of the contract.
This principle is not in any way different from that obtainable in England. Under the law of equity which
governs the rights of the parties in the case of specific performance of contract to sell real estate, law
looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the
terms of the contract the parties named a specific time within which completion was to take place, really
and in substance it was intended that it should be completed within a reasonable time. An intention to
make time the essence of the contract must be expressed in unequivocal language.
In the case of Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs, 1993 (1) SCC 519,
it was held that in the case of sale of immovable property there is no presumption as to time being the
essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be
performed in a reasonable time if the conditions are:
1. from the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example: the object of making the contract.
Question no.16 : Is suit for specific performance of contract by one of joint promisees maintainable?
Answer:- Smt. Nirmala Bala Dasi and Anr. Vs. Sudarsan Jana and Ors. AIR1980Cal258. Reliance in
this connection may also be placed on the following passage from the judgment of Privy Council in the
case of Monghibai v. Cooverji Umersey, reported in MANU/PR/0023/1939 : AIR 1939 PC 170 :
It has long been recognized that one or more of several persons jointly interested can bring an action in
respect of joint property and if their right to sue is challenged can amend by joining their co-contractors
as plaintiffs if they will consent or as co-defendants if they will not. Such cases as (1879) 11 Chn D
121 and (1898) 2 QB 380 are examples of this principle. Nor indeed would it matter that a wrong person
had originally sued though he had no cause of action : See (1902) 2 KB 485. Once all the parties are
before the Court, it can make the appropriate order and should give judgment in favour of all the persons
interested whether they be joined as plaintiffs or defendants.
Question no.17 :- Can an unregistered agreement of sale be marked in suit for specific performance?
ANSWER:- (i) A document produced for inspection of the Court cannot be admitted in evidence under
Section 49(c) of the Registration Act, if it is required registration under Section 17 of the said Act.
(ii) Any document by whatever name called not creating, declaring, assigning, limiting or extinguishing
any right, title or interest, but merely creating right to obtain another document does not require
registration under Section 17(1) of the Registration Act.
(iii) As a necessary corollary a document of contract for safe of immovable property creating right to
obtain another document shall not require registration by reason of the payment of earnest money or
whole or part of purchase money by the purchaser.
(iv) In any event, the prohibition under Section 49(c) of the Registration Act does not apply to an
unregistered document effecting immovable property in a suit for specific performance under the
Specific Relief Act or as evidence of part performance of contract of as evidence of any collateral
transaction not required to be effected by registered document.
Question no. 18:- What are the essential elements to constitute Lis Pendens?
Answer:- In order to constitute a lis pendens the following elements must be present :-
(I) There must be a suit or proceeding pending in a Court of competent jurisdiction.
(II) The suit or proceeding must not be collusive.
(III) The litigation must be one in which right to immovable property is directly and specifically in
question.
(IV) There must be a transfer of or otherwise dealing with the property in dispute by any party to the
litigation.
(V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of
the decree or order.
Question no. 19 :- Application of Order 22 Rule 10 of CPC and Order 1 Rule 10 CPC in specific
performance of contract?
Answer:- The object of Order 1, Rule 10, C.P.C. is to discourage contest on technical pleas, and to save
honest and bona fide claimants from being non-suited. The power to strike out or add parties can be
exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a
party to the suit in the following two contingencies :- (i) When he ought to have been joined as plaintiff
or defendant, and is not joined so, or (ii) When, without his presence, the questions in the suit cannot be
completely decided.
Order 1 Rule 10 cpc is wider than the scope Order 22 Rule 10 Cpc. Order 22 Rule 10 Cpc is merely an
enabling provision and that it has certain parameters. Order 22, Rule 10, C.P.C. speaks of cases of an
assignment, creation or devolution of any interest during the pendency of a suit and the suit may, by
leave of the Court, be continued by or against the person to or upon whom such interest has come or
devolved. (See the ruling Lingaraja Mohanty vs Binodini Mohanty & Ors. on 20 April, 2011)
Question no. 20:- Alternative relief of refund of earnest money
Answer:- Where the vendee suing for specific performance of contract of sale in the same suit asked in
the alternative for the relief of refund of earnest money or advance money, paid under the contract of
sale, can, as an aggrieved person, prefer appeal against the judgment and decree of the first court which
granted him only the relief of return of the earnest money or advance money while denying him the
relief of specific performance. (See ruling AIR 1991 Madras 163, Ramani Ammal vs Susilammal)
Question no. 21. Can amendment application be permitted relating to compensation in a suit for specific
performance?
Answer:- Where an amendment relates to relief of compensation in lieu of or in addition to specific
performance where the plaintiff has not abandoned his relief of specific performance the ourt will allow
the amendment at any stage of the proceeding. [See AIR 1992 SC 1604, Jagdish Singh vs Nathu
Singh]
Question no. 22. What is the distinction between Compensation and Damages?
Answer:- In the case of Mahamed Mozaharal Ahad Vs. Mahamed Azimaddin
Bhuinya, AIR1923Cal507, Held: As Lord Esher observed in Dixon v. Calcraft (1892) 1 Q.B. 458 (463)
the expression compensation is not ordinarily used as an equivalent to damages, although as remarked
by Fry, L.J. in Skinners Co. v. Knight (1891)2 Q.B. 542 compensation may often have to be measured
by the same rule as damages in an action for the breach. The term compensation as pointed out in the
Oxford Dictionary, signifies that which is given in recompense, an equivalent rendered. Damages, on the
