Specific Relief Act, 1963

INTRODUCTION

The specific relief provides relief for the specific reliefs, means relief for a
certain species, i.e, an exact, particular, named, providing relief for
specific kind. For example if someone unlawfully dispossession me of my
property the general rule may be reacquiring defendant to pay me
compensation equivalent to the loss I suffer. Specific allow me to have my
possession of my property by requiring the defendant to restore
possession of my property.
Specific relief is granted when there exist no way of ascertaining the value
of damage or where compensation of relief will not provide adequate
relief.
Sometimes an instrument does not define real intention of the party due
to fraud or mutual mistake, ratification of such instrument is permitted by
the said act.
The court may order recession of contract when the contract is voidable
or terminable or its unlawful.
When the instrument which is voidable or void, left outstanding and cause
such harm to the plaintiff, the court may issue the order of cancellation of
such instrument, under the specific relief Act.
The court may order declaratory decree to a person who is legally entitled
of some character or to right to property, which is denied to him.
An important equitable relief which may be granted under this act is
‘Injunction’ . it is the direction to a person to perform his duty or abstain
him from doing.
RECOVERING POSSESSION OF PROPERTY

Recovery of specific immovable property (section 5)

According to this section “the person is entitled to the possession of
specific immovable property may recover it in the manner prescribed in
the CPC, 1908.” He may file a suit for ‘ejectment’, then he may execute
the decree in accordance with the provisions in the CPC.
Suit by dispossessed of immovable property (section 6)
A person is entitled to have the possession if he has been dispossessed of
without his consent and otherwise than due course of law. This provision
has no application if the plaintiff has dispossessed willingly. It gives
speedy remedy to the person although the plaintiff has to prove his right
to property in order to claim.
In Mahabir Prasad jain v. Ganga Singh, that a person who is seeking
the relief under this act has to come with clean hands. In this case the
respondent (tenant) was sued for possession and instead of proving his
tenancy he instituted different proceeding with inconsistent allegation in a
short time. It was held that he was abusing the process of the court and
he did not come to the court with clean hands.
In Sukhjeet Singh v. Sirajunnisa, the tenant handed over his
possession to the landlord for the marriage of landlord son but after the
marriage the landlord did not hand over the possession again. It was held
that the since he handed over the possession fully, he cannot claim the
possession under this section.
{This section provides that no suit to regain the possession after the
expiry of six months after the dispossession. The plaintiff thus has to
prove he has the possession within that period, if the court finds that he
does not have the possession prior to the date of suit, the suit will fail}.
Suit under section 6 is an alternative, additional remedy, a person can file
a suit for the recovery of the possession under this section under six
months of dispossession. This does not bar a person from suing to
recover his title in the manner provided under cpc thereof.
In M.S. Baliga v. Mangalore city corporation, it has been held that a
person who is dispossession forcefully of his license has two remedies-
Firstly, bring an action for compensation under section 64 of “Easement
Act” and secondly, he can suit for recovery of the possession under
section 6 of the specific relief act.
Recovery of specific movable property (section 7)
Section 7:” A person is entitled to the possession of specific movable
property may recover it in the manner provided by the Code of Civil
Procedure, 1908.
 Plaintiff should be entitled to the possession, when the specific
movable property is not in possession of the person entitled thereto
but the same is in possession of some other person, the suit can be
filed against the person wrongfully detained of the same. In State
of Gujarat v. Biharilal, there was an agreement between the
occupants of a land and bharilal to cut down the trees on a certain
land under 2 years but the forest authorities did not grant the
permission and the period expired. Bihari lal filed the suit for
declaration of his right to cut down trees to do the needful. It was
held that since the right in respect of the trees has already been
expired.
  This provision does not grant the right to recover ‘money’ though
right to recover ‘specific coins’ comes within the ambit of this
provision.
Illustrations
a) A receives the letter addressed to him by B. B gets back the
letter without A’s consent. A has such a property therein as
entitles him to recover it from B.
 If the bailee, who was in possession of the goods, is dispossessed of
the same then he can file a suit to recover the same. Bailee and
bailor both can file suit if against the third party.
 Under section 71 of Indian contract Act a finder of goods has
temporary right of possession. Except the true owner nobody can
deprive of him his possession. If somebody does so thus he can file
to recover of the same.

