UNIT-V

SPECIFIC RELIEF ACT, 1963

Introduction
The Specific Relief Act, 1963 is an Act of the Parliament of India which provides remedies
for persons whose civil or contractual rights have been violated. It replaced an earlier Act of
1877. Protection of life and property cannot be assured by a simple declaration of rights and
duties. The enumeration of rights and duties must be supplemented by legal devices which help
the individual to enforce his rights. Social redress must be provided to every person who is
injured in the social process. Basically, the mission of the Specific Act is to assure that whenever
there is a wrong there must be a remedy. It sets out two main remedies to party whose contract
has not been performed. First one, the party may ask court to compel performance of contract
(specific performance) and second one being the party may seek monetary compensation instead
of performance.

Recovery of Possession of Property

The term possession is not a mere occupation or actual use. There are two eminent components
of possession are:
a. Corpus: Actual power and apparent control over the object.
b. Animus: Will to avail oneself of the Corpus. Hence there is a physical possibility of the
person dealing with the property as he likes and exclusively. There are two types of property:
Immovable and moveable property.
• Immovable Property

As the word suggests, it means what cannot be moved. But the legal definition is, unless
something repugnant to the context, land, benefits arising out of the land, and things attached to
Earth or permanently fastened to anything attached to Earth.
• Movable Property

A property except immovable would be movable. Examples would include government

securities, share certificates but not money. It should be capable to be seized or delivered.
There are three types of actions which can be brought in law for the recovery of specific
immovable property:

a) A suit based on title by ownership;

b) A suit based on possessory title;

c) 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 CPC. 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.
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 a title of owner against the defendant by section 6 of the Specific Relief Act, 1962, if
the plaintiff has been dispossessed otherwise than in due course of law there may be title by
contract, and prescription or even by possession and the last will prevail where no preferable title
is shown. The essence of this section is ‘title’, i.e. the person who has better title is a person
entitled to the possession. The title may be of ownership or possession. Thus, if ‘A’ enters into
peaceful possession of land claiming his own although he might have no title, still he has the
right to sue another who has ousted him forcibly from possession because he might have no legal
title but at least has a possessory title.

It is a principle of law that a person, who has been in a long continuous possession of the
immovable property, can protect the same by seeking an injunction against any person in the
world other than the true owner. It is also a settled principle of law that owner of the property can
get back his possession only by resorting to due process of law. It states that a suit for possession
must be filed having regard to the provision of the Code of Civil Procedure. In Dadu v. Dayala
Mahasabh, it was held that since the statute provides for applicability of the Code, there cannot
be any doubt whatsoever that all the provisions thereof shall apply.
Recovery of immovable property
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 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 after the expiry of six months from the date of
dispossession or 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.
Possession in the context of Section 6 means legal possession which may exist with or without
actual possession and with or without rightful origin. The plaintiff in a suit under section 6 need
not establish title. Long-standing peaceful possession of is enough to prove actual possession.
In K.K. Verma v Union of India it was held that after the expiry of the tenancy agreement, the
tenant continues to hold juridical possession and cannot be dispossessed unless the owner gets a
decree of eviction against him.

Objective of Section 6

• To discourage people from taking the law into their hands (however good their title
may be).

• To provide a cheap and useful remedy to a person dispossessed of immovable property

in due course of law.

The object of this section appears to have been to give special remedy to the party illegally
dispossessed by depriving the dispossessor of the privilege proving a better title to the land in
dispute. Section 6 should be read as part of the Limitation Act and its object to put an additional
restraint upon illegal dispossession with a view to prevent the applicant of that dispossession,
from getting rid of the operation of the Act by his unlawful conduct. If the suit is brought within
the period prescribed by that Section, even the right of the land is precluded from showing his
title. Further, it should be noted that where the grant of possession is purely gratuitous, the owner
has the right to reclaim possession even without the knowledge of a person in possession. The
only prayer in a suit under section 6 can be a prayer for recovery of possession. Consequently, a
claim for damages cannot be combined with that for possession. Section 14 of the Limitation
Act, 1963 applies to the proceedings against dispossession. In the case of K. Krishna v A.N
Paramkusha Bai, a tenant was dispossessed forcibly by the owner but he himself get forcible
repossession. The Court, in this case, held that “tenant could institute suit for repossession
immediately when he was forcibly ousted, but as soon as he takes forcible repossession he
became trespasser and therefore could not be regarded to be in lawful possession.

Difference between Section 5 and 6

Section 5 Section 6
The claim is based on the title. The claim is based on possession and no proof
of title is required and even rightful owner may
be precluded from showing his title to the land.
The period of limitation is 12 years. The period of limitation is only 6 months from
the date of dispossession.

Who can seek the relief?

The recovery of possession under the law is mandated to be sought after by the person who
has been dispossessed. He or any person claiming through him has been given the power to file a
suit in the respective section. Thus the person who should be removed should the one having a
juridical possession over the property. It cannot be the father or uncle of the person who would
have been removed from the property. Also, it cannot be a servant or the appointee who has been
removed. Similarly, a trespasser, who took forcible possession of the land, cannot claim relief
under this section. But, if his or her possession has been for a long time and has been peaceful,
anterior and accomplished, he or she cannot be ousted or disposed of except with the due
recourse of law.

Representative
The section is very clear giving a right to sue even to the representatives of the person removed.
The law has recognized the heirs as the representatives and entitled to sue for recovery of
immovable possession. The reason is that the possession is a heritable right that is available
against all expects the true owner. This character of being the representative is also extended to a
Mohammedan widow. It is because when she enters the property of her husband in lieu of dower
debt, she gets a heritable right and her heirs can also retain the possession till the debt is paid.
In Tilak Chandra Dass v. Fatik Chandra Dass, The contours of this section are very limited
since the court is empowered only to direct delivery of possession. It has no power to award
damages to the plaintiff. The court therefore also cannot direct the defendant to pay to the
plaintiff the cost of removing the hut and filling up of excavations.

No Appeal

Neither an appeal nor a review is permissible under the section. But the courts have held that
the appeal shall lie if a suit based on the title has wrongly dealt with as a suit based on this
section. In the case of Narain Das v Het Singh, Even a letters patent appeal from the decision of
a single-judge bench of the High court would be permissible. If a suit is for a mandatory
injunction and section 6 would not apply, the appeal would be maintainable.

Establishing Title

The section specifically mandates that the party is not prohibited from establishing his or her
title over the property and then claim the recovery. This right exists with the person even if the
suit against him under this section has already been decreed. The mention of title under the suit
under this section is also irrelevant. The court generally presumes that where possession is
doubtful, the court holds that it follows title.(Dharm Singh v Hur Pershad Singh)

Recovery of possession of Movable property

Section 7 and 8 of the Specific Relief Act, 1963 contains provisions for recovery of
possession of some specific movable property. Section 7 of Act with the head ‘recovery of
Specific movable property’ provides that, “a person entitled to the possession of the specific
movable property may recover it in the manner provided by the Code of Criminal Procedure,
1908 (5 of 1908).
Explanation 1: A trustee may sue under this section for possession of the movable property to
the beneficial interest he is entitled.