other hand; constitute the sum of money claimed or ad judged to be paid in compensation for loss or
injury sustained; the value estimated in money, of something lost or withheld. The term compensation
etymologically suggests the image of balancing one thing against another; its primary signification is
equivalence, and the secondary and more common meaning is something given or obtained as an
equivalent.
Question no. 23. Can Court make an order under section 151 CPc directing the plaintiff to file an
undertaking that he will pay some amount directed by the court to the defendant as damages if he fails in
the suit?
Answer:- A Court in exercise of inherent power under Section 151 of the Code cannot make an interim
Order directing the Plaintiff to file an undertaking that he will pay a sum directed by the Court to the
Defendant as damages in case he fails in the suit. [2010(5)ALD124(SC), Vinod Seth Vs. Devinder Bajaj
and Anr.]
Question no. 24. Is escalation in the price of the land ground to deny relief of specific performance?
Explain section 20 of SR Act.
Answer. Escalation in the price of the land cannot, by itself, be a ground for denying relief of specific
performance. In K. Narendra v. Riviera Apartments (P) Ltd. (supra), this Court interpreted Section 20 of
the Act and laid down the following propositions:
Section 20 of the Specific Relief Act, 1963 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; the
discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and
capable of correction by a court of appeal. Performance of the contract involving some hardship on the
Defendant which he did not foresee while non-performance involving no such hardship on the Plaintiff,
is one of the circumstances in which the court may properly exercise discretion not to decree specific
performance. The doctrine of comparative hardship has been thus statutorily recognized in
India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the
Defendant or improvident in its nature, shall not constitute an unfair advantage to the Plaintiff over the
Defendant or unforeseeable hardship on the Defendant.[ See AIR2012SC2035, Narinderjit Singh Vs.
North Star Estate Promoters Ltd.]
Question no. 25. Whether grant of relief for specific performance will cause hardship to Defendant
within meaning of Clause (b) of Sub-section (2) of Section 20 of Specific Relief Act, 1963?
Answer:- The question as to whether the grant of relief for specific performance will cause hardship to
the Defendant within the meaning of Clause (b) of sub-section (2) of Section 20 of the Specific Relief
Act, 1963, being a question of fact, the first appellate court without framing such an issue ought not to
have reversed the finding of the trial court while concurring with it on all other issues with regard to the
Appellants entitlement to relief for specific performance of contract.[ Prakash
Chandra Vs. Narayan, AIR2012SC2826]
Question no. 26. When does false representation disentitle the plaintiff to t he equitable relief under
section 22 of the Act?
Answer:- The question naturally arises as to whether this false representation disentitles the plaintiffs to
the equitable relief under S. 22 of the Act. As stated earlier, mere false representation is not enough. It
has to be further shown by the defendants that this false representation resulted in adversely affecting
their interest, or it altered the position of the parties in such a way that it would be inequitable to grant
relief to the plaintiffs.( AIR1967AP63, Vuppalapati Butchiraju and Anrs case)
Question no. 27. The plea of Bonafide purchaser
Answer:- Section 19(b) of the Specific Relief Act, 1963, protects the bona fide purchaser in good faith
for value without notice of the original contract. This protection is in the nature of an exception tot he
general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is in
innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each
case. Section 52 of the Penal Code emphasises due care and attention in relation to good faith. In the
General Clauses Act exphasis is laid on honesty.(Narayana Reddy (deceased) (D2) and Ors.
Vs. P. Chandra Reddy, MANU/TN/7408/2007)
Question no. 28:- Whether Court need to grant the order for specific relief on the ground that it is lawful
to grant specific relief?
Answer:- The jurisdiction to decree specific relief is discretionary and the Court can consider various
circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific
relief, the Court need not grant the order for specific relief; but this discretion shall not be exercised in
an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2)of the
Specific Relief Act, 1963 as to under what circumstances the Court shall exercise such discretion. If
under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may
not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the
defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is
inequitable to grant specific relief, then also the Court would desist from granting a decree to the
plaintiff. (This para was observed in Nallam Seeta Mahalakshmi and Ors. Vs. Talari
Vijayalakshmi, 2005(4)ALD130).
Question no. 29.:- Would a bare averment in the plaint or a statement made in the examination-in-
chief suffice to prove ready and willing to perform contract?
Answer:- In Umabai and Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs and
Anr. MANU/SC/0285/2005 : (2005) 6 SCC 243, it was observed as follows.
It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the
Plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is
mandatorily required under Section16(c) of the Specific Relief Act must be determined having regard to
the entire attending circumstances. A bare averment in the plaint or a statement made in the
examination-in-chief would not suffice. The conduct of the Plaintiff-Respondents must be judged having
regard to the entirety of the pleadings as also the evidences brought on records.
Question no. 30:- Can Karta Alienate of joint family property?
Answer:- Even if it is to be assumed that the property in question was part of the assets of the co-
parcenerary or joint family, it is possible for a karta, which, the appellant indeed is, to alienate the
property for the family necessity. The right of the karta of a Hindu Joint Family, in this regard, is almost
unquestioned. The only rider is that the co-parceners can challenge the sale so made, at a later point of
time, by pleading that there did not exist any genuine family necessity, warranting the sale of the
property.( Jala Anjaiah Vs. Ramisetty Anjaiah, MANU/AP/1014/2011).

