SPECIFIC RELEIF ACT,

1963
QUESTIONS
 What is meant by specific performance?
 Explain in brief the various kinds of specific relief
that may be granted by the court under the Specific
Relief Act.
 Explain the provisions for recovery of movable and
immovable property.
 INTRODUCTION
 Bentham, said: “The law ought to assure me everything which is
mine, without forcing me to accept equivalents, although I have no
particular objection to them”.

 The term ‘Specific Performance’ is not defined in the Specific

Relief Act, 1963.

 According to the Oxford Dictionary ‘Specific Performance’ means,

the performance of a contractual duty, as ordered in cases where
damages would not be adequate remedy.

 Specific relief is a remedy which aims at the exact fulfillment of

an obligation.
 The Specific Relief Act widens the sphere of the civil court, the Act is
not exhaustive of all kinds of specific reliefs.

 Law of Specific Relief is a kind of procedural law and it supplements

to the Code of Civil Procedure, 1908.
 It supplements various substantive laws such as the law of Contracts,
the Transfer of Property Act, Sale of Goods Act.

 Principles of specific relief are recognized by the English Courts and

they are based on rules and practices of Common law courts.
 The first Act related to specific relief was passed in 1877. It was
amended several times and finally replaced in 1963. The latest
amendment to the Act being the Specific Relief (Amendment)Act, 2018.
OBJECT
 The Specific Relief Act, 1963 came into force on 13-12-1963 replacing old
Specific Relief Act, 1877.

 The real object of this Act is to give party seeking specific relief of
protection of some civil right or the prevention of some civil wrong.

 Civil injury means violation of obligation.

 Specific relief is a form of judicial redress. It is an equitable relief.

 ‘Ubi jes ibi remedium’ means where there is a right there is a remedy.
The Constitution of India recognizes the “Right to Property” in Article 300-
A. Therefore, no person shall be deprived of his property save by authority
of law.
 The remedies which has been administered by Civil Courts of Justice
against any wrong or injury fall broadly into two classes:
 (i) those by which the suitor obtains the very thing to which he is
entitled, and
 (ii)those by which he obtains, not that very thing, but compensation for
the loss of it.

 The former is the specific relief. Thus specific relief is a remedy which
aims at the exact fulfillment of an obligation.

 It is remedial when the court directs the specific performance of

contract and protective when the court makes a declaration or grants
an injunction.
Sec 4
 Specific relief to be granted only for enforcing
individual civil rights and not for enforcing penal
laws - Specific relief can be granted only for the
purpose of enforcing individual civil rights and not
for the mere purpose of enforcing a penal law.

 This is because specific relief is a purely civil

remedy. The prevention, prosecution and punishment
of crime are the province of criminal law.
 A contract is an agreement upon sufficient consideration to do or not to do a
particular act.
 The party on whom this contractual obligation rests must not fail to discharge such
obligation.
 In case of his failure, the other party will have a right sue for performance of the
contract. This is called ‘Specific Performance’.

 Orders of specific performance are granted when damages are not an adequate
remedy, and in some specific cases such as land sale such orders are discretionary,
as with all equitable remedies, so the availability of this remedy will depend on
whether it is appropriate in the circumstances of the case.
 Under the Specific Relief Act, 1963, courts grant specific performance when they
perceive that awarding damages will be inadequate relief. Specific performance was
deemed an extraordinary remedy, that was awarded at the court’s discretion.
BY WHOM CONTRACT MUST BE
PERFORMED?

 1] By the promisor :- A contract may be performed by the promisor,

either personally or thorough any other competent person
 2] By the agent:- Where personal skill is not necessary and the work
could be done by anyone, the promisor or his representative may employ
a competent person to perform it. Thus a contract to sell goods can be
assigned by the seller to his agent.
 3] By the representative:- In the event of the death of the promisor
before performance, their representatives are bound by the promises,
unless personal consideration are the foundation of the contract.
 4] By the third person:- If the promisee accepts performance of the
promise from a third party, there is discharge of the contract. Once the
third party performs the contract, and that is accepted by the promisee
there is an end of the matter and the promisor is thereby discharged.
KINDS OF REMEDIES
 The following kinds of remedies may be granted by a
court under the provisions of the Specific Relief Act:
 1. Recovery of possession of property
 2. Specific performance of contracts
 3. Rectification of instruments
 4. Rescission of contracts
 5. Cancellation of Instruments
 6. Declaratory decrees
 7. Injunction
Recovery of possession of property
 A property can be divided into two types
 Immovable Property– A property that cannot be
moved from one place to another is called an
‘immovable’ or ‘real property’.
 Movable Property- A property that a man owns
and can carry with him is called a movable
property. A ‘movable property’ may also be called
‘personal property’.
SECTIONS REGARDING RECOVERING
POSSESSION OF PROPERTY
 SECTION 5. Recovery of specific immovable property.—A
person entitled to the possession of specific immovable
property may recover it in the manner provided by the Code of
Civil Procedure, 1908.

