THE SPECIFIC RELIEF ACT, 1963
(47
OF 1963)
[13th December, 1963]
An Act to define and
amend the law relating to certain kinds of specific relief.
Be it enacted by
Parliament in the Fourteenth year of the Republic of India as follows:-
Statement of
Objects and Reasons.-
This Bill seeks to
implement the recommendations of the Law Commission contained in the Ninth
report on the Specific Relief Act, 1877, except in regard to section 42 which
is being retained as it now stands. An earlier Bill on the subject introduced
in the Lok Sabha on the 23rd December, 1960, lapsed on its dissolution. The
notes on clauses extracted from the report of the Law Commission explain the
changes made in the existing Act.
PART
I
PRELIMINARY
1. Short title, extent
and commencement.-
(1) This Act may be
called THE SPECIFIC RELIEF ACT, 1963.
(2) It extends to the
whole of India except the State of Jammu and Kashmir.
(3) It shall come into
force on such date1 as the Central Government may, by notification
in the Official Gazette, appoint.
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1. Brought into force on
1-3-1964 vide Notification No. S.O. 189, dated 1-3-1964, see
Gazette of India, Pt. II, S.3(ii), p. 214. Enforced in Sikkim w.e.f. 1-9-1984 vide
Notification No. 529 (E), dated 22-7-1983.
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2. Definitions.-
In this Act, unless the
context otherwise requires,-
(a)
"obligation" includes every duty enforceable by law;
(b)
"settlement" means an instrument [other than a will or codicil as
defined by the Indian Succession Act, 1925 (39 of 1925)], whereby the
destination or devolution of successive interests in movable or immovable
property is disposed of or agreed to be disposed of;
(c) "trust" has
the same meaning as in section 3 of the Indian Trusts Act, 1882 (2 of 1882),
and includes an obligation in the nature of a trust within the meaning of
Chapter IX of that Act;
(d) "trustee"
includes every person holding property in trust;
(e) all other words and
expressions used herein but not defined, and defined in the Indian Contract
Act, 1872 (9 of 1872), have the meanings respectively assigned to them in that
Act.
3. Savings.-
Except as otherwise
provided herein, nothing in this Act shall be deemed-
(a) to deprive any person of any right to relief,
other than specific performance, which he may have under any contract; or
(b) to affect the
operation of the Indian Registration Act, 1908 (16 of 1908), on documents.
4. Specific relief to
be granted only for enforcing individual civil rights and not enforcing penal
laws.-
Specific relief can be
granted only for the purpose of enforcing individual civil rights and not for
the mere purpose of enforcing a penal law.
PART
II
SPECIFIC
RELIEF
CHAPTER
I
RECOVERING
POSSESSION OF PROPERTY
5. Recovery of
specific immovable property.-
A person entitled to the
possession of specific immovable property may recover it in the manner provided
by the Code of Civil Procedure, 1908 (5 of 1908).
6. Suit by person
dispossed 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 thereof.
7. Recovery of
specific movable property.-
A person entitled to the
possession of specific movable property may recover it in the manner provided
by the Code of Civil Procedure, 1908 (5 of 1908).
Explanation 1.-
A trustee may sue under
this section for the possession of movable property to the beneficial interest
in which the person for whom he is trustee is entitled.
Explanation 2.-
A special or temporary
right to the present possession of movable property is sufficient to support a
suit under this section.
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.
CHAPTER
II
SPECIFIC
PERFORMANCE OF CONTRACTS
9. Defence respecting
suits for relief based on contract.-
Except as otherwise
provided herein, 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.
10. Cases in which
specific performance of contract enforceable.-
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 the 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 is 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.
11. Cases in which
specific performance of contracts connected with trusts enforceable.-
(1) Except as otherwise
provided in this Act, specific performance of a contract may, in the discretion
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.
12. Specific
performance of part of contract.-
(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 s 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), 2[pays or has
paid] the consideration for the whole of the contract without any abetment; and
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2. Inserted by Repealing and Amending Act, 1964 (52 of
1964), S.3 and Sch. II.
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(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.
(4) 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 ceased to exist at the time of its performance.