Explanation 2: A temporary or special right to the present possession is sufficient to support a

suit under this section.”

Ingredients of Section 7

a. First, the plaintiff must be entitled to the possession of the movable property. A person may
be entitled to the possession of a thing either by ownership or by virtue of a temporary or a
special right as provided under explanation 2 of section 7. A special or temporary right to an
individual may arise by either act of the owner of goods i.e. bailment, pawn etc. or not by the
act of the owner of goods i.e. a person may be the finder of goods and finder of goods enjoys
special right to possession except against true owner. Only those persons can maintain a suit
under section 7, who has the present possession of the movable property. A person who does
not have present possession of the movable property cannot maintain a suit under this
section.
b. The property in question must be specific movable property means that property should be
ascertained or ascertainable. Specific property means the very property not any property
equivalent to it. The disputed specific movable property must be capable of being delivered
and seized. Where the goods have been ceased to be recoverable or are not in control of the
defendant, the plaintiff is not entitled to a decree for recovery.

Article 91(b) of the Limitation Act, 1963 provides a period of three years for the filing of suit
computable from the date when the property is wrongfully taken or when the possession
becomes unlawful. Chandu Naik and others v Sitaram B. Naik and another, it was held that
when the dispute is between two private parties in respect of possession of premises, the
provisions of section 8 of the Act are not attracted and the Civil Court has the jurisdiction to
entertain and try the suit of the kind with which we are dealing.

Property of every description except immovable property is movable property.

Example: Government Securities, share certificates are movable property but not money. For
application of the section it must be specific i.e. ascertained and ascertainable capable of being
seized and delivered. The remedy of recovery of specific movable property means the property
itself and not its equivalent. Section 7 provides for the recovery of movable property in specie
i.e. the things itself. The things to be recovered must be specific in the sense they are ascertained
and capable of identification. The nature of things must continue without alteration.

Who can sue under Section 7?

To succeed under this section it is sufficient if the plaintiff seeking possession has a right to
present or immediate possession or by way of special or temporary right to present possession
i.e. of a bailee, Pawnee, finder of lost goods. A trustee can sue under this section possession of
movable property to protect the beneficial interest of the beneficiary and it is not necessary to
make the beneficiaries, parties to the suit.

Liability of person not in possession/not as owner

Section 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. Section 8 of the act attaches more importance to the title than
possession. Geetarani Paul v Dibyendra Kundu, The Supreme Court has held that as long as the
plaintiff is able to substantiate and establish that he is lawful and registered owner of the suit
lands and the title vests in him, specific details of his dispossession need not be proved and that a
decree on the basis of the title can follow, if the suit is filed within the period of limitation.

Specific situations in which Court will order delivery

a. Defendant is agent or trustee

Wherever the fiduciary responsibility arises in respect of the possession of the
property to the trustee, he is responsible for the return of the property to the rightful
owner.
b. Compensation, not an adequate relief
The court is to presume the existence of this condition. The proper valuation of
the movable property is not always possible hence delivery of possession can be
ordered like in the case of an idol in dispute.
c. Actual Damage cannot be ascertained
The court again presumes its existence. This happens in the cases of antiquity,
artistic productions, family relics, ornaments, heirlooms. If the article is of such a
special character to bear any ascertainable market value, the court may direct the
defending party to deliver a particular article to the plaintiff.
d. Possession Wrongfully Transferred
It can happen when the defendant has obtained the property by means of
fraud. Another person can also wrongfully transfer the property. An example can be
when the property is transferred to baliee from the plaintiff. It can also happen when the
transfer is to a servant without the permission of his employer.

Specific Performance of Contracts

Specific performance is equitable relief, given by the court to enforce against a defendant, the
duty of doing what he agreed by contract to do. Thus, the remedy of specific performance is in
contrast with the remedy by way of damages for breach of contract, which gives pecuniary
compensation for failure to carry out the terms of the contract. Damages and specific
performance are both, remedies available upon breach of obligations by a party to the contract;
the former is a ‘substitutive’ remedy, and the latter a ‘specific’ remedy. The remedy of specific
performance is granted by way of exception. The plaintiff seeking this remedy must first satisfy
the court that the normal remedy of damages is inadequate. The presumption being that in cases
of contracts for transfer of immovable property damages will not be adequate. Even in these
cases specific performance is not always granted, as it is a discretionary remedy. The relief must
be specifically claimed. When the plaintiff claims specific performance of a particular
agreement, the suit could be decreed for specific performance of only that agreement, and not
any other. The prescribed period of limitation for a suit of specific performance is three years
from the date fixed for performance, or, if no such date is fixed, when the plaintiff has noticed
that performance has been refused.

Defenses
Section 9 of the Specific Relief Act, 1963 provides for the defences against specific
performance of contracts. It states that, where any relief is claimed under this Chapter in respect
of a contract, the 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. For enforcement of specific
performance of a contract, there must be a valid contract. Consequently, the remedy of specific
performance cannot be granted if the contract is void or illegal, e.g. A minor‘s agreement is void
as a minor is not competent to contract. Therefore, it can-not be specifically enforced. The
defendant may take the defence that the remedy claimed should not be granted on the following
grounds:
• Invalidity of contract
• sufficiency of compensation
• discretion of the Court

Delay as ground of defence under law of contract

Where the suit was within the period of limitation, but delay had resulted in third parties
acquiring rights in the subject-matter of the suit or had given rise to a plea of waiver it was held
that it would provide grounds of defence in a suit for specific performance of contract for sale of
immovable property. (Limitation Act, 1963, Article 34).
Where specific performance of contracts are enforceable
Section 10 of the Specific Relief Act, 1963, provides as follows:
Except as otherwise provided in this Chapter, the specific performance of any contract may, in
the discretion of the court, be enforced:
(a) when there exists no standard for ascertaining actual damage caused by the non-
performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance
would not afford adequate relief.
Explanation: Unless and until the contrary is proved, the court shall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by
compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the
following cases:—
(a) where the property is not an ordinary article of commerce, or is of special value
or interest to the plaintiff, or consists of goods which are not easily obtainable in the
market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.”

There is a clear distinction between the cases giving rise to the filling of a suit for specific
performance in the event of breach of recitals of an agreement for due performance of which the
parties have covenanted to agree and perform and those which the award of compensation will
be adequate relief.

When there exist no standard for ascertaining actual damage

It is the situation in which the plaintiff is unable to determine the amount of loss suffered by
him. Where the damage caused by the breach of contract is ascertainable then the remedy of
specific performance is not available to the plaintiff. For example, a person enters into a contract
for the purchase of a painting of dead painter which is only one in the market and its value is
unascertainable then he is entitled to the same.

When compensation of money is not adequate relief

In following cases compensation of money would not provide adequate relief:
1. Where the subject matter of the contract is an immovable property.