SPECIFIC PERFORMANCE OF CONTRACTS

(SECTION 9 TO 25)

Specific performance of contract means the performing of the contract as

per the terms and conditions of the contracts agreed to between the
parties1, rather than payment of damages or compensation for the non-
performance of the contract.
Cases in which specific performance of contract enforceable (section 10)
(1) When there exists no standard for ascertaining actual
damage- specific performance permitted if there exists no standard
to ascertain the actual damage cause by such breach of contract.
For example, A agrees to buy and B agrees to sell a picture created
by a dead painter and two china vases. A may compel B to perform
this contract as there is no standard for ascertaining the actual
damage which would be caused by its non-performance.2
(2) When money compensation would not adequate relief-
when compensation for non-performance would not afford adequate
relief.3 And when the breach of contract would not provide adequate
relief can be presumed in following- when contracts relates to
moveable and immovable property, goods which cannot be
purchased in the market, goods not easily available in market, when
the property held by the defendant as agent or trustee of the
plaintiff. In Ram karan v. Govind lal there was an agreement
between for the sale of agricultural land and the buyer had plaid full
1
Kanti devi v. smt. Srila dutta
2
Illustration to section 12(b), Specific Relief Act, 1877.
3
Section 10(b).
 consideration but the seller refused execute the sale deed, the
buyer brought an action under Specific relief prayed for the
execution of the sale deed. It was held that the case was covered
under section 10 (b) of the specific relief act i.e., the money won’t
be an adequate relief.
A retired partner could sell his share after retirement- where
there was a retirement of a partner from the firm. It was held that
he could sell his share after retirement, therefore the specific
performance of agreement to sell his part of share in machinery
could be enforce.4
The amendment act of 2018- provisions relating to contracts, which
can be especially enforceable and contracts which cannot be, as contained
in the section 10 and 14.
Contracts which cannot be specifically enforced
According to Section 14 of Specific Relief Act 1963, there are certain
contracts which cannot be specifically enforced and these are:

 Where compensation in money is an adequate relief: Here

the court will not order specific performance of contract as it is
expected that the plaintiff will bank upon the normal remedy for
breach of contract i.e. remedy of compensation. For example
contract of mortgage of immovable property (Rambai v.
Khimji), contract of sale of goods (Bharat v. Nisarali), contract
of repair of premises etc.
 Where a contract runs into minutes or numerous
detail: These contracts includes contract which depends upon
the personal qualification or the violation of the parties or is of
such nature that the court cannot enforce specific performance of
its material terms. In Robinson Davison, it was held by the court
that the contract to perform in concert depends upon the
personal kill of defendant’s wife, and the contract cannot be
specifically enforced due to her illness. The other example is
construction contract where the detailed terms of contract are
not explained.
 Contracts of determinable nature: Determinable contract
means a contract which can be determined or revoked or put to
an end by a party to the contract. For example in case of
partnership at will any partner can retire by giving notice in
writing to other partners and can dissolve the firm.
 Contracts which involve the performance of continuous
duty which court cannot supervise: Earlier under Specific

4
Kulwant singh v. Makhan singh, AIR 2003.
 Relief act, 1877 the continuous duty which court cannot
supervise is considered over a period of 3 years which was
omitted under Specific Relief Act, 1963 and no time limit
restricted for the performance of a continuous duty. These
include contract of appointment of employees for continuous
service or contract to execute sale deed every year. In Central
Bank v. Vyankatesh [6], the defendant was required to execute
deed every year for the period of 25 years and contract is held to
be specifically unenforceable.
 Contract of arbitration: According to Section 14(2), a contract
to refer present or future differences to arbitration shall not be
specifically enforceable.
 Section 14(a) where the party to the contract has
obtained the substituted performance: it is has to be
mentioned that the substituted performance is a new concept
that has be introduced by the specific relief Amendment act 2018
and which provides that the party to a contract which has
obtained the substitutive performance shall be denied the specific
performance. Example- A and B enters the contract to sell his
IMP to B for 50 lacs. A makes a breach, B obtains the substituted
performance from the C, now B shall be denied for the specific
performance of the contract under the section 14(c) of the Act.
 However, Section 14(3) contains certain exception and the
following kinds of contract are specifically enforceable