 Sec 5 – says that any person who is lawfully the owner of an

immovable property can get the possession of such property by
due course of law.
 The claim is based on title.
 The plaintiff has to file a long drawn suit for ejectment.
 The period of limitation for filing the suit is 12 years.
 SECTION 6 - Suit by person dispossessed of immovable property.
 (1) If any person is dispossessed without his consent, of immovable property otherwise
than in due course of law, he or any person through whom he has been in possession or
any person claiming through him may, by suit, recover possession thereof,
notwithstanding any other title that may be set up in such suit.

 (2) No suit under this section shall be brought—

 (a) after the expiry of six months from the date of dispossession; or
 (b) against the Government.

 (3) No appeal shall lie from any order or decree passed in any suit instituted under this
section, nor shall any review of any such order or decree be allowed.

 (4) Nothing in this section shall bar any person from suing to establish his title to such
property and to recover possession thereof.
Conditions to be fulfilled to invoke sec 6 –
 A. the person should have been in possession

 B. the possession should be of immovable property

 C. there should be dispossession otherwise than in due course of law.

 D. the suit should be for recovery of possession.

 E. the suit should be brought within 6 months from date of dispossession.

 Illus. – ‘A’ gave his immovable property to B for a lifetime. In meanwhile,

he made C as the third party and the property after B’s death would go to C.
C, without B’s consent took the property. Since B had the legal right to A’s
property and C took the property without B’s consent, B has the right to
take C to court for the illegal possession of the property and violating B’s
rights.
 The jurisdiction of the court is limited under sec 6. It cannot adjudicate
on the question of title or direct the defendant to remove any structure
that is put up. The claim is based on possession and no proof of title is
required.

 The possession of a tenant after the termination of the tenancy continues

to be juridical possession. His right to possession remains unless the
owner gets a decree of eviction against him. Till then if he is
dispossessed he is entitled to seek restitution of his possession (K.K
Verma v/s UOI –AIR 1954 Bom 358)

 The object behind this section is to discourage people from taking the
law into their own hands, however good their title may be.
 SECTION 7. Recovery of specific movable property—A
person entitled to the possession of specific movable
property may recover it in the manner provided by the
Code of Civil Procedure, 1908.
 Explanation 1.—A trustee may sue under this section for
the possession of movable property to the beneficial interest
in which the person for whom he is trustee, is entitled.
 Explanation 2.—A special or temporary right to the
present possession of movable property is sufficient to
support a suit under this section.
Comments
 A person may be entitled to the possession either by:
 ownership or
 as provided by Expl. 2 to sec 7, i.e., by way of a special or
temporary right.

 A special or temporary right may arise either by:

 a) the act of the owner of the goods e.g., bailment, pledge etc
 b) not by the act of the owner of the goods, e.g., finder of
lost goods. Such a person has a special right to possession
except against the true owner.
 Expl. 1 makes it clear that a trustee is a person entitled to the immediate
possession of trust property. Hence if the trust property is taken away by
someone, he can recover the same.

 The main ingredients of this section are:

 1. The plaintiff must be entitled to the possession.
 2. Property in question must be specific movable property. Specific
property must be ascertainable. It means that very property itself, not its
equivalent. It must be capable of being seized and delivered.

 Where the goods have ceased to be recoverable or are not in possession or

control of the defendant, the plaintiff is not entitled to a decree for
recovery in specie.
 8. Liability of person in possession, not as owner, to deliver to persons entitled to
immediate possession.—Any person having the possession or control of a particular article
of movable property, of which he is not the owner, may be compelled specifically to deliver it
to the person entitled to its immediate possession, in any of the following cases:—
 (a) when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;
 (b) when compensation in money would not afford the plaintiff adequate relief for the loss of
the thing claimed;
 (c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
 (d) when the possession of the thing claimed has been wrongfully transferred from the
plaintiff.
 Explanation.—Unless and until the contrary is proved, the court shall, in respect of any
article of movable property claimed under clause (b) or clause (c) of this section, presume—
 (a) that compensation in money would not afford the plaintiff adequate relief for the loss of
the thing claimed, or, as the case may be;
 (b) that it would be extremely difficult to ascertain the actual damage caused by its loss.
 (a) when the thing claimed is held by the defendant as the agent or
trustee of the plaintiff;
 For eg: a person while leaving abroad leaves his furniture under the care
of his friend, he is a trustee of the articles and is bound to return it when
it is demanded. If the friend pledges it, the pledgee will also remain
subject to the same trust and will be bound to return it to the owner
when demanded by him – Wood v/s Rowcliffe (1884) 3 Hare 304

 (b) when compensation in money would not afford the plaintiff adequate
relief for the loss of the thing claimed;
 For eg: When the idol of a family temple is in the custody of a retired
priest, he is bound to return it to the family.
 (c) when it would be extremely difficult to ascertain the
actual damage caused by its loss;
 When an article of rare value, like original paintings of a
deceased painter, are in the possession of another, they
are irreplaceable in nature and their market value is of an
unascertainable nature, the owner has a right to recover
them in specie – Falcke v/s Gray (1859)4 Drew 651.

