Sra Important

Imperial Journal of Interdisciplinary Research (IJIR)
Vol-3, Issue-6, 2017

ISSN: 2454-1362, http://www.onlinejournal.in
ESSENTIALS OF THE SPECIFIC RELIEF

ACT, 1963
THE SPECIFIC RELIEF ACT, 1963 properly interpret the statute in

question. Thus, the mischief rule as it
Matter in issue means fact in issue, that is, the was originally laid down has now
ultimate fact or state of facts set forth in legal been modified to the extent that not
pleadings on which a verdict or finding is only the common law but also the
predicated as distinguished from the evidentiary statutory law prior to the enactment of
facts offered to prove the ultimate fact or facts the present Act, needs to be looked
pleaded. into for the purposes of interpreting
the present Act.
Mischief Rule of Interpretation of Statutes: The
Mischief Rule of Interpretation of Statutes 1. The Specific Relief Act, 1963 is based on the
originated in the Heydon’s case (3 Co. Rep. 7a; 76 maxim: Ubi Jus Ibi Remedium, which in itself
ER 637) in 1584. In this case it was held that for means that wherever there is right, there has to be
the sure and true interpretation of all statutes in a complete remedy. The legal rights are created
general (be they penal or beneficial; restrictive or by substantive laws and they also declare that if
enlarging of the common law) four things are to be the right is violated, a particular remedy will be
discerned and considered: provided, however in certain circumstances,
those remedies may not be adequate and it is here
a. What was the common law before the that the requirements of the principles of equity
making of the Act? and justice come into picture.
b. What was the mischief and defect for Equity and justice require that in any suit there
which the common law did not provide? has to be complete justice, that is, even if the
c. What remedy the Parliament had resolved substantive law does not provide a particular
and appointed to cure the disease of the remedy, in order to do complete justice that
Commonwealth? remedy has to be provided by the court. For
d. The true reason of the remedy? instance in case of nuisance, mere damages will
- The office of all judges is always to not be sufficient, rather injunction also has to be
make such construction as shall granted, and law of tort does not expressly
suppress the mischief and advance the provide for relief of injunction; it is the Specific
remedy, and to suppress subtle Relief Act, 1963, which plays a complementary
inventions and evasions for role to provide that relief. Thus, the Specific
continuance of the mischief, and pro Relief Act, 1963 is a complimentary law based
privato commodo (entitling a purely on equity, justice and good conscience.
private or a personal gain), and to add 2. The Specific Relief Act, 1963 does not provide
force and life to the cure and remedy, for a cause of action, but provides for a relief
according to the true intent of the based on a cause of action occurring in some
makers of the Act, pro bono publico other statute, say for example, the Indian
(for the public good). Contract Act, 1872.
- This rule is also known as the rule of 3. The cause of action is the reason behind one’s
purposive construction. right to file a civil suit against someone. The
- It has been held in Macmillan v. cause of action will consist of the existence of a
Dent, (1907) 1 Ch. 107, that in particular legal right in a person and the violation
interpreting an Act of Parliament you of that legal right by the opposite party. The
are entitled and in many cases bound substantive law creates or confers or protects the
to look into the state of the law as on legal rights of a person, and if such right is
the date of the passing of the Act, not violated, it will provide for a remedy. For
only the common law but also the instance, the law of contract creates the
statutory law as it then stood under contractual rights between the parties and in case
the previous statutes, in order to
Imperial Journal of Interdisciplinary Research (IJIR) Page 1044

of violation of that right it provides for the purely procedural, rather it is substantive also,
remedy in the form of damages. The Specific for like other substantive laws it provides for the
Relief Act, 1963, does not create any cause of remedies as well; but, it cannot be said to be
action as such (except Section 6 of the 1963 Act) purely substantive, as it does not create, as such,
rather the cause of action is created by some any legal rights.
other substantive law and the Specific Relief Act, 9. The Specific Relief Act, 1963 is retrospective in
1963 only provides the complimentary relief to nature, that is, upon all the cases which were
do complete justice. pending in courts at the time when the Specific
4. The Specific Relief Act, 1963 is based on the Relief Act, 1963 came into force, the provisions
principles of equity and justice, and therefore, the of the Specific Relief Act, 1963, will apply,
court in every case under the Specific Relief Act, rather than the provisions of the Specific Relief
1963, has to do the balancing of interests Act, 1877.
between the parties, and in that sense the court 10. The Specific Relief Act, 1963 provides relief in
holds a lot of discretion, however that discretion personam and not in rem.
has to be exercised judiciously and not 11. There are two important principles of the
arbitrarily. Specific Relief Act, 1963, these are: One who
5. Rule of Interpretation- The Specific Relief Act, seeks equity must do equity, and the one who
1963- Every law aims at doing away with some seeks equity must come to the court with clean
mischief prevalent in the society and if a hands.
particular provision of that law (Act/Statute) is 12. The preamble of the Specific Relief Act, 1963,
ambiguous, then out of the various possible reads as follows: “An Act to define and amend
interpretations, that interpretation should be the law relating to certain kinds of specific
adopted which serves the purpose of removing relief”. The principles of equity and justice
the mischief prevalent in society, which the cannot be exhaustive, with the change of
enactment aims to cure, in the best possible way. circumstances a new kind of relief may always
For example, the mischief, the Specific Relief be required and therefore, at one point of time it
Act, 1963 aims to cure/resolve is the inadequacy cannot be declared that a particular law is
of remedies and also the incompleteness of exhaustive apropos all kinds of specific reliefs,
justice that is available when redress is aimed at and therefore, the preamble of the Specific Relief
by filing a particular suit. Act, 1963, uses the words- “certain kinds of
6. If a provision albeit, the Specific Relief Act, specific reliefs”.
1963 is ambiguous then that interpretation should 13. The Specific Relief Act, 1963 is based on the
be adopted which aims at, and effectively principles of equity and justice and these
provides for ‘complete justice’ in a suit, and principles cannot be, and are not exhaustive; and
serves the purpose of providing an adequate therefore, in any new situation that may arise in
remedy. future, a new kind of relief may be required.
7. The Specific Relief Act, 1963 provides for the Thus, the preamble impliedly declares that the
various reliefs which are related to the very Specific Relief Act, 1963 is not exhaustive. If
subject matter of the suit and not any alternative any new situation arises where a relief is required
relief. The plaintiff claims the “very thing” which and the Specific Relief Act, 1963 or any other
is the subject matter of the wrong. If nuisance is law for time being in force, does not expressly
being committed, the plaintiff ordinarily will provides for that relief, then in its inherent
raise a claim for injunction which will restrain powers the civil courts can provide for that relief
the defendant from doing the very wrong which (Section 151 of the Code of Civil Procedure,
he had been committing. If specific performance 1908) and if the civil courts do not provide for
is claimed, the plaintiff is claiming the such a relief then that relief can be obtained in
performance of the very contract which has been appeal from the Supreme Court of India under
breached. Article 142 of the Constitution of India, 1950.
8. According to Pollock and Mulla, the Specific 14. Section 2(a) of the Specific Relief Act, 1963,
Relief Act, 1963, is essentially a procedural law. states as follows: “obligation” includes every
It has been called procedural because, it does not duty enforceable by law. The word “obligation”
create any legal right rather it provides only an under Section 2(a) refers to a legal obligation and
additional remedy. However, it cannot be said to not a merely a moral or social obligation; there
be procedural in the same sense as the other has to be a legal right in one person, and there as
procedural laws, like the Civil Procedure Code, to be a corresponding legal duty in reference to
1908; the Indian Evidence Act, 1872; and the that right on the other person; it is this legal duty
Criminal Procedure Code, 1973. The Specific (and not a moral/social obligation) which is
Relief Act, 1963 does not essentially provide for enforceable under law which is called obligation
the proceedings, and hence it cannot be said to be

for the purpose of Section 2(a) of the Specific trespasser may be in a settled possession of the
Relief Act, 1963. property, and he has been dispossessed by the
15. If a particular term has been used in the Specific defendant; law is tilted in favour of the possessor
Relief Act, 1963, but has not been defined in the and presumes that the possessor does have the
Specific Relief Act, 1963, then such a term will right to possess conferred on him by legal
have the same meaning as it has in any other law process, that is he has a right to continue to be in
where it has been defined. possession of the property as he was in a settled
16. According to Section 3(b) of the Specific Relief possession. Thus, in such a case the cause of
Act, 1963, the Indian Registration Act, 1908 action will be settled possession and
cannot be allowed to be violated by the Specific dispossession.
Relief Act, 1963. 21. A suit under Section 5 of the Specific Relief Act,
17. As per the Registration Act, 1908, un-registered 1963 can be filed, read with Article 64/Article 65
documents, which are required to be registered, of the Limitation Act, 1963. Under Article 65,
cannot create any legal right in anyone and also the cause of action is the right to possess the
these documents cannot be used in evidence. On immovable property and the denial of that right.
the other hand, relief under the Specific Relief The period of limitation is of 12 years from the
Act, 1963 is granted on the basis of equity and date when the possession of the immovable
justice. There may be situation wherein the court property becomes adverse as against the plaintiff.
may find it proper to grant relief based on equity According to Section 27 of the Limitation Act,
and justice with respect to a transaction which 1963, if a suit has been filed within a period of
was not registered, here since the document 12 years from the date of the reckoning (that is,
albeit the transaction was not registered as per the date from which the period of limitation
Section 49 of the Registration Act, 1908, legal commences) then the party concerned claiming
rights qua the transaction will not be created, nor entitlement over the property by virtue of adverse
can the un-registered document be used in possession will lose its title over the property.
evidence, therefore, even if it was equitable, the For Article 65 of the Limitation Act, 1963, the
relief will not be granted unless the un-registered counting of 12 years has to be done from the date
document albeit the transaction falls under the when the possession became adverse albeit the
proviso to Section 49 of the 1908 Act. opposite party. Adverse possession has to be
18. The Specific Relief Act, 1963 is for the purpose distinguished from “permissive possession”. If
of enforcing a civil legal right and a suit for the the opposite party is holding the property with
purpose of enforcement of such civil legal right the express or implied consent of the title-holder
can always be filed even though there may be a then it will be called permissive possession, but
counterpart right/remedy under the criminal law. if the opposite party is holding the property
Section 4 of the Specific Relief Act, 1963 uses against the wishes of the title-holder then it
the words “and not for the mere purpose of becomes an adverse possession.
enforcing a penal law”- here the word “mere” For example: If A is the owner of a property and
clearly suggests that if the civil suit has been allows B to take the possession of that property,
filed under the Specific Relief Act, 1963, only then as long as B holds the possession of that
for the purpose of enforcing a criminal law property with the express/implied permission of
right/remedy then it will not be allowed, but if it A, the possession of that property will not
is essentially for the purpose of enforcing a civil culminate into an adverse possession. However,
legal right then the suit will not be disallowed if B continues the possession despite A,
merely because, there is a criminal law demanding the possession of the property back,
right/remedy as a counterpart to that civil law then, the possession of the property with B will
right. culminate into an adverse possession.
19. Section 5 of the Specific Relief Act, 1963 is only 22. Whenever a suit is filed under Section 5 of the
a declaratory and enabling provision, for it does Specific Relief Act, 1963 read with Article 65 of
not expressly grants any specific relief. the Limitation Act, 1963, the plaintiff has to
20. A person may have a right to possess due to his claim his title apropos the property- which can be
ownership vis-à-vis the property, and also due to either ownership title or any other possessory
any other possessory title. If he is an owner then tile; in such a suit, defendant can always prove
he will have a per se right to possess unless he his own title.
has given that right to someone else, and if he is On the other hand, in a suit under Section 5 of
not the owner, then by some legal process he the Specific Relief Act, 1963 read with Article
may have the right to possess; in these cases the 64 of the Limitation Act, 1963, the cause of
cause of action will be the legal right to possess action is settled possession and dispossession,
and the violation of that right. However, there and in such a suit the plaintiff cannot raise the
may be another case wherein an owner or even a issue of his title, rather the defendant may in his

defence raise the issue of his own title qua the pending in the court of law then, the decision on
immovable property, and if the defendant does the point of title, as was decided previously, will
so, then the plaintiff can go on to prove his own not operate as Res Judicata.
title albeit the immovable property. (Note: Under Order 6, Rule 16 of the Code of
23. The objects of Section 6 of the Specific Relief Civil Procedure, 1908 pleadings which are
Act, 1963 are: (a) To discourage people from unnecessary albeit a suit can be struck down by a
taking the law into their own hands, however court of law)
good their title may be; (b) To provide a 27. Under Section 6 of the Specific Relief Act, 1963,
summary, cheap and useful remedy to a person the burden of proof is strict and is upon the
dispossessed of immovable property otherwise plaintiff, because, he has to prove: settled
than in due course of law. possession and dispossession. If the plaintiff is
24. Section 6 of the Specific Relief Act, 1963 is not yet in a settled possession, and is rather still
applicable only if the plaintiff proves: (a) That he in a process of trespass, and his possession is still
was in juridical possession of the immovable not settled, then if the opposite party/defendant,
property in dispute; (b) That he had been dispossesses him (that is, the plaintiff), then it
dispossessed without his consent and otherwise will not be called dispossession for the purpose
than in due course of law; and (c) That the of Section 6 of the Specific Relief Act, 1963.
dispossession took place within 6 months from 28. For ‘settled possession’ there have to be two
the date of the suit. elements: Firstly, the animus, that is, the
25. The policy of Section 6 of the Specific Relief intention to put the object to its natural use and
Act, 1963, is to prevent any dispossession the intention to exclude the others from
without following the ‘due course of law’.1 Even interfering with that property; Secondly, the
an owner has to take recourse to law if he wants corpus, that is, the person concerned having such
the possession of the property back to himself control over the property that, he can at any point
from a trespasser. of time put the property to its natural use, and
Under Section 6 of the Specific Relief Act, 1963, also he is having such control upon the property
even an owner can be made a defendant by a that he can exclude others from interfering with
trespasser if the owner has dispossessed a that property.
trespasser who was in a settled possession of the ---------------------------------------------------
property. ----------------------------------------------
26. In a suit under Section 6 of the Specific Relief Example: Suppose ‘A’ gave his house to
Act, 1963, neither the plaintiff, nor the defendant ‘B’ for the purpose of stay; later ‘A’ asked
can raise the issue of title; the issue of title in ‘B’ to vacate that house; ‘B’ refuses to
such a suit is an issue which is collaterally and vacate that house, then under what
incidentally in issue, and not materially in issue. provision can ‘A’ file his claim? Answer:
The issue of title is not a material issue in a suit Under Section 5 of the Specific Relief
under Section 6 of the Specific Relief Act, 1963, Act, 1963 read with Article 65 of the
rather on the point of title the court is expected Limitation Act, 1963.
not to allow any hearing. Firstly, the parties are 29. Order 2, Rule 3 of the Code of Civil
expected not to raise the issue of title and if at all Procedure, 1908: A plaintiff may unite in
the issue of title has been raised, then the court is the same suit several causes of action
expected not to conduct a hearing on that issue in against the same defendant; where causes
a suit under Section 6 of the Specific Relief Act, of action are united, the jurisdiction of the
1963. Even if the court has heard and has finally court as regards the suit shall depend on
decided that issue, that is, the issue albeit the the amount or value of the aggregate
title, then the decision on that issue will not be subject-matters on the date of instituting
binding; and in any subsequent suit on the issue the suit.
primarily concerning the title, if a decision is 30. Nair Service Society Ltd. v. Rev. Father
K.C. Alexander & Ors, AIR 1968 SC
1
For example, there is a disputed property; because 1165: Can causes of action under Section
of the dispute ensuing qua the property among the 5 of the Specific Relief Act, 1963 read
parties to the dispute, public peace is hampered. In with Article 64/Article 65 of the
such a case, the District Magistrate, under Section Limitation Act, 1963 and Section 6 of the
145 of the Code of Criminal Procedure, 1973, can Specific Relief Act, 1963 be clubbed
take the possession of the property, by together in a same suit?
dispossessing any of the parties having the If two causes of action are clubbed
possession of the property. Such a dispossession together then the very purpose of Section
will be viewed to be in consonance with the ‘due 6 of the Specific Relief Act, 1963 will get
course of law’. defeated as for under Section 6 of the

