BULLET NOTE - ENGLISH

PAHUJA LAW ACADEMY 
 
SPECIFIC RELIEF ACT 1963 
 
GENERAL INTRODUCTION 
 
MAINS QUESTIONS 
 
1. For  what  purposes  remedy  of  specific  relief  may  be  granted  under  the 
provisions of SRA, 1963? 
 
2. Whether the specific relief act is procedural law or substantive law. 
 
3. whether specific relief act applicable upon criminal law.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

PAHUJA LAW ACADEMY

SPECIFIC RELIEF ACT 1963

GENERAL INTRODUCTION

General Introduction:-

 Cause of action – existence of legal right and violation of legal right

 Based upon maxim ubi jus ibi remediam when there is a right there is
adequate remedy .e.g nuisance.

A B on rent
C NUISANCE
WHETHER C pays compensation is a adequate relief
Or court to grant injunction stop nuisance for future.

A CONTRACT B MUKHERJEE NAGAR PG

 The law of Specific Relief is generally based on principles of Equity.

 Equity represents the ‘Conscience of Law’ and a moral correction of law in
order to accord more with justice.
 In its primary sense, equity is fairness or natural justice.
 Equity means to do OR not to do all.

 
 

Specific Relief:-

 The law of Specific Relief aims at providing the remedy to the suitor in specie,
i.e. the very thing which is incidental upon the subject matter to do or refrain
from doing the thing.e. contract and injunction
 It provides for the exact fulfillment of an obligation or the specific performance
of the contract.
 Where pecuniary compensation is not adequate relief for the non- performance
of the contract, the specific relief may be granted.
 The Specific Relief Act, 1963 is based on the Ninth Report of the Law
Commission of India on the Specific Relief Act, 1877.
 Specific Relief is a discretionary remedy, i.e., the court is not bound to grant the
specific relief merely because it is lawful to do so or that the suitor has a right to
get such relief.
 However, the discretion of the court is not arbitrary or unreasonable but is
sound and reasonable.
 Specific Relief is the law of procedure as it supplements the procedure given
under the Code of Civil Procedure, 1908.
 Balance of convience –between both the paties
 Not used as a matter of right rather all speecif relief are discreation of the court
based upon the principle of equity justice and good conciense. 1 march 1964

Specific relief act 44 section

Part 1(1-4) Part 2(5-35)

part 3(36-44)

Possession of immovable property movable property

specific performance of contract,

injunction

rectification, recession and cancelation of instrument

and

declaratory decree

 
 

whether specific relief act is procedural law or substantive law-

 By Pollock and mulla - not give rise to cause of action.prelims

 But not provide manner of procedure.
 Substantive law-relief- complementary relief-of provide cause of action.
 Mains answer or interview –not pure procedural and pure substantive it is a
mixture of both

The bill seeks to implement the recommendations of the law commission contained
in its ninth report on the Specific Relief Act, 1877, except in regard to section 42
which is being retained as it now stand. 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.

The specific relief bill having been passed by both the houses of parliament
received the assent of the president on 13th December, 1963. It came on the statute
book as The Specific Relief Act, 1963 (Came into force on 1-3-1964).

The Act, called the Specific Relief Act, 1963, extends to the whole of India [The
words except the State of Jammu and Kashmir” omitted by Act 34 of 2019, S.
95 and the Fifth Schedule w.e.f. 31-10-2019]. [Section 1]

It comprises of initially Sections 1-44 (Sections 43 & 44 Repealed vide

Repealing Act 1974 w.e.f. 20.12.1974) and divided into three parts and eight
chapters. The present Act of 1963 replaces the old Act of 1877.
The Specific Relief Act provides for specific reliefs. Specific relief means relief of
a certain species, i.e., an exact or particular, a named, fixed or determined relief.

 
 

The term is generally understood as providing relief of specific kind rather than the
general relief of damages or compensation.
Civil justice in India provides two kinds of remedies:
(i) Those by which the suitor obtains the very thing which he is entitled and
(ii) Those by which the suitor does not obtain the very thing but compensation for
the loss of it.

