Short History of the Specific Relief Act

1877

badsha_law@nstu.edu.bd
 Short History of the Specific Relief Act
1877
• Norman Conquest and the replacement of Tribal Law by
Common Law (11th Century)
• Exchequer, king’s Bench and court of common please were
the different courts in existence
• Compensation was only remedy for breach of civil rights
• The perception of the lord chancellor regarding complete
justice
• Rigidity, inadequacy and no remedy
• The perception that injury should be redressed specifically
• Equity (Chancery) was established as an Important branch of
common law in 1792
 Basic Information About SR Act

• Title: The Specific Relief Act, 1877

• Act No: 1 of 1877
• Adopted/Passed in Parliament: 7th February,
1877
• Commencement: 1 May, 1877
• Total Section: 57
• Nature: Substantive
 The meaning of the Specific Relief
‘Relief’ means the remedy granted by the courts to
suitors. The word ‘Specific’ in the expression
‘specific relief’ connotes a definite or an exact
positive remedy the object of which is the
accomplishment of an obligation.
The remedies granted by the courts are widely
divided into two categories
1. Specific Relief, when the suitor obtains the very
thing to which he is entitled, and
2. compensatory relief, when the suitor obtains not
that very thing, but compensation or damages
for the loss of it.
The ordinary relief, by way of damages so far as civil
wrongs are concerned, is general relief;
as opposed to that the different reliefs provided for by
this Act are called specific, inasmuch as they lie
outside the ordinary order of legal redress.
Objects of the Act (as per preamble)
• To define the meaning of the specific relief
• To amend laws relating to specific relief
Objects at large
• To provide specific provision as to recovery of
possession of immovable property
• To protect illegally dispossessed person
• To provide laws for specific performance
• To provide laws for rectification of contracts

• To fix the law to cancel any contract

• To fix the law as to cancellation of instruments

• To specify the law as to declaratory suit

• To specify the law relating to appointing receiver

• To specify the law relating to injunction

.
 Way / Scope of the Act (Section 5):

5. Specific relief is given-

(a) by taking possession of certain property and delivering it to a claimant;
(Specific delivery of movable and immovable Ss.8-11)

(b) by ordering a party to do the very act which he is under an obligation to

do; (Specific Performance of a contract ss. 12-30)

(c) by preventing a party from doing that which he is under an obligation

not to do; (Preventive relief by injunction ss.52-57)

(d) by determining and declaring the rights of parties otherwise than by an

award of compensation; (declaratory decree ss.42,43) or

(e) by appointing a receiver (appointing receiver s.44)

