You are on page 1of 15

FACULTY OF LAW

JAMIA MILLIA ISLAMIA


NEW DELHI

NAME – ANANYA SINGH THAKUR


BATCH- BALLB(Hons.) regular
SUBMITTED TO – IQBAL HUSSAIN SIR
TOPIC- SPECIFIC RELIEF ACT,1963
ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges, I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who
gave their all support and helped me to complete this project. First of all I am very grateful to
my subject teacher Mr. IQBAL HUSSAIN SIR without the help and kind support of whom the
completion of the project would have been a herculean task for me. He donated his valuable
time from his busy schedule to help me to complete this project and suggested me from where
and how to collect data. I am thankful for their aspiring guidance, invaluably constructive
criticism and friendly advice during the project work. I am sincerely grateful to them for sharing
their truthful and illuminating views on a number to the project. I am very thankful to the
librarian who provided me several books on this topic which proved beneficial in completing
this project. Last but not the least, I am very much thankful to my parents and family, who
always stand aside me and helped me a lot in accessing all sorts of resources. I thank all of them
! ANANYA SINGH THAKUR
nd
B.A. LLB.
TABLE OF CONTENTS
1- INTRODUCTION
2- IMPORTANCE OF SPECIFIC RELIEF ACT
3- PROVISIONS OF SPECIFIC RELIEF ACT
4- LOOP HOLES AND INEFFICIENCY OF SPECIFIC RELIEF ACT
5- CONCLUSION
6- BIBLIOGRAPHY
INTRODUCTION
The Specific Relief Act, 1963 is an Act of the Parliament of India which takes care of a
large number of remedial aspects of law. It came in the replacement of the earlier Act of 1877.
Protection of life and property cannot be assured by a simple declaration of rights and duties.
The enumeration of rights and duties must be supplemented by legal devices which help the
individual to enforce his rights.
Social redress must be provided to every person who is injured in the social process.
Basically, the mission of the Specific Act is to assure that whenever there is a wrong there must
be a remedy. Remedies are generally provided by the branch of substantive law which defines
its rights and duties for its own purposes. The law of contract provides the remedy of damages
for breach of contract. Similarly the law of tort provides for recovery in cases of tortuous
wrongs. However, substantive laws can never afford to be exhaustive in terms of their remedies
and reliefs. Scope of the Act remains specific to provide a network of relief. The Act does not
confer any Rights on itself.
Specific relief is only provided for the violation of a legal right.
Thus we can say that :
1. Specific Reliefs Act is complimentary to provisions of Contract Act and Transfer of
Property Act, as the Act applies both to movable property and immovable property.
2. The Act applies in cases where Court can order specific performance of a contract or
act. As per section 4, specific relief can be granted only for purpose of enforcing individual civil
rights and not for the mere purpose of enforcing a civil law.
3. ‘Specific performance’ means Court will ask the party to perform his part of
agreement, instead of asking him to pay damages to other party.

IMPORTANCE OF SPECIFIC RELIEF ACT


Remedies under Specific Relief Act, 1963
• Recovery of possession of immoveable property
• Recovery of possession of moveable property
• Specific performance of contract
• Rectification of contract
• Rescission of contract
• Cancellation of an instrument
• Declaratory decree

.Injunctions 1
A. RECOVERING POSSESSION OF IMMOVABLE PROPERTY –
1. A person who is entitled to possession of a specific immovable property may recover it in the
manner provided in Code of Civil Procedure. (Section 5)
2. If any person is disposed without his consent, of immovable property otherwise than by
course of law, he can recover possession, even if any other title is set up in such suit. Such suit
shall be brought within 6 months.
3. No suit can be filed against Government for recovery of possession. [Section 6]. That is why it
is termed as ‘possession is 9 points in law’.
4. Even an unlawful possession of immovable property can be taken away only by lawful means
not forcefully.

B. RECOVERING POSSESSION OF SPECIFIC MOVABLE PROPERTY


a. A person who is entitled to possession of a specific movable property may recover it in the
manner provided in Code of Civil Procedure. (Section 7)
b. If any person is in possession or control of a specific movable property of which he is not
owner, he can be compelled to specifically deliver it to the person entitled to immediate
possession, in cases specified in section 6. Thus, if a person holding the movable property is
owner of goods, he cannot be compelled to deliver it to other.
c. However, in other cases, he can be compelled to deliver it, even if other person is not owner,
as long as he is entitled to its immediate possession.