Suit for Damages


When a Contract is breached, there are specific remedies to it. Broadly speaking, there are six remedies
available.

Rescission of the Contract


When one party to the contract breaches the contract, the other party need not perform his part of the
obligations. The aggrieved party may rescind the contract. In such cases, the injured / aggrieved party
can either rescind the contract of file a suit for damages. In general, rescission of the contract is
accompanied by a suit for damages.

Suit for damages


The aggrieved party of the contract is entitled for monetary compensation when the contract is breached.
The objective of Suit for damages is to put the aggrieved / injured party in a position in which he would
have been had there been performance and not breach. The aggrieved / injured party must be able to
prove the actual loss or no damages will be awarded. Damages can be of four kinds.

1. Ordinary or General Damages


2. Special Damages
3. Exemplary or Punitive Damages
4. Nominal Damages

Suit for Quantum Merit


The term "Quantum Merit" is derived from Latin which means "what one has earned". The injured party
can file a suit upon quantum merit and may claim payment in proportion to work done or goods
supplied. Sections 65 to 70 deal with the provisions relating to suit for Quantum Merit.

Suit for Specific Performance


The suit for Specific Performance is regulated by the Specific Relief Act, 1963. Specific Performance
means the actual carrying out of the contract as agreed. The Court may grant for specific performance
where it is just and equitable to do. Specific Performance may be granted under the following grounds.

1. Lack of standard for ascertaining the damages


2. Where compensation is not adequate relief
3. Substantial work done by the plaintiff.
The Court cannot grant the remedy of specific performance in the following situations.

1. Where monetary compensation is an adequate relief


2. Where the Court cannot supervise the actual execution of the work
3. Where the Contract is for personal services
4. Where the Contract is not enforceable by either party against the other.

Suit for Injunctions


Injunction is an order of the Court restraining a person from doing a particular act. Where the defendant
is doing something which he is promised not to do, then the injured party will get a right to file a suit for
injunction.
Related Statute

Section 94 of Code of Civil Procedure, 1908: Supplemental proceedings


Section 95 of Code of Civil Procedure, 1908: Compensation for obtaining arrest, attachment or
injunction on insufficient grounds
Section 142 of Code of Criminal Procedure, 1973: Injunction pending inquiry

Section 73 of Indian Contract Act, 1872 deals with Compensation for loss or damage caused by
breach of contract

When a contract has been broken, the party who suffers by such breach is entitled to receive, from
the party who has broken the contract, compensation for any loss or damage caused to him thereby,
which naturally arose in the usual course of things from such breach, or which the parties knew,
when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason
of the breach.
Compensation for failure to discharge obligation resembling those created by contract.-When an
obligation resembling those created by contract has been incurred and has not been discharged, any
person injured by the failure to discharge it is entitled to receive the same compensation from the
party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation.-In estimating the loss or damage arising from a breach of contract, the means which
existed of remedying the inconvenience caused-by the non-performance of the contract must be
taken into account.

The term damages may be defined as the monetary compensation payable by the defaulting party to the
aggrieved party for the loss suffered by him. The aggrieved party, may therefore bring an action for
damages against the party who is guilty of the breach of the contract. And the party, guilty of the breach,
id liable to pay damages to the aggrieved party. The primary aim of damages is to compensate the
aggrieved party, and to place him in the same position which he would have occupied had the breach of
contract not occurred. It may, therefore, be noted that the damages are given by way of compensation for
the loss suffered by the aggrieved party, and not for the purpose of punishing the default party.

Kinds Of Damages

Law recognizes various kinds of damages or losses. Once the court has determined which loss may be
recovered, it is then faced with the problem of quantifying the loss, i.e. determining just how just how
much the aggrieved party should receive. The kinds of damages are as follows:

1) Compensatory Damages
There are two categories of compensatory damages. The first category, general damages, includes all
those damages that arise naturally from breach of contract. The second category called special damages
arise due to the special circumstances foreseeable by the parties at the time of making contract.

a) General damages (ordinary damages) there are damages that arise naturally from the breach of
contract. They are restricted to the direct and proximate consequences and not to the remote or indirect
losses or consequences of the breach of a contract.

In the case of Hadley v. Baxendale[1], the crankshift of a mill broke and it was necessary for it to be sent
to the manufacturers as a pattern for the new one. The mill owners engaged carriers for this purpose, but
the carriers delayed delivery, and the mill owners were unable to use the mill for longer than if there had
been no delay. Consequently, the loss of profits suffered by the millers was greater than if no delay had
occurred. The millers sued the carriers for such loss of profits. The courts held that since the only
information given by the millers was that the article to be carried was the broken shaft of a mill, and it
was not made known to them that the delay would result in loss of profits, they were not liable for the
loss of profits.

b) Special damages these are the consequential damages caused by the breach of contract due to the
existence of special circumstances. Such damages are awarded by the courts only when at the time of
making a contract, these special circumstances were forseeable by the party committing the breach.