Section 15- who may obtain specific performance

Section 15 enlists those parties who can file a case of specific
performance and get it done by courts. It provides that specific
performance can be executed by the parties to the contract or by his legal
representative having interest in the property, by the amendment of 2018
the clause f (a) was inserted. The performance of a contract may be
obtained by-
1. Any party thereto; means any party to a contract.
2. A representative in interest may also obtain specific performance of
a contract.
Provided that such party’s personal quality is a material
ingredient in the contract or where in contract it has been assigned,
means where in contract it is mentioned that no representative or
principal can get specific performance from this contract in Stevens
v. Binning there was contract between author and publisher to
write a book and it was held that the specific performance cannot
be granted to the personal representative.
It is a general rule that a stranger to a contract is not entitled to
enforce a contract even though he took benefit under, as provided
 under section 37 of the Indian Contract Act. Although this general
rule has an exception which is clause 15(c) of specific relief act in
which a beneficiary under the contract may obtain specific
performance of contract where there is a contract is a settlement on
marriage, or between members of family.
In Khwaja Muhammad Khan v. Husaini Begum, there was an
agreement between father of the boy and father of the girl
whereby, the boy’s father would pay a certain sum to the plaintiff
(girl), the plaintiff married the defendant son but defendant was
unable to pay allowance agreed to him. In the action it was
contended that contract was made with the plaintiff’s father and she
being a stranger cannot sue, it was held she is entitled to claim
being a specific charge on immovable property and common rule of
law is not applicable.
3. ”Remainderman” can also bring a suit for the specific performance
of the contract, a remainder man is a person who is accepting the
remainder part if the contract.
4. A reversioner in possession can also institute a suit for the specific
performance. If the contract of such nature that it will cause any
material injury by the breach of the contract to the “reversioner in
remainder” then he can file a suit for specific performance.
5. Clause f(a) has been instituted after 2018 amendment and says
that if a Limited Liability Partnership(LLP) has entered into a
contract and subsequently has amalgamated into another LLP then
the new LLP can file suit for specific performance.
6. Similar to clause f(a) if a company has entered into a contract and
subsequently amalgamated into another company then that new
company can file a suit under specific performance.
7. If a promoter which entered into a contract but subsequently has
incorporated as a company then the company can institute a suit for
specific performance. Provided that the company has accepted the
contract and communicated the acceptance to the other party.
Section 16- personal bars of relief:
Section 16 provides that specific performance cannot be performed in
favour of a person who is not entitled to recover compensation on its
breach and who himself has not completed his part of obligations of the
contract. In Abdul Kadar v. P.K. sara bhai the plaintiff filed a case for
specific performance of contract but he did not mention that he ready to
fulfil the terms of contract. Supreme Court said that he cannot get a
decree of specific performance.
In section 16(c) it is provided that to get a decree of specific performance
of contract “he is ready to perform his part of obligations or done
thereafter. He must plead he is ready and willing to do his part of the
contract according to the true construction of contract, if he himself
violates the conditions of the contract then he is not entitled for specific
performance”.
In section 16 under sub clause of (b) the plaintiff has to show that he had
not become incapable of performing the essential terms of contract or
that he had not violated the essential terms or that he had performed his
own part of the contract.
In Raj Kishore v. Prem singh it was held that in a suit for specific
performance it is necessary for the plaintiff to assert that he/she was
always ready to perform the essential terms of contract.
In Vijaygamoorthy v. Devaki the readiness and willingness in
performing the contract on art of plaintiff was not proved, the grant for
specific relief would be improper for the plaintiff.
Declaratory Decrees
Section 34: Discretion of court as to declaration of status of right:
