1

SPECIFIC RELIEF ACT

Q1 Specific relief is obtainable in civil suits only. Where this definition is contained in the
specific Relief Act?
A. It is provided under preamble of the Specific Relief Act.
Q.2 There is two types of reliefs available to the aggrieved person, i.e. general relief and specific
relief. How these two reliefs are granted with distinction ?
A. The relief which is ordinarily available in a Civil Court by way of damages or compensation is
,general relief , whereas the relief as provided under the Specific Relief Act is called ‘specific relief..
The line of distinction is that in general relief the suitor is entitled to get compensation or damages for
the wrong caused . while in the latter case the suitor obtains that thing to which he is entitled.
Q.3 For what relief the Specific Relief Act deals with ?
A. It deals with the following reliefs.
1. Recovery of possession of immovable and movable property (Ss.8 to 11)
2. Performance of contracts (Ss.12 to 20)
3. Rectification of instruments (Ss.31 to 34)
4. Rescission of contracts (Ss.35 to 38)
5. Cancellation of instrument (Ss.39 to 41)
6. Declaring the rights of parties otherwise than by an award of compensation (Ss.42
to 43)
7. Appointing a receiver (Ss.44)
8. Enforcement of public duties (Ss.45 to 51)
9. As to preventive relief, the Act deals with temporary and perpetual injunctions (Ss.52 to
57)
Q4. Whether specific relief obtainable in Revenue or Criminal Courts can be dealt with under
this Specific Relief Act , 1877 ?
A. No, Specific Relief Act covers only that branch of specific reliefs which are obtainable in Civil
Court only.
Q.5 Whether Specific Relief Act is substantive law or an adjective law?
A. It is only an adjective law. It presents codification of principles derived from long series of
precedents and practices of English Court of Equity.
Q6. On what principles the Specific Relief Act is based upon?
A. It is based upon the principles of equity, reason and good conscience. In other words it is based
upon most leading principle i.e. ‘ who comes to get the equity to others. PLD1977 Lah.77.
Q7. In every statute there is a preamble, and the preamble does not have the same status as that
of statute itself has. It is also said that the preamble carries legitimate stand in discovering
the purpose of statute as to finding out its meaning and intent. You may explain the
purport of preamble?
A. The purpose of preamble is that in case of any doubt as to the intention of the law makers, it may
be looked at in order to ascertain a true meaning of a particular provision by cannot control the
substantive provisions of he enactment. PLD 1976 Kar. 1368

PART – 1 IPRELIMINARY
S.3 INTERPRETATION CLAUSE

“ Obligation” includes every duty enforceable by law”

“Trust” includes every species of express, implied or constructive fiduciary ownership:
“ Trustee” includes every person holding expressly by implication or constructively,

a fiduciary character:
Questions
Q.1 ‘ A ‘ is the legal, medical or spiritual adviser of B. In the event of his legal adviser ship A
gains some pecuniary advantage, which otherwise have accrued to B. what is the status of A
towards B?
A. Within interpretation clause of section 3 of Specific Relief Act, A is a trustee for B of the benefit
gained by him.
Q.2 Trust includes every species of express, implied or constructive fiduciary owner ship. There is a
Trust Act, 1882, which provides the purport of trust: however, the above definition is implied some
elsewhere. Which is that statute and provision?
A. The above said definition is implied in the interpretation clause of Specific Relief Act, vide
section 3.
 2

Q.3 All the words of contract contained in the Contract Act are discussed under the Specific Relief
Act; what meaning of those words is assigned under the Specific Relief Act?
A. As per interpretation clause of section 3 of the S.R. Act, all the words occurring in the Specific
Relief Act, which are defined in the Contract Act, shall be deemed to have the same meaning as
assigned to them under the Contract Act.
Q.4 What will you say to that contract, where the relations between the parties are such that one of
the parties dominate the will of other and uses that position to obtain unfair advantage over the other?
A. We will say it “undue influence”
Q.5 Define preventive relief?
A. By preventing a party from dong that thing, which he is under an obligation not to do is called
preventive relief. However, specific relief granted under clause (c) of section 5 is called preventive
relief.
Q.6 What is meaning of term quasi-trust?
A. It is a suit for administration of state of the deceased and is competent in law. PLD 1949 Lah 263
Q.7 Distinguish between private and public trust?
A. In private trust the beneficiaries are specific individuals and in public trust they are general
public or a class there of . PLD 1968 Dacca 124.
Q.8 What is agent and where is it defined?
A. The term ‘agent’ has been defined in section 182 of the Contract Act and mean ‘a person
employed to do any act for another or to represent another in dealing with third persons’
Q.9 What is term consent and where is it employed?
A. Consent is defined is section 13 of Contract Act as under:
“Two or more persons are said to consent when they agree upon the same
thing in the same sense”
Q.10 It means consent is defined in Contract Act ; can we use consent under the Specific Relief Act?
A. Yes, under the residuary clause of section 3 of Specific Relief Act, this is as follows;
“And all words occurring is this Act, which are defined in the Contract Act, 1872
shall be deemed to have the meanings respectively assigned to them by that Act.”
Q.11 Is it a consent, which is obtained by deceit , trick or misrepresentation ?
A. No, such consent is not in due course of law, 1982 SCMR 74
Q.12 Under which provisions the terms “Agreement “ and “Contract “ are used in Specific Relief Act
and Contract Act ?
A. Term Contract Act Specific Relief Act
Agreement S. 2 (e) S.4(a) S.23 (6) S.32
Contract S. 2 (h) Ss 12 to 30 , Ss 35 to 38

Q.13 To enforce penal law, can relief be granted ?