2. Where the subject matter of the contract is movable property and,

3. Such property or goods are not an ordinary article of commerce i.e. which could be
sold or purchased in the market.

4. The article is of special value or interest to the plaintiff.

5. The article is of such nature that is not easily available in the market.

6. The property or goods held by the defendant as an agent or trustee of the plaintiff.

In the case of Ram Karan v Govind Lal , an agreement for sale of agricultural land was made &
buyer had paid full sale consideration to the seller, but the seller refuses to execute sale deed as
per the agreement. The buyer brought an action for the specific performance of contract and it
was held by the court that the compensation of money would not afford adequate relief and seller
was directed to execute sale deed in favour of buyer.Similarly,

Agreement for reconveyance or repurchase

An agreement to repurchase property which had been sold, popularly known as agreement for
reconveyance, has been held to be specifically enforceable.

Delay
K.S. Vidyanandam v. Vairavan, Unreasonable delay by a plaintiff in performing his part of the
contract operates as a bar to his obtaining specific performance, provided that-
• Time was originally the essential element of the contract; or
• It was made an essential element by a subsequent notice; or
• The delay has been so unreasonable and long that it amounts to abandonment of the contract.

The word “reasonable” has in law a prima facie meaning of reasonable in regard to those
circumstances of which the person concerned is called upon to act reasonably knows or ought to
know as to what was reasonable.
Specific performance of contracts connected with trust enforceable (Section
11)
Section 11 of the Act provides for cases in which specific performance of contracts connected
with trust enforceable:
(1) Except as otherwise provided in this Act, specific performance of a contract may, in the
discretion of the court, be enforced when the act agreed to be done is in the performance
wholly or partly of a trust.
(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be
specifically enforced.

Specific performance of part of contract (Section 12)

Section 12 deals with specific performance of part of contract and states as
follows:

(1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific
performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which
must be left unperformed bears only a small proportion to the whole in value and admits of
compensation in money, the court may, at the suit of either party, direct the specific performance
of so much of the contract as can be performed, and award compensation in money for the
deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which
must be left unperformed either—
(a) forms a considerable part of the whole, though admitting of compensation in
money; or
(b) does not admit of compensation in money; he is not entitled to obtain a decree for specific
performance; but the court may, at the suit of the other
party, direct the party in default to perform specifically so much of his part of the contract as he
can perform, if the other party—
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of
the contract reduced by the consideration for the part which must be left unperformed and in a
case falling under clause (b), pays or has paid the consideration for the whole of the contract
without any abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract
and all right to compensation, either for the deficiency or for the loss or damage sustained by him
through the default of the defendant.
(1) When a part of a contract which, taken by itself, can and ought to be specifically
performed, stands on a separate and independent footing from another part of the same
contract which cannot or ought not to be specifically performed, the court may direct
specific performance of the former part.

Explanation: For the purposes of this section, a party to a contract shall be deemed to be
unable to perform the whole of his part of it if a portion of its subject-matter existing at the
date of the contract has ceased to exist at the time of its performance.” A court will not, as a
general rule, compel specific performance of a contract unless it can execute the whole
contract. This section deals with classes of cases in which specific performance may be
granted with or subject to special conditions or restrictions. When a part of the contract is not
capable of performance is always whether the contract can be executed in substance. This
provision can be invoked only where terms of the contract permit segregation of interests and
rights of parties in the property, and if the intention is to the contrary, the provision cannot be
attracted. Illustrations ‘A’ contracts to sell ‘B’ a piece of land measuring 100 acres. It turns
out that 98 acres belong to ‘A’ and 2 acres to a stranger who refused to part with it. 2 acres
are not necessary for the use and enjoyment of 98 acres of neither land nor it is so important
that the loss of it cannot be made good by damages. ‘A’ may be directed at the suit of ‘B’ to
convey to ‘B’ 98 acres of land and to make compensation for not conveying 2 acres of land.
At the suit of ‘A’, ‘B’ may be compelled to pay purchase money less the sum awarded as the
compensation for the deficiency.

Contracts which cannot be specifically enforced

Section 14 provides for contracts not specifically enforceable and states as follows
(1) The following contracts cannot be specifically enforced, namely:--
(a) a contract for the non-performance of which compensation in money is an adequate
relief;
 (b) a contract which runs into such minute or numerous details or which is so dependent on
the personal qualifications or volition of the parties, or otherwise from its nature is such,
that the court cannot enforce specific performance of its material terms;

(c) a contract which is in its nature determinable ;

(d) a contract the performance of which involves the performance of a continuous duty
which the court cannot supervise.

(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present
or future differences to arbitration shall be specifically enforced; but if any person who
has made such a contract (other than an arbitration agreement to which the provisions of
the said Act apply) and has refused to perform it, sues in respect of any subject which he
has contracted to refer, the existence of such contract shall bar the suit.

(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section
(1), the court may enforce specific performance in the following cases:-

(a) where the suit is for the enforcement of a contract,-

(i) to execute a mortgage or furnish any other security for security for securing the
repayment of any loan which the borrower is not willing to repay at once:Provided that
where only a part of the loan has been advanced the lender is willing to advance the
remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
(b) where the suit is for,- (i) the execution of a formal deed of partnership, the parties having
commenced to carry on the business of the partnership; or
(ii) the purchase of a share of a partner in a firm,
(c) where the suit is for the enforcement of a contract for the construction of any building or
the execution of any other work on land:
Provided that the following conditions are fulfilled, namely:-
(i) the building or other work is described in the contract in terms sufficiently precise to
enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest
is of such a nature that compensation in money for non-performance of the contract is
not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained
possession of the whole or any part of the land on which the building is to be constructed
or other work is to be executed . 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 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, 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. However, Section 14(3) contains certain exception and the
following kinds of contract are specifically enforceable
1. A contract to execute a mortgage or furnish other security for repayment of any loan
which the borrower is not willing to repay at once, the court would grant specific
performance to execute mortgage or to give any other security.

2. A contract to take up and pay for any debentures of a company.

3. A contract to execute a formal deed of partnership at will when the business has
already commenced.

4. A contract for the construction of any building or the execution of any other work on
land if;

5. Detailed or the terms of the contract has been sufficiently explained & the court can
determine the exact nature of building or work.

6. The plaintiff has a substantial interest in performance of the contract and

compensation in money is not an adequate relief.

7. The defendant has in accordance with the contract, obtained possession of whole or
part of the land on which the building is to be constructed or other work is to be
executed.

Exceptions

Despite the clauses of Section 14(1), the court may enforce specific performance in the
circumstances provided under Section 14(3).
• Where the suit is for the enforcement of a contract to execute a mortgage or secure the
repayment of any loan which the borrower is not willing to repay at once: Provided that
where only a part of the loan has been advanced the lender is willing to advance the
remaining part of the loan in terms of the contract; or to take up and pay for any debentures
of a company;
• Where the suit is for the execution of a formal deed of partnership, the parties having
commenced to carry on the business of the partnership; or the purchase of a share of a partner
in a firm;
• Where the suit is for the enforcement of a contract for the construction of any building or the
execution of any other work on land: Certain conditions being maintained, these being:-
- the building or other work is described in the contract in terms precise enough for the
court to determine the exact nature of work;
- the plaintiff has a substantial interest in the performance of the contract and the interest
is of such a nature that compensation in money for non-performance of the contract is
not an adequate relief; and
- the defendant has, in pursuance of the contract, obtained possession of the whole or any
part of the land on which the building is to be constructed or other work is to be
executed.