Specific Relief Act, 1963 only possession read with Article 65 of the Limitation Act,
and dispossession, along with the period 1963? No (Cause of actions are different).
of 6 months has to be examined which can (c) If a suit under Section 6 of the Specific
be decided in a speedier manner; but for Relief Act, 1963 has been dismissed, will
proving the title under Section 5 of the a suit under Section 5 of the Specific
Specific Relief Act, 1963 read with Article Relief Act, 1963 read with Article 64 of
65 of the Limitation Act, 1963, many the Limitation Act, 1963 will also be
more evidences are required to be proved, barred? No (Cause of actions are
and therefore, the trial will be longer, thus different).
due to the hearing on Section 5 of the
Specific Relief Act read with Article 65 of Important: If X is in possession of a
the Limitation Act, 1963 being property and if he is dispossessed from
comprehensive, the trial under Section 6 that property without his consent and
of the Specific Relief Act, 1963 will also not in due course of law and it can be
get unnecessarily delayed. proved that X was in a settled
Moreover, there is a possibility in such possession and his dispossession was
cases of joinder that there may be a unlawful, then by virtue of Section 6 of
conflict of decrees, for instance if the the Specific Relief Act, 1963, X can file
plaintiff is a trespasser who was in settled a suit for repossession of the property,
possession and who has been dispossessed he has been dispossessed from, within a
by the owner, then for the cause of action period of 6 months from the date of his
under Section 6 of the Specific Relief Act, (X’s) unlawful dispossession.
1963, he will get the decree in his favour If the period of 6 months has lapsed
and to the contrary for the cause of action then X can seek protection under
under Section 5 of the Specific Relief Act, Section 5 of the Specific Relief Act, 1963
1963 read with Article 64/Article 65 of the read with Article 64 of the Limitation
Limitation Act, 1963, he will not get the Act, 1963.
decree as he cannot prove his title to the However, if X is the owner of the
immovable property, therefore, in the property and thus, has the title to the
same suit by virtue of clubbing the causes property, and if he has been
of action under Section 5 of the Specific dispossessed unlawfully from the
Relief Act, 1963 read with Article property, then, X can seek protection
64/Article 65 of the Limitation Act, 1963 under Section 5 read with Article 65 of
and Section 6 of the Specific Relief Act, the Limitation Act, 1963.
1963, there will be two conflicting views,
and hence, it will not be practicable to join
the two causes of action together. 31. If ‘A’ himself has given possession of an
Cause of action under Section 6 of the immovable property to ‘B’; ‘B’ is acting
Specific Relief Act, 1963 is distinct from as an agent of ‘A’; if ‘A’ takes back the
the cause of action under Section 5 of the possession of the immovable property
Specific Relief Act, 1963 read with Article from ‘B’, which ‘B’ was holding as an
64 of the Limitation Act, 1963; since the agent of ‘A’, can this amount to
causes of action under the two suits are dispossession, entitling ‘B’ to set up a
distinct (one under Section 6 of the claim against ‘A’ under Section 6 of the
Specific Relief Act, 1963 and the other Specific Relief Act, 1963? No. The reason
under Section 5 of the Specific Relief Act, is that, ‘B’ was in possession of the
1963 read with Article 64 of the immovable property in the capacity of an
Limitation Act, 1963), thus, the two suits agent of ‘A’.
can be held to be maintainable together; 32. Against an order under Section 6 of the
although such a practice is not practical. Specific Relief Act, 1963, only a revision
Note: can be filed.
(a) Does a suit under Section 6 of the 33. Since the purpose of Section 6 of the
Specific Relief Act, 1963 bars a suit under Specific Relief Act, 1963 is to provide a
Section 5 of the Specific Relief Act, 1963 speedy trial in the matters of recovery of
read with Article 64 of the Limitation Act, possession upon the dispossession of the
1963? No. plaintiff, therefore, if any, other relief is
(b) Does a suit under Section 6 of the clubbed together with Section 6 of the
Specific Relief Act, 1963 bars a suit under Specific Relief Act, 1963, then, the trial
Section 5 of the Specific Relief Act, 1963 will get unnecessarily delayed. Thus, the

general juristic opinion is that any other First Issue: Settled possession involves the
relief like that of injunction or award of corpus, that is, the physical control upon
damages should not be claimed in a suit of the object and the capacity to exclude
Section 6 of the Specific Relief Act, 1963. others, as well as the animus, that is, the
However, regarding the claim of mesne desire to put the object to its natural use
profits, the tilt of the opinion of jurists is and to exclude others. In the present case
that, it may be claimed under a suit of the plaintiff continued his un-interrupted
Section 6 of the Specific Relief Act, 1963. possession for almost 9 years and also
34. Question: On 01.01.2006, A occupied an constructed a two-room house on the said
empty plot of land admeasuring 500 Sq. property, this clearly goes on to show that,
Yards which as per the municipal records he was in a settled possession, and did
was in the name of B, who was a have the right to continue to possess the
government employee. After one (1) year property.
(that is in 2007), A built a two-room house
on that land. On 15.01.2015, B forcibly Second Issue: The latter part of Section
dispossessed A. On 05.05.2015, A filed a 6(1) of the Specific Relief Act, 1963,
suit under Section 6 of the Specific Relief clearly declares that, the decree will be
Act, 1963, for possession against B. B granted to the plaintiff: “notwithstanding
contested the suit on the ground that he any other title that may be set up in such
was the real owner and also that he was a suit”. This clearly means that unlike
government employee. A contested the he Article 64/Article 65 of the Limitation
was in a settled possession till 15.01.2015. Act, 1963 read with Section 5 of the
Decide? Specific Relief Act, 1963, in a suit of
Answer: The main issues to be decided in Section 6 of the Specific Relief Act, 1963,
the given suit are: neither the plaintiff nor the defendant can
a. Can the plaintiff (A) be said to have raise the issue of legal title and hence, the
been in a settled possession of the contention of the defendant (B) in the said
property? suit shall be dismissed.
b. Does a suit under Section 6 of the
Specific Relief Act, 1963 allow the Third Issue: A suit of Section 6 of the
defendant (B) to raise the issue of his Specific Relief Act, 1963, cannot be filed
(B’s) title? against the Government, but there is a
c. The defendant (B) is a government difference between Government and
employee- would this be of any government employee acting in his
consequence in the problem stated personal capacity. In the present case the
above? above bar of Section 6 of the Specific
Relief Act, 1963, will not apply.
The law applicable that is, the Specific
Relief Act, 1963, which is based on equity Accordingly, the suit having been filed
and justice, is provided for under Section within 6 months of dispossession, the
6 of the Specific Relief Act, 1963; the decree should be granted in favour of the
broad purpose of Section 6 is to secure plaintiff, as against the defendant.
settled possession of a person even if he is
a trespasser and to prevent the taking of 35. Section 7 (Recovery of specific movable
law into its own hands by the opposite property) and Section 8 (Liability of
party. It is expected that even the real person in possession, not as owner, to
owner should take recourse to the due deliver to person entitled to immediate
process of law. possession) of the Specific Relief Act,
1963:
The main requirements of Section 6 of the
Specific Relief Act, 1963 are as follows: Section 7 of the Specific Relief Act,
(a) The plaintiff should have been in a 1963:
settled possession; (b) The defendant (a) Section 7 provides that a person entitled to
should have illegally dispossessed the the possession of the specific movable
plaintiff; and (c) The suit should have property may recover the same in the
been filed within 6 months of manner prescribed by the Code of Civil
dispossession of the aggrieved occupant, Procedure, 1908. Thus, the property in
by the aggrieved occupant. question must be a specific movable
property. Specific means that which is

ascertained or ascertainable. Specific and is bound to return them when demanded;

property means ‘that very property’, and not if friend pledges the furniture, the pledgee
its equivalent. For example, coins and grains will also remain subject to the same trust and
are not specific movable property, because similarly bound to return to the owner when
they cannot be distinguished from other demanded by him); or,
coins or grains. When compensation in money would not
(b) Main Ingredients of Section 7 are as follows: afford plaintiff adequate relief for the loss of
(1) The plaintiff must be entitled to the the thing claimed (for example: when the
possession. A person may be entitled to idol of a family temple is in the custody of a
possession either by ownership or by virtue retired priest, he is bound to return it to the
of a special or temporary right (See: family); or,
Explanation II to Section 7); When it is extremely difficult to ascertain
(2) A special or temporary right may arise the actual damage caused by the loss of the
by either by- the act of the owner of the thing claimed (for example: when articles of
goods, for example, bailment, pawn etc; in rare value, like original paintings of a
this case the bailee or pawnee has special deceased painter are in the possession of
right, or, not by the act of the owner of another; since they are articles of
goods, for example, finder of lost goods; in irreplaceable nature and their market value is
this case the finder of lost goods has a of unascertainable nature, the owner has a
special right to possession except against the right to recover them in specie); or,
true owner. When the possession of the thing claimed
(3) According to Explanation I to Section 7, has been wrongfully transferred from the
a trustee is the person entitled to the claimant/plaintiff (by virtue of force, fraud,
immediate possession of the trust property; theft, coercion etc.)
hence, if trust property is taken away by (b) In Section 8, under clause (a), the onus is on
someone, he can recover the same. plaintiff to prove the fiduciary relationship;
(4) A person who does not have a right to and under clause (d) the onus is on the
“present possession” of movable property plaintiff to prove the wrongful transfer. The
cannot maintain a suit under Section 7. For Explanation to Section 8 deals with the onus
example: ‘A’ pledges certain jewels with ‘B’ under clauses (b) and (c), which is placed on
to secure a loan. ‘B’ disposes the jewels to the defendant and it is for the defendant to
‘C’ before he is entitled to do so. ‘A’ prove that compensation in money would be
without having paid the amount of the loan, adequate relief and that it would not be
sues ‘C’ for possession of jewels. The suit extremely difficult to ascertain the actual
should be dismissed, as ‘A’ is not entitled to damage caused to the plaintiff by the loss of
immediate possession of the jewels. the chattel (moveable property).
(5) The specific movable property must be 36. Difference between Section 7 and Section
capable of being seized and delivered. 8: (a) Under Section 8, no suit can be brought
Where the goods have ceased to be against the owner, while under Section 7, a
recoverable or are not in possession or person having a special or temporary right to
control of the defendant, the plaintiff is not “present possession” may bring the suit even
entitled to a decree for recovery in specie; against the owner of the property; (b) Under
his only remedy then is of claiming damages Section 7, a decree is for the return of
or compensation. movable property or for the money value
thereof in the alternative, while under Section
Section 8 of the Specific Relief Act, 1963: 8, the decree is only for the return of the
(a) Main Ingredients of Section 8 of the Specific specific article (“that very thing”).
Relief Act, 1963 are as follows: 37. If in a suit for recovery of a specific movable
(1) The defendant has possession or control of property the plaintiff desires to obtain the
the particular article claimed. possession of the property only, and the
(2) Such article is movable property. money value/ money equivalent is not
(3) The defendant is not the owner of the article. claimed as an alternative, then, a suit under
(4) The person claiming, that is, the plaintiff, is Section 8 of the Specific Relief Act, 1963 is
entitled to immediate possession. required to be filed; and in the pleadings
(5) The thing claimed is held by the defendant albeit the suit, the plaintiff shall not be
as the plaintiff’s agent or trustee (for allowed to claim any money value/ money
example: a person, while going abroad, equivalent, and thus as a necessary corollary,
leaves his furniture under the care of his the decree will also not state any money
friend, the friend is a trustee of those articles value, for the same has not been claimed, as

the suit is made out under Section 8 of the property, to the party to whom it has been
Specific Relief Act, 1963; what is being adjudged, or by detaining the judgment debtor
claimed is “that very property”, specified and in civil prison. The court is competent to
ascertained by the plaintiff. However, if the order conditional attachment. A conjoint
plaintiff desires to take the property or in the reading of Order 20, Rule 10 and Order 21,
absence of it, the money value/ money Rule 31 shows that in a suit for recovery of
equivalent albeit that property, then the moveable property where a decree is passed
plaintiff has to file a suit under Section 7 of for recovery of such property, the need to
the Specific Relief Act, 1963, and the state the amount of money would arise only
pleadings albeit the suit are to state the money in the event of the court been satisfied that it
value/ money equivalent as an alternative is not possible to effect delivery in specific
relief claimed for, and as a necessary terms. (See: A.G. Venkatanarasiah v. Smt.
corollary, the decree too shall state the money Vijayalakshmi & Ors, AIR 1982 Mad. 329)
value/ money equivalent granted by the court, 43. Declaratory Decrees:: Section 34 and
based on the assertions made in the pleadings. Section 35 of the Specific Relief Act, 1963:
38. In a suit under Section 8 of the Specific Relief 1) Plaintiff can file a suit for declaration, if it
Act, 1963, it is essential for the plaintiff to is entitled to any legal right or to any legal
make a pleading regarding any of the four character qua any property, which the
clauses, as so stated under Section 8 of the defendant denies or threatens to deny.
Specific Relief Act, 1963. 2) Section 34 of the Specific Relief Act,
39. Detenue and Conversion: Detenue is a case 1963, provides that courts have discretion
where the property has been detained by a as to declaration of status or right,
person and it is lying with that person; a suit however, it carves out an exception that a
under Section 8 of the Specific Relief Act, court shall not make any such declaration
1963 relates to detenue. Conversion on the of status or right where the complainant
other hand means that the property has been being able to seek further relief than mere
sold or gifted or has been destroyed; a suit declaration of title, omits to do so.
under Section 7 of the Specific Relief Act, 3) In the case of, Vinay Krishna v. Keshav
1963 will relate to detenue and conversion Chandra, 1993 Supp. (3) SCC 129, it was
both. If the property detained is available, held that, if the plaintiff had been in
then the property itself has to be delivered possession, then a suit for mere
and if it has been converted then the money declaration would be maintainable; the
value/ money equivalent has to be paid. logical corollary whereof would be that if
40. For a suit under Section 7/ Section 8 of the the plaintiff is not in possession, a suit for
Specific Relief Act, 1963, for the recovery of mere declaration would not be
a movable property, as per Article 68/Article maintainable.
69 of the Limitation Act, 1963, the period of 4) In the case of, Union of India v. Ibrahim
limitation is of 3 years. Uddin & Another, (2012) 8 SCC 148, the
41. For a suit under Section 7 of the Specific Supreme Court of India held that, a suit
Relief Act, 1963, pleadings should be in the seeking merely declaration of title of
format of: Appendix A- Pleadings (Plaints), ownership albeit a property without
Form No. 32 (Movables Wrongfully seeking possession, when the plaintiff is
Detained); similarly, for a suit under Section not in possession of the property is not
8 of the Specific Relief Act, 1963, pleadings maintainable.
should be in the format of: Appendix A- 5) Under Section 34 of the Specific Relief
Pleadings (Plaints), Form No. 39 (Restoration Act, 1963, a mere suit for declaration does
of Movable Property threatened with not lie when the consequential relief like
Destruction, and for an Injunction). injunction is available. But under Section
42. Order 20, Rule 10: Decree for delivery of 38 of the Specific Relief Act, 1963, the
movable property- Where the suit is for relief of injunction can be granted even if
movable property, and the decree is for the no declaratory relief is expressly prayed
delivery of such property, the decree shall for. Therefore, on reading of the two
also state the amount of money to be paid as sections (Section 34 and Section 38 of the
an alternative if delivery cannot be had. Specific Relief Act, 1963) it is clear that a
Order 21, Rule 31: Decree for specific suit for bare injunction is maintainable
movable property- Decree for specific without a prayer for declaration of title.
movable property, or share in specific 6) It is not permissible to claim the relief
movable property, can be executed by seizure of declaration without seeking
and by delivery of that specific movable consequential relief.