A. No, specific relief cannot be granted for the mere purpose of enforcing a penal law.{S,7}
Q.14 Possession of immovable property is sought under section 8 of the Specific Relief Act. In what
manner this provision provides remedy to recover the possession ?
A. Section 8 provides a remedy by way of a suit for possession on the bases of title in the manner
provided by the Code of Civil Procedure.
Q.15 How title in section 8 is created for recovery of possession?
A. A title under section 8 of the Act is created by contract, inheritance, and prescription or even by
possession and last will prevail where no preferable title is shown. LLR 20 Cal.834 (PC)
Note: We will exclude the term prescription out of title as this law is not holding the field now
and was declared the FSC to be repugnant to the injunctions of Islam. Thus the citation referred above to
will not be applicable now.

Q.16 What is the manner as to recovery of possession of immovable property u/s 8 of the Act; so also
the enforcement of procedure there under?
A. Section 8 provides remedy by way of a suit for possession on the basis of title in the manner
provide by the Code of Civil Procedure.
Q.17 Where a person is not owner of property and has sought be put back in possession and
unlawfully dispossessed within a period of six months prior to institution of suit under which provision
of law, the remedy may be invoked ?
A. A remedy may be invoked vide section 9 of the Specific Relief Act ?
Q.18 For what the remedy under section 8 of the Act may be availed ?
A. Under section 8 suit may be instituted against dispossession ; and by the person who is entitled to
property. 1994 MLD 527

Q.19 What is limitation as to filing of suit under sections 8 & 9 of the Act ?
 3

A. It is mandatory requirement of law that suit for recovery of possession under section 9 of the Act
is to be filed filed within six months of dispossession ; whereas suit u/s 8 based on title will be governed
by Article 144 of the Limitation Act ; and further whereas, if it is made on the basis of possession or
dispossession, it will be governed by Article 142 of the Limitation Act.
Q.20 What will be the limitation in both sections i.e. 144 and 142 of Limitation Act?
A. In both the cases , limitation will be 12 years.
Q.21 It is said that no suit can be filed for recovery of possession against the Central Government or
any Provincial Government. Under which provision of Specific Relief Act this bar is contained?
A. A bar is contained under the provision attached to section 9 of the Specific Relief Act.
Q.22 whether an appeal can be filed against the decree or judgment in a suit under section 9 of the
Specific Relief Act?
A. There is no provision of appeal against the decision or decree made under section 9 of the Act.
Q.23 What may we call the suit for recovery of possession filed within six months of dispossession
under section 9 of the Specific Relief Act?
A. We may call it a summary suit.
Q.24 What are the main requirements for filing of suit u/s 9 of the Specific Relief Act?
A. the main and essential ingrediedients are:
1. That the person suing was in actual, physical and juridical possession of the immovable property
:
2. That has been dispossessed;
3. That the dispossession is within his consent;
4. That the dispossession is in otherwise than due course of law;
5. That the dispossession is within six months from filing of the suit.
Q.25 What are the remedies available to the person, dispossessed of the immovable property illegally
otherwise than due course of law?
A. It is discretionary for the dispossessed person to file or not to file suit for recovery of possession
through summary procedure under section 9 of the Specific Relief Act. However, such person is not
debarred to file a suit for possession on the allegation of possession and dispossession within 12 years of
the date of his dispossession under Article 142 of the Limitation Act, 1908. 1990 CLC268
Q.26 Explain in your own words the immediate object of section 9 towards filing a quick suit under
summary procedure?
A. It is to discourage the forcible dispossession. It provides remedy for recovery of possession,
where a person is dispossessed of immovable property otherwise than in due course of law. The plaintiff
is not required to establish his title to the property and he can succeed by merely showing previous
possession and wrongful dispossession. PLD 1964 Pesh. 157

Q.27 Distinguish between sections 8 and 9?

A. Distinction: So far as concepts of possession and dispossession, respectively under SS. 8 and 9
of Specific Relief Act, 1877 are concerned, merely because section expressly dealt with persons who
were dispossessed, that circumstances in it self would not preclude dispossessed persons, otherwise
entitled to seek relief under S. 8 from dong so, because “recovery” of possession could be sought not
only by those who had never been inducted into possession, but also by those who had been
dispossession, the only criteria in section 8 being that person claiming should be entitled to possession.
Section 9 only envisaged a speedy remedy for those who on being dispossessed, otherwise than in due
course of law, seek prompt relief, within six months of dispossession and in such context superior title
alone was no defence. While under section 8 title to possession was a necessary qualification for seeking
possession. The remedy which is available under section 8 is a general remedy. Section 9 on the other
hand provides a quick remedy for the recovery of possession where a person is dispossessed otherwise
than in due course of law. The plaintiff under this section is not required to establish his title to the
property, and he can succeed by merely showing previous possession and wrongful dispossession
provided he comes to the Court within 6 months of the accrual of cause of action. If a suit is made under
section 9 the section of title cannot be raised meaning thereby that a suit under section 9 is not barred
even against rightful owner. PLD 1965 Dacca 269
Q.28 Can suit under section 9 be converted in section 8?
A. A suit under section 8 be made on the basis of title of ownership. But in case of an illegal
forcible dispossession the title is immaterial and that the only question which is to be examined is, as to
whether the plaintiff was in possession within 6 months prior to the filing of the suit as was dispossessed
without lawful recourse. The plaintiff under section 9 is not required to establish his title in property and
he can succeed by merely showing previous possession and wrongful dispossession. If a suit is filed
under section 9 and issues as to title framed, these can be deleted by the trial Court. Where the suit was
based on the alleged cause of action accruing to the plaintiff on the alleged illegal dispossession the
conversion of suit into section 8, is illegal. If a person enters in to possession peacefully, although he has
no title to it and is dispossessed by another person, he becomes entitled under section 9, of the3 Specific
 4