13. Rights of
purchaser or lessee against person with no title or imperfect title.-
(1) Where a person
contracts to sell or let certain
immovable property having no title or only an imperfect title, the
purchaser or lessee (subject to the other provisions of this Chapter), has the
following rights, namely:-
(a) if the vendor or
lessor has subsequently to the contract acquired any interest in the property,
the purchaser or lessee may compel him to make good the contract out of such
interest;
(b) where the concurrence
of other persons is necessary for validating the title, and they are bound to
concur at the request of the vendor or lessor, the purchaser or lessee may
compel him to procure such concurrence, and when a conveyance by other persons
is necessary to validate the title and they are bound to convey at the request
of the vendor or lessor, the purchaser or lessee may compel him to procure such
conveyance;
(c) where the vendor
professes to sell unencumbered property, but the property is mortgaged for an
amount not exceeding the purchase money and the vendor has in fact only a right
to redeem it, the purchaser may compel him to redeem the mortgage and to obtain
a valid discharge, and, where necessary, also a conveyance from the mortgagee;
(d) where the vendor or
lessor sues for specific performance of the contract and the suit is dismissed
on the ground of his want of title or imperfect title, the defendant has a
right to a return of his deposit, if any, with interest thereon, to his costs
of the suit, and to a lien for such deposit, interest and costs on the
interest, if any, of the vendor or lessor in the property which is the
subject-matter of the contract.
(2) The provisions of
sub-section (1) shall also apply, as far as may be, to contracts for the sale
or hire of movable property.
14. Contracts not
specifically enforceable.-
(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 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 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.
15. 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 or 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 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.
16. Personal bars to
relief.-
Specific performance of a
contract cannot be enforced in favour of a person-
(a) who would not be
entitled to recover compensation for its breach; or
(b) who has become
incapable of performing, or violates any essential term of, the contract that
on his part remains to be performed, or acts in fraud of the contract, or
wilfully acts at variance with, or in subversion of, the relation intended to
be established by the contract; or
(c) who fails to aver and
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 the performance of which has been prevented or waived by the defendant.
Explanation.-
For the purpose of clause
(c),-
(i) where a contract involves the payment of
money, it is not essential for the plaintiff to actually tender to the
defendant or to deposit in Court any
money except when so directed by the Court;
(ii) the plaintiff must
aver performance of, or readiness and willingness to perform, the contract
according to its true construction.
17. Contract to sell
or let property by one who has no title, not specifically enforceable.-
(1) A contract to sell or
let any immovable property cannot be specifically enforced in favour of a
vendor or lessor-
(a) who, knowing himself
not to have any title to the property, has contracted to sell or let the
property;
(b) who, though he
entered into the contract believing that he had a good title to the property,
cannot at the time fixed by the parties or by the Court for the completion of
the sale or letting, give the purchaser or lessee a title free reasonable
doubt.
(2) The provisions of
sub-section (1) shall also apply, as far as may be, to contracts for the sale
or hire of movable property.
18. Non-enforcement
except with variation.-
Where a plaintiff seeks
specific performance of a contract in writing, to which the defendant sets up a
variation, the plaintiff cannot obtain the performance sought, except with the
variation so set up, in the following cases, namely:-
(a) where by fraud,
mistake of fact or misrepresentation, the written contract of which performance
is sought is in its term or effect different from what the parties agreed to,
or does not contain all the terms agreed to between the parties on the basis of
which the defendant entered into the
contract;
(b) where the object of
the parties was to produce a certain legal result which the contract as framed
is not calculated to produce;
(c) where the parties
have, subsequently to the execution of the contract, varied its terms.
19. Relief against
parties and persons claiming under them by subsequent title.-
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
transferee for value who has paid his money in good faith and without notice of the original contract;
(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;
(d) when a company has
entered into a contract and subsequently becomes amalgamated with another
company, the new company which arises out of the amalgamation;
(e) when the promoters of
a company have, before its incorporation, entered into a contract for the
purpose 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 communicated such acceptance to the other party
to the contract.
20. Discretion as to
decreeing specific performance.-
(1) The jurisdiction to
decree specific performance is discretionary, and the Court is not bound to
grant such relief merely because it is unlawful to do so; but the discretion of
the Court is not arbitrary but sound and reasonable, guided by judicial
principles and capable of correction by a Court of appeal.
(2) The following are cases
in which the Court may properly exercise discretion not to decree specific
performance-
(a) where the terms of
the contract or the conduct of the parties at the time of entering into the
contract or the other circumstances under which the contract was entered into
are such that the contract, though not voidable, gives the plaintiff an unfair
advantage over the defendant; or
(b) where the performance
of the contract would involve some hardship on the defendant which he did not
foresee, whereas its non-performance would involve no such hardship on the
plaintiff;
(c) where the defendant
entered into the contract under circumstances which though not rendering the contract voidable, makes it
inadequate to enforce specific performance.