C. SPECIFIC PERFORMANCE OF CONTRACT


Specific performance of contract can be ordered, at discretion of Court, in following cases –
(a) Where there exists no standard for ascertaining damage caused by the nonperformance of
act agreed to be done or
(b) When the act agreed to be done is such that compensation in money for nonperformance
will not give sufficient relief. [Section 10].
(c) Please note that as per explanation (ii) to section 10, breach of contract in respect of
movable property can be relieved (by paying damages) unless the property is not an ordinary

1
http://www,law notes.in/ specific relief act 1963
article of commerce or is of specific value or interest to the tariff, or consists of goods which are
not easily available in the market.
In other words, Court may order to deliver specific article only if it is special or unique article,
not available in market. In other cases, Court will order damages but not order specific
performance of contract.
(d) In case of immovable property, normally, specific performance will be ordered, as such
property is usually unique. Section 12(1) states that Court shall not order performance of part
of contract, except in cases specified in that section.

D. CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED –


Following contracts cannot specifically enforced –
(a) Where compensation is adequate relief
(b) Contract runs into such minute or numerous details or depends on personal qualifications of
parties or is such that Court cannot enforce specific performance of its material terms
(c) Contract which in its nature is determinable
(d) Contract, performance of which involves a continuous duty, which Court cannot supervise.
[Section 14]. In other words, in case of movable articles or contract of intricate nature, specific
performance will normally not be ordered by Court.
(e) Specific performance of contract of personal nature cannot be ordered.

E. DISCRETIONARY POWERS OF COURT


a. Jurisdiction of Court to decree specific performance is discretionary. Court willnot order
specific performance merely because it is lawful to do so. [Section20(1)].
b. Court will consider various aspects before issuing decree for specific performance.
c. Court can grant compensation in lieu of even in addition to specific performance. [Section
21].

F. OTHER CASES WHEN COURT CAN ORDER SPECIFIC PERFORMANCE


(a) Order rectification of instrument if it does not reflect real intention of parties. This may
happen through fraud or mutual mistake. [Section 26]
(b) Order rescission of contract (section 27)
(c) Cancellation of instrument by getting declared that it is void (section 31). 2

G.SPECIFIC PERFORMANCE OF CONTRACTS

2
http://lawjournaledition.blogspot.in/2012/07/specific-relief-act-1963-.html
The base of almost all economic relations are made of contracts. Every profession is contract
bound. Property, whether owned by businesses or individuals are locked up under contracts.
For example, money in banks and other forms of investment are contractually bound. As a
result, contracts constitute modern wealth. They are sacred per se. Moreover a particular
contract is not an isolated transaction. Often it is a link in the chain of several contracts. A
failure at one place could cause serious dislocation to economic and social life. Contracts, thus
must be enforced. But awarding compensation to an injured person is the only way that the law
of contract can enforce a contract. However, in many cases compensation fails to serve the
economic purpose of a contract. For example, a hospital is interested in the fulfillment of its
requirements and not in receiving compensation from a failed supplier. Thus there was a need
for a remedy which would compel a defaulting contractor to actually perform his contract.3

H. RECTIFICATION AND CANCELLATION OF INSTRUMENTS AND RESCISSION OF


CONTRACTS
By law, many transactions are required to be in writing. Because of expediency, many more
transactions are put into writing. A written transaction is called an instrument. An instrument is
a result of negotiations. Sometimes, an instrument may fail to express the intention of the
involved parties. Rectification of such an instrument may become necessary. Help towards
parties who want to have their documents (which are mistakenly executed) rectified, is
provided in Chapter III of the Specific Relief Act. Closely related with documents mistakenly
executed, is the category of documents which are at a later point found to be void or which
become void. These documents ought to be cancelled. Chapter V provides relief from such
kinds of documents. Also, there is a category of contracts which, for some reason or the other
(e.g. lack of free consent) can be deemed voidable by the party which consent was not free.
This party has the right to have the contract rescinded. Relief by way of rescission is provided
by Chapter IV of the Specific Relief Act.
I. PREVENTIVE RELIEF
There can be cases where the nature of the contract do not allow damages to likely serve any
purpose nor admit to specific performance. In such cases, the court may have to restrain the
party who threatens the breach, to the possible extent. For example, a person undertakes a
contract to sing at a particular place and also undertakes not to sing anywhere else during the
same period. In case the singer threatens breach, the court cannot force him to sing. The
positive side of the bargain is not specifically enforceable. But the negative undertaking i.e. not
to sing elsewhere, can be enforced by restraining him from singing elsewhere. When he is
prevented from resorting to other openings, it may exert some pressure upon his mind and he
may be persuaded to go ahead with the performance of his contract.
This type of remedy is known as preventive relief. This is granted by issuing an order known as
injunction. Injunction is an order issued upon the party concerned directing him/them to omit