Section 34 provides the provisions of declaration of any person who has a
legal position on a property and if he is afraid that his legal position might
get challenged by any other person, then he can file a case and get it
declared so that it may not be challenged. A person entitled to any legal
character or legal right may seek declaration so that there will be no
adverse attack on the legal character.
The declaration can also be made in connection with the right upon the
property, for instance a person holds a property since a long but does not
have any documents to support its ownership. He can file a suit for
declaration of such a right can declare himself as the owner of that
property. And in future he can show the decree as an evidence of its
ownership.
In Mehar Chand Das v. Lal Babu Siddique, SC held that the plaintiff
was not in possession, a suit for mere declaration is not maintainable.
Under this part doesn’t get any new right but the decrees are meant to
declare the one person’s rights against the whole world.
In Namita v. Santosh Kumar Ghosh, it was held that the purpose of
the section 34 is to confirm what is already established so that status can
be declared and might not be questioned in future.
Following are the essentials enumerated:
a. Plaintiff at the time of suit is entitled to some legal character.
b. The defendant is denying such rights of the legal character.
 c. The declaration asked for should be the same the declaration that
plaintiff is entitled to.
d. The plaintiff is not in a position to claim a further relief.
The purpose of the provision is to prevent the multiplicity of proceedings.
The purpose of law is to afford relief from uncertainty and security with
respect to rights. No declaratory relief could be granted in favour of
plaintiff, if he fails to prove his legal possession of the disputed land. The
purpose of this provision is to strengthen testimony regarding the title
and protect it from adverse attack.
In Nagar Palika Parishad Seoni v. State of M.P., municipality had the
ownership and possession of the disputed building and various was
showed for the same however, the state government has content that the
school run in the building was transferred to Education Department of the
state and so the building was transferred to the state, the state plea was
however was not proved and the High Court held that in absence of any
valid transfer, municipality will be entitled of possession over such
building.
This section does not sanction every form of declaration but only a
declaration that plaintiff is entitled.
Who may file a suit to obtain declaratory relief section 34 say that any
person,
a) Entitled to any legal character.
b) Any right to any property.
May file a suit to get a declaratory decree and such suit filed against the
person who is denying such title of the plaintiff.
When the court may refuse to grant the declaratory relief- following are
some where court may refuse to grant the decree for the same;
a) Where the plaintiff can by taking the proper proceeding must
effectively indicate is right by obtaining the possession.
b) Where declaration will not be so effective.
c) Where the property is within legal custody.
d) Where the conduct of plaintiff seems to be fraudulent.
e) Where object is not proper.
f) Where the decree is likely to be futile and useless.
Section 35:
Effect of documents
A declaration made under this is only on the parties of the suit. Cases of
the suit can be of subjects:-
 i. Declaration of dissolution of marriage due to conversion of
religion.
ii. Declaration of legitimate son.
iii. Declaration of adoption of a son.
iv. Declaration of being husband and wife.
v. Declaration of not being husband and wife.
vi. Declaration of date of birth and age.
vii. Declaration of being a guardian.
viii. Declaration of a being special caste.
ix. Declaration of unsoundness of mind.
x. Declaration of being a trustee of trust.
xi. Declaration of being the successor of a person or legal heir.
xii. Declaration of the deceased, being the pujari of a Mandir.
Section 35 classifies that this is applicable only on the parties of the suit
as well those who are linked with them, it also clarifies that it is restrictive
and it will not operate as a judgement in rem.
In Bhimsen Gowda v. Som Shankar Gowda, it was ruled that the
declaration in suit, was a not a judgement in rem, so as to be binding
upon the stranger.
Thus is clear that only parties to the suit and the representative in
interest and not strangers who are bound by decrees. To make a man
privy to an action he must have acquired an interest in the subject matter
of the action. The phrase “persons claiming through” includes
reversioners.