Explanation 1.-
Mere inadequacy of
consideration, or the mere fact the the contract is onerous to the defendant or
improvident in its nature, shall not be deemed to constitute an unfair
advantage within the meaning of clause (a) or hardship within the meaning of
clause (b).
Explanation 2.-
The question whether the
performance of a contract would involve hardship on the defendant within there
meaning of clause (b) shall, except in cases where the hardship has resulted
from any act of the plaintiff subsequent to the contract, be determined with
reference to the circumstances existing at the time of the contract.
(3) The Court may
properly exercise discretion to decree specific performance in any case where
the plaintiff has done substantial acts or suffered losses in consequence of a
contract capable of specific performance.
(4) The Court shall not refuse to any party specific
performance of a contract merely on the ground that the contract is not
enforceable at the instance of the other party.
21. Power to award
compensation in certain cases.-
(1) In a suit for
specific performance of a contract, the plaintiff may also claim compensation
for its breach, either in addition to, or in substitution of, such performance.
(2) if, in any such suit,
the Court decides that specific performance ought not to be granted, but that
there is a contract between the parties which has been broken by the defendant,
and that the plaintiff is entitled to compensation for that breach, it shall
award him such compensation accordingly.
(3) If, in any such suit,
the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the
justice of the case, and that some compensation for breach of the contract
should also be made to the plaintiff, it shall award him such compensation
accordingly.
(4) In determining the
amount of any compensation awarded under this section, the Court shall be
guided by the principles specified in section 73 of the Indian Contract Act,
1872 (9 of 1872).
(5) No compensation shall
be awarded under this section unless the plaintiff has claimed such
compensation in his plaint:
Provided that where the
plaintiff has not claimed any such
compensation in the plaint the Court shall, at any stage of the
proceeding, allow him to amend the plaint, on such terms as may be just, for
including a claim for such compensation.
Explanation.-
The circumstance that the
contract has become incapable of specific performance does not preclude the
Court from exercising the jurisdiction
conferred by this section.
22. Power to rant
relief for possession, refund of earnest money, etc.-
(1) Notwithstanding
anything to the contrary contained in the Code of civil Procedure, 1908 (5 of
1908), any person suing for the specific performance of a contract for the
transfer of immovable property may, in an appropriate case, ask for-
(a) possession, or
partition and separate possession, of the property, in addition to such
performance; or
(b) any other relief to
which he may be entitled, including the refund of any earnest money or deposit
paid or 3[made by] him, in case his claim for specific performance
is refused.
(2) No relief under
clause (a) or clause (b) of sub-section (1) shall be granted by the Court
unless it has been specifically claimed:
Provided that where the
plaintiff has not claimed any such relief in the plaint, the Court shall, at
any stage of the proceeding, allow him to amend the plaint on such terms as may
be just for including a claim for such relief.
(3) The power of the
Court to grant relief under clause (b) of sub-section (1) shall be without
prejudice to its powers to award compensation under section 21.
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3. Substituted by the
Repealing and Amending Act, 1964 (52 of 1964), S.3 and Sch. II, for "made
to".
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23. Liquidation of
damages not a bar to specific performance.-
(1) A contract, otherwise
proper to be specifically enforced, though a sum be named in its as the amount
to be paid in case of its breach and the
party in default is willing to pay the same, if the Court, having regard to the
terms of the contract and other attending circumstances, is satisfied that the
sum was named only for the purpose of securing performance of the contract and
not for the purpose of giving to the party in default an option of paying money
in lieu to specific performance.
(2) When enforcing
specific performance under this section, the Court shall not also decree
payment of the sum so named in the contract.
24. Bar of suit for
compensation for breach after dismissal of suit for specific performance.-
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, as the case may be, but shall not bar his right to sue for any other
relief to which he may be entitled, by reason of such breach.
Enforcement
of awards and directions to execute settlements
25. Application of
preceding sections to certain awards and testamentary directions to execute
settlements.-
The provisions of this
Chapter as to contracts shall apply to awards to which the Arbitration Act,
1940 (10 of 1940), does not apply and to directions in a will or codicil to
execute a particular settlement.
