THE SPECIFIC RELIEF ACT,
1963
THE SPECIFIC RELIEF ACT,
1963.ACT NO. 47 OF 1963.An Act to define and amend the law relating to certain
kinds of specific relief.
[13th December, 1963.]
BE it enacted by Parliament in the Fourteenth Year of the
Republic of India as follows:-
PART
PRELIMINARY
PART I
PRELIMINARY
1.Short title, extent and commencement.
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 date 1* as the Central
Government may, by notification in the Official Gazette, appoint.
2.Definitions.
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 is 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.
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
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1 1st March, 1964; vide Notification No. S.O. 189, dated 13-1-1964, Gazette of
India, Pt. II, Sec. 3 (ii), p. 214.The Act shall come into force in the State
of Sikkim on 1.9.1984.vide Notifn. No. S.O.648 (E), dt. 24.8.84, Gaz. of India,
Exty.
Pt. II, Sec. 3 (ii).
616.(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
civilrights and not for enforcing penal laws.
4. Specific relief to be granted only for enforcing individual civil rights and
not for enforcing penal laws.-Specific relief can be granted only for the
purpose of enforcing individual civil rights and not for the mere purpose of
enforcing a penal law.
CHAPTER I
RECOVERING POSSESSION OF PROPERTY
5.Recovery of specific immovable 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 dispossessed of immovable property.
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-
(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.
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.
617.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
personsentitled to immediate possession.
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.Defences respecting suits for relief based on contract.
9. Defences 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.
CONTRACTS WHICH CAN BE SPECIFICALLY
ENFORCED
10.Cases in which specific performance of contract enforceable.
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
618.(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.
11.Cases in which specific performance of contracts connected with
trustsenforceable.
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 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.
12.Specific performance of part of
contract.
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 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 admiting of compensation in
money; or
(b) does not admit of compensation in money;
619.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), 1*[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.
(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 has ceased to exist at the
time of its performance.
13.Rights of purchaser or lessee against
person with no title orimperfect title.
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
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1 Ins. by Act 52 of 1964, s. 3 and Sch. II.
620.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.
CONTRACTS WHICH CANNOT BE SPECIFICALLY
ENFORCED
14.Contracts not specifically
enforceable.
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 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
621.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.
PERSONS FOR OR AGAINST WHOM CONTRACTS MAY BE SPECIFICALLY
ENFORCED
15.Who may obtain specific performance.
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 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.
16.Personal bars to relief.
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 purposes 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, notspecifically
enforceable.
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 from 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.
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
624.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 mis-representation, the written contract
of which performance is sought is in its terms 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 subsequenttitle.
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.
DISCRETION
AND POWERS OF COURT
20.Discretion as to decreeing specific performance.
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 lawful to do so; but the discretion of
the court is not
625.arbitary 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 inequitable to enforce
specific performance.
Explanation 1.-Mere inadequacy of consideration, or the mere fact that 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 the 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.
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 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 grant relief for possession,
partition, refund of earnestmoney, etc.
22. Power to grant relief for possession, partition, 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
1*[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
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1 Subs. by Act 52 of 1964, s. 3 and Sch. II, for "made to".
627.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
21.23.Liquidation of damages not a bar to specific performance.
23. Liquidation of damages not a bar to specific performance.-(1)
A contract, otherwise proper to be specifically enforced, may be so enforced,
though a sum be named in it 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 of 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 forspecific
performance.
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 plaintiffs 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
testamentarydirections 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.
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
628.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 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.
CHAPTER IV
RESCISSION OF CONTRACTS
27.When rescission may be adjudged or refused.
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.
629.(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 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 leaseof
immovable property, the specific performance of which has beendecreed.
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 egards 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 accrued 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 as 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.
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.
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.
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) If 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 office 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.
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 madewhen
instrument is cancelled or is succesfully resisted as being voidor voidable.
33. Power to require benefit to be restored or compensation to be made when
instrument is cancelled or is succesfully 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 to 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.
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:
632.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 some one who is not in existence, and for whom,
if in existence, he would be a trustee.
35.Effect of declaration.
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.
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CHAPTER VII
INJUNCTIONS GENERALLY
36.Preventive relief how granted.
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.
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.
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 plaintiffs 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.
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. Damages in lieu of, or in addition
to, injunction.
40. Damages 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.
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
634.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 matter;
(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 or 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.
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.[Repealed.]
43. [Amendment of Act 10 of 1940.] Rep. by Act 56 of 1974, s. 2.and Sch. I.
44.[Repealed.]
44. [Repeal] Rep. by s. 2 and Sch. I, ibid.
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