In Executive Committee, State Warehousing Corporation v. Chandra Kiran Tyagi, the Supreme
Court held that ordinarily the contracts for personal services cannot be specifically enforced
subject to certain exceptions.

Person for or against whom contracts may be specifically enforced

Section 15 talks about who may obtain specific performance:
Except as otherwise provided by this Chapter, the specific performance of a contract may be
obtained by
(a) any party thereto;

(b) the representative in interest or the principal, of any party thereto:

Provided that where the learning, skill, solvency or any personal quality of such party is a
material ingredient in the contract, or where the contract provides that his interest shall not be
assigned, his representative in interest of his principal shall not be entitled to specific
performance of the contract, unless such party has already performed his part of the contract, or
the performance thereof by his representative in interest, or his principal, has been accepted by
the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights
between members of the same family, any person beneficially entitled thereunder;

(d) where the contract has been entered into by a tenant for life in due exercise of a power,
the remainderman;

(e) a reversioner in possession, where the agreement is a covenant entered into with his
predecessor in title and the reversioner is entitled to the benefit of such covenant;

(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner
is entitled to the benefit thereof and will sustain material injury by reason of its breach;

(g) when a company has entered into a contract and subsequently becomes amalgamated
with another company, the new company which arises out of the amalgamation;

(h) when the promoters of a company have, before its incorporation, entered into a contract
for the purposes of the company, and such contract is warranted by the terms of the
incorporation, the company:

Provided that the company has accepted the contract and has communicated such acceptance to
the other party to the contract.

Defenses available in a suit for specific performance

Defendant in a suit for specific performance of a contract may prove that-
1. Compensation in money could be adequate relief to plaintiff. Section 14(a)

2. The contract runs in to such minute details or is dependent on personal qualifications

of the parties or is of such a nature that the court cannot enforce performance of its
material terms. Section 14 (b)

3. The performance of the contract involves the performance of a continuous duty which the
court cannot supervise. Section 14 (d)
 4. The contract in its nature is determinable.

5. It is a contract by the plaintiffs in breach of their trust or in excess of their powers.

Section 11(2)

6. A contract though not voidable when made gave the plaintiff an unfair advantage over the
defendant. Section 20

7. The performance of the contract would involve hardship on the defendant which he did
not foresee where as its non-performance would involve non such hardship on the
plaintiff. S. 20

8. The conduct of the defendant is such as to disentitle him to relief. Section 16

9. Plaintiff cannot give a title free from reasonable doubt. Section 17

10. Defendant is entitled to get the contract enforced with a variation which he may setup.
Section 18.

In T.M. Balakrishna Mudaliar v. M. Satyanarayana Rao, the expression “representative- in-

interest” includes the assignee of a right to purchase the property and, therefore, he would have
the title to claim specific performance.

Who cannot claim specific performance of a contract

As per sec 16 specific performance of a contract cannot be enforced in favour of a person or be
claimed by a person—
(a) who has obtained substituted performance of contract under section 20;
(b) who has become incapable of performing,
(c) who has violated any essential term of, the contract that on his part remains to be performed
(d) who has acted in fraud of the contract, or willfully acts at variance with, or in subversion of,
the relation intended to be established by the contract; or
(e) who has failed to prove that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him, other than terms of
the performance of which have been prevented or waived by the defendant. Hence, Specific
performance of contract is to be granted on all grounds except when covered by the
aforementioned grounds.
I.T.C Ltd. v. George Joseph Fernandes,the court held that a person who makes himself a party
to an illegal contract cannot enforce his rights under this section.
Rakha Singh v. Babu Singh, the court held that where the plaintiff showed that he was ready and
willing to pay the purchase price and continued to be so, the failure to plead that he had money in
the bank and had not withdrawn it, was immaterial because this was a matter of evidence and had
not to be pleaded.

RESCISSION (Section 27-30)

In contract law, rescission has been defined as the unmaking of a contract between parties.
Rescission is the unwinding of a transaction. This is done to bring the parties, as far as possible,
back to the position in which they were before they entered into a contract (the status quo ante).

When is recession available?

Sections 27 to 30 of specific relief act deals with rescission of contract. The relief of rescission is
available to a person who has become the victim of fraud or illegality or something equivalent
which makes the contract either void or voidable. Section 27(1) provides for circumstances when
a party to a contract may rescind it and are as follows:
i. When the contract is voidable or terminable by the plaintiff.
ii. Where the contract is unlawful for causes not apparent on its face and the defendant is
more to blame.

Loss of right of rescission

Section 28(2) provides that the right of rescission is not available in the following cases
i. Affirmation
Where the plaintiff on becoming aware of his right to rescind has expressly or impliedly
ratified/affirmed the contract. An express affirmation takes place when the right to rescind is
openly waived. An implied a formation takes place when the party having the right to
rescind is instead enjoying the benefits of the contract.
ii. Where restitution is not possible
The right of rescission is lost when the position of the parties has been altered to such an extent
 that they cannot be put back to their original status. For example, where one party has
already resold the goods or consumed them, restoration off the status quo becomes
impossible.
iii. Intervention of third parties
Where, for example, a person has obtained goods by fraud and, before the seller is able to catch
him, he transfers the goods to a bona fide buyer, the deceived seller would not be allowed to
get rid of the sale on account of the fraud.
iv. Severance
Rescission is not allowed by the plaintiff is seeking rescission of only a part of the contract and
that part is not severable or being separated from the rest of the contract.

Inbuilt remedy of rescission in decree of specific performance (Section 28)

Where a decree of specific performance has been passed in respect of a contract for the sale or
lease of immovable property, but the party to whom such relief has been granted does not pay the
price within the time prescribed by the court, the seller may ask the court for rescission. The
court may:
i. direct the purchaser or lessee, if he has already taken over possession, to restore it to the
seller and
ii. to pay him rent for the period during which he enjoyed the benefits of possession.

Limitation

An application for rescission should be filed within 3 years from the date of the decree for
specific performance.

Rescission as an alternate prayer is specific performance not granted (Section

29)
A plaintiff instituting a suit for specific performance of contract may pray that if
the contract cannot be specifically enforced it may be rescinded and delivered up
to be cancelled.
Recession and equity (Section 30)
If the court grants decree of recession, it may require the decree holder to restore any benefit
received by him under the contract to the extent to which justice requires.

RECTIFICATION OF INSTRUMENT (Section 26)

Contract or instrument may be rectified-
(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in
writing does not express their real intention, then-
(a) either party or his representative in interest may institute a suit to have the instrument
rectified; or
(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 is referred to in clause (b), may, in addition to any other
defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-
section (1), the court finds that the instrument, through fraud or mistake, does not
express the real intention of the parties, the court may, in its discretion, direct rectification of the
instrument so as to express that intention, so far as this can be done without prejudice to rights
acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so
prayed in his pleading and the court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section
unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the court shall, at any
stage of the proceeding, allow him to amend the pleading on such terms as may be just for
including such claim.