3
http://lawyerslaw.org/the-specific-relief-act-1963/
the performance of a particular duty or act. This is also known as a mandatory injunction. Such
relief is granted under the provisions of Part III of the Act.

J. DECLARATORY RELIEF
This is the final matter which is taken care of by the Specific Relief Act.
Sometimes it may happen, that a person who is entitled to some status or character or has a
right in some property but is being denied the enjoyment of his right by other parties. Under
Chapter VI of the Specific Relief Act, he is allowed to proceed against any person who is denying
or is interested in denying him his right.Ushaben V. Bhagayalakshmi Chitra Mandir AIR [All India
Reporter] Year of Judgment-1978 Gujrat High Court Page No.-13. The plaintiffs sued the
defendants for a permanent injunction to restrain the exhibition of the “Jai Santoshi Maa” by
them. It was contended that the plaintiff’s feelings were hurt by the film as goddesses
Saraswati, Lakshmi and Parvati were shown as being jealous and were ridiculed. It was held that
the plaintiff’s failed to prove that the exhibition of the said film was generally a nuisance. If only
the religious sentiments of the plaintiffs were hurt that did not amount to nuisance. The
plaintiffs were free not to see the movie again. Issue of injunction to restrain the defendants
from exhibiting the film was refused by the court.4

PROVISIONS OF SPECIFIC RELIEF ACT


Part I: Preliminary
Section 1: Short title, extent and commencement
Section 2: Definitions
Section 3: Savings
Section 4: Specific relief to be granted only for enforcing individual civilrights and not for
enforcing penal laws.

Part II: Specific Relief


Section 5: Recovery of specific immovable property.
Section 6: Suit by person dispossessed of immovable property.
Section 7: Recovery of specific movable property.

4
http://indian kanoon .org
Section 8: Liability of person in possession, not as owner, to deliver to persons entitled to
immediate possessionChapter .

II: Specific Performance of Contracts


Section 9: Defences respecting suits for relief based on contract.
Section 10: Cases in which specific performance of contract enforceable.
Section 11: Cases in which specific performance of contracts connected with trusts
enforceable.
Section 12: Specific performance of part of contract.
Section 13: Rights of purchaser or lessee against person with no title or imperfect title.
Section 14: A Contract for marriage cannot be specifically be enforced.
Section 15: Who may obtain specific performance.
Section 16: Personal bars to relief.
Section 17: Contract to sell or let property by one who has no title, not specifically enforceable.
Section 18: Non-enforcement except with variation.
Section 19: Relief against parties and persons claiming under them by subsequent title.
Section 20: Discretion as to decreeing specific performance.
Section 21: Power to award compensation in certain cases.
Section 22: Power to grant relief for possession, partition, refund of earnest.money, etc.
Section 23: Liquidation of damages not a bar to specific performance.
Section 24: Bar of suit for compensation for breach after dismissal of suit for specific
performance.
Section 25: Application of preceding sections to certain awards and testamentary directions to
execute settlements.
Section 26: When instrument may be rectified.
Section 27: When rescission may be adjudged or refused.
Section 28: Rescission in certain circumstances of contracts for the sale or lease of immovable
property, the specific performance of which has been decreed.
Section 29: Alternative prayer for rescission in suit for specific performance.
Section 30: Court may require parties rescinding to do equity.
Section 31: When cancellation may be ordered.
Section 32: What instruments may be partially cancelled.
Section 33: Power to require benefit to be restored or compensation to be made when
instrument is cancelled or is succesfully resisted as being void or voidable.
Section 34: Discretion of court as to declaration of status or right.
Section 35: Effect of declaration.