The first is ‘specific relief’ and the second is ‘compensatory relief ’. Specific relief
is the remedy which aims at the exact fulfillment of an obligation or the specific
performance of the contract. It is in this sense distinguishable from the general
remedy which gives pecuniary compensation only. Where the aggrieved party can
be adequately compensated in money, he will get only a decree for damages and not
the equitable remedy of specific performance. But where pecuniary compensation
is no adequate relief for the non- performance of the contract, the specific
performance may be granted. Thus, specific performance is generally granted
where there exists no standard for ascertaining actual damage.

The law of specific relief is a part of the law of procedure, for specific relief is a form
of judicial redress. It is called ‘specific’ because under its procedure, the suitor gets
his relief in specie ('in kind') i.e. the very thing which the other party was bound to
perform or to forbear. For example, A agrees to sell a piece of land to B. B pays the
agreed price, but A refuses to execute the transfer deed. B has the right to have the
contract carried into effect by asking the court to compel A to perform the contract.

Specific relief has been evolved by courts of equity in England where there was no
common law relief or the relief granted by the common law courts was inadequate.
According to Sir Edward Fry:
“A perfect system of jurisprudence ought to enforce the actual performance of
contracts of every kind and class, except only when there are circumstances which
render such enforcement unnecessary or inexpedient and that it ought to be
assumed that every contract is specifically enforceable until the contrary is
shown”. “The law ought to assure me everything which is mine without forcing
me to accept equivalents even though I have no particular objection to them.”

Austin has pointed out that morally speaking there is an obligation on each party to
contract to fulfill the terms of the contract he has undertaken to perform, i.e., he
ought to keep his word. If therefore he fails to fulfill his promise to the other
party, that party should have-
a. the right to compel the specific performance thereof

 
 

b. a right to an injunction to prevent the obliger from ending the fulfillment of the
obligation
c. right of obtaining satisfaction in lieu of specific performance if he will
be content with compensation or if specific performance is not possible
d. right of obtaining specific performance in part with satisfaction or compensation
for the residue.

The courts of Equity besides numerous remedies also provide following remedies
a. specific performance
b. injunction
c. receivers
d. accounts
e. rectification of written instrument

PREAMBLE-AN ACT TO DEFINE AND AMEND THE LAW RELATING TO

CERTAIN KIND OF SPECIFIC RELEIF.

 
 

THE ACT IS NOT EXHAUSTIVE

The Supreme Court has held that the Specific Relief Act is not exhaustive enough
to contain the whole law on the subject. As the preamble would indicate, it is an
Act to define and amend the law relating to certain kinds of specific relief. It does
not purport to lay down the law relating to specific relief in all its ramifications,
although on a matter it defines, it might be exhaustive.

The remedies for non-performance of a duty are (1) compensatory, (2) specific.
The Specific Relief Act, 1963 purports to define and amend the law relating to
certain kinds of specific relief obtainable in civil courts. It does not deal with the
remedies connected with compensatory reliefs except as incidental and to a limited
extent.

CHAPTER - II
PRELIMINARY

Section 1 of the Act provides that, the Act is called the Specific Relief Act, 1963, and
it extends to the whole of India including the State of Jammu and Kashmir. The Act
came into force on March 1, 1964.

DEFINITIONS (SECTION 2)

Obligation - It includes every duty enforceable by law (Section 2(a)]

Settlement - It 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 (Section 2 (b)].
Trust - It has the same meaning as in Section 3 of the Indian Trusts Act, 1882
(Section 2(c)]
Trustee - It includes every person holding property in trust [Section 2(d)]
All other words and expressions used herein have the meaning assigned to them as
under the Indian Contract Act, 1872 (Section 2(e)].para material clause

 
 

SECTION 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, on documents.

As per section 4 of the Specific Relief Act 1963 Specific relief to be granted only for
enforcing individual civil rights and not for the enforcement of penal laws. The
object of the legislature is that the enforcement of a penal law should not be the sole
object of the specific relief, the real object being the protection of civil rights of a
suitor or prevention of a civil wrong to him. Where, however, the enforcement of a
penal law is merely ancillary or incidental to the grant of specific relief the court
will not necessarily refuse it.