 The broader scope of the Act:
1. Recovery of possession of property (ss.8-11)
2. Specific performance of contract (ss.12-30)
3. Rectification of instruments (ss.31-34)
4. Rescission of contracts (ss.35-38)
5. Cancellation of instruments (ss.39-41)
6. Declaratory decrees (ss.42&43)
7. Appointment of receivers (s.44)
8. Enforcement and public duties (ss.45-51)
9. Injunctions generally (ss. 52&53)
10.Perpetual Injunctions (ss.54-57)
 S.6: Preventive relief
• Specific relief granted under clause (c) of section 5 is
called preventive relief. That means the reliefs provided
for by Ss.52-57 are preventive reliefs.
S.7: Relief not granted to enforce penal law
• Specific relief cannot be granted for the mere purpose
of enforcing a penal law.
• the main objects of the Act are to safeguard the civil
rights of persons/to prevent the commission of injury to
civil rights/ threatened invasion on such rights. But the
word ‘mere’ bears a significant meaning that specific
relief can’t be sought solely for enforcing any penal
provision but such can be sought in any incidental
situation.
• For example any declaratory suit can’t be applied for
declaring any person robber/thief/dacoit.
• The exception where it is incidental: S.55 (e)
A threaten to publish statement concerning B which
would be punishable under Chapter XXI of the Penal
Code. The Court may grant an injunction to restrain the
publication, even though it may be shown not to be
injurious to B's property. Here the real object is to
protect the civil right of private reputation. (CPC s.19)
S.8: Recovery of specific immoveable property.
A person entitled to the possession of specific immoveable
property may recover it in the manner prescribed by the code of
civil procedure.
 The matters to know here:
• Entitled person
• to the possession
• of specific immovable property
• Way to recover possession
Entitled person
• Means the person who has title.
• Title means the union of all elements as ownership,
possession and custody constituting the legal right.
• It may be obtained by way of inheritance/ buying/
gift/ mortgage/ exchange/ waqf/ will/ lease/
prescription etc.
• Section 8 of the Specific Relief Act deals with the 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 (5 of 1908).”
• The section in simple words provides that any person who is lawful owner of immovable property can
get the possession of such property by due course of law. It means that when a person is entitled to the
possession of specific immovable property he can recover the same by filling the suit as per provisions
of CPC. He may file suit for ejectment on the strength of his title and can get a decree for ejectment on
the basis of title within 12 years of the date of possession. Section 5 of the Act declares that in a suit for
the recovery of immovable property by person ‘entitled to’ provisions Order XXI, Rules 35 and 36 of
CPC would apply. There are three types of actions which can be brought in law for the recovery of
specific immovable property:
• a suit based on title by ownership;
• a suit based on possessory title; and
• a suit based merely on the previous possession of the plaintiff, where he has been dispossessed without
his consent, otherwise than in due course of law.
• The last remedy is provided in Section 6 of the Act. The suits of the first two types can be filed under
the provisions of the Civil Procedure Code.
• The word ‘entitled to possession’ means having a legal right to title to possession on the basis of
ownership of which the claimant has been dispossessed.[1] Plaintiff must show that he had possession
before the alleged trespasser got possession. In Ismail Ariff v. Mohammed Ghouse, the Privy Council
held, “the possession of the plaintiff was sufficient evidence as title of owner against the defendant by
Section 6 of Specific Relief Act, if the plaintiff had been dispossessed otherwise than in due course of
law.” There may be title by contract, inheritance, and prescription or even by possession and the last
will prevail where no preferable title is shown.
• When any entitled person has everything except
the possession then the person may recover the
possession applying under this section.
Ismail Ariff v. Mohamed Ghous, ILR 20 cal 843
(PC):
There may be title by contract, inheritance,
prescription or even by possession, and the last
will prevail where no preferable title is shown.
Lawful possession of land is sufficient evidence of
ownership against a person who has no title
whatever and who is a mere trespasser.
 Possession
• To be a legal possession following two requirements
must be fulfilled
• Corpus: apparent control over the property
meaning the power of excluding others. Here
physical contact with the property is not necessary.
It is also called de facto or physical possession.
• Animus: the intention to exercise the right of de
facto possession. Whether the person is mentally
prepared and conscious to exercise his right to
possession.
 Way of recovery of possession:
• Suit to be brought in ordinary course of CPC.
• Execution of decree under order: 21, Rule: 35, 36.
• “Right to the possession” need not be founded on
contract.
• Time Limit of filing suit: 12 years (Art.142&144 of
the Limitation Act 1908).
Matters to be proved
• Title
• Right of possession
• Better title than the existing possessor.
 S.9: Suit by person dispossessed of immoveable property
• Section 9 of the act deals with the 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 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
 What to prove in a suit u/s 9:
Munshi Kamal Hossain vs. shamsul hoque, 1994 BLD 385,
Md Yakub Ali vs. Md. Atiar Rahman, 2000 BLD (AD) 183;
In order to get a decree in a suit under s.9 the plaintiff has to
prove-
1. that he was in possession of the suit property;
2. that he has been dispossessed , i.e. deprived of actual
physical possession of the property;
3. that the dispossession took place without his consent;
4. that he was dispossessed otherwise than in due course of
law;
5. that the dispossession took place within six months before
institution of the suit u/s 9.
 Essential Elements to file case under Section 9
• 1. Judicial possession of the plaintiff at the time of dispossession: The plaintiff must
establish his judicial possession at the time of dispossession. Judicial possession is
not equivalent to lawful possession. If a person has the possession of property as a
fact and once he becomes settled as such, it is enough for the purpose of relief under
Section 6, irrespective of his being without any right to the same or mere trespasser.
• 2. Dispossession of the plaintiff without his consent otherwise than in due course
of law:- For the application of this section the dispossession must be without the
consent of plaintiff or against the process of and operation of law invoked by the
ordinary method of Civil Court. In
• 3. The suit must be instituted within 6 months from the date of dispossession: - The
Section 9 prescribes its own period of limitation for suits to be filed there under. In
• 4. Dispossession must be of ‘immovable property’: - The expression ‘immovable
property’ means only such properties of which physical possession can be given
under the Act and it does not cover incorporeal rights, since the incorporeal rights
are not rights of which possession can be taken and delivered to the claimant.
• 5. Dispossession has not been made by the Government, but by any other person
• 6. Under this Section, an order or decree is final in the sense that it is not open to
review or appeal, although it is subject to revision by High Court.
 “Dispossession”
• Bahadur Ali vs Secretary of state, 61 I.C. 78.
Dispossession means loss of physical possession of
immovable property. Mere interference with rights
of enjoyment of the property does not constitute
‘dispossession’ of immovable property within the
meaning of s.9. Dispossession implies actual ouster
and the essence of ouster is that the person ousting
is in actual possession.
• Tarini vs ganga, ILR 14 cal 649 Mere discontinuance
of payment of rent by the tenant does not entitle
the landlord to sue for recovery of possession of the
land u/s 9.
 Otherwise than due course of law
• Abdur Rahman vs Mafiz Uddin, 7 DLR 335: if any one is
dispossessed through the court then it will be deemed to
be in ‘due course of law’.
• AIR 1935 Cal 454: ‘due course of law’ means the regular
and usual proceeding of civil or criminal court.
Matter of Limitation
• 9 BHC 53: The law has fixed a period of limitation within
which a party may recover possession without proof of
title.
• 6 BOM 215: If he allows that period to lapse he must
prove his title. Possession is a good title against any one
but the true owner and entitles the possessor to maintain
ejectment against any person other than such owner who
 Object of the Provision
• to give a speedy remedy
• to give special remedy
• to prevent breaches of peace
Rudrappa vs Narsingrao, (1905) ILR 29 BOM 213
The object of this section is to prevent persons taking the
law into their own hands and interfering with peaceful
possession except by due process of law.
Ahmed khan vs. Ajudhia Kandu ILR 13 All 537
Its object was to drive persons who wanted to eject a
person into the proper court and prevent them from going
with a high hand and ejecting such person.
• to prevent the shifting of the burden of proof owing to
 Who can sue
• a part of Section 9, “he or any person claiming
through him may sue”
• A landlord can sue though his tenant has been
dispossessed;
• 1969 DLC 545: where the tenant on being
dispossessed failed or refused to sue for recovery of
possession the landlord was entitled to sue for
recovery of possession but the tenant should be
properly impleaded as a party to such suit.
• Lessor in favor of lessee
• Landlord in favor of bargadar
 Res Judicata in S.9
• The provision of S.9: Nothing in this section shall bar any
person from suing to establish his title to such property and to