Essentials of rectification
i. A genuine agreement different from the expressed agreement. The parties should have
mutually agreed on certain terms to a contract and not the terms expressed in the contract in
question.
ii. Fraud by one party or mistake by both parties. Mistake shall be mutual and not unilateral. A
unilateral mistake is a ground for rescinding the contract but not to rectify or correct the
contract. The mistake may be either of fact or of law although the court of equity will not
generally grant relief against a mistake of law, except where the mistake results in an
inequitable result.
iii. Fraud or Mistake in the expression of contract and not in its formation. The parties should
not have entered into the contract by a mistake or through fraud. It must have been entered
into with free consent of both parties. But only the terms expressed in the contract should
have been so expressed by mistake or fraud.
iv. Rectification cannot affect the rights of bona fide purchasers for value without knowledge of
the mistake or fraud.

Illustration A, intending to sell it to B his house and one of the three go-downs adjacent to it,
executes a conveyance prepared by B, in which, through B’s fraud, all three go-downs are
included. This conveyance deed may be rectified as to exclude the two go-downs that were not
agreed upon.

CANCELLATION OF INSTRUMENTS (Section 31-33)

Section 31 to 33 of the Specific Relief Act, 1963 provide for the cancellation of
instruments. When a document is valid, no question arises of its cancellation. When a
document is void ab initio, a decree for setting aside the same would not be necessary as the
same is non est in the eye of the law, as it is a nullity. Section 31 explains the remedy of
cancellation as follows: “Any person against whom a written instrument is void or voidable, and
who has a reasonable apprehension that such instrument, if left outstanding may cause him
serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion,
so adjudge it and order it to be delivered up and cancelled.”
It provides for a discretionary relief. The above-mentioned provision encompasses three
essential conditions on the fulfillment of which this remedy can be granted by the court-
1. The instrument must be void or voidable.
2. The plaintiff must have a reasonable apprehension of serious injury if the instrument is left
outstanding.
3. Under the circumstances of the case, the court exercises its discretion and orders the
instrument to be delivered up and cancelled.

Who can seek cancellation?

Any person against whom a written instrument is void or voidable and who has reasonable
apprehension that such instrument of if left outstanding may cause him serious injury, may sue
to have it adjudged void or voidable Under this section not only parties to the instrument but
also persons affected by such instrument can maintain an action. For example, under Section 53
of Transfer of Property Act, with regard to a fraudulent transfer, one creditor on behalf of other
creditors can sue for cancellation of the sale deed executed by the debtor to delay, defraud or
defeat the rights of the creditor. In the case of Chajulal v. Gokul, the neighbor of an owner of
the house, while mortgaging his property wrongfully stated in the deed that the wall adjoining
the property belonged to him and that he had the right of way over the owner’s property. Hence,
the court considered the owner eligible to get such terms in the deed cancelled as this
specifically work affecting his title and interest.

Partial Cancellation (Section 32)

As per Section 32, to court in its discretion can very well cancel only a part of an instrument. It
means, in residue, the instrument can stand in a proper case where there is evidence of different
rights or different obligations. This means that rights and obligations identified must be distinct
and separable. In Ram Chander v. Ganga Saran, the court held that the plaintiff claimed
endorsement on a document to be an act of forgery and thus false, hence, liable to be cancelled.
The court answered in affirmative and partially cancelled only the endorsement because it is a
document in itself separate and distinct from the rest of the document.

Doing equity for seeking equity (Section 33)

The maxim of ‘he who seeks equity must do equity’ is inherent in Section 33 of the 1963 Act. It
puts an obligation on the party to whom the relief of cancellation is granted, to restore any
benefit which he may have received from the other party and to make any compensation to him
which justice require. This provision would apply to a case where the plaintiff has not
specifically asked for the relief of cancellation and the defendant has successfully resisted the
instrument sought to be enforced against him on grounds of the instrument being void or
voidable.

Declaratory Decrees
A declaratory decree is a decree declaring the right of the plaintiff. Declaratory judgment is a
judgement which early states that the rights of the parties in an already complicated transaction.
The general power vested in the courts in India under the Civil Procedure Code is to entertain all
suits of a civil nature, excepting suits of which cognizance is barred by any enactment for the
time being in force. However Courts do not have the general power of making declarations
except in so far as such power is expressly conferred by statute. The utility and importance of the
remedy of declaratory suits are manifest, for its object is 'to prevent future litigation by removing
existing cause of controversy.' It is certainly in the interest of the State that this jurisdiction of
court should be maintained, and the causes of apprehended litigation respecting immovable
property should be removed. However, a declaratory decree confers no new right; it only clears
up the mist that has been gathering round the plaintiff's status or title.

Sections 34 and 35 of the Specific Relief Act, 1963

Section 34 of Specific Relief Act reads as:
“Any person entitled to any legal character, or to any right as to any property, may institute a suit
against any person denying, or interested to deny, his title to such character or right, and the
court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need
not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits to do so.
Explanation:
A trustee of property is a "person interested to deny "a title adverse to the title of someone who
is not in existence, and for whom, if in existence, he would be a trustee.” Section 34 provides for
"a suit against any person denying or interested to deny the plaintiffs' title to the legal character
or right to any property". So it is clear that the plaintiff's task is not over once he proves that he is
entitled to the legal character or right to property, it is for him to convince the court that the
defendant has denied or interested to deny that legal character or right of the plaintiff. Then only
he can succeed in obtaining the declaration sought. The provision is a verbatim reproduction of
Section 42 of the Specific Relief Act, 1877. It ensures a remedy to the aggrieved person not only
against all persons who actually claim an adverse interest to his own, but also against those who
may do so.

Requisites:
Section 34 of the Specific Relief Act, 1963 contemplates certain conditions which are to be
fulfilled by a plaintiff. In the State of M.P v. Khan Bahadur Bhiwandiwala and c, the court
observed that in order to obtain the relief of declaration the plaintiff must establish that
(1) the plaintiff was at the time of the suit entitled to any legal character or any right to any
property
(2) the defendant had denied or was interested in denying the character or the title of the
plaintiff
(3) the declaration asked for was a declaration that the plaintiff was entitled to a legal
character or to a right to property
(4) the plaintiff was not in a position to claim a further relief than a bare declaration of his
title. It is to be submitted that the fourth requisite is not correct as the section only says
that if any further relief could be claimed it should have been prayed for. Since
declaration is an equitable remedy the court still has discretion to grant or refuse the relief
depending on the circumstances of each case.

Thus a person claiming declaratory relief must show that he is entitled

1. to a legal character, or
2. to a right as to property, and that
3. the defendant has denied or is interested to deny his title to such character or right
4. he has sought all reliefs in the suit.