Part III: Preventive Relief


Chapter VII: Injunctions Generally
Section 36: Preventive relief how granted.
Section 37: Temporary and perpetual injunctions.
Chapter VIII: Perpetual Injunctions
Section 38: Perpetual injunction when granted.
Section 39: Mandatory injunctions.
Section 40: Damages in lieu of, or in addition to, injunction.
Section 41: Injunction when refused.
Section 42: Injunction to perform negative agreement.
Section 43: [Repealed.]
Section 44:[Repealed]5

LOOP HOLES AND INEFFICIENCY OF SPECIFIC


RELIEF ACT
Specific Reliefs Act is complimentary to provisions of Contract Act and Transfer of Property Act,
as the Act applies both to movable property and immovable property. The Act applies in cases
where Court can order specific performance of a contract or act. As per section 4, specific relief
can be granted only for purpose of enforcing individual civil rights and not for the mere purpose
of enforcing a civil law.

5
Bare act specific relief act
It is very important to understand the meaning of Specific Performances over here, ‘Specific
performance’ means Court will ask the party to perform his part of agreement, instead of
asking him to pay damages to other party. The Specific Relief Act is has a number of advantages
and benefits but it has flaws too. The Specific Relief Act is concerned only with the enforcement
of civil rights and not penal laws which is its main incapability that it cannot punish the wrong
doers.
The other main loop hole of Specific relief act is that it does not have power to give injunction
which means that is an equitable remedy in the form of a court order that compels a party to
do or refrain from specific acts. A party that fails to comply with an injunction faces criminal or
civil penalties, including possible monetary sanctions and even imprisonment. They can also be
charged with contempt of court. which makes it incompetent to exercise its existing powers
which can be approved by the way of section 41.
Further when we compare this very act with the Civil Procedure Code 1908 , we are able to
criticize the Specific Relief Act 1963. We can say in other words that CPC in a way fills the
incompetency of this act.

Section 19 :- Suits for compensation for wrongs to person or movables.


Where a suit is for compensation for wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one Court and the defendant
resides, or carries on business, or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of
the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in
Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in
Calcutta or in Delhi.

Section 43 :-Execution of decrees passed by Civil Courts in places to which this


Code does not extend.
[Execution of decrees passed by Civil Courts in places to which this Code does not extend.
Any decree passed by any Civil Court established in any part of India to which the provisions of
this Code do not extend, or by any Court established or continued by the authority of the
Central Government outside India, may, if it cannot be executed within the jurisdiction of the
Court by which it was passed, be executed in the manner herein provided within the
jurisdiction of any Court in the territories to which this Code extends].
Section 62 :- Seizure of property in dwelling-house.
(1) No person executing any process under this Code directing or authorizing seizure of
movable property shall enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless such dwellinghouse is in the
occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but
when the person executing any such process has duly gained access to any dwelling-house, he
may break open the door of any room in which he has reason to believe any such property to
be.
(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to
the customs of the country, does not appear in public, the person executing the process shall
give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable
time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such
room for the purpose of seizing the property, using at the same time every precaution,
consistent with these provisions, to prevent its clandestine removal.
Section 65 :- Purchaser’s title.
Where immovable property is sold in execution of a decree and such sale has become absolute,
the property shall be deemed to have vested in the purchaser from the time when the property
is sold and not from the time when the sale becomes absolute.
Section 88 :- Where interpleader suit may be reinstituted.
Where two or more persons claim adversely to one another the same debts, sum of money or
other property, movable or immovable, from another person, who claims no interest therein
other than for charges or costs and who is ready to pay or deliver it to the rightful claimant such
other person may institute a suit of interpleader against all the claimants for the purpose of
obtaining a decision as to the person to whom the payment or delivery shall be made and of
obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties can properly be
decided, no such suit of interpleader shall be instituted.