recover possession thereof.
• 40 DLR AD 251: the aggrieved party with the decree of court
under section 9 may file a suit to establish his title thereof and
may recover possession with a decree therefrom.
Distinction between S.8 and S.9:
• Definition
• Matter of title
• Nature of remedy
• Time limitation
• Against government
• Appeal and Review
• Amount of court fee
 S.10: Recovery of specific moveable property
• A person entitled to the possession
• of specific moveable property
• may recover the same
• in the manner prescribed by the Code of Civil Procedure.
• Explanation 1 - A trustee may sue under this section for the
possession of 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 property is sufficient to support a suit under this
section.
• Illustrations
a) Title deeds: A bequeaths land to B for his life, with remainder
to C. A dies. B enters on the land, but C, without B's consent,
obtained possession of the title-deeds. B may recover them
a) Pledge: A pledges certain jewels to B to secure a loan. B
disposes of them before he is entitled to do so. A, without
having paid or tendered the amount of the loan, sues B for
possession of the jewels. The suit should be dismissed, as A is
not entitled to their possession, whatever right he may have
to secure their safe custody.
b) Letter: A receives a 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.
c) Finders of goods: A deposits books and papers for safe
custody with B. B losses them, and C finds them but refuses to
deliver them to B when demanded. B may recover them from
C, subject to C's right, if any, under section 168 of the
Contract Act, 1872.
d) Warehouse keeper: A, warehouse-keeper, is charged with the
delivery of certain goods to Z, which B takes out of A's
 Object of the provision
• to recover specific immovable property though of course the
prayer for damages for wrongful detention may be added.
Title of the Plaintiff
• Pattakumari Bibi vs. Nirmal Kumar Sinha, AIR 1948 Cal 97: the
expression in the section means that the person must have a
right to the immediate possession.
• The source of title may be (i) ownership; or (ii) temporary or
special right.
• The wording of the section read with two explanations
makes it clear what kind of title to possession is necessary to
enable a person to sue; the plaintiff need not be the full
owner; he can come under section 10 if he is entitled to
immediate possession even as a trustee or is having a
merely special or temporary right to the present possession
 Recoverable specific moveable property
• The form of specific relief provided by s.10 is
applicable only where the goods themselves are
recoverable. The relief sought is limited to the
delivery of goods and any special damages for their
detention, s.10 provides for the recovery of
moveable property in specie, i.e., the very property
itself, not its substitute or equivalent.
• 1 selw. N. P. 661: the relief under this section
cannot be sought for a sum of money or a quantity
of grain unless they be specifically distinguished
from other property of the same kind , as being
paced in a bag or sack.
• Jaldu Venkata Subaras v. A.S.N co. ltd., ILR 39 Mad
381: If the goods ceased to be recoverable and the
relief is sought either for their wrongful taking and
consequent loss or for the misappropriation of the
goods then it is a pure question of trespass or
conversion, and the relief is by damages.
Form and contents of Decree in CPC
• Order. 20, rule.10, CPC: The form of decree under
this section is as contemplated in or. 20, r.10, CPC.
Where the decree is for delivery of moveable
property, it must state the amount of money to be
paid as an alternative, if delivery cannot be made.
 Bombay Burma trading co, v, Mohammad Ali 19 W.R. 240:
• The price of movables as an alternative damages in
case of non delivery should be fixed by the court.
Execution process: Order xxi, Rule 31 of CPC:
a) By the seizure, if practicable, of the movable or
share and by the delivery thereof to the party to
whom it has been adjudged or
b) By the imprisonment of the judgment debtor or by
attaching his property or
c) By both imprisonment and attachment, if
necessary.
 S.11: Liability of person in possession, not as owner to
deliver to person entitled to immediate possession
• Any person having the possession or control
• of a particular article of moveable 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:-
 when the thing claimed is held by the defendant as the agent
or trustee of the claimant;
A, proceeding to Europe, leaves his furniture in charge of B as
his agent during his absence. B, without A's authority, pledges
the furniture to C, and C, knowing that B had no right to pledge
the furniture, advertises it for sale. C may be compelled to
 when compensation in money would not afford the claimant
adequate relief for the loss of the thing claimed;
Z has got possession of an idol belonging to A's family, and of which
A is the proper custodian. Z may be compelled to deliver the idol to
A.