7) The policy of Section 34 of the Specific by ‘B’ is void. (See: Radha Rani
Relief Act, 1963 is to strengthen and Bhargava v. Hanuman Prasad
stabilise the legal status and relations of a Bhargava, AIR 1966 SC 216)
person. A person may want to bring about c. Situation: A declaration that upon a
some improvements to his legal status or partition in the joint family in future
upon some property but due to uncertainty or upon death of some person, one
regarding his legal status he may refrain would get a particular share of some
from doing so. property- spes successionis.
8) Use of words “entitled to” under Section Any event which may happen in
34 of the Specific Relief Act, 1963: The future and there by create a share in
words “entitled to” as so appearing in favour of a person is a mere uncertain
Section 34 of the Specific Relief Act, event and a declaration of that cannot
1963 mean the “present entitlement”; it be made at present; hence, such a
can be personal (legal character) or declaratory decree cannot be granted.
proprietary (right to property). It is d. Situation: ‘A’ seeks a declaration
essential that the entitlement should be a that under a contract which has to be
present existing entitlement and not an performed in future, he has a
entitlement which was there in the past or particular right.
which may arise in future. The burden of If a contract is to be performed at a
proof is on the plaintiff to prove that he is future date, it will not be a case of
presently entitled to the said legal present entitlement, as the entitlement
character or to the right as to a property. will arise only on the date of the
9) The entitlement should be there on the performance of the contract. There is
date of the institution of the suit and it a possibility that the contract may get
shall continue throughout the period of frustrated by the time of the
pendency of the suit, and it should also performance of the contract, and thus,
exist on the day when decree was passed. no question of any entitlement will
If the plaintiff looses the right before the arise. Moreover, even if a contract
date of judgment then the suit shall be does not get frustrated, it may be
dismissed. breached and in that case also the
For example: aggrieved party concerned will not
a. Can ‘X’, a reversioner, claim get any entitlement under the contract,
declaration during the lifetime of the rather at the most it can claim
life-estate owner that he (that is, ‘X’) damages. For a future right,
is the reversioner? declaration cannot made in the
Since, it is not sure whether the present.
plaintiff (‘X’) will be a reversioner on a. In a suit for declaration of title albeit a
the day when the life-estate owner property, ‘A’ gets a decree against ‘B’ and
dies, thus, the declaration cannot be that decree is binding between ‘A’ and ‘B’;
granted. As in the present case, it is a subsequently litigation ensues between ‘A’
declaration of something that will and a third-party i.e. ‘C’, where both ‘A’ and
arise in future and Section 34 of the ‘C’ assert their title to the property and seek
Specific Relief Act, 1963, does not declaration albeit the title of the property;
permit such a declaration, therefore, here it is not essential that the title which ‘A’
the suit for declaration in the present has obtained against ‘B’ earlier will be
case cannot stand. binding against ‘C’ also. The earlier decree
b. If ‘B’ sells a property of which ‘B’ is was a decree in personam and was binding
a life-estate owner, then a legal fiction between ‘A’ and ‘B’ only; in the subsequent
will be triggered to the effect that the suit between ‘A’ and ‘C’, ‘C’ may prove a
life-estate owner, that is, ‘B’ has better title and decree may go in his favour;
expired on the date of the sale and so for example, if ‘C’ is able to prove the Will
also ‘A’, the real-owner, is dead on of ‘A’s’ father in his favour, then the decree
the same date, and accordingly, it will will go in the favour of ‘C’, there by ousting
be ascertained whether ‘X’ is the legal ‘A’.
representative of the real-owner, that b. A suit is filed by ‘X’ against ‘Y’ for the
is, ‘A’, on that date and if the answer declaration of title albeit a property, and
is “yes”, then, ‘X’ will have the locus subsequently ‘X’ obtains a decree in his
standi to file a suit as a reversioner for favour as against ‘Y’, thereafter ‘X’ sells
the declaration that the sale conducted that property to ‘Z’. Later on, son of ‘Y’,

namely ‘YS’, files a suit for declaration of However, if one claims reservation on
tile albeit the property against ‘Z’, will the the basis of his caste then such right
suit for declaration of title albeit the property to reservation is a legal right and
filed by ‘YS’ against ‘Z’ be maintainable? hence, the suit will be allowed to be
No; because ‘Z’ is deriving his title from ‘X’ instituted as it relates to one’s legal
and ‘YS’ is a legal heir of ‘Y’; dispute qua character.
the declaration of title albeit the property has 45. Right as to property: The word “as to”
already settled between ‘X’ and ‘Y’ in the have been used simply to broaden the
earlier suit. ‘YS’ cannot claim a declaratory scope of the proprietary rights, for
decree against ‘Z’. example: right to own; right to possess;
44. A declaration under Section 34 of the right to claim charge or maintenance out
Specific Relief Act, 1963, can be sought in of some property, that is, usufructuary
regards to some personal right which is right (usufruct means income).
not connected to any property, and which Right to passage upon some property or
is rather connected to some legal status of any other easement right (easement is an
the plaintiff; or, it may be a declaration in interest in land owned by another that
regards to some legal right related to entitles its holder to a specific limited use
property (that is, a proprietary right). or enjoyment)
Legal character is the legal status of a 46. Positive Declarations and Negative
person with respect to something or with Declarations: Section 34 in the latter part
respect to some other person. uses the words, “that he is so entitled” ,
Examples of declarations that can be here the word “is” suggests that the
sought under Section 34 of the Specific declaration in Section 34 essentially has to
Relief Act, 1963: be a positive declaration in favour of the
a. A declaration sought by a person as plaintiff and therefore, by implication, if
regards to his right to cast vote; the plaintiff seeks a negative declaration
b. A declaration sought by a person as against the defendant then that shall not be
regards his right to contest elections allowed; however, there may be a case
(Suit of civil nature relating to legal wherein a negative declaration against
character of a person; maintainable defendant may amount to a positive
under Section 9 of the Code of Civil declaration in favour of the plaintiff, such
Procedure, 1908); a negative declaration will be permissible
c. A declaration sought that a person is a under Section 34 of the Specific Relief
minor; Act, 1963.
d. A declaration sought by ‘W’ that she Negative declaration can be made if
is a legally wedded wife of ‘H’; negative declaration ultimately results in a
e. A declaration sought by a child that positive declaration. Negative declaration
he is a legitimate child of his parents couched in the language of a positive
(Paternity Suit); declaration, makes the negative
f. A declaration sought by ‘X’ that he is declaration permissible. However, it may
the proprietor of XYZ Ltd. (Suit be stated that there does not appear to be
related to legal character) any express bar with respect to suits for a
g. Declaration of a right to collect alms: declaration in the negative.
Such a suit is not of a civil nature, For example: An election is contested
within the purport of Section 9 of the between ‘A’ and ‘B’; ‘A’ loses the
Civil Procedure Code, 1908, thus the election and ‘B’ wins. Thereafter, ‘A’
suit is out-rightly not maintainable. seeks a declaration against ‘B’ to the
No doubt such a suit is related to legal effect that, selection of ‘B’ is illegal. Now,
character but under Section 9 of the this is a negative declaration which is
Code of Civil Procedure, 1908, such a sought by ‘A’ as against ‘B’, thus it cannot
suit will not be allowed as it is not be allowed as per the mandate of Section
related to a legal right and hence, it is 34 of the Specific Relief Act, 1963. If ‘A’,
not a suit of a civil nature. on the other hand had sought a declaration
h. Declaration of caste: Caste is a social to the effect that, non-selection of ‘A’ is
issue and not a legal issue and void because elections were conducted in
therefore, a declaration of one’s caste an illegal manner, then this declaration
will not be a suit of a civil nature, and been couched in a positive language could
thus, is barred under Section 9 of the have been allowed by the court of law.
Code of Civil Procedure, 1908.

For example: ‘A’ is husband of ‘W’. ‘A’ seek declaration against X, apprehending
files a suit for declaration that a two-year that his (Z’s) title to the house is in
old boy, allegedly born to defendant-wife danger, this is because, merely on
(‘W’) was not his son. An objection is suspicion (or speculation) a decree for
taken that the suit was premature as no declaration cannot be sought. There is no
maintenance and rights in the estate of ‘A’ denial to the legal character of Z, as the
were being claimed against him and that owner of the house, by X.
the interest of minor should not be
prejudiced by deciding a question which There has to be an actual tangible denial
will arise in future. Can a declaration be by the defendant (present denial by the
granted to ‘A’? defendant) of some legal character or right
Section 34 of the Specific Relief Act, as to property of the plaintiff. A mere
1963 allows filing of a suit for declaration suspicion or speculation regarding such
not merely for establishing a right to any denial cannot be made the basis of the suit,
property but also for establishing any legal there has to be real hostility of interest and
character (i.e. legal status) where such the defendant should have expressed his
character (i.e. status) is either denied or is intention to deny the same, either by some
likely to be denied by the defendant. In the words or by conduct.
case of, Jagat Ram v. Mst. Basanti, AIR For example: X sells a house to Y; Y
1959 Punj 581, it was held that suit by ‘A’ sells this house to Z, and Z thereafter sells
for declaration that ‘B’ was not his wife the house to R. X has three legal heirs: A,
and ‘C’ was not his biological son, was B, and C. After the death of X; A tells R to
maintainable. Thus, similarly, the suit for vacate the house, as the sale deed vide
declaration contemplated in the above which the house was sold by X is wrong.
stated situation is maintainable. Here suit for declaration can be filed by R
For example: If a suit for declaration is seeking declaration as to his entitlement
brought by a worshipper seeking a (tile and ownership) of the house, based
declaration that certain specified on the sale transaction ensuing between X,
properties belonged to the deity of the Y, Z and R; and on the basis of the sale
temple. Whether such a suit for deed which was made in favour of R.
declaration can be held to be 48. Presently interested to deny in future:
maintainable? There is a building owned by X, and the
The question for determination is, whether ground floor of that building is given by X
worshipper has locus standi to bring the to W on rent. But soon thereafter, that is
suit in question in view of the provisions after letting the ground floor on rent by X
of Section 34 of the Specific Relief Act, to W, W starts preparing documents of
1963, because worshipper is not claiming ownership and entitlement in his favour;
any title to the ‘legal character’ or ‘any this reflecting W’s (tenant’s) intention to
right as to any property’ for himself. claim title to the property in future,
However, none the less, worshipper shall declaration can be sought in present by X
be deemed to be “trustee” claiming relief against W.
for and on behalf of the deity of the For example: ‘H’ marries ‘W’. ‘W’ was
temple. Therefore, the present suit is already married to ‘H-1’ and was having a
maintainable under Section 34 of the child ‘H-1-S’, child being 2-years old. ‘W’
Specific Relief Act, 1963. asks ‘H-1-S’ to call ‘H’ as his father in
47. Meaning of- ‘any person denying, or public. ‘H’ files a suit against ‘H-1-S’
interested to deny’: The words, ‘any through ‘W’ to seek declaration that ‘H-1-
person denying, or interested to deny’, S’ is not the son of ‘H’. Can ‘H’ do so?
indicate the following: firstly, these words Answer is “yes”.
talk about the denial of a legal right or Here, neither the mother (‘W’) nor the
legal character by the defendant to the child (‘H-1-S’) are claiming presently any
plaintiff; and secondly, the purport of the paternity from the father (‘H’), but the
words indicate that such a denial can be a circumstances are been created which may
future denial. What is to be seen is an give ‘H-1-S’ a sufficient ground in future
“intention to deny”. to claim the paternity. Even if the
There can be situation where by X intention to claim paternity is not manifest
standing outside the house of Z, keeps at present, the circumstances are been
staring at the house and keeps talking to created which give sufficient ground to
himself; then in such a situation, Z cannot ‘H-1-S’ to claim paternity in future. These

circumstances are such, as they may make than a mere declaration of title, omits to
‘H-1-S’ interested to deny ‘H’ his legal do so.”
right or legal character. Alternate reliefs are those reliefs which
49. Further Relief/Consequential Relief and can be claimed simultaneously and the
Alternate Relief: grant of one of them is not dependent
Alternate Relief: For one cause of action upon the grant of the other. Either all those
there can be several reliefs that can be reliefs can be granted at once, or any one
claimed, for example, in case of breach of of them may be granted as per the
contract, what can be claimed is: award of discretion of the court.
damages and/or specific performance of The main section (Section 34) purports
the contract, that either one of them or that the plaintiff is not to claim further
both of them. relief if the same has not been claimed in
Here, in the case of alternate relief, grant the main suit2; whereas the proviso (to
of one relief is not contingent (dependent) Section 34) requires the court to, not to
upon the grant of another relief. In case of grant, a decree of declaration, if the further
alternate relief, granting of one relief will relief has not been claimed. There seems
not stop the court from granting another to be opposition between the main section
relief. and proviso thereto. However, the
Order II, Rule 2: Suit to include the harmony between the two is already
whole claim: The object of Order II, established, for, the purpose of the main
Rule 2 of C.P.C, 1908 is to ensure that section is to enable the plaintiff to save his
no defendant is sued or vexed twice in court-fee for the further relief at the time
regard to the same cause of action and when he files the suit. As per the proviso,
second to prevent the plaintiff from it is expected that before the suit is
splitting of claims and remedies based decided, the plaintiff shall make an
on the same cause of action. The effect amendment of the pleadings, and claim the
of Order II, Rule 2 of C.P.C., 1908 is to further relief. The court will be duty-
bar a plaintiff who had earlier claimed bound under Order VI, Rule 17 of the
certain remedies in regard to a cause of Code of Civil Procedure, 1908 read with
action, from filing a second suit in Section 34-Proviso of the Specific Relief
regard to other reliefs based on the Act, 1963, to allow the amendment of the
same cause of action. It does not pleadings. Upon such amendment the
however bar a second suit based on a plaintiff will have to deposit the court fee
different and distinct cause of action. for the further relief.
If no such further relief has been
Further Relief: Further relief is that relief added/sub-joined by the plaintiff and this
which is dependent or is conditional upon fact comes to the knowledge of the court,
the grant of any other relief. then the court would be free to not to grant
For example: There is a dispute between declaratory decree.
‘A’ and ‘B’, for there is a house in the If the plaintiff during the course of the
possession of ‘A’ and ‘B’ is threatening to trial finds that he will not get the
dispossess ‘A’. ‘A’ files a suit for declaratory decree as per the evidences
declaration and perpetual injunction relied upon by him (and further, placed on
against ‘B’, based on his title to the house. record), then he may avoid claiming
Here, in the present case, the grant of further relief, and hence, thereby would be
relief of perpetual injunction is conditional able to save the court-fee payable, for
upon the grant of relief of declaration of claiming the further relief.
title, that is, perpetual injunction cannot be The court may not be able to know about
granted unless the declaration has been the further relief on its own, rather it is the
granted. Thus, here perpetual injunction is duty of the defendant to raise that
a further relief. In a suit filed, the court fee objection at the earliest possible
depends upon the nature and the number opportunity (which usually means, before
of reliefs claimed in the suit. the framing of the issues), if the defendant
Note: Order II, Rule 2 does not applies does not raise the aforesaid objection,
to “further relief”. then, the court may go on to pass the
50. Proviso to Section 34 of the Specific
Relief Act, 1963: “Provided that no court 2
Section 34 of the Specific Relief Act, 1963: “…
shall make any such declaration where the and the plaintiff need not in such suit ask for any
plaintiff, being able to seek further relief further relief…”