Relief Act to sue such other person for restoration of his possession and that in a suit for such a relief,
the Court does not decide the question of title and all that it is concerned with is as to whether the
possession has been disturbed without any authority of law in this regard to it. A decree under section 9
ibid can passed when it is proved that the plaintiff was dispossessed from the property in dispute by the
defendant, otherwise than in due course of law within 6 months of the institution of the suit. PLD 1979
Kar. 475

Q.29 What does the term ‘ due process of law ‘ implies under section 9 of the Specific Relief Act?
A The phrase, in due course of law in section 9 means the regular’ Normal process and effect of the
law operating on matter which has been laid before it for adjudication. In other words it refers to the
process and operation of law involved by the ordinary method of civil suit. A tenant holding over is
indeed a tenant on sufferance; but it is not competent for the landlord to suomotu dispossesses such a
tenant without his consent. Such a dispossession does not come within the purview of “in due course of
law”.{1904} 7 Bom.LR 12
Q.30 What is the meaning of juridical possession as used under sections 8 and 9 of te Specific Relief
Act?
A. For the purpose of sections 8 and 9, the possession claimed by a party should be juridical
possession, that is to say a possession founded on some right. Furthermore, juridical possession has
neither been got by force nor fraud. AIR 1956 All. 709

Q.31 Whether suit under section 9 is the only remedy available to a dispossessed co-sharer or that in
addition to the summary remedy a co- owner dispossessed illegally can rely upon his possessory title
and sue for recovery of possession even after the period of six months has expired?
A. This point was examined in case law AIR 1919 Lah. 237 (2) and it was observed:
“In the case of a joint Khata of agricultural land, one co-sharer ordinarily cultivates one field and other
co-sharers cultivate other fields, and it is certainly not the law that one co-sharer can dispossessed the
other against his will from the period of which he has possession. In Ghangi u Ramzan it is stated that in
accordance with well known law and custom as to possession of plot of Shamilat by individual co-
sharers, the defendant in forcibly dispossessing are qua plaintiff mere trespassers. As such a plaintiff’s
peaceful possession is a substantive right, the infringement of which gives to a cause of action. The
plaintiff can sue under section 9 but he is not bound to do so, he is entitled to recovery of possession on
the basis of possessory title.”PLD 1978 Kar.27 + AIR 1938 Lah.465

Q.32 Whether in a suit for possession under section 9, a further o manse profits be added with
appointment of receiver to collect the manse profits?
A. Section 9 provides a special and comparatively summary remedy for a person dispossessed
without his consent: as such the provisions of section 9 relate only to possession; and order for
appointment of receiver for collection of mesne profits is without jurisdiction. AIR 1937 Sindh 151

Q.33 When appeal against the order / decree under section 9 is not provided in law, what the next
course in case the judgment / decree under section 9 is challenged?
A. Decision under section 9 is neither appealable nor reviewable. These remedies are expressly
excluded and are not allowed to the aggrieved party under section 9 of the Act. However, the remedy by
way of revision is not excluded.

Q.34 Possession of immovable property is sought under sections 8 and 9 of the Act. Under which
provision the possession of movable property is sought?
A. Under sections 10 and 11 of the Act.

Q.35 Distinguish between sections 10 and 11?

A. A suit under section 10 can be made independent of ownership on the basis of temporary or
special right to possession of any movable property and is competent even against the true owner
whereas no suit is competent under section.11against the owner of movable property. Under section 11 a
person entitled to the possession of specific movable property may sue for its recovery or in the
alternative for compensation in the circumstances stated in section 11and in the manner provided in the
Code of Civil Procedure. Section 11 deals with these classes of cases as provided within the section for
the cases falling outside the ambit of those special cases for which provision of section 10 of the
Specific Relief Act would apply.

Q.36 With what purport the term trustee has been used under section 11 (a)of the Act?
A. The term “trustee” has not been sued in its technical sense but covers all cases of fiduciary
ownership implied or constructive. Where a contract was executed between A and B under which A
delivered to B, a cinematograph projector, According to contract, B was to pay for the projector
 5

installments and it was expressly provided that the ownership of the machine was not to pass to B till the
price had been paid in full. In default of payment of installment, A had the option of cancelling the
contract, B defaulted in the payment of installment, A had the option of cancelling the contract, B
defaulted in payment of installments and A exercised his option of demanded its return of machine. Held
that B held the project in a fiduciary capacity within the meaning of clause (a) of section 11 after A had
terminated the contract and demanded its return. After the termination of the contract, B had no right to
deal with over even use it. He held it on behalf of A and it was his duty to delivery it up to him. He was
not a trustee in the technical sense but held the machine in fiduciary character. AIR 1945 Mad. 281