 when it would be extremely difficult to ascertain the actual

damage caused by its loss;
A is entitled to a picture by a dead painter and a pair of rare China
vases. B has possession of them. The articles are of too special a
character to bear an ascertainable market value. B may be
compelled to deliver them to A.

 when the possession of the thing claimed has been wrongfully

transferred from the claimant.
 Specific performance of a contract
at a glance (ss.12-30)
I. Which contracts can and cannot be enforced at
the discretion of the court (ss.12,21,21A,22)
II. Specific performance of a part (ss.13-17)
III. Who can and cannot enforce specific performance
(ss. 23,24)
IV. Against whom specific performance can or cannot
be had (ss.27,28)
V. Remedies specific performance and damages
(ss.19,29)
 Which contracts can and cannot be enforced at
the discretion of the court (ss.12,21,21A,22)
S.12: Cases in which specific performance enforceable
Except as otherwise provided in this Chapter, the specific performance of any
contract may in the discretion of the Court be enforced, when-

(a) the act agreed to be done is in the performance, wholly or partly, of a trust;

(b) ……. no standard for ascertaining the actual damage caused by non-
performance of the act agreed to be done;

(c) ….. that pecuniary compensation for its non-performance would not afford
adequate relief; or

(d) …. that pecuniary compensation cannot be got for the non-performance of the
act agreed to be done.
Explanation - presumption that the breach of a contract to transfer immoveable
property cannot be adequately relieved by compensation in money, and that the
breach of a contract to transfer moveable property can be thus relieved.
• A agrees to buy, and B agrees to sell, a picture by a dead
painter and two rare china vases. A may compel B
specifically to perform this contract, for there is no
standard for ascertaining the actual damage which would
be caused by its non-performance.
• A contracts with B to sell him a house for taka 1,000. B is
entitled to a decree directing A to convey the house to
him, he paying the purchase-money.
• A contracts to sell, and B contracts to buy, a certain
number of railway-shares of a particular description. A
refuses to complete the sale. B may compel A specifically
to perform this agreement, for the shares are limited in
number and not always to be had in the market, and their
possession carries with it the status of a share-holder,
which cannot otherwise be procured
 S.21: Contracts not specifically enforceable.
The following contracts cannot be specifically enforced:–
• …. monetary compensation is adequate relief;
• contract involving minute/numerous details;
• dependent on personal qualification or volition of the
parties;
• absence of reasonable certainty;
• revocable contract, i.e. partnership for uncertain time;
• contract by trustee in excess of power/breach of trust;
• contract on behalf of a company in excess of power;
• involving lengthy process than 3 years;
• a material part has ceased to exist (s.20 of the
Contract Act 1872)
 S.21A: Unregistered contract for sale of immovable
property is not specifically enforceable.
S.22: Discretion as to decreeing specific performance:
• Discretionary power of the court;
• Court is not bound;
• But not arbitrary;
• Rather sound & reasonable;
• Guided by judicial principles; and
• Capable of correction by appeal.
Cases not to exercise a discretion to decree S.P.
• To give an unfair advantage to any party
• Hardship on the dependent
Cases to exercise discretion to decree S.P.
•
 Specific Performance of a part of the contract:
S.13: contract of which the subject has partially ceased to exist:
• Notwithstanding the provision of s.56 of the Contract
Act 1872;
• a contract is not wholly impossible of performance
• because a portion of its subject matter
• existing at its date
• has ceased to exist at the time of performance
Kinds of impossibility:
• antecedent (existing at the time of making of the
contract); void ab initio u/s 56 of the Contract Act
• Subsequent (arising subsequent to the contract);
may be performed partly if it is possible u/s 13 of the
 Nature of the provision of S.13:

• It is an extension to s.56 of the Contract Act 1872

• Not possible with entirety
• But may be enforced partially
• Whether part performance will be decreed and to
what extent it may be enforced shall be decided
depending on the provisions of ss.14,15,16.
 S.14: part performance where unperformed part is small:
• Being unable to perform the whole
• Unperformed bears only small proportion
• & able to be compensated in money
• Court’s discretion to decree specific performance & compensation
• On the application of any party
• A contracts to sell B a piece of land consisting of 100 bighas. It
turns out that 98 bighas of the land belong to A, and the two
remaining bighas to a stranger, who refuses to part with them. The
two bighas are not necessary for the use or enjoyment of the 98
bighas, nor so important for such use of enjoyment that the loss of
them may not be made good in money. A may be directed at the
suit of B to convey to B the 98 bighas and to make compensation to
him for not conveying the two remaining bighas; or B may be
directed, at the suit of A, to pay to A, on receiving the conveyance
and possession of the land, the stipulated purchase-money less a
sum awarded as compensation for the deficiency.
 S.15: Part performance where unperformed part is large:
• a party is unable to perform whole
• unperformed part forms a considerable portion
• or, not able of being compensated
• the unable party is not entitled to a decree for
specific performance
• but the court may at the suit of the other party
• direct specific performance
• relinquishing all claims to further performance
• & all rights to compensation
• AIR 1938 Bom 134: the purchaser will then get
remedy when he will be ready to take the remaining
part of the property paying whole amount of money.
• A contracts to sell to B a piece of land consisting of
100 bighas. It turns out that 50 bighas of the land
belong to A, and the other 50 bighas to a stranger,
who refuses to part with them. A cannot obtain a
decree against B for the specific performance of the
contract; but if B is willing to pay the price agreed
upon, and to take the 50 bighas which belong to A,
waiving all right to compensation either for the
deficiency or for loss sustained by him through A's
neglect or default, B is entitled to a decree directing
A to convey those 50 bighas to him on payment of
the purchase-money.
• A contracts to sell to B an estate with a house and
garden for a lakh of taka. The garden is important for
the enjoyment of the house. It turns out that A is
unable to convey the garden. A cannot obtain a decree
against B for the specific performance of the contract,
but if B is willing to pay the price agreed upon, and to
take the estate and house without the garden, waiving
all rights to compensation either for the deficiency or
for loss sustained by him through A's neglect or
default, B is entitled to a decree directing A to convey
the house to him on payment of the purchase-money.
• AIR 1954 SC 165: the claim to unperformed part must
be relinquished and the claim may be relinquished in
any stage of the proceeding.
 s.16: part performance of independent part of a contract:
• A part can & ought to be specifically performed
• Other part can’t/ought not be specifically
performed
• The court may direct specific performance of the
former part.
• Divisible contract: A contracts with B to sell 2 ton of
rice with 60 lac taka and a godown with 2 crore taka
in the same deed.
• 20 DLR WP 277: when a contract comprises several
parts and the parts are independent and divisible
then any part can be specifically performed even
though other part becomes impossible.
• S.17: the general principle: The Court shall not direct the
specific performance of a part of a contract
• The exception: except in cases coming under one or other
of the three last preceding sections (ss. 14,15,16)
Part (iii) Who can and cannot enforce specific performance:
S.23: who may obtain specific performance:
Except as otherwise provided by this Act the following
persons may obtain specific performance:
• Any party thereto;
• The representative/the principal;
• Any beneficially entitled person;
• The remainder man;
• A reversioner;
• The amalgamated new company;
 S.24: who cannot enforce specific performance of contract
Specific performance of a contract cannot be enforced in favour of a
person-