declaratory decree in favour of the e. If the court finds that, all the
plaintiff and thereafter in appeal the interested persons/parties have not
defendant will not be allowed to raise that been made party to the proceedings,
aforesaid objection. (See: Mst. then also, the court can refuse the
Rukhmabai v. Lala Laxminarayan & grant of a declaratory decree;
Ors, AIR 1960 SC 335, Justice K. however, the court can ask for
Subbarao; Date of Decision: 17.11.1959) addition or deletion of the parties to
If further relief was not claimed and the suit, which can be done by virtue
despite this, in ignorance of this fact, the of Order I, Rule 10 of the Code of
court granted a declaratory decree, then, Civil Procedure, 1908.
there is no bar in Section 34 of the 52. Sections 36 to 42 of the Specific Relief
Specific Relief Act, 1963 or in Order II, Act, 1963: Injunctions
Rule 2 of the Code of Civil Procedure, Preventive/Prohibitive/Negative injunction
1908, that a subsequent suit for claiming is an order of the court that requires a
further relief cannot be filed. Thus, the person or party to the proceedings albeit a
plaintiff can always file a subsequent dispute to not to do or forbear from doing
suit to claim further relief. This is also something.
one of the reasons as to why the defendant Mandatory/Positive Injunction is an order
will be interested in raising an objection of the court that requires a person or party
against the suit filed by the plaintiff for a to the proceedings albeit a dispute to do
declaratory decree only, at the earliest something that it is legally required to do
possible opportunity, as this will or perform.
help/relieve him of been dragged into Difference between Permanent Injunction
another suit filed by the plaintiff to claim and Temporary Injunction:
further relief, and thus, this will prevent 1. Permanent injunction is based upon a
multiplicity of proceedings. cause of action and it is claimed as a
51. Discretion of Court to not to grant decree final relief in a suit. It is in form of a
of declaration: decree and not an order of the court,
In a suit under Section 34 of the Specific and it is based upon the merits of the
Relief Act, 1963, the Court has the case. Permanent injunction, if
discretion to not to grant a declaratory granted, will be in form of a directive
decree despite the fact that the plaintiff has upon the Judgment-Debtor that,
proved all the essential ingredients that he/she/it shall refrain from asserting
entitles the plaintiff for a declaratory any right or from doing any act
decree. The discretion to be exercised is against the plaintiff.
“judicial discretion”, which must be based 2. Temporary injunction is in the form
on the sound principles of justice, equity of an interim order during the
and good conscience. The court is required pendency of a suit and it is claimed
to do a balancing of interests as between through an application filed by either
the parties involved in a dispute and of the parties to the suit; it is an order
accordingly is to exercise its discretion. for a temporary period, either for, a
The court can exercise its discretion to not specified period or until the decision
to grant a declaratory decree in the of the suit, it may even be until the
following cases: execution of the decree. Temporary
a. Where the subject matter of the suit injunction can be obtained in any suit,
has got destroyed; it is not necessary that the suit should
b. Where a more comprehensive suit is for availing permanent injunction.
already pending before the same court (See: Order 39 and Section 94(c) of
or before some other court; the Code of Civil Procedure, 1908)
c. Where the plaintiff has acted in a 53. Section 38 of the Specific Relief Act,
mala-fide manner; 1963: Perpetual injunction when granted:
d. If a suit has been filed with Section 38(1) of the Specific Relief Act,
unreasonable delay, without giving 1963 makes a general declaration that the
any sufficient explanation then, the plaintiff can obtain a perpetual injunction,
court can refuse to grant a decree of that is, a permanent injunction against a
declaration, reason being that the defendant to prevent him from the
plaintiff was not prompt about his violation of any obligation that the
rights; defendant has towards the plaintiff. This
obligation is in regards to any legal duty

that the defendant has towards the making a public disclosure of the
plaintiff, corresponding to any, express or disease of X. Mandatory injunction
implied, legal right that the plaintiff has against the doctor can also be
against the defendant. obtained, asking the doctor to perform
For example: his duties as a doctor diligently and
a. X has paid his tuition fee to study at by asking him, generally, to respect
PQR institution, but despite this, Y the confidentiality that obtains
stops X to enter the institution and between a doctor and his patient.
attend the classes; X can seek e. Despite satisfying his tax liability,
perpetual injunction against Y, so Mr. X obtains a notice from the
that, Y is not allowed to stop X to Income Tax Department asking for
attend the classes at PQR institution. the payment of extra tax which as per
b. Due to the negligence of Traffic the books of Mr. X, he is not entitled
Police (Delhi) and due to lack of to pay. The Income Tax Department
adequate discharge of their respective threatens Mr. X of adverse action if
duty, traffic jam is caused at a the tax liability is not discharged.
particular crossing every day which Thus, out of the total extra tax
results in chaos and inconvenience to liability of Rs. 100,000/- imposed on
the general public. Mr. X, he is made to pay in the
Perpetual/Permanent injunction can meanwhile a sum of Rs. 50,000/- for
be sought by A/B/C against the avoidance of adverse action against
Traffic Police (Delhi) to stop it from him. Mr. X can approach the court for
acting negligently. the grant of perpetual/permanent
c. In a particular colony, one, Mr. X injunction to stop the Income Tax
parks his car in such a manner that it Department from issuing threat of
causes disturbance and inconvenience adverse action against Mr. X; also,
for other members of the colony to Mr. X can ask for mandatory
park their respective vehicles. Due to injunction from the court against the
the incorrect parking of the car by Mr. Income Tax Department, for the
X, general congestion is caused as return of Rs. 50,000/- paid by Mr. X
smooth passage for other vehicles to to the Income Tax Department under
enter and exit from the colony is the threat of adverse action, for the
obstructed. In such a scenario, other avoidance of adverse action.
members of the colony, P/Q/R, can f. X throws, everyday, garbage outside
file a case of perpetual/permanent the house of Y; Y can obtain
injunction against Mr. X to prevent perpetual injunction against X to stop
him, permanently, from causing X from throwing the garbage outside
disturbance/congestion by wrongly the house of Y, and also, Y can also
parking of his car. obtain mandatory injunction against
Note: When a suit for the grant of X, to ask X to clean the area/site
perpetual/permanent injunction is outside the house of Y, where the
filed, in the interregnum, an garbage is thrown everyday by X.
application for temporary injunction 54. Section 38 (2) of the Specific Relief Act,
can be moved by the plaintiff for 1963, in the matters of breach of contract
availing temporary injunction to stop clearly lays down that, injunction in case
the defendant from continuing with of breach of contract will be granted only
the commission of the wrong till the if specific performance may be granted in
suit in regards to the grant of that contract. Section 38(2) draws a link
perpetual injunction is decided on between injunction and specific
merits. performance in the matters of breach of
d. X goes to a doctor for getting himself contract and therefore, whatever rules
treated for a particular disease. The apply for the purpose of granting specific
disease is such that it ought not to be performance, the same rules will apply for
disclosed in public. The doctor the purpose of granting injunction in
threatens X, that, the doctor shall matters of breach of contract.
make a public disclosure of the 55. Section 38(3) of the Specific Relief Act,
disease of X by publishing it. X can 1963:
obtain perpetual/permanent injunction Section 38(3) (a): If a trustee is stopping
against the doctor to stop him from the beneficiary from obtaining the benefit

of the trust property, then, the beneficiary Note: If the plaintiff acquiesces to an act
can obtain perpetual/permanent injunction of the defendant, then later, he (the
against the trustee to stop him from plaintiff) cannot turn his back and seek an
interfering/obstructing/invading/threatenin injunction order against the defendant to
g the right of the beneficiary to the trust stop him from performing the act to which
property, that is, the right of the the plaintiff had first acquiesced.
beneficiary to enjoy the trust property.
Section 38(3) (b): “Where there exists no For example: X comes up with a false
standard for ascertaining the actual advertisement that he has made/prepared a
damage caused, or likely to be caused, by special medicine, using some rare
the invasion.”- Perpetual injunction will drugs/shrubs, which can cure “brain
be granted. fever”; later on, Y comes up with a
(See: Section 8 of the Specific Relief Act, medicine for “brain fever” and starts
1963) marketing it with a brand-name similar to
Section 38(3) (c): “Where the invasion is that of X’s medicine. X sues Y and seeks
such that compensation in money would an injunction against him, to stop him
not afford adequate relief.”- Perpetual (that is, Y) from selling the medicine with
injunction will be granted. the brand-name similar to that of X’s
Section 38(3) (d): “Where the injunction is medicine. Can X obtain an order of
necessary to prevent a multiplicity of injunction against Y?
judicial proceedings.”- Perpetual
injunction will be granted. Decision: No. X hasn’t come to the court
For example: There is a piece of public with clean hands; X’s advertisement for
land situated at place P, and A acquires the medicine was based on false claims.
that piece of public land to the detriment Equity demands that, he who claims a
of the general public. A by acquiring the right/equity in his favour must come to the
public land has violated the right vested in court with clean hands.
the public generally; now, X, Y, and Z
objecting to such acquirement of the 57. Section 10 of the Specific Relief Act,
public land by A, file separate suits 1963:
against A, not only, objecting to the Cases in which specific performance of
acquirement of public land by A, but also contract enforceable: (a) Actual damage
to stop A from using the public land for caused due to non-performance of the act
his own individual purpose, causing cannot be calculated/ ascertained; (b)
detriment to the general public at large. Compensation in terms of money (or
Now, in order to avoid multiplicity of monetary compensation) for non-
judicial proceedings, that is, listing of the performance of the act is not an adequate
cases in the nature of, ‘X versus A’, ‘Y relief.
versus A’, and ‘Z versus A’, court can For example: X throws a party to
pass an order of perpetual injunction, celebrate his birthday and engages six (6)
stating that, no one shall be allowed to file cameramen to capture all the events that
a suit against A challenging the were to take place in the party hall. It was
acquirement of public land by him, and all agreed between X and the cameramen that
interested parties can deem X to be their all photos will be shot in high-resolution
representative in the matter. Thus, the by using a special camera (DSLR),
court can convert the suit, ‘X versus A’, however, the cameramen brought with
into a representative suit. them ordinary/simple/normal camera to
56. Grant, or, non-grant of injunction, click the photographs at the event, and
whether, temporary, perpetual or thus, there was breach of the terms of the
mandatory is the discretion of the court. agreement agreed to between X and the
This discretion has to be exercised in a cameramen. Now, the adequate relief for
judicial manner. When we say that, X will be that of the specific performance
“injunction may be granted”, it means that of the contract, because the loss endeared
injunction can be granted upon the by X is that which cannot be measured in
fulfilment of these two conditions: monetary terms; no reasonable standard
a. “Person who seeks equity must do exists that can/will measure the loss that X
equity”; and, will surface because it is the one related to
b. “That, he who comes to the court of his feelings and emotions. Thus, specific
law, must come with clean hands”.

performance of the contract can be asked “shall” presumption. However, in regards

for or demanded. to clause (a) and clause (b) of Explanation
For example: If X is a teacher teaching at (ii) to Section 10 of the Specific Relief
an institution against salary paid to him, Act, 1963, the court is not to raise any
due to some reason of bodily incapacity or presumption, that is, neither ‘may’
otherwise, is not able to take the class of presumption, nor ‘shall’ presumption.
the fellow students studying at the 61. Explanation (i) to Section 10 of the
institution, who have otherwise paid Specific Relief Act, 1963: In case of
tuition fee to avail the classes at the breach of contract concerning transfer of
institution, can X be compelled to take the immovable property, the burden of proof
class of the students, by enforcing of will shift from the plaintiff to the
specific performance against him (that is, defendant; that is, the defendant is to
X) by the students? prove that, compensation is terms of
Decision: No. Ability to teach is in the money will be an adequate relief and thus,
nature of personal skill of a person (X, in the defendant can be relieved of the
this case), and there can be no specific specific performance of the contract as
performance that can be enforced against demanded by the plaintiff. However,
X per se, as bar of Section 14 of the needless to say, the statutory wordings
Specific Relief Act, 1963 will operate. It is albeit Explanation (i) to Section 10 of the
important to note that, specific Specific Relief Act, 1963, indicate that,
performance of the contract can be the court shall presume in cases involving
enforced against the institution for breach of contract concerning transfer of
providing a good teacher to teach the immovable property, that specific
concerned subject that X was to teach. performance of the contract will be an
58. Section 10 of the Specific Relief Act, adequate relief.
1963: Cases in which specific For example: ‘A’ and ‘B’ enter into a
performance of contract enforceable- contract, where by ‘B’ agrees to transfer
“Except as otherwise provided in this his house to ‘A’ by way of a registered
Chapter, the specific performance of any sale-deed for a sum consideration of Rs.
contract may, in the discretion of the 10, 00, 000/-. However, ‘B’ commits a
court, be enforced…” breach of contract and ‘A’ files a suit for
As per the Indian Evidence Act, 1872, in specific performance of the contract
cases of “shall presume”, it is obligatory against ‘B’. Now, as per Explanation (i) to
upon the court to presume, that is, the Section 10 of the Specific Relief Act,
court ‘should presume’ or ‘need to 1963, although ‘A’ is to prove that
presume’, in other words the court is compensation in terms of money is not an
‘bound to presume’. adequate relief, but still the court is bound
In cases of “may presume”, it is the to presume that, specific performance of
discretion of the court to presume or to not the contract is the adequate relief and
to presume. The discretion is to be compensation in terms of money to be
exercised with circumspection, reasonably paid by ‘B’ to ‘A’ will not be an adequate
and judiciously. relief.
Explanation to Section 10 of the Specific In sum and substance, the effect of
Relief Act, 1963 is governed by the Explanation (i) to Section 10 of the
“shall” presumption. Specific Relief Act, 1963, is that, the
59. As per clause (a) and clause (b) of Section Plaintiff will be relieved of his burden of
10 of the Specific Relief Act, 1963, the proving that money compensation is not
burden lies upon the plaintiff to prove that an adequate relief. Rather now, the
specific performance of the contract can burden of proof will shift upon the
be asked for as against the defendant, as defendant to prove that money
there lies no reasonable standard to compensation would be the adequate
measure the actual damage caused to the relief.
plaintiff owing to the non-performance of 62. Explanation (ii) to Section 10 of the
the obligation arising out of the contract Specific Relief Act, 1963: Generally
entered into between the parties, by the speaking, as per Explanation (ii) to
defendant; and the compensation in terms Section 10 of the Specific Relief Act,
of money is not an adequate relief. 1963, the court shall presume in case of
60. Explanation to Section 10 of the Specific breach of contract involving a moveable
Relief Act, 1963 is governed by the property that, money compensation would