In the case of Victoria Laundry Limited v. Newman Industries Limited [2], V the launders and dyers
required a bolier for the purpose of expanding their business. V entered into an agreement with N where
N was to supply the Bolier on June 5th. Due to the fault of N, the Bolier was not delivered till November
8th. Consequently, V could not service his new customers and had a loss of lucrative profits worth 278
Pounds. V claimed this loss from N. N contended that he did not know about Vs lucrative business
contacts. The court held that V could recover the loss of ordinary laundry profits but not the loss
resulting from some lucrative contacts with specific customers because N was not aware of these
contacts and such a loss was not in contemplation of both the parties when the contract was made.

If the special circumstances was already in the knowledge of the party responsible for the breach of
contract, the formality of communicating them to him may not be necessary.

In the case of Simpson v. London & North Western Railway Company[3], S a manufacturer used to
exhibit his samples of his equipment at agricultural exhibitions. He delivered his samples to railway
company to be exhibited at New Castle. On the occasion he wrote must reach at New Castle on
Monday certain. On the account of negligence on the part of railway company, the samples reached
only after the exhibition was over. S, claimed damages from railway company for his loss of profits
from the exhibition. The court held that the railway company was liable to pay these damages as it had
the knowledge of special circumstances, and must have contemplated that a delay in delivery might
result in such loss.

c) Measuring of compensatory damages-


Section 73, of the Indian Contract Act, 1872, provides that, When a contract has been broken, the party
who suffers by such breach is entitled to receive, from the party who has broken the contract,
compenssation for any loss or damage caused to him thereby, which naturally arose in the usual course
of things from such breach, or which the parties knew when they made the contract, to be liekly to result
from the breach of it. Such compensation is not given for any remote and indirect loss or damage
sustained by the reason of the breach.

This section warrants the need to assess such damages, general or special, according to the facts of the
case.

In the case of a contract for sale or purchase general rule as regards to measuring of the damage is that
i. The damage would be assessed on the difference between the contract price and the market price on
the date of the breach.

In the case of Jamal v. Moola Dawood Sons & Co.[4], M agreed to purchase certain shares from J on a
particular date and subsequently declined to purchase them on that date. The difference between contract
price and market price on that date was Rs. 1, 09, 218. J later on sold those shares and the actual loss
amounted Rs. 79, 862. J sued M claiming Rs. 1, 09, 218 as damages. The courts held that he was entitled
to Rs, 1, 09, 218, because the damages are meausred according to the circumstances existing on the date
of breach.

ii. Under a contract of sale of goods, damages can be claimed for breach of condition, or warranty and
such damages include all damages flowing from the breach.

In the case of Jackson v. Walson & Sons[5], Js wife died from poisoning caused by the tinned fish
supplied by W. in an action for damages for breach, the court held that J was entitled to damages
incurred by employing extra servants by reason of the loss of wifes services during illness, medical
expenses, pecuniary loss occasioned by the death of his wife.

iii. If the seller is selling services rather than something tangible and the buyer breaches the contract, the
calculation of general damages is somewhat different.
d) Duty to mitigate damages suffered-
The way in which liability for contract damages is limited by the courts imposing a duty on the party
who has been harmed by a breach of contract to mitigate the damages resulting from the breach. In other
words, the party who has been harmed may not sit idly and watch the damages accumulate. Moreover
the party is supposed to act prudently to minimize such damages.

In the case of Neki v. Pribhu[6], A took a shop from B on rent and paid one months rent in advance. B
could not give possession of shop to A. there were other shops available in the vicinity but A chose not
to do business for eight months. After eight months, A sued B for breach of contract claiming damages
including advance rent and loss of profits for eight months. The court held that he was entitled to a
refund of his advance and nothing more, as he failed in his duty to minimize the loss by not taking
another shop in the neighbourhood.

In another case, Derbshire v. Warran [1963], D was the owner of X brand of car which was damaged
in an accident by negligence of W. D was informed that the pre-accident value of the car was 85 pounds
and the estimated cost of repair was 192 pounds, and as such an uneconomic proposition. D, however,
decided to have the car repaired and claimed the damages from W amounting to 137 pounds (192
pounds 80 pounds claimed from insurance 25 pounds the cost of hiring another vehicle until his car
was repaired). W argued that D could have purchased a similar vehicle in the open market for 85
pounds; he should have not taken this uneconomic step. The court accepted this view and awarded the
replacement value of the vehicle, i.e., 30 pounds (85 pounds replacement price 25 pounds cost of hiring
another vehicle 80 pounds claimed from the insurance).

2) Vindictive Damages

At time breach of contract by one party not only results in monetary loss to the injured party but also
subjects him to disappointment and mental agony. In such cases monetary compensation alone cannot
provide an appropriate remedy to the sufferings of the injured party. Thus there is a need for vindictive
damages.

Vindictive damages do not form part of the law of contract. The concept is borrowed from English law.
There are two kinds of contracts where Indian courts consider awarding vindictive damages:
i. Breach of contract to marry. In this case the amount of damages will depend upon the extent of injury
to the partys feeling. One may be ruined, other may not mind so much.
ii. Where a banker refuses to honour the cheque of a customer while having his money in his hands, and
the customer thereby suffers loss of reputation.