Q.37 Which are those contracts, specifically enforced under chapter 11 of the Act?
A. Those contracts are:
(a) When the act agreed to be done is in the performance, wholly or partly, of
a trust;
(b) When their exists no standard for ascertaining the actual damage caused
by non-performance o the act agreed to be done;
(c) When the act agreed to be done is such that pecuniary compensation for its
non-performance would not afford adequate relief, or
(d) When it is probable that pecuniary compensation cannot be got for the
non-performance of the act agreed to done.
Q.38 Where vendor / seller had failed to complete contract of sale of immovable property, what
remedy the purchaser / vendee has in the circumstances?
A. The purchaser / vendee has two remedies open to him; to treat the contract rescinded and sue
either in equity or restitution of his former position; or to sue at law for any money that he was parting
with or; treat the contract on foot and ask for damages for breach or to seek remedy for specific
performance. PLD Lah. 11

Q.39 Whether agreement to sell creates any interest in the property?

A. Agreement to sell would not perse create a right in property agreed to be sold, but simply would
give proposed purchaser to enforce sale agreement for finalization and completion of sale deed. 1994
CLC 1475

Q.40 Generally there is a penalty clause in the agreement for non performance. Whether that clause
excludes the original contract and makes applicable the penalty / compensatory clause for non-
compliance of contract?
A. The right to specific performance is given by S. 12 of the Specific Relief Act, and clause in an
agreement that if the vendor sells the property to another person, he would be liable for the payment to
the transferee for his amount together with compensation and damages, does not detract from that right
but merely provides for another remedy to the transferee in case the agreement is not carried out by the
transferor or something is done by him to the transferee’s detriment. AIR Nag. 244

Q.41 Who is entitled for the right of equity?

A. A right of equity is given to the person, who is vigilant and not to that who sleeps, a lapse of time
would be fatal to any action for specific performance of the contract. AIR 1922 PC 249

Q.42 What agreement of sale forms basis of proof for specific performance?
A. That agreement of sale, which is duly stamped, can form the basis of proof towards specific
performance. NLR 1984 CLC 77
Q.43 Where there is breach of contract there is award of compensation. Whether that compensation
would be as per procedure and provision contained under section 19 of the Specific Relief Act or section
73 of the Contract Act?
A. Where there is a breach of contract, the damages are to be awarded. A principle contained under
section 73 of the Contract Act is to be resorted to and that is the difference between the market price on
the date of breach and the contract price. But under section 19 of the Specific Relief Act if a person is
suing for specific performance of a contract, if the Court comes to conclusion that though the contract
was such as was capable of being specifically enforced under the law but the Court was not inclined to
grant specific performance, it can award compensation and such compensation is to be assessed in such
a manner as the Court may direct and the Court is not restricted by the principle laid down in section 73
of the Contract Act. 1985 CLC 1814

Q.44 Elucidate S. 73 of Contract Act?

A. Within S.73 of the Act, compensation is provided for loss or damage caused by breach of
contract. Following exceptions are provided.
 6

1. “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 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.
2. Such compensation is not to be given for any remote and indirect loss or
damage sustained by reason of the breach.
3. When an obligation resembling those created by contract has been
incurred and has not been discharged, any person injured by failure to
discharge it is entitled to receive the same compensation from the party in
default, as if such parson had contracted to discharge it and had broken his
contract.
According to Explanation, in estimating the loss or damage arising from a breach of contract, the means
which existed of remedying toe inconvenience caused by the non-performance of the contract must be
taken into account.

Q.45 How performance of sections 13 to 17 of the Specific Relief Act is permissible in law?
A. If the provisions of sections 13 to 16 of the Specific Relief Act are looked into, it is found that
section. 13 provides that a contract is not wholly impossible of performance if a part of the subject
matter has ceased to exist. Section 14 provides that if a party is unable to perform the whole of his part
and the part unperformed is small and admits of monetary compensation, then specific performance will
be granted. Section 15 provides that if the part of contract that cannot be performed is large, then the
party seeking to enforce the performance of the contact may have it, if he relinquishes all claims for
further performance. It permits specific performance of a part of contract provided that the plaintiff
relinquishes all claims to further performance, and all rights to compensation either for the deficiency, or
for the loss or damages (damages sustained by him through the default of the defendant). Section 18
provides that if the contract is severable, then specific performance may be granted for that part which
ought to be performed. With these exceptions, section 17 provides that the Court shall not direct the
specific performance of a party of a contract. If all the above provisions of the Specific Relief Act are
taken in their proper perspective and in conjunction with other laws, then it is found that specific
performance of party of a contract, unless it comes within the exceptions of sections 13 to 16 of the Act,
is not permissible. 1971 DLC 699

Q.46 Can damages be awarded to the plaintiff within meaning of S. 19 of the Specific Relief Act, in a
suit for specific performance, if not claimed so for?
A. Section 19 of the Specific Relief Act confers express powder on the Court to award damages
either in addition to or in institution of specific performance whenever the Court considers the award of
damages to be just; and it is settled law that damages for breach of contract can be awarded in a suit for
specific performance even though the plaintiff has not claimed damages. PLD 1970 Kar.770

Q.47 Distinguish between compensation and damages?