be the adequate relief. Thus, the burden of defendant and the plaintiff will not
proof is upon the plaintiff to prove that, have to prove any fact, rather it will
specific performance of the contract is the be the defendant, who will have to
adequate relief and not the monetary prove that money compensation
compensation. would be an adequate relief.
However, apropos clause (a) and clause 2. In a contract related to moveable
(b) of Explanation (ii) to Section 10 of the property, the court ‘shall’ presume
Specific Relief Act, 1963, the court is not that money compensation would be
to raise any presumption, that is, neither an adequate relief, and it shall be
the ‘may’ presumption, nor the ‘shall’ incumbent upon the plaintiff to prove
presumption. that money compensation would not
Example for clause (a) of Explanation be an adequate relief. However, the
(ii) to Section 10 of the Specific Relief court shall raise no presumption, that
Act, 1963: X contracts with P, who is a is, neither the ‘may’ presumption, nor
manufacturer and a seller of a particular the ‘shall’ presumption, in regards to
medicine in the U.S., for supply to be the cases pertaining to clauses (a) and
effected by P of the concerned medicine to (b) of Explanation (ii) to Section 10
X in India. P commits a breach of of the Specific Relief Act, 1963, and
contract. The concerned medicine being hence in such cases there will be a
not an ordinary article of commerce or an normal burden of proof upon the
article easily obtainable in the market, due plaintiff.
to the effect of clause (a) of Explanation 64. Section 10 of the Specific Relief Act,
(ii) to Section 10 of the Specific Relief 1963:
Act, 1963, it is incumbent upon X to prove Points to remember:
that monetary compensation would not be a. Relief of injunction can be claimed by
an adequate relief, and specific the plaintiff in case of breach of
performance of the contract would be the contract only if, the relief of specific
adequate relief. performance of the contract is
Example for clause (b) of Explanation claimed by the plaintiff, as without
(ii) to Section 10 of the Specific Relief claiming the relief of specific
Act, 1963: “Where the property is held by performance of the contract, the relief
the defendant as the agent or trustee of the of injunction will be useless.
plaintiff.” b. Can relief of injunction be claimed in
X enters into a contract with Y against a case of breach of contract without
consideration paid by X to Y, for Y to claiming the relief of specific
keep a certain piece of furniture in his performance? No.
possession while X will be out of the 65. Section 39 of the Specific Relief Act,
country for his visit to the U.S. While X 1963: Mandatory Injunctions
was in U.S., Y disposed of the said piece Mandatory injunction is in the nature of a
of furniture to a third-party. On his return complimentary relief to the grant of a
from the U.S., X sues Y for specific perpetual injunction. Sections 38 and 39 of
performance of the contract, that is, for the the Specific Relief Act, 1963 are in the
return of the said furniture. Can specific nature of complimentary reliefs;
performance of the contract be insisted, as whenever, a suit for perpetual injunction is
against, monetary compensation to be paid filed under Section 38 of the Specific
by Y to X? Relief Act, 1963, and it is found that
Yes. Because, the property that is the merely the grant of perpetual injunction
said/concerned piece of furniture was kept would not suffice, then, the plaintiff can
by Y in his possession as an agent/trustee claim mandatory injunction also, within
of X. the purport of Section 39 of the Specific
63. Note on the Explanation appended to Relief Act, 1963- by virtue of which the
Section 10 of the Specific Relief Act, court can order the defendant to perform
1963: some positive act. Section 39 of the
1. In cases of contract for immovable Specific Relief Act, 1963 comes into
property, the court ‘shall’ presume operation when grant of mere prohibitive
that money compensation would not injunction is not sufficient.
be an adequate relief; due to this For example: X starts constructing a wall
presumption the burden of proof upon in front of the house of Y. Y can obtain
the plaintiff will shift upon the perpetual injunction against X, to stop X,

from further constructing the wall. Y, in get the said piece of land cleaned with
order to obtain complete relief, will ask insecticides and medicines. A, further
from the court of law to grant him (that is, presses for mandatory injunction, against
Y) mandatory injunction so that, the wall X, praying the court to order X to get the
so far as constructed by X, in front of the said piece of land cleaned with
house of Y, can be removed with insecticides and get it metalled/cemented.
immediate effect. What all reliefs can be claimed by A?
For example: In a building comprising of Decide.
three (3) floors, the second-floor is Decision: A can get perpetual injunction
occupied by X, and the first-floor is against B, C and D, to stop them from
occupied by Y. X in the process of drilling throwing garbage of their respective
a wall in his bathroom punctures a water houses on the land which belongs to X; X
pipeline, due to which the water starts does not disposes of garbage of any kind
seeping through the wall and as this wall on the said piece of land, thus, perpetual
is common to the bathroom of Y in his injunction cannot be claimed against him.
first-floor residence, Y, due to the seepage A can get mandatory injunction against B,
incurs a major monetary loss, as the paint C and D, thus compelling them to get the
Y had applied over the wall comes off and said piece of land cleaned with
substantial portion of the wall becomes insecticides and medicines. A cannot
dampened. Now, Y in order to obtain claim mandatory injunction against X,
complete relief against X can sue X for because X is not guilty of polluting the
perpetual injunction, mandatory injunction said piece of land with garbage of any
as well as for damages. Vide mandatory kind.
injunction, Y can pray to the court of law A cannot by virtue of mandatory
to order X to repair the damaged pipe; injunction compel X to get the said piece
vide perpetual injunction, Y can pray to of land metalled/cemented, because this
the court of law to order X to not to drill will be inequitable and will act to the
the water pipeline in future, by acting detriment of X.
cautiously and with circumspection; Y can For example: There is a piece of land
also pray to the court of law to order X to which P and Q own in the ratio of 1:1. To
make good the loss incurred by Y due to demarcate his share in that particular piece
the negligence of X, that is, to reimburse of land, P starts with the construction of a
Y, the cost incurred by Y in repainting the wall, however, upon the completion of the
bathroom wall and for removal of construction of the wall, Q finds out that
dampening from the bathroom wall. the said 100 meter wall constructed by P
For example: There is a piece of land to demarcate his share in the said piece of
belonging to X, which is surrounded by land is mostly constructed on the portion
four (4) houses belonging to A, B, C and of Q, thereby, reducing Q’s share of 50%
D. The piece of land which belongs to X, in the said land, without any reduction in
lies in the backyard of the houses P’s share of 50% in the said land. Q files a
belonging to B, C and D, while the house suit against P claiming mandatory
which belongs to A faces the piece of land injunction against P, for the removal of the
which belongs to X. Thus, the properties said wall. Can Q be granted mandatory
are situated in such a way that the piece of injunction? Decide.
land which belongs to X lies in the centre, Decision: Since, the Specific Relief Act,
while the houses which belong to A, B, C 1963 is based on the principles of equity
and D surround the piece of land from all and justice, the court has to draw a balance
the four sides, directionally from north, of interest between the parties to the
south, east and west respectively. B, C and dispute. Firstly, the court will examine the
D throw all the garbage of their house on nature and extent of losses which the
the said piece of land which belongs to X, plaintiff will suffer if the relief (of
to which X hardly objects. House of A mandatory injunction, in this case) is not
opens to the said piece of land and thus, granted. It will also see whether or not the
for him it an unlikely site. A files a case loss suffered by the plaintiff will be
for perpetual injunction against B, C, D irreparable, post this, the court will
and X to prevent them from throwing examine the nature and extent of losses
garbage on the said piece of land. A also which the defendant will suffer if the relief
files for mandatory injunction against B, C (of mandatory injunction, in this case) is
and D praying the court to order them to granted and also whether or not the loss

suffered by the defendant will be (c) Court has to examine, whether or not
irreparable. After this, the court will draw any alternative relief, which is a better
a balance between the two, that is, the loss relief, is available to the plaintiff.
that will be suffered by the plaintiff and 67. Section 40 of the Specific Relief Act,
that which will be suffered by the 1963: Damages in lieu of, or in addition
defendant, and then it shall examine as to to, injunction:
whose loss will be greater and a. If relief of injunction is claimed by
significantly irreparable. The party whose the plaintiff, but the relief of payment
loss will be greater, it will be said that, the for damages is not claimed by the
balance of convenience is tilted in favour plaintiff, then the relief of payment
of that party, and accordingly, the decree for damages cannot be claimed
will be passed in favour of that party. subsequently by the plaintiff by filing
In the present case the court will examine of a subsequent suit as the bar of
as to what consequences will ensue if the Order II, Rule 2 will operate.
court orders for the demolition of the wall b. It is clearly provided in Section 40 of
constructed. However, if P comes up with the Specific Relief Act, 1963 that if
the defence that he has incurred major damages are expressly claimed in an
expenses in the construction of the wall injunction suit, then only damages can
and he will suffer significantly if the wall be granted, and if the suit is dismissed
is ordered to be demolished, then the court then a subsequent suit for claiming
can in order to ensure that justice is done, damages will be barred. It is also
refrain from ordering the demolition of the provided that such damages can be
wall, and would rather ask P to monetarily claimed in such suit for injunction at
compensate Q for the loss suffered by Q any stage of the proceedings by
due to the construction of the said 100 moving an application for the
meter wall, by first ascertaining the value amendment of pleadings, and in such
of the land and then proportionately cases irrespective of whatever has
ascertaining the value of the strip of land been provided for in the proviso to
on which the wall has been constructed Order VI, Rule 17, the court shall be
and accordingly, ascertaining the value of duty-bound to allow the amendment,
the extra area that the said 100 meter wall otherwise, as per Order II, Rule 2, a
covers on the land of Q. However, if Q is subsequent suit claiming a
able to satisfy the court that loss suffered relinquished relief shall not be
by Q because of the construction of the allowed.
wall is significant and irreparable, then if Note: Proviso to Order VI, Rule 17
the court is satisfied with the assertions of states as follows: “Provided that no
Q, it can order demolition of the wall in application for amendment shall be
the interest of justice. allowed after the trial has
For example: If J comes up with commenced, unless the court comes to
publication of pamphlets which are the conclusion that in spite of due
defamatory albeit K, then K can obtain diligence, the party could not have
perpetual injunction and mandatory raised the matter before the
injunction against J. Perpetual injunction commencement of the trial.”
to stop J from publication and circulation 68. Section 41 of the Specific Relief Act,
of the defamatory pamphlets and 1963: Injunction when refused:
mandatory injunction to compel J to Section 41(a): An injunction cannot be
destroy the defamatory pamphlets already granted- “to restrain any person from
printed by it. prosecuting a judicial proceeding pending
66. Note: For the grant of mandatory at the institution of the suit in which the
injunction the court will examine in injunction is sought, unless such restraint
particular the following ingredients: is necessary to prevent a multiplicity of
(a) The balance of convenience; proceedings”.
(b) The conduct of the plaintiff, that is, For example: A files a suit against B to
whether the plaintiff himself is guilty claim a certain relief, and so also, B files a
of fraudulent conduct, and also suit against A, C and D to claim some
whether plaintiff himself had other relief based on the same cause of
acquiesced to the conduct of the action. While the two suits are running
defendant; parallel to each other, B wants that A
should be stopped from prosecuting his

suit which A has filed against B. However, remedy (civil) is not to bar the availing of
this cannot be done, unless the court in the other remedy (criminal).
which the suit is been prosecuted by A Section 41(e): An injunction cannot be
against B is of the opinion that this should granted- “to prevent the breach of a
be done to avoid multiplicity of contract the performance of which would
proceedings, conflicting judgments and not be specifically enforced”.
the suit which B is prosecuting against A, Note: When there is a breach of contract,
C and D in the other court is more then, the relief of injunction cannot be
elaborate and comprehensive, involving granted to the aggrieved party if the
all the necessary and proper parties and specific performance of the contract
concerns all issues that require cannot be enforced, because in such cases
adjudication between A and B. the grant of injunction would be useless,
Section 41(b): An injunction cannot be and thus, inequitable. Section 41(e) of the
granted- “to restrain any person from Specific Relief Act, 1963 is to be read
instituting or prosecuting any proceeding with Section 42 of the Specific Relief Act,
in a court not subordinate to that from 1963.
which the injunction is sought”. Section 41(f): An injunction cannot be
For example: “Court X” can issue an granted- “to prevent, on the ground of
injunction order against perusal of a case nuisance, an act of which it is not
in “Court Y”, only if, “Court Y” is reasonably clear that it will be a
subordinate to “Court X”. nuisance”.
District Court of Karnal can stay the legal Note: It has to be examined as to whether
proceedings being perused before the the act complained of at present does
Karnal Civil Judge; however, District amount to a nuisance at present. If it is
Court of Delhi cannot stay the legal merely speculated that it may amount to
proceedings being perused before the nuisance in future then that cannot be a
Karnal Civil Judge. ground for grant of injunction at present.
Section 41(c): An injunction cannot be Section 41(g): An injunction cannot be
granted- “to restrain any person from granted- “to prevent a continuing breach
applying to any legislative body”. in which the plaintiff has acquiesced”.
For example: If any legal right of a person For example: In a building, P lives on the
is violated/ curtailed then he has two second-floor and a restaurant is running on
options. The first is to file a suit or prefer a the first-floor. Every day in the afternoon
writ petition to be listed before the and till late in the evening loud music is
appropriate court, to get his grievance played in the restaurant which causes
redressed; and the second is to file an severe inconvenience to P. P files a suit
application before the legislative assembly for the grant of perpetual injunction
(or vidhan sabha) requesting the against the restaurant so that, it may be
legislative assembly to issue /appoint a stopped from playing loud music till late
commission for resolving the particular in the evening. Despite the fact that, P
problem at hand. Thus, if an aggrieved accuses the restaurant of causing nuisance,
person wants to exercise his option of every evening P goes to the restaurant to
moving an application to the legislative enjoy the food, drinks and music. Thus, in
assembly then it is his volition/choice and such a case perpetual injunction cannot be
the court cannot stop him or restrain him granted to P, as against the restaurant, as P
from filing appropriate application before himself has acquiesced to the nuisance
the legislative assembly. Judiciary that the restaurant is causing to him.
cannot prevent a person from exercising Note: Plaintiff’s own conduct needs to be
the legislative remedy available to him. examined and it is to be seen whether
Section 41(d): An injunction cannot be plaintiff’s own conduct amounts to
granted- “to restrain any person from acquiesce or not; if the answer is ‘yes’,
instituting or prosecuting any proceeding then injunction will not be granted.
in a criminal matter”. Section 41(h): An injunction cannot be
For example: There are certain offences granted- “when equally efficacious relief
which are in the nature of both, tort as can certainly be obtained by any other
well as crime, such as the offence of usual mode of proceeding except in case
defamation. Against such offences both of breach of trust”.
civil as well as criminal proceedings can For example: If the landlord is threatening
be launched together and availing of one the tenant that it will dispossess the tenant,