Objective
The object of this Section is obviously to provide a perpetual bulwark against adverse attacks on
the title of the plaintiff, where a cloud is cast upon it, and to prevent further litigation by
removing existing cause of controversy. The threat to his legal character has to be real and not 4
imaginary. The Section does not lay down any rule, that one who claims any interest in the
property, present or future, may ask the Court to give an opinion on his title. It does not warrant
any kind of declaration that the plaintiff is entitled to a legal character or to any right as to any
property, and it warrants this kind of remedy only in special circumstances. The plaintiff has to
prove that the defendant has denied or is interested in denying to the character or title of the
plaintiff. There must be some present danger or determent to his interest. So that a declaration is
necessary to safeguard his right and clear the mist. The denial must be communicated to the
plaintiff in order to give him cause of action. The declaratory decree is the edict which declares the
rights of the plaintiff. It is a binding declaration under which the court declares some existing rights in
favour of the plaintiff and declaratory decree exists only when the plaintiff is denied of his right which the
plaintiff is entitled to. After that specific relief is obtained by the plaintiff against the defendant who
denied the plaintiff from his right. According to Section 34, of the Special Relief Act, 1963, any person
entitled to any legal character, or to any right as to any property, may institute a suit against any person
denying, or interested to deny, his title to such character or right, and the court may in its discretion make
therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Declaratory decree provisions bring out to merely perpetuate and strengthen the Plaintiff in case
of an even adverse attack so that the attack on the Plaintiff cannot weaken his case and it is
mentioned in the case of Naganna v. Sivanappa. And by the arguments made in this case, it
encourages the plaintiff to come forward to enjoy the rights which they are entitled to and if any
Defendant denied the Plaintiff from providing any rights for which the Plaintiff is entitled, then it
gives them the power to file the suit and get special relief.

Discretion of court as to declaration of status

As in the Section 34 of Special Relief Act, 1963 the condition mentioned for the declaration of
status or right i.e.

(1) the plaintiff at the time of suit was entitled to any legal character or any right to any property

(2) the defendant had denied or was planning or interested in denying the rights of the plaintiff

(3) the declaration asked for should be same as the declaration that the plaintiff was entitled to a
right

(4) the plaintiff was not in a position to claim a further relief than a mere declaration of his rights
which have been denied by the defendant.
But, it is not compulsory that even after the fulfilment of all the four essential conditions
required for declaration, the specific relief will be provided through a declaration to the plaintiff.
It is totally on the discretion of the court whether to grant the relief or not to the plaintiff. The
relief of Declaration or specific relief cannot be asked as a matter of right; it is a total
discretionary power which is in the hands of the court.

In the case of Maharaja Benares v. Ramji khan, it was declared that if the suit is filed and the
necessary party is absent then the court will dismiss the suit for the declaration. So, it is
necessary that both parties should be available. There is no specific rule to decide whether the
discretionary power of the courts should be granted or not, the discretionary power of the court is
being exercised according to the case and there are no specific criteria to decide in which cases
the court will exercise its discretionary power.

Essentials of a declaratory suit

There are a total of four essential elements considered for a declaratory Suitor for the valid suit
for Declaration and all the four elements are mentioned below.
• The plaintiff at the time of suit was entitled to any legal character or any right to any
Property.

• The defendant had denied or was planning or interested in denying the rights of the
plaintiff.

• The declaration asked for should be the same as the declaration that the plaintiff was
entitled to a right.

• The plaintiff was not in a position to claim a further relief than a mere declaration of
his rights which have been denied by the defendant.

Legal Character

We have talked about the requisites that a person should be entitled to the legal character. So,
what we mean about the Legal Character. Legal character is attached to an individual’s legal
status which shows the person’s capacity. Legal character by names itself denotes character
recognized by law. In the case of Hiralal v. Gulab, it was observed that variety of status among
the natural person, can be referred to the following listed causes i.e. Sex, minority, rank, caste,
tribe, profession and many more list.

Person Entitled to a Right to any Property

The second condition which is to be fulfilled by the Plaintiff for the successful relief of
Declaration or we can just say that for getting Special relief which should be related to Plaintiff
Right to Property. A person seeking special relief has a condition that they must have a right to
any property, only then they can go for special relief under Special relief Act, 1963. The Bombay
High Court has made a distinction in ‘Right to Property’ and ‘Right in Property’ and it has been
held that to claim and go for a declaration the Plaintiff need not show the right in Property. The
Plaintiff only has to show that he has Right to Property from which he has been denied.

Declaration asked should be the same as the declaration that the plaintiff entitled.

The third condition is to be fulfilled by the Plaintiff for the Declaration and for Special relief.
This is considered as essential because it is very necessary to look that the Plaintiff asking for the
declaration from the Court should be the same as the declaration to which the Plaintiff is entitled
under the right to any Property.

Cloud upon title

A dispute between the parties may relate either to a person's legal character or rights or interest
in the property. A cloud upon the title is something which is apparently valid, but which is in fact
invalid. It is the semblance of the title, either legal or equitable, or a claim of an interest in
property, appearing in some legal form, but which is in fact in founded, or which it would be
inequitable to enforce.

Consequential Relief

There may be real dispute as to the plaintiffs legal character or right to property, and the parties
to be arrayed, yet the court will refuse to make any declaration in favour of the plaintiff, where
able to seek further relief than a mere declaration, he omits to do so. The object of the proviso is
to avoid multiplicity of suits. What the legislature aims at is that, if the plaintiff at the date of the
suit is entitled to claim, as against the defendant to the cause some relief other than and
consequential upon a bare declaration of right, he must not vex the defendant twice; he is bound
to have the matter settled once for all in one suit.

Discretionary relief
Even though if the essential elements are established, yet it is discretion of the court to grant the
relief. The relief of declaration cannot be claimed as a matter of right. In cases where the
necessary parties are not joined the court can reject the suit for declaration. Under Section 34, the
discretion which the court has to exercise is a judicial discretion. That discretion has to be
exercised on well-settled principles. The court has to consider the nature of obligation in respect
of which performance is sought. No hard and fast rule can be laid down for determining whether
this discretionary relief should be granted or refused. The exercise of the discretion depends
upon the chances of each case. A remote chance of succeeding an estate cannot give a right for
obtaining a declaration that alienation by a limited owner is void.

Negative Declarations
A suit for a negative declaration may be maintained in a proper case, e.g., where it relates to a
relationship. Thus, a suit for a declaration that a person was not, or is not, the plaintiff's wife, and
the defendant not her son through him, may be maintainable. Similarly, a suit lies for obtaining a
negative declaration that there is no relationship of landlord and tenant between the plaintiff and
defendant. But where the rights of the plaintiff are not affected or likely to be affected, suit
simpliciter for a negative declaration is not maintainable. Such a suit would be regarding the
status of the defendant which, in no way, affects the civil rights of the plaintiff.

When suit for declaration is not maintainable

A suit for the declaration will not be maintainable under some circumstances which are to be
mentioned below.
i. In the case of a declaration that the Plaintiff did not infringe the defendant’s trademark.
ii. For a declaration that during the lifetime of the testator, the will is invalid.
iii. No one can ask for a declaration of a non-existent right of succession.
iv. A suit by a student against a university for a declaration that he has passed an
examination.

