SPECIFIC RELIEF ACT, 1963
[Act No. 47 of Year 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: -
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.
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) 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, 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, have the meanings respectively
assigned to them in that Act.
3. Saving
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, on
documents.
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.
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.
6. Suit by persons 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.
Comment: The next question is : whether
the decree for possession could be granted in favour of the
appellant. It is true that the suit was not filed within six months
under Section 6 of the Specific Relief Act. But, as seen earlier,
the proceedings under S.145 were initiated at the instance of the
respondent Ram Gopal and were pending for long time until the
revision was dismissed by the High Court giving liberty to the
appellant to file the suit for possession. Under these
circumstances, the suit came to be filed immediately after the
proceedings came to a terminus, no doubt, after issue of notice to
the Government under Section 80 CPC and after expiry of 60 days time
required under S.80 CPC. Under these circumstances, it must be
concluded that in substance the suit is one under S.6 of the
Specific Relief Act. Beharilal v. Smt. Bhuri Devi, AIR 1997 SUPREME
COURT 1879
7. Recovery of specific movable property
A person entitled to the possession of
specific movable property may recover it in the manner provided by
the Code of Civil Procedure, 1908.
Explanation 1 : A trustee may sue under
this section for the possession of movable property to the
beneficial interest in which the person for whom he is trustee is
entitled.
Explanation 2 : A special or temporary
right to the present possession of movable property is sufficient to
support a suit under this section.
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.
CONTRACTS WHICH CAN BE SPECIFICALLY
ENFORCED
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 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.
11. 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.
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 by 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 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 a case
falling under clause (b), 2[pays or had paid] the consideration for
the whole of the contract without any abatement; and
(ii) in
either case, relinquished 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 apart
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 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.
CONTRACTS WHICH CANNOT BE SPECIFICALLY
ENFORCED
14. Contracts not specifically enforceable
(1) The
following contracts cannot be specifically enforced, namely,-
(a) a contract for the non-performance of which compensation
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, 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
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 vendor 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
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 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
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 of 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, 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 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
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 or fact or misrepresentation, 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
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
(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 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;
or
(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 party.
21. Power to award compensation in certain cases
(1) In a suit
for a 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.
(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 earnest money, etc.
(1)
Notwithstanding anything to the contrary contained in the Code of
Civil Procedure, 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.
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 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
testamentary directions to execute settlements
The provisions of this Chapter as to
contracts shall apply to awards to which the Arbitration Act, 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, 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. Where 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
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, 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 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 the 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 or 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) If the
instrument has been registered under the Indian Registration Act,
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
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 to him which justice may require.
(2) Where a
defendant successfully resists any suit on the grounds-
(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, 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 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.
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 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 in
junctions are such as are to continue until a specific 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.
(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 could 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. 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
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 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
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 circumstances 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 10 of 1940
[Repealed by the Repealing and Amending
Act, 1974 (56 of 1974)]
44. Repeal
[Repealed by the Repealing and Amending Act, 1974 (56 of 1974)]