and the tenant pursuant to that threat then, W can obtain a divorce from H, and
approaches the court for the grant of can also get H criminally prosecuted for
injunction, stating that the landlord is bigamy. The court, thus, would not
under an obligation to not to interfere with ordinarily grant perpetual injunction to W,
the peaceful possession of the but however in order to give some cooling
property/premises that the tenant is down period so that some reconciliation
occupying, then, in such cases, generally between the disputing parties can be
speaking, court can grant injunction but attempted, the court can grant temporary
will refrain from granting injunction injunction in the suit filed for availing
because an equally efficacious remedy is perpetual injunction by W, on filing of an
available with the tenant in the form of appropriate application in this behalf by
Section 6 (Suit by person dispossessed of W.
immovable property) of the Specific [See: Elizabeth Skariah v. Aby Skariah &
Relief Act, 1963. Ors, AIR 2002 Delhi 307 (Court had
In this case, the landlord is under an granted perpetual injunction); Pratiksha v.
obligation to not to disturb the peaceful Pravin, 2002 (1) MPHT 276 (Court had
possession of the tenant, therefore, granted temporary injunction)]
theoretically it is quite possible that the For example: F is the Karta of a Hindu-
court can grant injunction, but since in Undivided-Family, FS and FS1 are the
such a case the tenant has an equally sons of F and thus, are the coparceners of
effective alternate relief available, that is, the Hindu-Undivided-Family. F wants to
the tenant can get the possession back if dispose of a Joint-Hindu-Family-Property
dispossessed, by virtue of Section 6 of the by selling it to X. FS files a suit for
Specific Relief Act, 1963 or by availing perpetual injunction against F to stop him
other remedies available under the from alienating the Joint-Hindu-Family-
concerned Rent Control Act, therefore, in Property. Can FS obtain an order of
practice the court will not grant injunction perpetual injunction against F? Decide.
to the tenant. Broadly speaking, Karta can dispose of the
For example: H and W are husband and Joint-Hindu-Family-Property either with
wife; H is lawfully married to W. Now, the consent of the coparceners, or in case
during the subsistence of the marriage H of necessity, or for the benefit of the estate
wants to marry W1. W approaches the of the Hindu-Undivided-Family, but
court for the grant of perpetual injunction nonetheless, Karta has unrestricted powers
against H to stop H from marrying W1. in a Hindu-Undivided-Family because of
Here, although the grant of perpetual his peculiar position and therefore, the
injunction by the court would not be coparceners are usually not granted an
illegal, but ordinarily, court will not grant injunction order against the Karta to
perpetual injunction as W has equally prevent him from alienating the Joint-
efficacious remedies available with her Hindu-Family-Property, rather, the
under the Hindu Marriage Act, 1955 alternate remedy available to the
(Divorce under Section 13 of the 1955 coparceners is that of filing a suit for
Act) and the Indian Penal Code, 1860 declaration, for having a declaration albeit
(Bigamy under Section 494 of the 1860 the sale effected by the Karta involving
Code). the Joint-Hindu-Family-Property as void,
No doubt, H is under a legal obligation to after the transaction of sale has been
not to solemnize a second marriage as he completed. Perpetual injunction can be
is duty-bound to not to do such acts which granted but the court ordinarily will not
will destroy the foundation of the first grant the same as decree of declaration can
marriage, and therefore it amounts to an be sought by the coparceners to
obligation under Section 38(1) of the characterize the sale as void.
Specific Relief Act, 1963, and thus, Section 41(i): An injunction cannot be
theoretically in such a case, the court may granted- “when the conduct of the plaintiff
grant perpetual injunction, but, in practice or his agents has been such as to disentitle
the court will not do so, as even if him to the assistance of the court”.
perpetual injunction is granted, H may still For example: A partner of a partnership
solemnize the second marriage with W1. firm, who himself is guilty of
Also, there are some other equally embezzlement and mismanagement of the
efficacious reliefs available, for example, funds of the partnership firm cannot obtain
if H solemnizes second marriage with W1, an injunction order against other partners

of the partnership firm so as to stop them the negative part of the contract. However,
from conducting the business of the such an order of injunction can be only as
partnership firm on the grounds of regards to or to the extent of the negative
mismanagement and misconduct. part of the contract as was expressly or
Law in regards to specific relief is based impliedly provided for under the contract;
on the following two propositions: “One, but, such an order of injunction cannot be
who seeks equity, must do equity” and too oppressive; for instance, if a singer has
“One, who seeks equity, must come to the agreed to sing for a restaurant everyday
court with clean hands”. and he charges highly for that, then the
Section 41(j): An injunction cannot be negative part of the contract is that he
granted- “when the plaintiff has no shall not sing for anyone else; singing is
personal interest in the matter”. based on the skill and personal volition of
Note: The Specific Relief Act, 1963 is a a person, therefore, he cannot be
matter of private law; to contest a case compelled to sing, that is, there cannot be
within the broad framework of the specific performance of the positive part
provisions of the Specific Relief Act, of the contract; however, the negative part
1963, the plaintiff must have the locus of the contact, that is, he (the singer) shall
standi to contest the case; thus, only that not sing for anyone else can be exercised
individual/person who has a cause of against him vide an order of injunction.
action in his favour can alone file a suit But, if he takes up some other profession
within the broad parameters of the for example, dancing, then that being not
Specific Relief Act, 1963. the negative part of the contract, he cannot
69. Section 42 of the Specific Relief Act, be burdened with an order of injunction
1963: Injunction to perform negative stopping him from dancing at any other
agreement: restaurant.
“Notwithstanding anything contained in For example: R is the owner and
clause (e) of Section 41, where a contract proprietor of XYZ institute. R engages P
comprises an affirmative agreement to do for teaching law at his institute to students
a certain act, coupled with a negative against a high salary paid by R to P.
agreement, express or implied, not to do a Positive part of the contract between R
certain act, the circumstances that the and P is that, P will teach law at XYZ
court is unable to compel specific institute, and the negative part of the
performance of the affirmative agreement contract is that P will not teach law at any
shall not preclude it from granting an other institute except for XYZ institute.
injunction to perform the negative Now, if P commits a breach of contract by
agreement: not teaching law at XYZ institute, then R
Provided that the plaintiff has not failed to cannot enforce specific performance
perform the contract so far as it is binding against P, because teaching is in the nature
on him” of personal skill of P. However, if P starts
Note: In a contract there may be two teaching law at ABC institute, then as
aspects: (a) The positive aspect wherein regards the negative part of the contract
the party concerned has to do something entered into between R and P, that is, P
positive; and (b) To refrain from doing shall not teach law at any other institute
something. except for XYZ institute, R can obtain an
If upon the breach of contract, the order of injunction against P, there by
specific performance of the contract stopping P from teaching at ABC institute.
cannot be obtained then an order of However, if P starts teaching maths and
injunction of the positive part of the accounts at ABC institute and not law,
contract can also not be granted. then an order of injunction cannot be
However, if the positive part and the obtained by R against P.
negative part of the contract are severable For example: PQR Ltd. is a company
then even if specific performance or an engaged in the extraction of mica. PQR
order of injunction related to the positive Ltd. enters into a contract with X for the
part of the contract cannot be obtained, supply of mica. The positive aspect of the
that shall not affect the negative part of the contract is that PQR Ltd. will supply mica
contract as an order of injunction can be to X and the negative aspect of the
granted as regards the negative part of the contract is that PQR Ltd. will not supply
contract, that is, the opposite party or the mica to any other person/entity. If PQR
defendant can be restrained from violating Ltd. engages itself in the supply of mica to

another person/entity except X, then X can Section 14(1) (b): The following contracts
obtain an order of injunction against PQR cannot be specifically enforced, namely:
Ltd., there by stopping it from doing so. “a contract which runs into such minute or
70. Proviso to Section 42 of the Specific numerous details or which is so dependent
Relief Act, 1963: “Provided that the on the personal qualifications or volition
plaintiff has not failed to perform the of the parties, or otherwise from its nature
contract so far as it is binding on him”. is such, that the court cannot enforce
Note: If the plaintiff seeks an injunction of specific performance of its material
the negative part of the contract then he terms”.
will get the order of injunction in his Note: The word “material terms” means
favour only if he himself has not defaulted the essential purpose of the contract.
in the performance of his obligation Purpose can be: teaching, singing, writing
arising out of the contract. A person who a book etc. Contracts involving personal
seeks equity must do equity. skills of a person cannot be specifically
71. Section 14 of the Specific Relief Act, enforced vide the judicial process, the only
1963: Contracts not specifically choice for the aggrieved party is to settle
enforceable: for and be content with the award of
(Note: Section 10 of the Specific Relief damages. If there is a contract which
Act, 1963 speaks of situations where by involves execution of a work which is of
relief of specific performance can be technical nature, and not mechanical
granted; Section 14 of the Specific Relief nature, and which involves
Act, 1963 speaks of situations where by minute/numerous details, then specific
relief of specific performance cannot be performance of such contract cannot be
granted; and Section 20 of the Specific enforced.
Relief Act, 1963 speaks of situations Section 14(1) (c): The following contracts
where by relief of specific performance is cannot be specifically enforced, namely:
discretionary upon the court, to grant or to “a contract which is in its nature
not to grant.) determinable”.
Following contracts cannot be For example: There is a partnership firm
specifically enforced (Section 14): which can be dissolved at will; A & B are
1. A contract for the non-performance of the partners of the partnership firm. B
which compensation in money is an commits breach by non-performing some
adequate relief and the damages can of the material terms of the partnership
be appropriately estimated or agreement and A asks for specific
measured; performance of the same from B. B
2. A contract which is dependent on dissolves the partnership firm which is at
personal qualification/knowledge/skill will, thus, relief of specific performance
of the parties to the contract; cannot be granted by the court.
3. A contract which is determinable in Section 14(1) (d): The following contracts
nature; cannot be specifically enforced, namely:
4. A contract the performance of which “a contract the performance of which
involves continuous supervision by involves the performance of a continuous
the court, which the court would not duty which the court cannot supervise”.
ordinarily be able to render; Note: Section 14(1) (d) is to be read with
5. A contract in which Section 14(3) (c) of the Specific Relief
provision/stipulation already exists Act, 1963. Relief of specific performance
that in case of dispute between the as regards a contract cannot be granted
parties to the contract, the dispute upon the breach of such contract by the
shall be referred to an arbitrator. court to the aggrieved party, if grant of it
Section 14(1) (a): The following contracts involves a task of continuous supervision
cannot be specifically enforced, namely: by the court, which the court would not
“a contract for the non-performance of ordinarily be able to render.
which compensation in money is an Reading of Section 14(1) (d) in
adequate relief”. conjunction with Section 14(3) (c) of the
Note: Courts will not order specific Specific Relief Act, 1963 brings to light
performance of a contract where the the following proposition:
aggrieved party can be adequately In a case where by continuous supervision
compensated in terms of money. of the court is required, then, ordinarily
the relief of specific performance will not

be granted by the court. However, the to enter the reference. Can ‘A’ file a suit
court may grant the relief of specific against ‘B’ for specific performance of the
performance in a contract relating to contract, compelling ‘B’ to enter the
construction or development of a building, reference for resolution of disputes vide
bridge or dam, if the following conditions the arbitration mechanism?
are fulfilled: (a) Details of construction Decision: No.
are clearly specified in the contract; (b) But, later on, if ‘B’ who has breached the
Plaintiff has substantial interest/stake material terms of the contract (that is, the
involved (for example: reputation), and arbitration clause) wants to sue ‘A’ for
money compensation is not an adequate specific performance of the contract by
relief; (c) Defendant has already taken filing a civil suit in a civil court, to compel
possession of the property in pursuance of ‘A’ to perform ‘A’s’ part of the contract,
the contract. then, in such a case, ‘B’ shall not be
For example: R in order to celebrate his allowed to do so, because, ‘B’ himself has
birthday, after taking permission of the not adhered to the material terms of the
authorities concerned takes possession of a contract, that is, the arbitration clause.
ground/park and thereafter contracts with “Person who seeks equity must do equity”.
a contractor for setting up the party tent, Section 14(3) (a):
carpeting the ground and decorating the “Notwithstanding anything contained in
venue with flowers; the contractor agrees clause (a) or clause (c) or clause (d) of
to provide catering services, that is, sub-section (1), the court may enforce
preparation of snacks and food, and specific performance in the following
deployment of waiters to serve the food. cases:
Pursuant to the contract, R not only (a) Where the suit is for the enforcement
provided the contractor with the requisite of a contract-
materials to set up the tent, carpet the (i) To execute a mortgage or
ground and decorate the venue but also furnish any other security for
gave the contractor the possession of the securing the repayment of
ground/park. Detailed specifications and any loan which the borrower
instructions as to how to carry out the is not willing to repay at
requite work were provided by R to the once:
contractor. Interest of R is, his reputation Provided that where only a
coupled with feelings and emotions part of the loan has been
involved. In case the contractor commits advanced the lender is
breach of contract then, R can enforce willing to advance the
specific performance of the contract remaining part of the loan in
against the contractor. terms of the contract; or
Section 14(2) of the Specific Relief Act, (ii) To take up and pay for any
1963: debentures of a company.”
“Save as provided by the Arbitration Act,
1940 (10 of 1940), no contract to refer Section 14(3) (a) (i): For example: B
present or future differences to arbitration takes a loan of Rs. 10, 00, 000/- from A,
shall be specifically enforced; but if any and promises to return the money on a
person who has made such a contract specific date. On that specific date, B
(other than an arbitration agreement to requests for an extension of time for the
which the provisions of the said Act apply) repayment of money advanced by A to B.
and has refused to perform it, sues in A agrees for extension of time but subject
respect of any subject which he has to B executing a mortgage of his house in
contracted to refer, the existence of such favour of A on an ascertained date of the
contract shall bar the suit.” next month. B agrees to this proposition,
For example: ‘A’ and ‘B’ entered into a but later on, on the ascertained date of the
contract. One of the clauses of the contract next month, B refuses to execute the
expressly stipulates that, in case of mortgage. In this case, according to
disputes arising between the parties, the Section 14(3) (a) (i) of the Specific Relief
disputes being the subject matter of the Act, 1963, A can file a suit for specific
contract are to be referred to an arbitrator performance of the contract against B, to
for resolution. Disputes arise between ‘A’ compel B to execute the said mortgage.
and ‘B’. ‘A’ invokes the arbitration clause
for resolving the disputes, but ‘B’ refuses

Here, the breach is of the promise that the Decision: Yes, in terms of Section 14(3)
borrower (the debtor) has made to the (b) (i) of the Specific Relief Act, 1963.
other party (the creditor) as regards the
non-payment of the money advanced, that Section 14(3) (b) (ii): For example: A, B
is, the promise to secure the loan by and C are partners in a partnership firm. C
creating a mortgage or by furnishing any promises B, that C shall purchase B’s
other security. The other party (the share in the partnership business. C later
creditor) has done his equity by enabling refuses to purchase B’s share in the
the borrower (the debtor) by extending the partnership business. Can B file a suit for
time for repayment of money advanced specific performance of the contract
and therefore, the borrower (the debtor) against C, to compel C to purchase B’s
should now do equity by executing the share in the partnership business?
mortgage.
Decision: Yes, in terms of Section 14(3)
Section 14(3) (a) (ii): For example: If A (b) (ii) of the Specific Relief Act, 1963.
agrees to purchase 100 debenture of PQR
Ltd., but later refuses to adhere to the Section 14(3) (c) - (i), (ii) and (iii): As
agreement, then PQR Ltd. can enforce regards agreements for construction of
specific performance against A, by filing a building, the principles crystallised in the
civil suit in a civil court against A, for English law have been adopted by Section
specific performance, thereby compelling 14(3) (c) of the Specific Relief Act, 1963.
A to purchase 100 debentures of PQR Ltd. The agreements will be enforceable, that
is, the court shall grant the relief of
Section 14(3) (b): specific performance to the plaintiff, if in
sufficiently precise terms the exact nature
“Notwithstanding anything contained in of the building (that is, the construction
clause (a) or clause (c) or clause (d) of plan) has been specified by the plaintiff;
sub-section (1), the court may enforce the plaintiff has a substantial interest in the
specific performance in the following work, and the work is of such nature that
cases: the loss suffered due to non-performance
cannot be compensated in monetary terms;
(b) Where the suit is for: and the defendant is in possession of the
(i) The execution of a formal whole/part of the site.
deed of partnership, the
parties having commenced to 72. Section 16 of the Specific Relief Act,
carry on the business of the 1963: Personal bars to relief
partnership, or Note: As regards Section 14 of the
(ii) The purchase of a share of a Specific Relief Act, 1963, a contract
partner in a firm”. cannot be enforced because of the peculiar
nature of the contract, whereas, as regards
Section 14(3) (b) (i): For example: A and Section 16 of the Specific Relief Act,
B agree that, one year from now, they 1963, the non-enforceability of the
shall establish a coaching institute in contract is due to some defect related to
South Delhi, and thereby, they shall carry the conduct of the plaintiff, and not due to
out the business of coaching in partnership the peculiar nature of the contract.
vide a registered deed of partnership. Section 16(a) of the Specific Relief Act,
However, in the interregnum that is before 1963: A person cannot seek specific
the stipulated date for creation and performance of the contract where
registration of the partnership deed, both circumstances are such that he would not
A and B, together, start the business of be entitled to compensation for the breach
coaching. On the stipulated date for the of the contract.
creation and registration of the partnership For example: X misrepresented Y that a
deed, B refuses to create and register the house situated at place P is his (X’s)
partnership deed. Can A enforce specific house. Y agreed to purchase the house
performance against B vide a civil suit in a situated at place P from X. On the date of
civil court, thereby compelling B to come performance of the contract, X came to Y
forward for the creation and registration of with fabricated papers signifying X’s
partnership deed? ownership. Y came to know of the fraud
played by X on Y, thus, Y refused to