CHAPTER
III
RECTIFICATION
OF INSTRUMENTS
26. When instrument
may be rectified.-
(1) When, through fraud
or a mutual mistake of the parties, a contract or other instrument in writing
[not being the articles of association of a company to which the companies Act,
1956 (1 of 1956), applies]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 such 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 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 tom amend the pleading on such terms as may
be just for including such claim.
CHAPTER
IV
RESCISSION
OF CONTRACTS
27. When rescission
may be adjudged or refused.-
(1) Any person interested
in a contract may sue to have it rescinded, and such rescission may be adjudged
by the Court in any of the following cases, namely:-
(a) where the contract is
voidable or terminable by the plaintiff;
(b) where the contract is
unlawful for causes not apparent on its face and the defendant is more to blame
than the plaintiff.
(2) Notwithstanding
anything contained in sub-section (1), the Court may refuse to rescind the
contract-
(a) where the plaintiff
has expressly or impliedly ratified the contract; or
(b) where, owing to the
change of circumstances which has been taken place since the making of the
contract (not being due to any act of the defendant himself), the parties cannot
be substantially restored to the position in which they stood when the contract
was made; or
(c) where third parties
have, during the subsistence of the contract, acquired rights in good faith
without notice and for value; or
(d) where only a part of
the contract is sought to be rescinded and such part is not severable from the
rest of the contract.
Explanation.-
In this section
"contract", in relation to the territories to which the Transfer of
Property Act, 1882 (4 of 1882), does not extend, means a contract in writing.
28. Rescission in certain circumstances of
contracts for the sale or lease of immovable property, the specific performance
of which has been decreed.-
(1) Where in any suit a decree for specific performance
of a contract for the sale or lease of immovable property has been made and the
purchaser or lessee does not, within the period allowed by the decree or such
further period as the Court may allow, pay the purchase money or other sum
which the Court has ordered him to pay, the vendor or lessor may apply in the
same suit in which the decree is made, to have the contract rescinded and on
such application the Court may, by order, rescind the contract either so far as
regards the party in default or altogether, as the justice of the case may
require.
(2) Where a contract is
rescinded under sub-section (1), the Court-
(a) shall direct the
purchaser or the lessee, if he has obtained possession of the property under
the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to
the vendor or lessor of all the rents and profits which have accured in respect
of the property from the date on which possession was so obtained by the
purchaser or lessee until restoration of possession to the vendor or lessor, and,
if the justice of the case so requires, the refund of any sum paid by the
vendee or lessee as earnest money or deposit in connection with the contract.
(3) If the purchaser or
lessee pays the purchase money or other sum which he is ordered to pay under
the decree within the period referred to in sub-section (1), the Court may, on
application made in the same suit, award the purchaser or lessee such further
relief a he may be entitled to, including in appropriate cases all or any of
the following reliefs, namely:-
(a) the execution of a
proper conveyance or lease by the vendor or lessor;
(b) the delivery of
possession, or partition and separate possession, of the property on the
execution of such conveyance or lease.
(4) No separate suit in
respect of any relief which may be claimed under this section shall lie at the
instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any
proceedings under this section shall be in the discretion of the Court.
29. Alternative prayer
for rescission in suit for specific performance.-
A plaintiff instituting a
suit for the specific performance of a contract in writing may pray in the
alternative that, if the contract cannot be specifically enforced, it may be
rescinded and delivered up to be cancelled; and the Court, if it refuses to
enforce the contract specifically, may direct it to be rescinded and delivered
up accordingly.
30. Court may require
parties rescinding to do equity.-
On adjudging the rescission of a contract, the Court may
require the party to whom such relief is granted to restore, so far as may be,
any benefit which he may have received from the other party and to make any
compensation to him which justice may require.
CHAPTER
V
CANCELLATION
OF INSTRUMENTS
31. When cancellation
may be ordered.-
(1) Any person against
whom a written instrument is void or voidable, and who has 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.
(2) f the instrument has
been registered under the Indian
Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its
decree to the officer in whose the instrument has been so registered; and such
officer shall note on the copy of the
instrument contained in his books the fact of its cancellation.
32. What instruments
may be partially cancelled.-
Where an instrument is
evidence of different rights or different obligations, the Court may, in a
proper case, cancel it in part and allow it to stand for the residue.
33. Power to require
benefit to be restored or compensation to be made when instrument is cancelled
or is successfully resisted as being void or voidable.-
(1) On adjudging the
cancellation of an instrument, the Court may require the party to whom such
relief is granted, to restore, so far as may be any benefit which he may have
received from the other party and to make any compensation ti him which justice
may require.