A. Compensation as used in section 19 should be understood in the sense of damages envisaged in
section 73 of Contract Act, both as regards movable property and immovable property. The expression
“compensation” is not used as equivalent to “damages” although compensation may often have to be
measured by the same rule as damages in as action for the breach of contract. The term “compensation”
as pointed out in the Oxford dictionary, hand, constitute the sum of money claimed or adjudged 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 significance is equivalence, and the secondary and more common \meaning is
something given or obtained as an equivalent. Compensation is, therefore, something which is intended
to pace the plaintiff in the same position he would have been in if the defendant had kept his word.
Damages are something which is calculated to meet the loss that the plaintiff has suffered on account of
the breach committed by the defendant. It is now established that damages in a case of breach of
contract are meant to recompense the plaintiff for the peculiarly loss that he has sustained and not
depend upon the gains which the other party might have made. In a case of a breach of contract for sale,
the vendor can only recover the difference between the price contracted for and the price at which the
vendor might or could have sold the goods at the \time of beach. Damages in substitution for specific
performance under section 19, specific Relief Act and damages for breach of contract under Contracts
Act are based on different considerations. Former can be granted where Court could have granted
specific performance but declines in its discretion. This power does not extend where plaintiff has
debarred himself and not to case in which relief had become impossible. AIR Mad. 289 + ILR (1952)
Cal:27
 7

Q.48 What is significance of a doctrine of mutuality? Whether it is applicable in Pakistan?

A. The doctrine of mutuality which is one of the defence in English law and taken out of the
Specific Relief Act b the legislature, has no application to Pakistan. AIR 1929 Sindh 83.

Q.49 Whether liquidation of damages is a bar to specific performance?

A. No, within meaning of section 20 of the Act, a contract, otherwise proper to be specifically
enforced, may be thus enforced, though a sum may be named in it as the amount to be paid in case of its
breach, and the party in default is willing to pay the same.

Q.50 Illustrate your answer, how liquidation of damage is not a bar to specific performance?
A. Illustration
A contracts to grant B an under lease of property held by A under C, and that A will apply to C
for license necessary to the validity of under lease, and that if the license is not procured A will pay B
Rs. 10,000/- A refuses to apply for the license and offers to pay B Rs.10,000/- B is nevertheless
entitled to have the contract specifically enforced if C consents to give the license.

Q.51 Where are those contracts not specifically enforceable in law, provided in the Specific Relief
Act?
A. Those contracts are contained under section 21 of the Act.

Q.52 A is a trustee of land with power to lease it for seven years. He enters into contracts with B to
grant a lease of the land for seven years, with a covenant to renew the lease at the expiry of the term.
Whether this contract can be specifically enforced?
A. No.

Q.53 Comments, why not?

A A trustee has only to lease of the land for even years; he goes in excess to renew the lease at the
expiry of the term for which no such power is delegated to him. Thus the contract is not enforceable as
per clause (e) of S. 21, which reads as follows:
“a contract made by trustees either in excess of their powders or in breach of their trust.”

Q.54 whether incomplete agreement duly executed by parties is enforceable in law?

A. No.

Q.55 Illustrate your answer?

A. When an agreement was executed by in favor of B that in consideration of Rs.10,000/- loan by
B for meeting the expenses of litigation, A, in the event of success would sell to B the decreetal sit land.
It was held in PLD 1973 Lah. 77 that the document enforceable being in-complete, as its terms are not
ascertainable with reasonable certainty, is void with section 29 of the Contract Act and by virtue of
provision of S. 21 (a) of the Specific Relief Act is not to be enforced specifically.
Illustration
“A agrees to sell B a hundred tons of oil. There is nothing whatever to show what kind of oil was
intended. The agreement is void for uncertainty”

Q.56 Whether an agreement to mortgage can be brought for performance in law?

A. No, such an agreement is no generally capable of specific performance. AIR 1938 Bom.357

Q.57 A contract for personal service is provided under S. 21 (b) of the Act, whereby such a contract
cannot be specifically enforced. Whether it is necessary to invoke the provisions of S. 21 (b) for
personal service, when S. 21 (a) provides compensation of money as an adequate \relief for non
performance?
A. Where there is a contract between master and servant, which is called personal service, the
master agreeing to pay the salary and the servant agreeing to render personal service, it is obvious that
money compensation id full relief, for all that the servant was entitled to receive the salary under
contract.

Q.58 In case of breach of contract, for what relief the servant was entitled to?
A. A Breach of contract can give rise to only two relief’s i.e damages or specific predominance. If
specific performance is barred the only relief a available is damages.

Q.59 Explain legally whether compensation in terms of money is an adequate relief for non
performance of contract? Is the party or the court has to decide the adequacy of compensation?
 8

A. In every case the to determine whether or not the compensation is an adequate relief. A reference
is sought form the explanation attached to S.12 of the Act, “ (the Court shall presume that the breach of
contract to transfer immovable property cannot be adequately”) relieved by compensation in money.
Mere fact of party’s willingness to accept compensating in the event of failure of opposite party to
perform its part of the contract is not sufficient to establish the allegation of fact that (compensation in
money is actually adequate relief) PLD 1967 Dar.158.

Q.60 Can breach of contract for rendering service be prevented by and injunctive/interim order of the
Court?
A. No, as the contract for rendering services cannot be specifically enforced.

Q.61 Is there a legal bar contained under any provision of law for non-performance of contract
towards rendering service?
A. A clear bar is contained under clause (f) of section 56, Specific Relief Act, whereby its breach
cannot be prevented by an injunction PLD 1979 Kar.668.