perform his part of the promise albeit the his part of the contract as the house
contract entered into between X and Y. built is devoid of swimming pool.
Can X enforce specific performance Can X enforce specific performance
against Y? Decide. against Y, compelling Y to take the
Decision: X cannot ask for specific possession of the house so built and
performance of the contract, for X is not pay X the money consideration
the owner of the house situated at place P, agreed to between X and Y? Decide.
and thus, he cannot give to Y what he Decision: X cannot enforce specific
himself doesn’t have. X cannot ask for performance of the contract in terms
compensation in terms of damages from of Section 16(b) of the Specific Relief
Y, because here it is X who has wronged Act, 1963. Construction of swimming
Y, rather than the other way round. X pool was an essential term of the
hasn’t suffered any loss whatsoever; in contract, which X failed to
fact, it is Y who has suffered because of meet/adhere to.
the fraud played by X on Y. (iii) He has acted in fraud of the contract;
For example: R is agent of S. R on behalf For example: P enters into a contract
of S approaches B to purchase his (B’s) with Q, whereby P agrees to sell his
house situated at place P. B agrees to sell branded watch to Q for a sum
his house situated at place P. On the date consideration of Rs. 1, 00, 000/-. On
of performance of the contract, B commits the date of performance of the
a breach of contract entered into between contract, on examining the watch, Q
R (on behalf of S) and B. Now, here, R finds out that the watch is counterfeit
can file a suit against B for enforcing and thus, refuses to perform his part
specific performance of the contract, not of the contract. P files a suit for
in his personal capacity but as an agent of specific performance of the contract
S. Also, compensation/damages for the to compel Q to purchase the watch.
breach of contract that shall be awarded to Can P succeed? Decide.
R against B by the court shall be not in Decision: No. P tried to play a fraud
R’s personal capacity but in his upon Q, thus, in terms of Section
representative capacity, that is, in R’s 16(b) of the Specific Relief Act, 1963,
capacity as an agent of S. P cannot compel Q to purchase the
Section 16(b) of the Specific Relief Act, counterfeit-watch by filing a suit for
1963: A person (the plaintiff) who is specific performance.
guilty of any of the following cannot claim (iv) He has wilfully acted at variance with
specific performance of the contract: or in subversion of the relation
(i) He has become incapable of intended to be established by the
performing his part of the contract; contract.
For example: X agrees to purchase For example: X took a loan of Rs.
the watch of Y for a sum 50, 00, 000/- from Y. X in return
consideration of Rs. 50,000/-. Before agrees to create a life-estate in favour
the date of performance of the of Y as regards his (X’s) house
contract, X becomes insolvent. On the situated at place P. Y pursuant to the
date of performance of the contract, Y agreement between him and X,
refuses to sell his watch to X. Can X prepares the necessary documents. On
file a suit for specific performance the date of performance of the
against Y, compelling Y to sell his contract, X discovers that, instead of
watch to X? Answer: No. creation of life-estate in favour of Y,
(ii) He has violated any essential term of Y has prepared documents for the
the contract that on his part remained transfer of ownership of the house of
to be performed; X situated at place P in favour of Y,
For example: X, a builder, enters into thereby, X refuses to sign the
a contract with Y to build a house for documents. Can Y compel X to sign
Y. One of the essential terms of the the documents by filing a case for
contract was that, the house that was specific performance of the contract?
to be built should have a swimming Decide.
with a capacity to accommodate 8 Decision: No. Y has wilfully acted in
individuals at a time. X builds the variance with, or in subversion of, the
house but without constructing a relation intended to be established by
swimming pool. Y refuses to perform

the contract entered into between X albeit the case and then
and Y. accordingly has to do balancing
of the interests of the parties to
Section 16(c) of the Specific Relief Act, the case, and thereby take the
1963: decision for grant or non-grant of
the specific performance of the
Note: In a suit for specific performance contract.
of the contract it is essential for the II. Section 20(2) (a) of the Specific
plaintiff to plead in his plaint that he has Relief Act, 1963:
been and is “ready and willing” to perform “…The following are cases in
his part of the contract; by stating so, that which the court may properly
is, by averring that the plaintiff is ready exercise discretion not to decree
and willing to perform his part of the specific performance:
contract, the plaintiff is disclosing his part (a) Where the terms of the contract or the
of the cause of action, and if, the plaintiff conduct of the parties at the time of
does not make a pleading to this effect entering into the contract or the other
then it will be said that the plaintiff has not circumstances under which the contract
disclosed his cause of action, and on that was entered into are such that the contract
ground alone under Order VII, Rule 11(a), though not voidable, gives the plaintiff an
of the Code of Civil Procedure, 1908, the unfair advantage over the defendant…”
plaint of the plaintiff would be rejected.
Note: “Common Reasonable Foresight”: If
The plaintiff has also to prove his A has to do something for B and in return B
readiness and willingness to perform his has to do something for A, pursuant to
part of the contract and for that purpose he obligations arising out of the contract
will have to prove by way of evidences in entered into between A and B, then if, there
the court of law, that he has means and is an intention to create legal relationship
measures to make good his obligations coupled with knowledge with both, A and
arising out of the contract; however, if the B, of the surrounding facts, then there is
plaintiff has to pay money in terms of the existence of common reasonable foresight.
contract to the defendant then it is not
essential that the plaintiff has to deposit Whenever a contract is entered into, the
the said money in the court or has to pay test of reasonable foresight is always in
to the defendant unless the court requires reference to the point of time when the
the plaintiff to do so. contract was actually entered into,
therefore, when the defendant claims
If the pleadings as stated above, as regards that he will suffer unforeseen hardship,
the readiness and willingness of the the examination will be as to whether the
plaintiff to make good his obligations are defendant at the time of entering into the
not made by the plaintiff in his plaint then contract could have reasonably foreseen
the plaint shall be rejected and if the that hardship, and if the answer is “yes”,
plaintiff fails to bring on record evidences then specific performance can be granted
that he has wherewithal to make good his against him.
obligations arising out of the contract then,
the suit filed by the plaintiff shall be There are situations which make a contract
dismissed. voidable, these are: fraud,
misrepresentation, mistake, coercion and
73. Section 20 of the Specific Relief Act, undue influence. If a contract is voidable
1963: Discretion as to decreeing specific (Section 2(i) of the Indian Contract Act,
performance: 1872), that is, it is an agreement which is
I. The implication of Section 20(1) enforceable by law at the option of one or
of the Specific Relief Act, 1963 more parties thereto, but not at the option of
is that, even if, the conditions of other/others, then, specific performance of
Section 10 of the Specific Relief the contract cannot be enforced.
Act, 1963 are fulfilled, the court
would not be bound to grant For example: A and B enter into a contract
specific performance of the in pursuance of which A agrees to sell his
contract, rather, the court has to 50 acres of land to B for a sum
examine all the circumstances consideration of Rs. 50, 00, 000/-. Before

the date of performance of the contract, A For example: P purchases a building from
discovers that there is a goldmine Q, and lets it out to R. R runs a coaching
underneath his 50 acres of land. No doubt B institute in that building. The building was
can press for specific performance of the sold by Q to P without disclosing that the
contract under Section 10 of the Specific building was mortgaged by Q to the State
Relief Act, 1963, but because of the Bank of India (North Delhi Branch) against
discovery of the goldmine underneath the a loan of Rs. 50, 00, 000/- availed by Q
50 acres of land of A, an unfair advantage from the State Bank of India (North Delhi
will ensue in favour of B and hence, against Branch). Due to non-payment of the loan,
A, thus, the court can be approached under legal proceedings were initiated by the
Section 20 of the Specific Relief Act, 1963 State Bank of India (North Delhi Branch)
by the aggrieved party (that is, B), asking against Q in the Debt Recovery Tribunal
the court to do complete justice. The court (DRT). No doubt if DRT orders for the sale
in such a case to balance the interest as of the building for realisation of the loan
between the parties to the contract may amount, P being a bona-fide purchaser can
refuse to grant specific performance of the object to it and can seek the protection
contract to A, to ensure that no inequity is conferred to him (that is, P) by the Transfer
caused to the aggrieved party, that is, B. of Property Act, 1882; but in the
interregnum to adjudicate of the claims, the
Important takeaways from the above DRT can order that the building be sealed.
example are the following: (a) The Now, R, who is running a coaching institute
discovery of the goldmine was incidental; located in the building will suffer
(b) Discovery of the goldmine was not the massively, due to the sealing, as R will not
part of the common reasonable foresight of be able to conduct his classes in that
the parties to the contract; (c) Discovery of building. Now, if, the students studying at
goldmine was after the formation of the the coaching institute located in the
contract but before its execution (that is, aforesaid building file a suit for specific
performance); and (d) An unfair-advantage performance of the contract against R, to
is something which is ‘inequitable’. compel R to take their classes at the
coaching centre located in the building, will
III. Section 20(2) (b) of the Specific Relief the students be able to succeed? Decide.
Act, 1963: Decision: No. The suit filed by the students
“…The following are cases in which the against R for specific performance of the
court may properly exercise discretion not contract will fail. The sealing of the
to decree specific performance: building was an “unforeseen circumstance”.
Where the performance of the contract For example: F, a farmer, enters into a
would involve some hardship on the contract with R, pursuant to which F agrees
defendant which he did not foresee, to sell his 2 acres of land situated at place P
whereas its non-performance would involve to R, for a sum consideration of Rs. 10, 00,
no such hardship on the plaintiff…” 000/-. On the date of performance of the
For example: X & Co. enters into a contract contract it comes to the notice of R that
with Z, asking Z to stitch uniforms for 100 there is no road connectivity to place P; R
of its employees, against a sum never asked F about the road connectivity
consideration of Rs. 20,000/-to be paid by to place P where 2 acres of his (F’s) land
X & Co. to Z. After the formation of the situate, and F never told that there is no
contract, Z refuses to stitch the uniforms road connectivity to place P, thus this
owing to the rise in the price of the cloth as question of road connectivity was outside
if, Z were to stitch the uniforms at the price the ordinary reasonable foresight of both R
agreed by Z in pursuance of the contract and F. Taking note of the fact that there is
entered into between X & Co. and Z, Z no road connectivity to place P, R refuses
were to suffer a loss of Rs. 2,000/-; here, X to perform his part of the contract, that is,
& Co. can enforce specific performance of pay sum consideration of Rs. 10, 00, 000/-
the contract against Z because the rise in for the piece of land (2 acres) belonging to
price of the cloth was a reasonably F. F files a suit for specific performance of
foreseeable hardship, which could have the contract under Section 10 of the
been taken account of by Z, by acting with Specific Relief Act, 1963 against R, stating
prudence and exercising reasonable that based on the contract between F and R
foresight. for sum consideration of Rs. 10, 00, 000/-,
F had fixed the marriage of his daughter D

and if the sum consideration as promised is asking the court to compel B to handover
not received by F from R against the piece the possession of the house to A. Can A
of land (2 acres) then all the arrangements succeed? Decide.
as regards the marriage of his daughter (D) Decision: A will not succeed, but will
will come to a standstill. Can F claim relief rather fail. Equity is tilting more towards B
of specific performance against R? Decide. than A; A did not come forward to take the
Decision: Yes. On balancing of interests as possession of the house for almost 5 years,
between the parties, it can be found that F despite efforts made by B in this regard.
will be put at a greater sufferance if the Section 20(2) (c) of the Specific Relief Act,
contract between F and R is not executed/ 1963 will operate in favour of B and
performed, for marriage of daughter is a against A.
serious issue and F had altered his position, V. Section 20(2) of the Specific Relief Act,
that is, planned the marriage of his 1963 - Explanation 1:
daughter, relying on the fact that he shall be “Mere inadequacy of consideration, or the
getting a sum consideration of Rs. 10, 00, mere fact that the contract is onerous to the
000/- against the sale of his land to R, as defendant or improvident in its nature,
was agreed between the two, R and F. shall not be deemed to constitute an unfair
Secondly, it was R who was negligent, as advantage within the meaning of clause
he did not ask F about the road connectivity (b)”.
to place P at the time of entering into the For example: A can sell his house to B for
contract. Rs. 1000/- also, inadequacy of
However, if R is able to prove that F can consideration does not render an agreement
arrange money for his daughter’s marriage void. Thus, if an agreement is entered into
from other sources, that is source other than between the parties, there should be an
the sale of land by F to R, then R can offer and acceptance, consensus ad idem
contest that grant of specific performance between the parties and the consent should
in favour of F, as against R will be be ‘free’, also the agreement must be
inequitable. backed by consideration; scantiness of
IV. Section 20(2) (c) of the Specific Relief consideration will not render the agreement
Act, 1963: void.
“…The following are cases in which the ‘Onerous’ means that the terms of the
court may properly exercise discretion not contract are significantly tilted in favour of
to decree specific performance: one party as against the other;
Where the defendant entered into the ‘improvident’ means that which was not
contract under circumstances which though foreseen by the parties to the contract at the
not rendering the contract voidable, makes time of entering into the contract but was
it inequitable to enforce specific nonetheless a part of the broad reasonable
performance…” foresight of the parties to the contract at the
For example: A enters into a contract with time of entering into the contract.
builder, B, for construction of a house for VI. Section 20(2) of the Specific Relief Act,
sum consideration of Rs. 50, 00, 000/-. In 1963- Explanation 2:
pursuance of the agreement entered into “The question whether the performance of
between A and B, A gave Rs. 20, 00, 000/- a contract would involve hardship on the
to B in advance with a promise to pay the defendant within the meaning of clause (b)
sum due, that is, Rs. 30, 00, 000/- after the shall, except in cases where the hardship
construction of the house. B constructs the has resulted from any act of the plaintiff
house within the time allotted to him as per subsequent to the contract, be determined
the contract. B is ready and willing to hand with reference to the circumstances existing
over the possession of the house to A for at the time of the contract”.
the remaining sum consideration of Rs. 30, Note: If the hardship was foreseeable at the
00, 000/-, but A starts avoiding B, and for time of entering into the contract, then
almost 5 years, A fails to come forward to specific performance of the contract can be
take the possession of the house enforced by the plaintiff as against the
constructed by B. B, later on, sells the defendant.
house so constructed to C for a sum VII. Section 20(3) of the Specific Relief Act,
consideration of Rs. 70, 00, 000/- and 1963:
thereby returns a sum of Rs. 20, 00, 000/- According to Section 20(3) of the Specific
to A. A, thereafter, files a suit for specific Relief Act, 1963, where a party to a
performance of the contract against B, contract has already substantially