 (d) when the possession of the thing claimed has been

wrongfully transferred from the plaintiff.
Specific performance of
contracts
 ‘Pacta sunt servanda’, which means ‘agreements to be kept’.

 The word ‘contract’ has been derived from the Latin word ‘contructus’
which means ‘to work on contract’.
 A contract forms the basis of almost all the economic relations and to
consummate a contract two things are very important – Mutuality and
Meeting of minds of the parties.

 Illus.
 1. A and B went into an agreement that A would give 1kg rice to B and in
return, B would give 2 dozen pens to A. Here, A and B made a contract.
 2. Money deposited in banks and in other forms of investments is all bound
contractually.
Contd..
 Every contract that is made is not an isolated transaction
but rather a chain of contracts. If one individual breaks the
chain, so breaks the contract. Where in some cases,
compensation forms the basis of the contract, in other
cases, compensation fails to do justice to the man or the
party.

 Under the Specific Relief Act, any person against whom the
relief is claimed may plead by way of defence any ground
which is available to him under any law relating to
contracts.
Rectification of instruments
 The act of correcting something means to rectify.
 Of all the transactions made, most are made
mandatory to be in writing.
 Here, a written transaction is called an ‘instrument’.
When two parties decide to put their deal in the
written pattern, there lies certain chances of things
being misspelled or wrongly written, which affects
the agreements made and the party suffers. To help
the people overcome such a problem, rectification of
instruments is included in the Specific Relief Act.
 Chapter III of the Specific Relief Act, 1963 states that-
 When, through fraud or mutual mistake of the parties, a contract or
any other instrument in writing does not express the real intention,
then-
 a) either party or his representative in interest may constitute a suit
to have the instrument rectified
 b) the plaintiff may, in any suit in which any right arising under the
instrument is in issue, claim in his pleading that the instrument be
rectified, or
 c) a defendant in any such suit as referred to in the above clause,
may, in addition to any other defence open to ask for the
rectification of instruments.
 If the court finds that the instrument does not
express the real intention of the parties, the court
may, in its discretion, directly rectify the instrument
so that no prejudice is done to the third
person/party involved.
Rescission of contracts
 Dictionary defines the word rescission as ‘to repeal, to
abrogate or to revoke’ an agreement, order or a
contract.

 Under the law, specifically, the contract law, if on any

person, the burden of a contract is imposed through
various means including, fraud, irregularity, illegality
or something that makes the contract either void or
voidable then, that person may ask the court to
declare the contract as non-binding.
Cancellation of instruments
  When at the time or writing a contract, some point ahead, a
mistake or fraud is found in the instrument which makes the
contract either void or voidable.

 On the other hand, there comes a situation when a person,

after a point of time of him being a party to a contract,
realizes the contract or the instrument to be found void or
has always been void but never known to the party.

 Chapter V of the Specific Relief Act provides relief from

such documents.
Declaratory decrees
 When an individual is entitled to some character or status or
possesses a right over some property and the same is denied
to him by the other party, he can then, proceed to the court
against the other person, who is denying or is interested in
denying the man the rights that he deserves.

 Chapter VI of the Specific Relief Act,1963 states that any person

entitled to any legal character, or to any right as to a property, the
court may in its discretion make therein a declaration that the
person is entitled and shall not need any other relief. To be
kept in mind is the fact that, the declaration made is only binding
to the parties of the suit and such parties would be the trustees.
Preventive relief (Injunctions)
 A relief that prevents a person to do any act that is not liable to be done.
 When the court prevents an individual or a party threatening breach, to the extent to
which it is possible to do so. This type of remedy is called preventive relief. It is
granted by issuing an order known as ‘injunction’.

 Illus.- A person signs a contract to sing at a particular place and also undertakes not
to sing else where during that period. He threatens to breach. The court cannot
force him to sing but it can restrain him from performing any where else during that
period. This may persuade him to go ahead with the performance of his contract.

 Under the Specific Relief Act, preventive relief is granted to a party according to
Section 36 of the Act. The mode of relief is an Injunction, which is either
temporary or permanent.
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