Q.62. May we say enforcement of contractual obligations under constitutional jurisdiction i.e. Article
199 of the Constitution 1973.
A. Contractual obligations cannot be enforced through writ petitions.

Q.63 Why constitutional remedy is prohibited for contractual obligations arising out of any contract?
A. A clear preposition is contained under section 54 of the Specific Relief Act, whereby perpetual
injunctions are granted to prevent a breach of an obligation existing in favour of the plaintiff. Such
injuction may be either prohibitory or mandatory. An obligation has been defined to mean any duty
enforceable at law. Such duty may arise either from contract or from law. This power under section 54,
is, however, conditioned by the stipulation that when an obligation arises from a contract the Court is to
be guided by the provisions of Chapter II which includes S. 21. However, S. 56 (1) also bars grant of
injunction to prevent breach of contracts which are not specifically enforceable. 1997 CLC 936.

Q.64 How contract be regarded as complete and concluded one?

A. When the essential terms of the contract are settled, it be regarded as complete and concluded,
and may be enforced specifically either as consisting of those terms only or together with such other
terms and conditions as may be regarded as being usual in contract of that description. AIR 1933 Cal.
109

Q.65 A suit for jactitation of marriage includes suit for declaration by a person falsely posing that he is
the spouse of the defendant. As such any declaration as to the status where one party alleges marriage
and other denies will amount to decree for jactitation of marriage. Whether a suit for jactitation of
marriage will be instituted under the provisions of S.5 of the West Pakistan Family Courts Act 1964, or
u/s 42 of th4e Specific Relief Act?
A. A suit for affirmative declaration about existence or subsistence of marriage is as much a suit
relating to marriage as a suit for negative declaration. As such it is only for a Family Court to adjudicate
upon such a matter within meaning of section, 5 of W.P. Family Courts Act, 1964. PLD 1973 Lah 492 +
PLD 1974 Lah.78

Q.66 What does the term “custodia legis” implies?

A. “Custody of Court” The Court can protect the property by appointing receiver.
Q.67 Under which law, a wife will seek declaration to recover dower debt from her husband or from
his properties left?
A. Under section 42 of the Specific Relief Act.
Q.68 Whether a suit for declaration that certain “award” is null void is falling u/s 42?
A. No.
Q.69 Why? And which is the correct provision of such suit?
A. Section 39 of the Act; as such declaration as to mull and void followed by cancellation or
otherwise is contained under this section.
Q.70 What remedy can be availed by a person, whose trademark is infringed?
A. He has two remedies open to him.
No.1. He can file a complaint in a Criminal Court’ or he can get an injunction from a Civil Court.

Q.71 Can declaration be sought from the Court of Law on the point of question of law?

A. No.
Q.72. Whether declaratory suit for proper construction of a statue is maintainable?
 9

A. Yes, AIR 1951 Orissa 342

Q.73 Whether decision of the custodian regarding evacuee nature of property is challenge able
by way of declaratory suit?

A. No. 1972 SCMR 576

Q.74 Whether Civil Court is competent to check or scrutinize any illegal order of any forum or
authority?

A. Yes, PLD 1978 Lah. 1116

Q.75 Can plea of adverse possession be taken now under the litigation?
A. No. a plea of adverse possession cannot be advanced after the repeal of section 28 of Limitation
Act, 1908. 1994 MLD 81

Q.76 As per section 42 of the Specific Relief Act, declaration can be granted only in respect of a
legal character or in respect of right to any property. Breach of contract gives rise to some
relief(s). Name those relief(s)?
A. 1. Damages 1993 CLC 330
2. Specific Performance PLD 1961 SC 531

Q.77 Plaintiff seeking declaration from the Court to the effect that sale deed in question id
declared null and void, while not seeking its cancellation, Is such a declaration warranted by law?
A. Once aw declaration is sought, cancellation of document in issue would be consequential relief
and was unnecessary to seek cancellation of registered sale deed. It was merely incidental or ancillary to
the substantial relief claimed by plaintiff in suit. 1996 CLC 1184

Q.78 Whether Court can make declaration to the effect that an ordinance promulgated by Governor is
ultra virus?
A. No, as within meaning of section 42 it does not as for declaration either in regard to any property
or legal character of any individual. AIR 1946 Lah. 247

Q.79 What do you mean by spes succession?

A. An expectation or hope of succeeding by survival.

Q.80 Can declaratory suit under sped Succession be filed?

A. declaratory suit with respect to a spes Succession is not maintainable. AIR 1928 Lah. 831.
Q.81 Whether gift made under Muslim Law is compulsorily register able?
A. no, with reference to section 129 of the Transfer of Property Act, a gift made under Muslim Law
is expressly excluded from the registration.

Q.82 May we say that gift under Muslim Law can be made orally?
A. Yes, it is an established proposition that under Muslim Law a valid gift can be affected orally.

Q.83 What are the ingredients from which it is established that the gift under Muslim Law is valid?
A. There are three requirements for a valid gift. I a declaration as to gift by the donor 2, acceptance
of the gift, express or implied by or on behalf of the done, and 3, delivery of possession of the gifted
matter by the donor to the donee.1986 SCMR 1121

Q.84 What is practical difference between stay order and injunction?