CONCLUSION
Thus through this project report the researcher has come to the conclusion that The Specific
Relief Act, 1963 was came into force on 1st March 1964. The Parliament enacted the Act by
repealing the Specific Relief Act, 1877. The Act is based on the principle of equity and is used for
granting specific relief for enforcing civil rights.
It has no application in enforcing penal laws. The Specific Relief Act, 1877 contained the
principles of equity, justice and good conscience. The need for a new statute suited for the new
requirements lead to the enactment of the Act of 1963. The Bill of the new Act was drafted on
the basis of the 9th Report of the Law Commission of India. From the preamble of the Act, it is
clear that the Act was not an exhaustive one. It only deals with certain kinds of specific reliefs
and there are other reliefs about which the Act was silent and are used by the courts. The Act is
a procedural law and provides a network of reliefs. The plaintiff, under the Act gets his relief in
specific. The reliefs contained in the Act include,
Recovery of Possession of Property,
Specific Performance of Contracts,
Rectification of Instruments,
Rescission of Contracts,
Cancellation of Instruments,
Declarative Relief, and
Preventive Reliefs ( Injunctions).
Sections 5 to 7 of the Act contained provisions regarding recovery of possession of property. It
include both immovable property (Section 5) and movable property (Section 7). Any person
having right of possession of the property can recover it by the application of provisions of
Code of Civil Procedure. Section 6 prevents a person from possessing immovable property of
another without his consent otherwise than by due process of law, without considering the
question of title. A suit for recovery of such property under S.6 cannot be filed against the
Government.

Chapter II of the Act deals with the specific performance of contracts. This is an
equitable relief granted by the court to perform the contract when there is a breach of the
same. Court’s jurisdiction to grant specific performance is only discretionary and Section 14 of
the Act enumerated certain circumstances under which the suit for specific performance will be
rejected.
The provisions regarding rectification and cancellation of instruments and the rescission of
contract were incorporated in Chapter III, IV and V respectively. The Act enable the parties to
rectify the documents which are mistakenly executed. The instruments in writing and written
contracts can be rectified on the ground of fraud and mutual mistake. Unilateral mistake is not
a reason to seek rectification. The Act prescribed no time limit for a suit for rectification.
Sections 27 to 30 deals with rescission of voidable and terminable contracts. This is opposite to
the relief of specific performance since it discharged a party from the obligations by avoiding
the contract. The relief is available to any interested person to the contract. The remedy is
available if the contract is voidable or terminable at the instance of the plaintiff. Under section
31 of the Act, a person can sue for the cancellation of the document when he had an
apprehension of serious injury from it.
Declaratory reliefs are available through the decrees of the court. Sections 34 and 35 provided
this relief under which a person can approach the court for declaring his right or status over
some property. The object of this relief is to prevent future litigation. This remedy can be
requested when there were doubts regarding right over property. It can be sought against any
person who denied or tried to deny the right of the plaintiff.6
Another relief provided by the Act is preventive in nature. Preventive reliefs are granted by the
courts by way of issuing injunctions. Injunctions under Part III of the Act (Chapter VII to end)
prevents a person to do or not to do something. Granting of such reliefs are within the
discretion of the court. By virtue of Section36 of the Act, there are temporary or interlocutory
injunctions and perpetual injunctions. Perpetual injunctions can be granted only after hearing
both sides and considering the merits of the case. Under Section 39, court can grant mandatory
injunctions to compel a person to do an act. It is issued to prevent the breach of an obligation.
A plaintiff can claim damages in the suit for both mandatory and perpetual injunctions.
And finally the Specific Relief Act, 1963 was amended twice by the Act No. 52 of 1964 and Act
No. 56 of 1974. The later repealed two of the provisions of the Act viz, Sections 43 and 44. 7

BIBLIOGRAPHY
BOOKS :
● The specific relief act , 1963 Bare Act
● Civil Acts Abhinav Mishra
● The Law Of Contracts And Specific Relief Act R.K Bangia

INTERNET :
https://anarchyindia.wordpress.com/tag/specific-relief-act/

6
http://www.vakilno1.com/redlaws/redundant-laws.html
7
http://millercenter.org/president/fdroosevelt/speeches/speech-3304
http://www.vakilno1.com/redlaws/redundant-laws.html
http://lawyerslaw.org/the-specific-relief-act-1963/
http://commonlaw-sandeep.blogspot.in/2012/01/specific-relief-act-1963-quicksummary.html