3) Nominal Damages
Sometimes, a person brings a legal action for breach of contract and proves that a breach actually
occurred but fails to prove that any actual damage has been suffered. This may happen, for example,
because of the rules for measuring damages and requirement that damages should be foreseeable and
proved with certainity. In such a situation, injured party is awarded nominal damages.

Such damages are awarded simply to recognise the right of the injured party to claim damages, and are
of very small amount.

For ex:
a) A contracted to purchase LML Scooter from B, a dealer, for Rs. 25, 000. But A failed to purchase
the Scooter. However, the demand for the Scooter far exceeded the supply and B could sell the Scooter
to Z for Rs. 25, 000, i.e., without any loss of profit. Here if B makes a claim upon A for breach of
contract, he will be entitled to nominal damages only.
4) Liquidated Damages And Penalty-
The contracting party may stipulate in the contract a sum of money to be paid in case the contract is
broken by either party. It may be termed as liquidated damages or penalty depending upon the
purpose to fix the sum.

The purpose of fixing a sum as liquidated damages is to compensate the injured party for the loss to be
incurred by the breach of the other. Thus it is a fair pre-estimation of the loss to be caused by non-
performance of the contract.

The purpose of providing a penalty in a contract is to discourage a party from breaching it and to
provide a special punishment if the contract is breached anyway. Thus it is a sum which has no relation
to the probable loss, and generally is disproportionate to the damages likely to accrue as a result of the
breach.

The above differentiation is required to understand the position of English Law in this respect. English
Law awards liquidated damages as compensation, irrespective of the fact whether the sum so specified
is more or less than the actual damages. But does not allow the sum specified as penalty on the ground
that only the government, not private individuals can determine appropriate remedies for breach of
contract.

Indian Contract Law differs from English law in this matter. It does not recognise any difference
between liquidated damages and penalty. Nor does it allow any sum fixed by the parties as damages.
It says that the injured party is entitled to a reasonable compensation in case of breach subject to the
maximum of the amount fixed as liquidated damages or penalty by the parties to the contract.

Section 74 of the indian Contract Act, 1872, provides that, when a contract has been broken, if a sum is
named in the contract as the amount to be paid in case of such breach, or if the contract contains any
other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual
damage or loss is proved to have been caused thereby, to receive from the other party who has broken
the contract reasonable compensation not exceeding the amount so named or, as the case may be the
penalty stipulated for.

Thus in India, the sum named in the contract is not aawarded as damages. It is left to the court to
ascertain the actual loss or reasonable compensation and award the same, which will, however, not
exceed the sum named in the contract.