(a) who could not recover compensation for its breach;

A, in the character of agent for B, enters into an agreement with C to
buy C's house. A is in reality acting, not as agent for B, but on his own
account. A cannot enforce specific performance of this contract.

(b) who has become incapable of performing, or violates, any

essential term of the contract that on his part remains to be
performed;
A contracts to sell B a house and to become tenant thereof for a term
of fourteen years from the date of the sale at a specified yearly rent. A
becomes insolvent. Neither he nor his assignee can enforce specific
performance of the contract.
A contracts to sell B a house and garden in which there
are ornamental trees, a material element in the value
of the property as a residence. A, without B's consent
fells the trees. A cannot enforce specific performance
of the contract
(c) who has already chosen his remedy and obtained
satisfaction for the alleged breach of contract;
A contracts to let, and B contracts to take, a house for
specified term at a specified rent. B refuses to perform
the contract. A thereupon sues for, and obtains,
compensation for the breach. A cannot obtain specific
performance of the contact or
(d) who, previously to the contract, had notice of the
 Against whom specific performance can and
can’t be enforced:
27: Against whom contracts may be specifically enforced
Except as otherwise provided by this Chapter, specific performance of a
contract may be enforced against-

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the
contract, except a bonfide transferee with value;

A contracts to convey certain land to B by a particular day. A dies intestate

before that day without having conveyed the land. B may compel A's heir or
other representative in interest to perform the contract specifically
A contracts to sell land to B for taka 5000. B takes possession of the land.
Afterwards A sells it to C for taka 6,000. C makes no inquiry of B relating to his
interest in the land. B's possession is sufficient to affect C with notice of his
interest, and he may enforce specific performance of the contract against C
(c) any person claiming under a title which, though prior to the
contract and known to the plaintiff, might have been displaced
by the defendant;
A, the tenant for life of an estate, with remainder to B, in due
exercise of a power conferred by the settlement under which he
is tenant for life, contracts to sell the estate to C, who has notice
of the settlement. Before the sale is completed, A dies. C may
enforce specific performance of the contract against B
A and B are joint tenants of land, his undivided moiety of which
either may alien in his life time, but which, subject to that right,
devolves on the survivor. A contracts to sell his moiety to C and
dies. C may enforce specific performance of the contract against
B

(d) the new amalgamated company;