If any person is seeking for a mere injunction without seeking for any declaration of title to
which the Plaintiff is entitled so, then the suit will not be maintainable and will not be laid down
within its ambit. In the case of P. Buchi Reddy and Others vs. Ananthula Sudhakar, it was held
that the Plaintiff’s suit for a mere injunction without seeking a declaration of the title is not
maintainable.
‘Suit for a bare injunction’ is a condition where the suit is not maintainable because in the case
of the bare injunction, Plaintiff and Defendant both are claiming the title on which effective
possession cannot be proved. And the suit for bare injunction is not maintainable under Section
41(h) of the Specific Relief Act, 1963.
‘Suit for a bare injunction’ is a condition where the suit is not maintainable because in the case
of the bare injunction, Plaintiff and Defendant both are claiming the title on which effective
possession cannot be proved. And the suit for bare injunction is not maintainable under Section
41(h) of the Specific Relief Act, 1963.

Effect of Declaration
Section 35 makes it clear that a declaration made under this section does not operate a judgment
in rem. Section 35 says: “A declaration made under this chapter is binding only on the parties to
the suit, persons claiming through them respectively, and where any of the parties are trustees,
on the persons for whom, if in existence at the date of the declaration, such parties would be
trustees”.

Thus a declaratory decree binds-

(a) the parties to the suit;

(b) persons claiming through the parties;

(c) where any of the parties are trustees, on the persons for whom, if in existence at the date of
the declaration, such parties would be trustees. It is only the parties to the suit and the
representatives in interest, but not the strangers who are bound by the decree. By virtue of this
Section, a judgment is binding only if it is inter partes, which is not in rem, and does not operate
as res-judicata, may be admissible under Section 13 of the Evidence Act.
PREVENTIVE RELIEF
There are cases in which the nature of the contract does not admit of specific performance
nor damages are likely to serve any purpose. In such cases the court may have to restrain the
party threatening breach to the extent to which it is possible to do so. For example, a person
contracts to sing at a particular place and also undertakes not to sing elsewhere during the same
period threatens breach. The court cannot force him to sing as the positive side of the bargain is
not specifically enforceable. Undertaking not to sing elsewhere can be enforced by restraining
him from giving his performances elsewhere. When he is so prevented it may exert some
pressure upon him to go ahead with the performance of his contract. This type of remedy is
known as preventive relief. Preventive relief is granted by issuing an order known as injunction
upon the party concerned directing him not to do a particular act whereas for asking him to
perform a particular duty known as a mandatory injunction. Such relief is granted under the
provisions of Part III of the Specific Relief Act.
INJUNCTIONS
Burney defined injunction as, “a judicial process, by which one who has invaded or threatening
to invade the rights of another is restrained from continuing or commencing such wrongful act”.
The most expressive and acceptable definition is the definition of Lord Halsbury. According to
him, “An injunction is a judicial process whereby a party in an order to refrain from doing or to
do a particular act or thing”.
• Injunction acts in personam. It does not run with the property. For example, A secures
injunction against B forbidding him to erect a wall. A sells the property to C. The sale
carries with it the injunction against B.
• Injunction maybe issued against individuals, public bodies or even the State.
• Disobedience of an injunction attracts consequences of attachment/sale of property as per
Section 94(c) and Rule 2A of Order 39 of CPC.

Injunction has three characteristic features:

1. It is a judicial process.
2. The relief obtained thereby is a restraint or prevention
3. The act prevented or restrained is wrongful.

Kinds of Injunction
Preventive relief is granted at the discretion of the court by injunction that could be either
temporary or perpetual.(Section 36)

Temporary Injunction (Section 37)

Order XXXIX, Rules 1 and 2 of CPC governs the procedure for granting temporary injunction.

When injunction maybe granted

1. For the protection of interest in the property

This category will cover the following cases:

(a) That property in dispute is in danger of being wasted, damaged or alienated by any party to
the suit or wrongfully sold in execution of a decree; or
(b) That the defendant threatens to remove or dispose of his property with a view to defraud his
creditors; and
(c) That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit.”
2. Injunction to restrain, repetition or continuance of breach

In any suit for restraining the defendant from committing a breach of contract or other injury, of
any kind, whether compensation is claimed in the suit or not, the plaintiff may at any time after
the commencement of the suit and either after or before judgment, apply to the court for a
temporary injunction to restrain the defendant from committing the breach of contract or an
injury complained of, or any breach of contract or injury arising out of same contract.

Injunction is a discretionary relief

The power of the court to grant an injunction is a discretionary one i.e. it is not the right of an
individual to get the injunction. Section 36 expressly lays down that, “Preventive relief is granted
at the discretion of the court by an injunction, temporary or perpetual”.

Conditions to be fulfilled for grant of TI:

1. The plaintiff must be able to establish a prima facie case.

 He is not required to establish a clear title but a substantial question that requires to be
investigated and that matter should be preserved in the same status as it is until the
injunction is finally disposed of. The court must be satisfied that there is a bona fide
dispute raised by the applicant. The existence of a prima facie right and infraction of
such right is a condition precedent for grant of temporary injunction. The burden is on
the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima
facie case in his favour. In deciding a prima facie case, the court is to be guided by the
plaintiff's case as revealed in the plaint, affidavits or other materials produced by him.

2. An irreparable injury may be caused to the plaintiff if the injunction is refused and that
there is no other remedy open to the applicant by which he could protect himself from the
feared injury. The applicant must further satisfy the court about the second condition by
showing that he will suffer irreparable injury if the injunction as prayed is not granted,
and that there is no other remedy open to him by which he can protect himself from the
consequences of apprehended injury. In other words, the court must be satisfied that
refusal to grant injunction would result in 'irreparable injury' to the party seeking relief
and he needs to be protected from the consequences of apprehended injury. Granting of
injunction is an equitable relief and such a power can be exercised when judicial
intervention is absolutely necessary to protect rights and interests of the applicant. The
expression irreparable injury however does not mean that there should be no possibility
of repairing the injury. It only means that the injury must be a material one, i.e., which
cannot be adequately compensated by damages. An injury will be regarded as irreparable
where there exists no certain pecuniary standard for measuring damages.

3. The conduct of the plaintiff has not been blameworthy.

The plaintiff should come before the Court with clean hands. If he suppresses material
facts, documents then he is not entitled for the relief of injunction and further points of
balance of convenience, irreparable injury even not required to be considered in such
case.
 4. The balance of convenience requires that the injunction should be granted and
compensation in money would not serve an adequate relief.
The court must be satisfied that the comparative mischief, hardship or inconvenience which
is likely to be caused to the applicant by refusing the injunction will be greater than that
which is likely to be caused to the opposite party by granting it. It is to be noted that it
is a settled principle of law that if in a suit where there is no permanent injunction
sought for in the final prayer, ordinarily a temporary injunction cannot be granted. So,
the principles that govern the grant of a perpetual injunction would govern the grant of
a temporary injunction also.

Perpetual/Permanent Injunction
According t Section 37(2) permanent injunction can be granted only on the merits of the case and
it finally decides the rights of the parties whereas temporary injunction is granted on prima facie
case.