Petition for eviction under the Delhi Rent Control Act

14. Protection of tenant against eviction.


(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or
decree for the recovery of possession of any premises shall be made by and court or Controller in
favor of the landlord against a tenat:
Provided that the Controller may, on an application made to him in the prescribed manner, make
an order for the recovery of possession of the premises on one or more of the following grounds
only, namely:-
(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally
recoverable from him within two months of the date on which a landlord in the manner provided
in section 106 of the Transfers of Property Act, 1882 (4 of 1882);
(b) That the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise without
obtaining the consent in writing of the landlord;
(c) That the tenant has used the premises for purpose other than that for which they were let-
(i) If the premises have been let on or after the 9th day of June, 1952, without obtaining the consent
in writing of the landlord; or
(ii) If the premises have been let before the said date without obtaining his consent;
(d) That the premises were let for use as a residence and neither the tenant nor any member of his
family has been residing therein for a period of six months immediately before the date of the filing
of the application for the recovery of possession thereof;
(e) That the premises let for residential purpose are required bona fide by the landlord for
occupation as a residence for himself or for any member of his family dependent on him, if he is
the owner thereof, or for any person for whose benefit the premises are held and the landlord or
such person has no other reasonably suitable residential accommodation;
Explanation.- For the purpose of this clause, "premises let for residential purpose" include any
premises which having been let for use as a residence are, without the consent of the landlord, used
incidentally for commercial or other purposes;
(f) That the premises have become unsafe or unfit for human habitation and are required bona fide
by the landlord for carrying out repairs which cannot be carried out without the premises being
vacated
(g) That the premises are required bona fide by the landlord for the purpose building or re-building
or making thereto any substantial additions or alterations and that such building or re-building or
addition or alteration cannot be carried out without the premises being vacated;
(h) That the tenant has, whether before or after the commencement of this Act, (Note: The word
"built" omitted by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) acquired vacant possession of, or been
allotted, a residence;
[(hh) (Note: Ins. by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) That the tenant has, after the
commencement of the Delhi Rent Control (Amendment) Act, 1988, built a residence and ten years
have elapsed there-after;]
(i) That the premises were let to the tenant for use as a residence by reason of his being in the
service or employment of the landlord, and that the tenant has ceased, whether before or after the
commencement of this Act, to be in such service or employment;
(j) That the tenant has, whether before or after the commencement of this Act, caused or permitted
to be caused substantial damage to the premises;
(k) That the tenant has, notwithstanding previous notice, used or dealt with the premises in a
manner contrary to any condition imposed on the landlord by the Government or the Delhi
Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land
on which the premises are situate;
(i) That the landlord requires the premises in order to carry out any building work at the instance
of the Government or the Delhi Development Authority or the Municipal Corporation of Delhi in
pursuance of any improvement scheme or development scheme and that such building work cannot
be carried out without the premises being vacated.
(2) No order for the recovery of possession of any premises shall be made on the ground specified
in clause (a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required
by section 15:
Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained
such benefit once in respect of any premises, he again makes a default in the payment of rent of
those premises for three consecutive months.
(3) No order for the recovery of possession in any proceeding under sub-section (1) shall be
binding on any sub-tenant referred to in section 17 who has given notice of his sub-tenancy to the
landlord under the provisions of that section, unless the sub-tenant is made a party to the
proceeding and the order for eviction is made binding on him.
(4) For the purpose of clause (b) of the proviso to sub-section (1), any premises which have been
let for being used for the purpose of business or profession shall be deemed to have been sub-let
by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing
of the landlord has, after the 16th day of August, 1958, allowed any person is a partner of the tenant
in the business or profession but really for the purpose of sub-letting such premises to the person.
(5) No application for the recovery of possession of any premises shall lie under sub-section (1)
on the ground specified in clause (c ) of the proviso thereto, unless the landlord has given to the
tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the
tenant has refused or failed to comply with such requirement within one month of the date of
service of the notice; and no order for eviction against the tenant shall be made in such a case,
unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public
nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the
landlord.
(6) Where a landlord has acquired any premises by transfer, no application for the recovery of
possession of such premises shall lie under sub-section (1), on the ground specified in clause (e)
of the proviso thereto, unless a period of five years have elapsed from the date of the acquisition.
(7) Where an order for the recovery of possession of any premises is made on the ground specified
in clause(c) of the proviso to sub-section (1), the landlord shall not be entitled to obtain possession
thereof before the expiration of a period of six months from the date of the order.
(8) No order for the recovery or possession of any premises shall be made on the ground specified
in clause (g) of the proviso to sub-section (1), unless the Controller is satisfied that the proposed
reconstruction will not radically after the purpose for which the premises were let or
such ramidically alteration is in the public interest, and that the plans and estimates of such
reconstruction have been properly prepared and that necessary fund for the purpose are available
with the landlord.
(9) No order for the recovery of possession of any premises shall be made on the ground specified
in clause (I) of the proviso to sub-section (1), if the Controller is of opinion that there is any bona
fide dispute as to whether the tenant has ceased to be in the service or employment of the landlord.
(10) No order for the recovery of possession of any premises shall be made on the ground specified
in clause, (i) of the proviso to sub-second (1) if the tenant, within such time as may be specified in
this behalf by the Controller, carries out repairs to the damage caused to the satisfaction of the
Controller or pays to the landlord such amount by way of compensation as the Controller may
direct
(11) No order for the recovery of possession of any premises shall be made on the ground specified
in clause (k) of the proviso of sub-section (1), if the tenant, within such time as may be specified
in this behalf by the Controller, complies with the condition imposed on the landlord by any of the
authorities referred to in that clause or pays to that authority such amount by way of compensation
as the Controller may direct.

Eviction of tenant on bona fide requirement

The Supreme Court in Bhupinder Singh Bawa vs. Asha Devi(2016), has upheld an order of
eviction on the ground of bona fide requirement of tenanted premises for the business requirement
of the son of the landlady

Ashok Kumar vs Ved Parkash & Ors. on 2009

Following the decision of the Harbilas' Case (supra) and the, this Court in a recent decision reported
in Mohinder Prasad Jain Vs. Manohar Lal Jain 2006 (2) SCC 724 held that a landlord is entitled
to seek eviction of a tenant under the Act from a non- residential building on the ground that
the landlord bonafiderequired the tenanted premises for his own use and occupation.

FORM A OF RULES UNDER DELHI RENT CONTROL ACT, 1958

Before The Rent Controller Delhi

Petitioner

.Vs

... Respondent

fixation of standard rent

Application for increase of standard rent

eviction of tenant

Under section (Strike out whatever is applicable)

1. Municipal No. of the premises


and Name if any. :

2. Street and Municipal Ward of division


in which the premises are situated. :

3. (a) Name and address of the landlord. :

(b) Name and address of the tenant (s) :

4. Whether the premises are residential


or non - residential. :

5. In the case of residential premises,


the number of person occupying the
same and in the case of non residential
premises the purposes for which these
are used and the number of employees,
if any, working therein. :

6. Whether any furniture is supplied


by the landlord. :

7. Details of fittings if any provided


by the landlord. :

8. Details of accommodation available


together with particulars as regards
ground area garden and out house,
if any. (Plan to be attached) :

9. Whether the premises are occupied


by a single (or more than one) tenant. :

10. Amenities available in regard to


lighting, water sanitation and the like. :

11. Money rent together with details of


house tax, electricity, water and other
charges paid by the tenant. :

12. (a) Date of completion of construction


of the premises and the cost thereof. :

(b) Whether completion report was


obtained from the local authority and
if obtained, the date thereof. :