performed his part of the contract, it would Y at the time of performance

be highly inequitable to him if the other of the contract, then specific
party to the contract is not compelled to performance cannot be
perform its part of the contract. Section enforced by X as against Y.
20(3) provides that the court may properly 75. Section 21 of the Specific Relief Act,
exercise discretion to decree the specific 1963: Power to award compensation in
performance of the contract in any case certain cases:
where the plaintiff has done substantial acts Section 21(1): Every party seeking the
or has suffered losses in consequence of a relief of specific performance is allowed
contract capable of specific performance. by Section 21 to claim compensation for
VIII. Section 20(4) of the Specific Relief Act, the breach of the contract. Such relief may
1963: be claimed either in addition to specific
“The Court shall not refuse to any party performance or in substitution of it.
specific performance of a contract merely Section 21(2): If the court is of the
on the ground that the contract is not opinion that specific performance ought
enforceable at the instance of the party”. not to be ordered, the court may award
Note: Earlier doctrine of mutuality compensation if a valid contract and its
suggested that ‘A’ can have specific breach are established.
performance of the contract against ‘B’ Section 21(3): Should the court find that
only when ‘B’ also can enforce contract specific performance by itself would not
against ‘A’. This was called doctrine of be sufficient relief, it may, in addition,
mutuality, but by adding Section 20(4), in award compensation also, to meet the ends
matters of specific performance doctrine of of justice.
mutuality has been abolished. Thus, now, Section 21(4): Compensation would be
even if ‘B’ cannot enforce the contract assessed in accordance with the principles
against ‘A’, ‘A’ can still have specific stated in Section 73 of the Indian Contract
performance of the contract against ‘B’ if Act, 1872.
conditions of Section 10 of the Specific Section 21(5): It is necessary that the
Relief Act, 1963 are fulfilled. plaintiff should have asked for the relief of
For example: If there is a contract between compensation in his plaint. The court may,
a minor (‘A’) and a third person (‘B’) however, allow the plaint to be amended
through the guardian of the minor (‘C’) for (under Order VI, Rule 17) at any stage to
apprenticeship, then, even if the contract is enable the plaintiff to claim compensation.
not enforceable against the minor (‘A’) by Explanation: If the subject matter of the
the third person (‘B’), the minor (‘A’) can contract gets destroyed (or, gets materially
still have specific performance of the altered) in such a manner that the contract
contract against the third person (‘B’) if the although does not gets frustrated but
conditions of Section 10 of the Specific specific performance of the contract
Relief Act, 1963 are fulfilled. cannot be granted, then in such a case the
74. Section 17 of the Specific Relief Act, court does not have any alternative but to
1963: grant damages.
A person who contracts to sell or let-out 76. Section 22 of the Specific Relief Act,
immovable property with the knowledge 1963: Power to grant relief for
that he has no right to do so cannot ask for possession, partition, refund of earnest
specific enforcement in his favour. This money, etc.
will be so even if he honestly believed that I. Section 22(1) is an enabling
he had the title but is not able to give at provision;
the time of performance a title free II. Plaintiff in a suit for specific
from reasonable doubt. The same performance can ask for further
principle is applicable to sale or letting of reliefs as mentioned in clauses (a)
movable property also. and (b) of Section 22(1) - these
a. The plaintiff who seeks are as regards to: possession
specific performance of the along with specific performance;
contract should have the title partition and separate possession
to the property at the time of along with specific performance;
performance of the contract. and refund of earnest money in
b. If X cannot transfer a valid case claim for specific
title as regards a property, in performance is refused;
pursuance of the contract, to

III. Mandate of Section 22(2) is that, Thus, X in the present

no relief under clause (a) or case can claim vide a
clause (b) of Section 22(1) shall suit the following
be granted by the court unless it reliefs against FS:
has been specifically claimed by specific performance,
the plaintiff in his plaint. partition and
However, where plaintiff has not possession.
claimed such a relief in his plaint,
then the court shall, at any stage 77. Section 23 of the Specific Relief Act,
of the proceedings allow the 1963: Liquidation of damages not a bar
plaintiff, to amend his plaint, for to specific performance:
inclusion of such claim; Section 23(1): A enters into a contract
IV. According to Section 22(3), the with B. One of the stipulations of the
power of the court to grant relief contract is that, whosoever, whether, A or
under Section 22(1) (b), that is, B, commits a breach of contract, will pay
refund of earnest money in case to the party aggrieved a sum of Rs. R.
claim for specific performance is Now, if the court is satisfied that, the
refused, shall be without stipulation in regards to the payment to be
prejudice to the power of the made by the defaulting party is only to
court to award compensation secure the performance of the contract,
under Section 21 of the Specific and is not as regards a payment to be made
Relief Act, 1963. in lieu of, or, in substitution to, the
specific performance of the contract; then,
For example: F, FS the relief of specific performance of the
and FS1 are contract can be enforced by the aggrieved
coparceners of a Joint- party as against the defaulting party.
Hindu-Family. F is Section 23(2): In case the court decrees
the father, and, FS and specific performance of the contract in
FS1 are the two sons. favour of the defaulting party, then, it shall
A coparcener has a not decree the amount so specified in the
right to sell or alienate contract to be paid as compensation for
his un-divided share default in case of non-performance of the
in the Joint-Hindu- contract, in favour of the aggrieved party.
Family property. FS 78. Section 24 of the Specific Relief Act,
agreed to sell his 1963: Bar of suit for compensation for
undivided share in the breach after dismissal of suit for
Joint-Hindu-Family specific performance:
property to X against If suit for specific performance of the
a consideration of Rs. contract has been dismissed, and thereafter
R. FS later refuses to in a subsequent suit damages are claimed,
perform his part of the then such a suit shall not be allowed,
contract; and X files a however, if any other relief is claimed in
suit for specific the subsequent suit, for example, refund of
performance of the earnest money or claiming back any
contract. Now, in document, then such a suit shall be
pursuance of the suit allowed. Thus, if in a suit for specific
for specific performance of the contract, if damages
performance of the are not claimed and the suit is dismissed,
contract, first the then a subsequent suit for claiming
Joint-Hindu-Family damages will not lie and will be barred
property will be under Order II, Rule 2 of the Code of Civil
partitioned (divided) Procedure, 1908.
and then after 79. A codicil is an attachment to the
ascertaining the share original Will, which either changes it or
of FS, the same shall alters it.
be given to X in 80. Section 18 of the Specific Relief Act,
pursuance of the 1963: Non-enforcement except with
contract entered into variation:
between FS and X.

Section 18(a): Where parties to a contract 81. Section 26 of the Specific Relief Act,
enter into a written contract which is 1963:When instrument may be
induced either by fraud, mistake of fact rectified:
or misrepresentation, or, which I. Section 26 does not speak about
deliberate terms which were not specific performance of the
actually agreed to between the parties contract. When a deed is
to the contract, or, which do not executed, the contract is
deliberate all the essential terms agreed concluded and is governed by
to between the parties to the contract; different rules and principles;
based on which (or on the basis of which) rectification, therefore, is not
the defendant entered into the contract, specific performance of the
then, specific performance of the contract contract.
cannot be granted to the plaintiff except II. Under Section 18, the suit is
for variations to be carried out in the always for specific performance
written contract. of the contract, and it is the
Section 18(b): When parties to a contract defendant who claims variation
enter into a written contract which or rectification albeit the
intended to produce a certain legal result, contract; however, under Section
towards which the stipulations of the 26, both, that is, the plaintiff or
written contract actually do not point, the defendant can claim variation
then, the plaintiff cannot enforce specific (that is, rectification) of an
performance of the contract except for instrument, and the suit can be
variations to be carried out, so that, any suit based on an
specific performance is sought for that instrument/document.
which was actually intended between the III. Section 26 is broader in scope
parties to the contract. than Section 18 of the Specific
For example: A enters into a written Relief Act, 1963.
contract with B, in pursuance of which A
was to create a life estate in favour of B as Summary of the Section: When either
regards his (A’s) house for a sum because of fraud or mutual mistake of the
consideration of Rs. 10, 00, 000/-, to be parties to a contract/instrument, the
paid by B to A; documents as regards this contract/instrument in writing does not
transaction were to be prepared by B. truly expresses the intention of the parties
Instead of creating a life estate, B prepares to the contract/instrument, then either
documents signifying an absolute transfer party (or his representative-in-interest) can
of ownership of A’s house in favour of B. institute a suit to have the instrument
A refuses to perform his part of the rectified;
contract stating that creation of only life
estate and not an absolute ownership was When the court finds it clearly proved that
agreed to between the parties to the there has been fraud/ mistake in framing
contract, that is, A and B. In this case, B the instrument, and, in ascertaining the
cannot enforce specific performance of the real intention of the parties executing the
contract against A, as the legal result that contract/instrument, then, the court may,
was intended to be created was that of life exercising its discretion, rectify the
estate and not absolute ownership of A’s instrument so as to express that intention
house in favour of B. which was intended to be expressed by the
Section 18(c): Where parties to a contract parties to the contract/instrument, so far
enter into a written contract, but as, it can be done without prejudice to the
subsequent to the formation of the rights/claims acquired by a third-party in
contract, the parties to the contract vary good faith, for value.
the terms of the contract, then specific
performance of the contract cannot be Note: Any bona-fide purchaser who has
enforced by the plaintiff as against the purchased some property against some
defendant, without regard being had to the value/consideration, without having
variations (i.e. alteration, addition, knowledge of any defect in the title, the
deletion or substitution of stipulations of law protects the rights of such a person
the contract) effected to the stipulations of and as per Section 26(2), if a rectification
the contract post the formation of the of an instrument is to be made, then the
contract. rectification will be allowed only to the

extent that it does not affect the rights of 13. Within the meaning of Section 6 and
such a bona-fide purchaser. Section 7 of the Specific Relief Act, 1963,
the right to possession means right to have
Points to remember: immediate possession.
14. Section 26 of the Specific Relief Act,
1. If the court orders Specific Performance of 1963 covers: (a) A Will; (b) A marriage
the contract, this is in the nature of settlement; (c) A sale deed.
enforcement of “primary rights”. 15. Section 26 of the Specific Relief Act,
2. Specific Relief can be granted by a court 1963 does not apply in case of unilateral
for the purpose of enforcing “individual mistake.
civil rights”. 16. “Dispossession” under Section 6 of the
3. The Specific Relief Act, 1963 came into Specific Relief Act, 1963 means: (a)
force on 01.03.1964 and belongs to law of actual ouster and (b) ouster in regard to
procedure. juridical possession.
4. An injunction under the Specific Relief 17. If the agreements relate to sale of personal
Act, 1963 can be granted to prevent chattels then an order of specific
defamation which is a tort. performance cannot be passed by the
5. In a suit under Section 6 of the Specific court.
Relief Act, 1963, the plaintiff must prove: 18. When a person sues for specific
previous possession with due process of performance of the contract, in the same
law and subsequent dispossession without suit, he can claim compensation for the
his consent and without due process of breach of that contract in addition to or in
law. substitution of specific performance of the
6. The right of possession receives protection contract.
under Section 6 of the Specific Relief Act, 19. Section 31 of the Specific Relief Act,
1963 and under the Civil Procedure Code, 1963 covers written instruments which are
1908. both: void and voidable. Section 31 of the
7. No suit can be filed against the owner of Specific Relief Act, 1963 in its application
the property under Section 8 of the is based on protective or preventive
Specific Relief Act, 1963. justice.
8. Section 6 of the Specific Relief Act, 1963 20. The Supreme Court of India held that
constitutes an exception to the general law permanent injunction can bind successors
which requires the plaintiff to prove his in interest also, in the case of: Kanahiya
right to property in order to claim Lal v. Babu Ram, (1999) 8 SCC 529.
possession. 21. Section 33 of the Specific Relief Act,
9. Section 11 of the Specific Relief Act, 1963 contemplates: restoration of benefit
1963 provides that, if the contract in and payment of compensation.
question creates an obligation in the nature 22. Where an instrument is evidence of
of a trust, then specific performance of different rights or different obligations the
such contract may be enforced. court can cancel it in part and allow it to
10. Specific performance of the contract stand for the residue.
cannot be enforced in the following: (a) 23. The bar under Clause (2) of section 14 of
Contract of personal service; (b) the Specific Relief Act, 1963 is applicable
Arbitration agreement; and (c) A contract to both affirmative covenants and negative
made by trustee in excess of his powers covenants.
(See: Section 11(2) of the Specific Relief 24. A mandatory injunction is retrospective in
Act, 1963). operation, prospective in operation and
11. Specific performance of the contract can concurrent in operation.
be enforced in the following cases: (a) 25. Before specific relief can be granted, there
Contract of personal service of civil must be a concluded contract.
servants under Article 311 of the 26. In a lease where the lease rent is not fixed
Constitution of India, 1950; (b) Services and the date of the commencement of the
of workmen under Industrial laws; (c) lease is not stated, the contract is void for
Services under a statutory body which is uncertainty and cannot be specifically
governed by statutory instructions in enforced.
connection with the services. 27. Injunctions cannot be granted in a suit in
12. Specific performance of the contract is an which the specific performance cannot be
equitable remedy and is totally a matter of granted. Injunction can be granted to
court’s discretion.

prevent torts and to restrain breaches of 40. Under Section 26 of the Specific Relief
contracts. Act, 1963, a written contract may first be
28. Section 19(b) of the Specific Relief Act, rectified and then specifically enforced.
1963 protects from specific performance 41. Under Section 29 of the Specific Relief
of the contract, the bona-fide purchases in Act, 1963, the plaintiff may pray, in a suit
good faith for value without notice of the for specific performance of the contract
original contract. that, if the contract cannot be specifically
29. The term pari delicto means “in equal enforced then it may be rescinded and
fault”. delivered up to be cancelled by the court.
30. Legal character or right under Section 34 42. The objection as to maintainability of suit
must be specific. of declaration without further relief must
31. Rescission cannot be granted: where the be taken at the earliest stage.
plaintiff has ratified the contract; where 43. Character or right sought to be declared
there is a valid contract; and where the must be an existing right on the date of the
third party has acquired any interest under suit or up to the date of decree, and should
the contract. be legal one and valid one.
32. Leeds Industrial Co-op. Society Ltd. v. 44. Section 35 of the Specific Relief Act,
Slack, [1924] AC 851, is related to the 1963 provides that a declaratory decree is
proposition of “damages in lieu of not binding on third parties.
injunction”. 45. Section 37 of the Specific Relief Act,
33. The Specific Relief Act, 1963 is the 1963 provides that a temporary injunction
product of the 9th Report of the Law can be granted at any stage of the suit.
Commission of India. 46. Section 12 of the Specific Relief Act,
34. In case of cancellation under Section 31 of 1963 provides: the general rule that the
the Specific Relief Act, 1963, the relief of court shall not grant specific performance
specific performance is out of question. of a part of a contract, and, contingencies
35. Section 10 of the Specific Relief Act, in which court may grant specific
1963 applies to completed contracts which performance of part of contract.
are valid in law and are capable of 47. Specific performance of a contract means:
enforcement. Under Section 10 of the actual execution of the contract according
Specific Relief Act, 1963, specific to its stipulations and terms.
performance can be granted if:
a. There is a concluded contract;
b. There exists no standard for
ascertaining the actual damages;
c. Compensation in money is not an
adequate relief.
36. Cancellation under Section 31 of the
Specific Relief Act, 1963 relates to
mistake in the formation of any
instrument; and remedy of rectification
available under Section 26 of the Specific
Relief Act, 1963 relates to mistake in
expression of the contract only.
37. Liquidation of damages not a bar to
specific performance, if the court is
satisfied that, the sum was named only for
the purpose of securing performance of
the contract.
38. For application of Section 7 of the
Specific Relief Act, 1963, the goods must
be in original form, capable of
identification & delivery and without
alteration.
39. The expression used in Section 34 of the
Specific Relief Act, 1963, “any right as to
any property” includes any right relating
to any property.

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Imperial Journal of Interdisciplinary Research (IJIR)

Vol-3, Issue-6, 2017

ESSENTIALS OF THE SPECIFIC RELIEF

THE SPECIFIC RELIEF ACT, 1963 properly interpret the statute in

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ascertained or ascertainable. Specific and is bound to return them when demanded;

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performance of the contract can be asked “shall” presumption. However, in regards

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performed his part of the contract, it would Y at the time of performance

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III. Mandate of Section 22(2) is that, Thus, X in the present

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