A. As regards stay order as understood in our judicial system is that it is addressed and binds a
subordinate Court or Tribunal; whereas as injunction binds the parties under litigation. The judicial
consensus holds that stay order takes effect immediately on being passed even if it is not brought to the
notice of the subordinate Court or Tribunal; whereas an injunction order becomes operative upon being
served on the party against which it is directed . PLD 1978 Kar. 152

Q.85 Under which provision of law, the rights and liabilities of lessor and lessee are regulated?
A. Under section 108 of the Transfer of Property Act;

Q.86 What is difference between lease and license?

A. Where exclusive possession is made over and grantor had divested himself possession being
replaced by another, such case would be of a lease, Where simple use of immovable property is allowed
 10

without creating any interest, such transaction, if not awarding to easement and not qualifying as lease,
would be a license. 1998 SCMR 2656

Q.87 Within meaning of section 42 of the Specific Relief Act, any person can person can seek
declaration of his right and status; whereas section 43 binds only the parties in litigation o such
declaration. Do the provisions of section 43 of the Act operate as resjudicata? Illustrate your answer?
A. Section 43 is a consequential provision providing that a declaration made under Chapter VI of
Specific Relief Act is binding on the parties to the suit and also persons claiming through them
respectively. It is restrictive and does not extend the scope of section 11 of the Civil Procedure Code.
The section does not mean that a declaratory decree shall be binding on the parties to the suit and their
representative-in-interest irrespective of the limits concerning jurisdiction paled upon the principle of
resjudicata by section 11 of the Code. AIR 1958 Andh. Pra. 363 + AIR 1943 Oudh. 338

Q.88 Whether rule laid down in section 43 can be said a rule of resjudicata or something different.
Distinguish the purport ofsection42 of the Act.?
A. The rule laid down in section 43 of the Act is not exactly a rule of resjudicata. It is narrower in
one sense and dowdier in another. Section 43 has not the effect of abrogating the limitations imposed by
section 11 of the Code and no exception with regard to declaratory suits can now be red under section
11. As such declaratory decree passed under section 42 is, apart from the provision of section 11 of the
Code, conclusive between the parties to it and persons litigating through them under section 43. AIR
1946 Nag.277.
Illustration to enlighten Section 43
‘A’ files a suit against B, his wife, seeking declaration of conjugal rights. The Court makes such
declaration and order restitution. C claims B as his wife and sues A for recovery of B. Now question is
as under;

Q.89 Whether C in subsistence of declaration in former suit in favour of A, make new declaration?
A. Within meaning of section 43 of the Act, the declaration mad in the former suit is not binding
upon C.

Q.90 Section 44 of the Specific Relief Act, relates to appointment of receivers, which is held
discretionary. Hoverer, the reference of Civil Procedure Code is made to reinforce the procedure.
Explain suitably in the light of Order 40 of the Code?
A. The Specific Relief Act is substantial law in its nature. The procedure is borrowed from the Civil
Procedure Code. Order 40 of the Code provides the mode and effect of receiver’s appointment followed
by the rights, powers, duties and liabilities of the receiver in discharge of his function.

Perpetual & Mandatory Injunctions

Section 54

Q.1 What is preventive relief? How it is granted by the Court?

A. A preventive relief is granted by the Court in the shape of either temporary or perpetual
injunction; which is rater, discretion of Court.

Q.2 What is the well settled principles for grant or refusal of temporary injunction?
A. 1. Prima facie case;
2. Balance of convenience;
3. Irreparable loss.

Q.3 In cases where pecuniary compensation is adequate relief, can injunction be granted?
A. No. It is settled law that where pecuniary compensation can be granted, the general rule is that no
injunction should be granted. PLD 1971 DLC 640

Q.4 Whether temporary injunctions granted under section 53 of the Act are in the status quo form or
the mandatory form?
A. Temporary injunction granted under section 53 does not exclude injunction of mandatory nature.
AIR 1918 Mad. 588

Q.5 When temporary injunctions are granted by the Court?

A. Temporary injunctions are to be granted at any period of a suit and remain continued until a
specified time or until the further order of this Court.

Q.6 When perpetual injunction is granted by the Court?

 11

A. A perpetual injunction can only be granted by the decree made at the hearing and upon merits of
the case.

Q.7 Plaintiff by filing suit has sought permanent mandatory injunction i.e. directing the defendant
corporation to pay to plaintiff, the disputed installments of loan. Can Court grant such a relief?
A. No. The Court cannot grant such mandatory injuction by way of interim relief; as grant of such
relief at that stage would tantamount to grant of final relief claimed by plaintiff in his suit. 1987 MLD
124

Q.8 Proceedings under section 145 and 146 Cr. P.C is mainly offshoot of civil proceedings under
Civil Procedure Code; is it correct?
A. Sections 145 and 146 of the Code of Criminal Procedure clearly indicate that jurisdiction under
these sections is summary one and meant to maintain status quo between the parties where the dispute
about the possession of property is likely to result in a breach of peace. The order of Magistrate u/s 145
or 146 Cr. P. C meant to be only a temporary or tentative one and operative so long as the rights of party
are determined by the Civil Court.

Q.9 Whether temporary injunction issued by the Civil Court against a party to dispute will also stand
against the Magistrate, who is taking cognizance u/s 145 Cr. P. C?
A. No. By filing of civil suit, the jurisdiction of Magistrate will not done away inasmuch as the
dispute between the parties does not cease to exist and likelihood of breach of peace is not in any way
lessened. PLD 1959 Lah. 264

Q.10 What is essential requirement for seeking of perpetual injunction from the Court?
A. For seeking relief of perpetual injunction, the party must show that there is likelihood of breach
of an obligation existing in favour of applicant.