13. Ratable value as entered in the last


property assessment book of the
Delhi Municipal Corporation/
New Delhi Municipal Committee or
the Delhi Cantonment Board,
as the case may be. :

14. Date on which the premises were let


to the tenant and details of agreement
if any, with the landlord. Attested
copy of the agreement to be attached. :

15. Where the rent of the premises has


been fixed under the New Delhi
House Rent Control Ordinance, 1939
or the Delhi Rent Control Ordinance,
1944, or the Delhi and Ajmer & Mewar
Rent Control Act, 1947 or the Delhi
Rent Control Act, 1958 & if so the
amount of such rent and the date
from which it took effect. :

16. Whether there are any sub-tenants and


if so, the date of such sub letting
accommodation sub-let whether with
or without the written consent of the
landlord and the rent charged from
the sub-tenant. :

17. Whether any additions or alterations


have been made since the rent was fixed
as stated under item No.15 and if so
the date on which such additions or
alteration were made & the cost of
such additions or alteration and
whether they were carried out with the
approval of the tan of the controller :

18. (a) The ground on which the eviction


of the tenant is sought. :

(b) Whether notice required has been


given and if so, particulars thereof
copies of such notice and tenants
reply if any, should be furnished. :

19. Any other and relevant information. :

20. Relief claimed. :

Date: Signature of applicant/recognised agent


through
Advocate

Verification:
I/we the above named petitioner/petitioners recognised agent do hereby verify that
the contents of paragraph No.1 to 19 of my above application are true to my knowledge
and last para is prayer to the Court.

Verified at Delhi this day of . 200.

(Signature of applicant/recognised agent)


Unit III: General Principles of Criminal Pleadings (Lectures 06)

CONVEYANCING ITS MEANING


Technically speaking, conveyancing is the art of drafting of deeds and documents whereby
land or interest in land i.e. immovable property, is transferred by one person to another; but the
drafting of commercial and other documents is also commonly understood to be included in the
expression.
Mitras legal and commercial dictionary defines conveyance as the action of conveyancing,
a means or way of conveyancing, an instrument by which title to property is transferred, a
means of transport, vehicle. In England, the word conveyance has been defined differently in
different statutes. Section 205 of the Law of Property Act, 1925 provides that the conveyance
includes mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer,
release and every other assurance of property or of any interest therein by any instrument except
a will. Conveyance, as defined in clause 10 of Section 2 of the Indian Stamp Act, 1899,
includes a conveyance on sale and every instrument by which property, whether movable or
immovable, is transferred inter vivos and which is not otherwise specifically provided by
Schedule I of the Act.

Section 5 of the Transfer of Property Act, 1882 (Indian) makes use of the word conveyance in
the wider sense as referred to above. Thus, conveyance is an act of conveyancing or
transferring any property whether movable or immovable from one person to another
permitted by customs, conventions and law within the legal structure of the country.
As such, deed of transfer is a conveyance deed which could be for movable or immovable
property and according to the Transfer of Property Act, 1882, transfer may be by sale, by lease,
by giving gift, by exchange, by will or bequeathment. But acquisition of property by inheritance
does not amount to transfer under the strict sense of legal meaning.

DRAFTING AND CONVEYANCING: DISTINGUISHED


Both the terms drafting and conveyancing provide the same meaning although these terms are
not interchangeable. Conveyancing gives more stress on documentation much concerned with the
transfer of property from one person to another, whereas drafting gives a general meaning
synonymous to preparation of drafting of documents.

Document may include documents relating to transfer of property as well as other documents in a
sense as per definition given in Section 3(18) of the General Clauses Act, 1897 which include any matter
written, expressed or described upon any substance by means of letters, figures or mark, which is
intended to be used for the purpose of recording that matter. For example, for a banker the document
would mean loan agreement, deed of mortgage, charge, pledge, guarantee, etc. For a businessman,
document would mean something as defined under Section 2(4) of the Indian Sale of Goods Act, 1930
so as to include a document of title to goods i.e. Bill of lading, dock-warrant, warehouse-keepers
certificate, wharfingers certificate, railway receipt multi-model transport document warrant or order for
the delivery of goods and any other document used in ordinary course of business as proof of the
possession or control of goods or authorising or purporting to authorise, either by endorsement or by
delivery, the possessor of the document to transfer or receive goods thereby represented.
The Companies Act, 1956 defines vide Section 2(15) the term document in still wider concept so as
to include summons, notices, requisitions, order, other legal process, and registers, whether issued, sent
or kept in pursuance of this or any other Act, or otherwise. Thus, drafting may cover all types of
documents in business usages. In India, the commercial houses, banks and financial institutions have
been using the term documentation in substitution of the words drafting and conveyancing.
Documentation refers to the activity which symbolises preparation of documents including finalisation
and execution thereof.

DISTINCTION BETWEEN CONVEYANCE AND CONTRACT


Having understood the meaning of conveyance, it becomes necessary to understand the distinction
between conveyance and contract before discussing basic requirements of conveyance or deed of
transfer. Apparently, conveyance is not a contract. The distinction between conveyance and contract is
quite clear. Contract remains to be performed and its specific performance may be sought but
conveyance passes on the title to property to another person. Conveyance does not create any right
of any action but at the same time it alters the ownership of existing right.