When is Perpetual Injunction granted?

According to Section 38 perpetual injunction may be granted to

1. To prevent the breach of an obligation existing in favour of the applicant, whether expressly
or by implication. This obligation may arise from either a tort, contract, trust or any legal
obligation. Illustration: Ram is a tenant at Shyam’s flat. Shyam has specifically asked Ram
to not displace the prayer room, as it had a gold statue of a deity. Ram wilfully disobeyed and
tried to remove the statue. Here, the court may grant a permanent injunction, in order for
Ram to fulfil the request of Shyam.
2. When any such obligation arises from contract, the court shall be guided by the rules and
provisions contained in Chapter II i.e., only in cases where contract is capable of specific
performance. Section 41(e) states that no injunction can be granted to prevent breach of a
contract that is not capable specific performance. But Section 42 states that where a contract
comprises of a positive act coupled with a negative agreement to not do an act, the court can
enforce the negative covenant although the positive act is not capable of specific
performance. Illustration: A contracts with B to sing for twelve months at B’s theatre and not
 to sing in public elsewhere. B cannot obtain specific performance of the contract to sing, but
he is entitled to an injunction restraining A from singing elsewhere.
3. Where the defendant is a trustee of the property for the plaintiff. Illustration: A, an advocate
comes in possession of his client B’s documents during employment. A threatens to
communicate the contents of the document to a third party/public. B may sue for an
injunction to permanently restrain A from doing so. An advocate is under an obligation in the
nature of trust not to disclose secrets of his clients.
4. Where there is no standard for ascertaining the actual damage caused, or likely to be caused,
to the plaintiff, by invasion of his rights. Illustration: the installation of an electric
transformer in front of the plaintiff’s land causing nuisance, hindrance and obstruction to free
access to the highway was restrained by issuing permanent injunction.
5. Where the invasion of the plaintiff’s right is such that compensation in money would not
afford adequate relief. Illustration: An injunction may be sought by an author of a book from
restraining a publisher from publishing the book without consent.
6. Where injunction is necessary to prevent multiplicity of judicial proceedings. Illustration:
Arya has 7 tenants, out of which, 5 tenants have failed to pay the rent for 5 months,
consecutively. She files a suit against all of them, with the same cause of action. The court
may allow an injunction, in order to prevent multiple proceedings, simultaneously.

Conditions for Section 38 to be applicable

1. There must be a legal right express or implied in favour of the applicant.

2. Such a right must be violated or there should be a threatened invasion.
3. It must be an existing right.
4. The case should be fit for the exercise of court’s discretion.
5. It should not fall within the sphere of the restraining provisions contained in or referred to in
Section 41 of the SRA, 1963.

Refusal of injunctive relief

As per sec 41 of specific relief act an injunction cannot be granted-

(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the
suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity
of proceedings:
Kukkala Balakrishna v. Vijaya Oil Mills, an immovable property was sought to be sold
(b) to restrain any person from instituting or prosecuting any proceeding in a court not
subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
Sangram Singh v State of U.P ,No injunction can be issued restraining any person or authority from
lodging an FIR. A temporary injunction cannot be issued where permanent is not possible.
(e) to prevent the breach of a contract the performance of which would not be specifically
enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be
a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust.
Where a wrong can be compounded in money, compensation will be an equally efficacious
relief. But in such a case if the defendant is an insolvent or a pauper a decree for damages would
be a mere mockery and therefore the court may grant injunction.
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the court. The clause incorporated the maxim: ‘He who comes to equity must come
with clean hands’. For example, in Premji Ratansey Shah v. UOI, it was held that no injunction
can be issued in favour of a trespasser or a person who has gained unlawful possession as against
the true owner.
(j) when the plaintiff has no personal interest in the matter.

Mandatory injunction
Section 39: When to prevent breach of an obligation it is necessary to compel the performance of
certain acts which the code is capable of enforcing, the court may in its discretion Grant an
injunction to prevent the breach complained of and also to compel performance of the requisite
act. The injunction which commands the defendant to do something is termed as a mandatory
injunction. Salmond defines mandatory injunction as “an order requiring the defendant to do a
positive act for the purpose of putting an end to a wrongful state of things created by him, or
otherwise, in fulfillment of the legal obligations, for example, and order to pull down a building
which he has already erected to the obstruction of the plaintiff’s lights”. Illustrations A, by new
buildings obstructs the light to the axis and use of which B has acquired a right under the Indian
Limitation Act, 1963. B may obtain an injunction, not only to restrain A from going on with the
buildings, also to pull down so much of them as obstructs B’s light. When a mandatory
injunction is granted under the section, two elements have to be taken into consideration: (i) the
court has to determine what acts are necessary in order to prevent a breach of the obligation; (ii)
the requisite acts must be such that the court is capable of enforcing them.

When is Injunction not granted:

Mandatory injunction will not be granted in the following cases:

a. The compensation in terms of money be would be an adequate relief to the plaintiff.
b. Where the balance of convenience is in favour of the defendant.
c. Where the plaintiff is guilty of allowing the obstructions to be completed before coming to
the court, i.e. where the plaintiff has shown acquiescence in the acts of the defendant. In the
case of Daniya Bai v. Jiwan, the sister constructed a house adjacent to that of her brother and
the brother actively participated in the construction activity and also allowed her to take
support of his wall. The court refused to order demolition since the brother never objected for
2 years and later changed his mind claiming demolition of the construction.
d. Where it is desired to create a new state of things. It can only be granted to restore status quo.
In Sheo Nath v. Ali, where the defendant constructed a structure which interfered with the
privacy of the plaintiff's house, he could not be ordered to erect a wall on the roof, so as to
prevent a view of the plaintiff’s house from the roof.

Damages in lieu of or in addition to injunction (Section 40)

Section 40 provides that the plaintiff in a suit for injunction under Section 38 or 39, may claim
damages either in addition to or in substitution for such injunction. The court may award such
damages only if it is included in his plaint. But where is suit in which damages were not claimed,
is dismissed, a subsequent separate suit for damages would not lie.
Difference between Temporary/Interim Injunction and Permanent/Perpetual Injunction

Temporary Injunction Permanent/perpetual Injunction

Order of the court passed during pendency of Granted by a decree made at the hearing and
suit. upon merits of suit.

Continues till specified time or until further Final settlement of mutual rights & directs a
order of the court. party to do or abstain from doing a thing for all
time.

Object and effect – preserve the property in Object and effect – give effect to and protect
dispute in status quo without concluding a the plaintiff’s right.
right.

Difference between Perpetual injunction and Mandatory injunction

Perpetual injunction Mandatory injunction

Granted to prevent breach of an obligation Compels the performance of certain acts.

existing in his favour, express or implied.
A duty is imposed upon the defendant to Court order to perform a positive duty.
abstain from doing something.
 References
Books
1. Avatar Singh, Law of Contracts & Specific Relief Act, 12th Edition (2017), EBC.
2. J. Beatson, Anson’s Law of Contract, 28th Edition (2002), OUP Oxford.
Journals
1. SCC Online.
2. Manupatra.