(2) Where a defendant
successfully resists any suit on the ground-
(a) that the instrument
sought to be enforced against him in the
suit is voidable, the Court may, if the defendant has received any benefit
under the instrument from the other party, require him to restore, so far as
may be, such benefit to that party or to make compensation for it;
(b) that the agreement
sought to be enforced against him in the suit is void by reason of his not
having been competent to contract under section 11 of the Indian Contract Act,
1872 ( 9 of 1872), the Court may, if the defendant has received any benefit under
the agreement from the other party, require him to restore, so far as may be,
such benefit to that party, to the extent to which he or his estate has
benefited thereby.
CHAPTER
VI
DECLARATORY
DECREES
34. Discretion of
Court as to declaration of status or right.-
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 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 some
one who is not in existence, and for whom, if in existence, he would be a
trustee.
35. Effect of
declaration.-
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.
PART
III
PREVENTIVE
RELIEF
CHAPTER
VII
INJUNCTIONS
GENERALLY
36. Preventive relief
how granted.-
Preventive relief is
granted at the discretion of the Court by injunction, temporary or perpetual.
37. Temporary and
perpetual injunctions.-
(1) Temporary injunctions
are such as are to continue until a specified time, or until the further order
of the Court, and they may be granted at any stage of a suit, and are regulated
by the Code of civil Procedure, 1908 (5 of 1908).
(2) A perpetual
injunction can only be granted by the decree made at the hearing and upon the
merits of the suit; the defendant is thereby perpetually enjoined from the
assertion of a right, or from the commission of an act, which would be contrary
to the rights of the plaintiff.
CHAPTER
VIII
PERPETUAL
INJUNCTIONS
38. Perpetual
injunction when granted.-
(1) Subject to the other
provisions contained in or referred to by this Chapter, a perpetual injunction
may be granted to the plaintiff to prevent the breach of an obligation existing
in his favour, whether expressly or by implication.
(2) When any such
obligation arises from contract, the Court shall be guided by the rules and
provisions contained in Chapter II.
(3) When the defendant
invades or threatens to invade the plaintiff's right to, or enjoyment of,
property, the Court may grant a perpetual injunction in the following cases, namely:-
(a) where the defendant
is trustee of the property for the plaintiff;
(b) where there exists no
standard for ascertaining the actual damage caused, or likely to be caused, by
the invasion;
(c) where the invasion is
such that compensation in money would not afford adequate relief;
(d) where the injunction
is necessary to prevent a multiplicity of judicial proceedings.
39. Mandatory
injunctions.-
When, to prevent the
breach of an obligation, it is necessary to compel the performance of certain
acts which the Court 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 acts.
40. Damage in lieu of,
or in addition to, injunction.-
(1) The plaintiff in a
suit for perpetual injunction under section 38, or mandatory injunction under
section 39, may claim damages either in addition to, or in substitution for,
such injunction and the Court may, if it thinks fit, award such damages.
(2) No relief for damages
shall be granted under this section unless the plaintiff has claimed such
relief in his plaint:
Provided that where no
such damages have been claimed in the plaint, the Court shall, at any stage of
the proceedings, allow the plaintiff to amend the plaint on such terms as may
be just for including such claim.
(3) The dismissal of a
suit to prevent the breach of an obligation existing in favour of the plaintiff
shall bar his right to sue for damages for
such breach.
41. Injunction when
refused.-
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;
(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 enforced;
(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;
(i) when the conduct of
the plaintiff of his agents has been such as to disentitle him to the
assistance of the Court;
(j) when the plaintiff
has no personal interest in the matter.
42. Injunction to
perform negative agreement.-
Notwithstanding anything
contained in clause (e) of section 41, where a contract comprises an
affirmative agreement to do a certain act,
coupled with a negative agreement, express or implied, not to do a
certain act, the circumstance that the Court is unable to compel specific
performance of the affirmative agreement shall not preclude it from granting an
injunction to perform the negative agreement:
Provided that the
plaintiff has not failed to perform the contract so far as it is binding on
him.
43. Amendment of Act 1
of 1940.-
[Repealed by Repealing
and Amending Act, 1974 (56 of 1974), section 2 and
Schedule I]
44. Repeal.-
[Repealed by Repealing
and Amending Act, 1974 (56 of 1974), section 2 and
Schedule I.]
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