Q.11 Granting and non-granting of perpetual injunction is provided under sections 54 and 56 of
Specific Relief Act. Distinguish between them?
A. Section 54 and 56 of the Act are to be read together as supplementing each other because the
former (S.54) defines the circumstances under which the perpetual injunction may be granted and the
latter (S.56) enunciates cases under which an injunction must not be granted. AIR 1942 Pat. 349

Q.12 Whether siple suits of permanent injunction without showing title by plaintiff that he should not
be dispossessed forcibly from the property excepting due course of law is maintainable?
A. Yes. 1984 CLC 3019.

Q.13 State reasons thereof;

A. Law provides that whosoever in possession shall stay in possession until he is dispossessed under
any statutory provision of law. An encroacher is to be dispossession under an Encroachment act;
likewise a tenant is to be ejected under the Rent Laws. When the law prescribes a particular procedure
for ejectment that is to be adopted rather than adopting illegal course for ejectment. A new criminal law
i.e. Illegal Dispossession Act, 2002 has been introduced, which also provides dispossession / ejectment
of the occupant, who has no title over the property.

Q.14 It is generally said that the plaintiff seek all the relief’s in his suit at the same time. Enunciate
with reasons and particular provision?
A. A plaintiff can claim for the relief’s of possession, declaration, permanent injunction and
damages, at the one & same time under one suit filed before the Court. Any omission of any relief (s)
will create consequent bar.

Q.15 In which type of suits the Courts grant relief of temporary injunction as a rule and refusal as an
exception to that rule?
A. Under the suits of Permanent Injunction; 1982 CLC 1647

Q.16 Where the Court cannot grant final relief of Permanent Injunction, can Court grants the
temporary relief as a rule?
A. In the light of case law reported in 1991 CLC 734, where it is shown that Court cannot grant
final relied, grant of interim relief by way of temporary injunction can also be declined.

Q.17 Whether under section 54 of the Specific Relief Act, the plaintiff has every right to get his
possession protected from the Court of law?
 12

A. To avail benefit of section `54 of the Act in affirmation, it is necessary for the plaintiff to show
his title in the property or any right by which his possession could be recognized by law. A trespasser
cannot seek protection to his illegal and un-authorized occupation.

Q.18 Can injunctions be issued against public bodies under section 55 o the Act? If yes, what are those
circumstance?
A. When public bodies act beyond their power being without legal Authority. AIR 1945 Lah. 81

Q.19 Section 55 implies the breach of one obligation to be prevented, The import o obligation is not
clear, whether it is legal obligation or moral obligation. Elucidate your answer with particular reference?
A. The obligation referred to in section 55 of the Act implies legal obligation and not moral
obligation. AIR 1941 Ran. 196

Q.20 It is generally said that the consideration which apply to the grant of mandatory injunction are
quite different than the considerations for grant of prohibitory injunction, although the general principles
for grant of both type of injunctions are same. Explain legally?
A. Perpetual and mandatory injunctions are contained under chapter X of the Specific Relief Act.
Section 53 further provides for ad-interim mandatory injunction; whereas under section 56, the grant of
prohibitory or mandatory has been made prohibited with refusal. However, some exceptions are
provided towards grant of injunctions which are rater same; as there is close nexus of both type of
injunctions, when are granted by the Court. U/s 54, the perpetual injunction may be granted to prevent
the breach of obligation; likewise under section 55, the performance of mandatory injunction is to be
sought in order to prevent the breach of an obligation. In these circumstances the principles towards
grant or refusal of the perpetual or mandatory injunction cannot be bifurcated.

Q.21 Whether civil Court has power to remedy an injury or wrong by a mandatory injunction on an
interlocutory application? If yes, under what provision o law?
A. Under Order XXXIX Rule 2 CPC, r/w Section 56 of Specific Relief Act;

Q.22 Where the plaintiff has no personal interest in the matter, can he seek ad-interim injunction
within meaning of section 56 of the Specific Relief Act?
A. As provided under section 56 (K) of the Specific Relief Act, an injunction cannot be granted
where plaintiff has no personal interest in the matter.

Q.23 It is settled maxim o law that he who seeks equity must do equity and implies that plaintiff
seeking an injunction must come with clean hands. If any person, who approaches the Court contrary to
the above maxim, he will loose he assistance of Court. Where this proposition of law is contained in the
Specific Relief Act?
A. Under section 56 (J) it is provided “when the conduct of applicant or his agents has been such as
to disentitle him to the assistance of the Court”
From the above-said legal position, it transpires that the conduct of plaintiff shall be neat and clean,
which is appreciated by the Court to grant the relief of injunction. His claim should be clean and clear
and he should not base his case in falsehood or other extraneous considerations.

Q.24 Where any person who has no personal interest in the matter, can he seeks injunction from the
Court?
A. No, injunction will be granted as provided u/s 56 (K) of the Specific Relief Act.

Q.25 What is negative agreement? How is it performed?

A. Section 57 o the Act pertains to injunction to perform negative agreement. A negative agreement
is a covenant, by which a party to the agreement undertakes either expressly or by necessary implication
not to act in a particular manner.

Q.26 For what matters negative agreement is applicable?

A. As provided u/s 57, negative agreement applies only to a permanent injunction that may be
granted by way of the specific performance of a negative agreement.

Q.27 Whether negative agreements apply for temporary injunctions?

A. No.

THE END