(e) when the promoters of a public company have, before its
 S.28: what parties can’t be compelled to perform.
a) If the consideration to be received by the defendant
be grossly inadequate which may afford evidence of
fraud or undue advantage. (s.16 of the Contract Act);
• The situation is like that it would shock the
conscience of an honest man
• The words ‘undue advantage’ have to read with the
word fraud
• A, an immigrant worker in Saudi Arabia, without
knowing the actual market price enters into a
contract with B, his previous employer, to sell a land
of cox’s bazar with 5 lac taka, where the actual market
price is 20 lac taka. If B sues for specific performance
then A cannot be compelled to specific performance.
b) when the consent of the defendant was obtained
wrongfully (misrepresentation, concealment, circumvention
or unfair practice) (s.18 of the Contract Act);
• A, by misrepresentation, leads B erroneously to believe that
five hundred mounds of indigo are made annually at A’s
factory, and thereby induces B to enter into a contract to
purchase the factory. B can not be compelled to specific
performance.
c) the consent of the defendant was given under influence of
mistake of fact, misapprehension or surprise. (S.20 of the
Contract Act)
• A agrees to sell to B a specific cargo of goods supposed to
on its way from England to Chittagong. It turns out that,
before the day of bargain, the ship conveying the cargo had
been cast away and the goods lost. A cannot be compelled
 Nature and Scope of the provision of s.28:
• defenses of the defendant based on the situation of the
defendant not of the matters to be performed;
• on these grounds the defendant may go to the court to set
aside the contract u/s 35 or 39;
• defense as to the whole contract;
• the defense of the defendant on faulty conduct of the
plaintiff.
Part, (V): Remedies: specific performance and damages (ss.19,29)
S.29: The effect of dismissing a Suit for Specific
Performance/Bar of suit for breach after dismissal
• The dismissal of a suit for specific performance of a
contract or part thereof
• shall bar the plaintiff's right to sue for compensation for
the breach of such contract or part,
• A contracts with B to sell him a house for taka 1,000,
the price to be paid and the possession given on the
1st January, 1877. A fails to perform his part of the
contract, and B brings his suit for specific performance
and there is no claim, in the suit, for compensation,
which is dismissed by the court. It bars the plaintiff's
(B’s) right to sue for compensation for the breach of
such contract.
• Order II, Rule 2 of CPC: suit must include the whole
claim (principle to prevent multiplicity of suit).
• PLD 1970 Kar 770: where claims for the relief of
specific performance and for damages arose out of the
same contract, separate suits for specific performance
and for damages for breach of contract would not be
S.19: Power to award compensation in certain cases
• Plaintiff suing for specific performance may also ask for
compensation in addition to / in substitution.
• Award of compensation:
I. specific performance can/ought not to be granted;
II. there is a contract;
III. broken by the defendant;
IV. plaintiff is entitled to the compensation.
• A contracts to sell a hundred mounds of rice to B. B brings
a suit to compel A to perform the contract or to pay
compensation. The Court is of opinion that A has made a
valid contract and has broken it, without excuse, to the
injury of B but that specific performance is not the proper
remedy. It shall award to B such compensation as it deems
• Specific performance & compensation:
I. specific performance ought/can be granted;
II. but it is not sufficient to satisfy the justice;
III. some compensation should be granted.
• A contracts with B to sell him a house for taka 1,000,
the price to be paid and the possession given on the
1st January, 1877. A fails to perform his part of the
contract, and B brings his suit for specific
performance and compensation, which is decided in
his favour on the 1st January, 1878. The decree may,
besides ordering specific performance, award to B
compensation for any loss which he has sustained by
A's refusal.
• Explanation - the contract to become incapable of specific
performance does not preclude the Court….
A, a purchaser, sues B, his vendor, for specific performance of a
contract for the sale of a patent. Before the hearing of the suit the
patent expires. The Court may award A compensation for the non-
performance of the contract, and may, if necessary, amend the
plaint for that purpose.
• S.4, Savings: Except where it is herein otherwise expressly
enacted, nothing in this Act shall be deemed-

(b) to deprive any person of any right to relief, other than specific
performance, which he may have under any contract;
• AIR 1951 Mad 612: “The court has equal power to award
damages, irrespective of whether the plaintiff claims the relief of
specific performance only or has asked for alternative remedy by
way of damages.”
• PLD 1970 Kar 770: damages for breach of contract
can be awarded in a suit for specific performance
even though these are not claimed.
Purpose of the provisions of s.19 & s.29:
• to compensate the damage suffered;
• to ensure justice;
• to prevent multiplicity of suits;
• to maintain various options.