There may be cases where the transaction may partake both contract as well as conveyance. For
example, lease, whereby obligation is created while possession of the property is transferred by lessor to
lessee. More so, contracts are governed by provisions of the Indian Contract Act, 1872 whereas the cases
of transfer of immovable property are governed by the Transfer of Property Act, 1882 in India. A mere
contract to mortgage or sale would not amount to actual transfer of interest in the property but the deed
of mortgage or sale would operate as conveyance of such interest. In other words, once the document
transferring immovable property has been completed and registered as required by law, the transaction
becomes conveyance. Any such transaction would be governed under the provisions of the Transfer of
Property Act, 1882.

a. Application for bail


a. Application under Section 125 Cr.P.C.

IN THE COURT OF ____METROPOLITAN MAGISTRATEIN MAGISTRATE


AT: HYDERABAD

Maintenance Case No.________ of 200__

BETWEEN:

1. Smt. _____________W/D/o _____________


Age:________ Occ: _________

2. Master____________S/o ________________
Age:________ Occ: _________

Both are R/o _________


____________________
____________________ .... Petitioners

AND
Mr. ___________________S/o _________________
Age:________ Occ: _________
R/o ____________________
____________________ ..... Respondent

PETITION UNDER SECTION 125 Cr. P C FOR THE GRANT OF


MAINTENANCE

The petitioners most respectfully submit as under:-

1. That the Petitioner No. 1 was married to Respondent on ______________according to Hindu


customs and rites at Delhi and one male child (Petitioner no. 2) was born out of this wedlock
on__________.
2. That Rs.__________ was spent on the marriage of the petitioner No. 1 and sufficient dowry
articles were given to the respondent and his family members according to their status but
the respondent and his family members were not satisfied and thus started demands from
the petitioner but the parents of the petitioner are not in a position to fulfill the demands of
the respondent and his family members. The petitioner No. 1 was tortured and humiliated
time and again and ultimately she was thrown out of her matrimonial home in wearing
clothes along with petitioner No. 2. Since then, the petitioner No. 1 is living with her parents.

3. That the petitioner No. 1 visited to the CAW Cell for settlement of her married life but the
respondent refused to maintain the petitioners. Then a case Under section 498A/406/34 IPC
under the FIR No. _________ was registered against the respondent.
Contd.P.2.

:: 2 ::

4. That the respondent is not giving any maintenance to the petitioners and the Parents of the
petitioner No. 1 are very poor person. The petitioner No. 1 has neither any source of income
from any side nor she has any movable or immovable properties in her own name.

5. That the respondent is employed as a Manager with M/s _____________________ and is


getting Rs.12, 000/- per month from there and he earns Rs.15, 000/- per month from rent of
his property and he has no other liability except to maintain the petitioners.

6. That the petitioner No. 1 has require Rs.4,000/- per month for her maintenance and
Rs.3,000/- for her minor child as the petitioner No. 2 is attending school and expenses have
to be made regarding his tuition fee, transport and cost of books etc. apart from other
necessary expenses.

7. The Petitioner No: 1 is a household lady, not having any skilled qualification and unable to
work any job, as well unable to maintain herself and her son by self.

8. This court has the jurisdiction as the petitioners live within the jurisdiction of this court and
the marriage between the petitioner No. 1 and respondent had taken place here.

PRAYEPRAYER

It is, therefore, most respectfully prayed to this Hon'ble Court that in view of the
abovementioned circumstances, please grant the maintenance of Rs.5,000/- per month for the
petitioner No.1 and Rs.3,000/- for the petitioner No. 2 Under section 125 Cr.PC from the date of
petition in the interest of justice. Any other and further relief (s), which this Hon'ble Court deems
fit and proper may also be passed in favour of the petitioners and against the respondent.

Dated: 29122008 Petitioner No. 1


Place : Hyderabad

Petitioner No. 2
(Being Minor Represented By Pet : 1)

COUNSEL FOR THE PETITIONER

Contd.P.3.

:: 3 ::

VERIFICATION

I the above named petitioner do hereby verify that, all the facts above mentioned are true and
correct to the best of her knowledge and belief. Hence verified by this petitioner and on behalf of
the other petitioner on this the ___th day of Dec, 2008 at Hyderabad.

Dated: 29122008 Petitioner No. 1


Place : Hyderabad

Petitioner No. 2
(Being Minor Represented By Pet : 1)

COUNSEL FOR THE PETITIONER


Section 125 in The Code Of Criminal Procedure, 1973
125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where
such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon
proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of
his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the
whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time
to time direct: Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For
the purposes of this Chapter,-
(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is
deemed not to have attained his majority;
(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband
and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the
application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant for levying the amount due in the manner provided
for levying fines, and may sentence such person, for the whole or any part of each month' s allowances
remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to
one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of
any amount due under this section unless application be made to the Court to levy such amount within a
period of one year from the date on which it became due: Provided further that if such person offers to
maintain his wife on condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a
husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be
just ground for his wife' s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living
in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in
adultery, or that without sufficient reason she refuses to live with her husband, or that they are living
separately by mutual consent, the Magistrate shall cancel the order.
c. F.I.R. under Section 154 Cr.P.C.