Injunction
(Section 36-42)

Injunction is an order or a decree of the court to do something which a

party is required to do or to abstain from doing something. Injunctions
can be ‘negative’ or ‘positive’ further classifications of negative injunction
is Temporary injunction and perpetual injunction. And of positive
injunction which is covered under section 39 as a Mandatory Injunction.
Section 40 of the Act talks about the damages. The preventive injunction
has to be for the wrongful act and can be granted by the ‘civil court’ and
not revenue court. It can be issued against public bodies, individual and
even against the state. The breach of the injunction granted shall be
treated as contempt of court.
Under section 41 of the Act provision provides when the court shall not
grant the injunction and the exception of which is provided under section
42 of the same Act.
Section 36: preventive relief how granted
This is under the courts discretion if they pass injunction (temporary or
perpetual). Preventive relief means to prevent the party to abstain such a
party from an act.
Section 37: Temporary and perpetual injunctions
Temporary injunction covered in section 36 and 37 of Specific Relief Act.
It is only provided for a limited time thus it is short lived, it is for a limited
time which is ‘till the disposal of the suit’ and it is passed to either do or
abstain from doing of an act and it passed in form of order. It is also
known as ‘interim injunction or interlocutory injunction’, it is granted at
the stage of suit or anywhere in between the suit, does not determine the
rights of the parties. When can be granted-
1. When any property in dispute is in danger of being damaged by a
party to the suit or wrongfully sold.
2. When the defendant threatens, or intends to remove or dispose of
the property.
3. The defendant threats the plaintiff to dispose of his property or
cause an injury to the plaintiff in relation to property in dispute.
Perpetual or permanent injunction passed in form of decree covered
under section 36, 37 and 38 of the Specific relief Act. It is provided for a
permanent period for the breach of any obligations i.e. contractual or
tortious. It does determine the rights and obligations of a party and it is
granted to prevent the breach of any obligation. In which defendant will
be permanently prevented from an act which is contrary to the rights of
the plaintiff.
In case of Nanbhai v. Janardhan a person has sued his wife for
perpetual injunction restraining her from giving their daughter in marriage
without his consent the court contempt to grant the interim injunction.
Section 38: perpetual injunction when granted
1. It is at the discretion of the court and court grant plaintiff to prevent
the breach of an obligation (legal obligation which is a duty
enforceable by law) which can be express or implied.
2. When any such obligation arise from the contract, the court shall be
guided by the provisions of the contract chapter 2.
3. When the defendant invades or threatens to invade, where there
exist no standard for ascertaining the damage, where money is not
an adequate relief.
4. To stop multiplicity of judicial proceedings.
In case of Nagendra v. K. Nagraj it was held that relief of permanent
injunction could not be granted to a lessee who no right to continue in
possession.
From the angle of time the injunctions are of two kind temporary and
permanent, similarly on the basis of nature of injunction- prohibitory
injunction and mandatory injunction.
Prohibitory injunction is such an order of court in which the defendant is
prevented to do certain act, which violates the legal rights of the plaintiff.
For instance, A makes a wall in front of B obstructing B’s light and air
then B can get prohibitory injunction against A to stop making of the wall
and it shall be prohibitory injunction.
Section 39- Mandatory injunction
Mandatory injunction- sometimes the court compels the other party to
complete its obligation to prevent the breach of a contract. The defendant
is asked by the court to prevent the loss of the plaintiff and he is
prohibited to the same even in future. The purpose of issuing mandatory
injunction can be as under:
1. Where the right is violated regularly, to stop it.
2. Where the obligation is not fulfilled, to get it executed.
In mandatory injunction the burden of proving the need is on the plaintiff.
If he fails to prove the necessity, then he is not entitled to get the
mandatory injunction. Mandatory injunction is an order in which the
defendant is compelled to restore the things to condition it was, a
mandatory injunction is an order which require the defendant to do the
positive act for the purpose of putting end to the wrongful state created
by him or fulfilment of legal obligation.
There are essentially two conditions requested for mandatory injunctions.
(a) The defendant must be obliged to perform an act and any such breach
of the obliged act must be claimed by the plaintiff.
(b) The reliefs, as asked for must be enforceable by the court.
In the case of Laxmi Narain Banerjee v. Tara Prosanna Banarjee,
where the plaintiff and the defendant were joint owners of the land and
the defendant planted several trees that penetrated the foundation of the
building and damaged it, the plaintiff then prayed for mandatory
injunction to the court and the court accordingly granted it and held that
the roots were damaging the building that belonged to the plaintiff.
Section 40: Damages
 1. The plaintiff in suit under section 38 or 39 may claim damages
either in addition or in substitution, and the court may think fit
award such damage.
2. No relief for damages will be granted till the plaintiff has claimed
such relief.
3. The dismissal of the suit to prevent breach of obligation existing in
favour of plaintiff shall bar his right to sue for such damages for
such breach.
The provision of making an amendment in the plain is also provided under
this section with a purpose. The party who was asking for the injunction,
but later if the injunction was found to be not possible then, the plaint can
amend and include the claim for the damages.
Section 41: injunction when refused
Court under its discretionary power may refuse to grant the injunction on
the grounds enumerated:-
a. Injunction can be refused if it is found that it shall restrain any
person from prosecuting a judicial proceedings.
b. To restrain a person from applying in any legislative body.
c. To restrain any person any person from instituting any criminal
proceeding.
d. Any contract which cannot be specifically performed
e. The Act will be converted into nuisance then no injunction can be
granted.
f. If the breach is continued and the plaintiff has not protested from
the very beginning then no injunction will be granted.
g. If the position after the injunction is granted presumes to be same
then the other relief shall be provided and no injunction shall be
granted.
h. When the conduct of plaintiff does not entitle him to for the
injunction. For example, if the suit brought deliberately very late
then the injunction shall be refused.
i. If it proved that the plaintiff has a personal interest and he will be
benefitted by the same the injunction shall be granted but if it is
proved that he has no personal interest then the injunction shall be
refused.
Section 42: injunction to perform the negative agreements
This section provides that if there are two agreements, one affirmative
and one negative in a same contract then the court can grant
injunction for the performance of the negative agreement if the
positive agreement cannot be performed.