The principle is that the Specific Relief Act has not been framed merely for the
purpose of providing a better remedy in the case of a criminal offence, but the
court lends its jurisdiction on the ground of injury to property.

Section 5 and section 6 sra limitation act article 64 and 65 and cpc 9

 
 

CHAPTER - II
SPECIFIC RELIEF

Recovery of possession of property is dealt with in sections 5 to 8 under chapter II of

the Act Property may be either:
A. immovable or
B. movable

The Act provides the mode to recover possession of property.

Possession is prima facie evidence of ownership. Possession ripens into title in course
of time by prescription. Sections 5 and 6 prescribe the two remedies to a person
dispossessed of immovable property. Sections 7 and 8 provide the law for seeing
possession of movable property.

Recovering Possession of Immovable Property

Section 5 lays down that a person entitled to the possession of specific immovable
property may recover it in the manner provided by the Code of Civil Procedure,
1908.

Person entitled

Ownership title possession e.g rent agreeement

LIMITATION PERIOD FOR FILING SUIT-

1. ARICLE 65 – INDIAN LIMITATION ACT- suit for possession of

immovable property on the basis of title is 12 years from the date
possession of defendant become adverse to the plaintiff.

ADVERSE POSSEION MEANS-person in permissive possession

and period is expired.e.g lease for 5 year thereafter even after notice
not vacating property.
 

 If not filed within 12 years than right extinguish under section 27 of

limitation.
 Section 5 r/w article 65+substantive law+ section 9 CPC.

A B FOR 5 YEARS on lease.

And adverse possession-a can file a suit ownership &

Women under maintenance possessory title- husband

not giving it to her- file suit for possession thereof.

Immovable Property-
The term 'immovable property is defined to include, unless there be
something repugnant in the context, land, benefits arising out of land,
and things attached to the earth or permanently fastened to anything
attached to the earth.

Recovery of Possession of Immovable Property-

 

Three types of actions can be brought in law for the recovery of specific
immovable property. These are:
(i) a suit based on title by ownership;
(ii) a suit based on possessory title; and
(iii) a suit based merely on the previous possession of the plaintiff,
where he has been dispossessed without his consent, otherwise than
in due course of law, the issue of title being irrelevant to the
proceedings.

According to section 5, Specific Relief Act, 1963, "a person entitled to

the possession of specific immovable property may recover it in the
manner provided by the Code of Civil Procedure, 1908.” It means that
when a person is entitled to the possession of specific immovable
property he can recover the same by filing a suit as provided by the
C.P.C. He may file a suit for ejectment on the basis of strength of his
title and get a decree for ejectment. Then he may execute the decree in
accordance with the provisions of C.P.C. He cannot take law in his own
hand and obtain possession of the property with force, even though he is
entitled to the same.
 

Section 6- Suit by person dispossessed of immovable

property.—
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he or
any person (through whom he has been in possession 2018
AMENDMENT) 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.

Suit by person dispossessed of immovable property (Section 6)

 

The law recognizes the sanctity of possession of immovable property

and expects that no one having possession will be dispossessed without
his consent and otherwise than in due course of law. Therefore,
irrespective of any question of title to the property if a person has been
dispossessed of immovable property without his consent and otherwise
than in due course of law, he will be entitled to recover the possession.

Section 6 of the Specific Relief Act, 1963 makes the following provision
in this regard.

Section 6 prescribes a special and summary remedy to help a person

dispossessed of immovable property. The essential requisites of a suit
under this section are:
(i) the person suing was in possession,
(ii) the person suing must have been dispossessed without his consent,
(iii) the dispossession must be of immovable property,
(iv) the dispossession must be otherwise than in due course of law, and
(v) the suit must be brought within a period of 6 months from the date of
dispossession.

Sub-section (2) of section 6 provides that No suit under Sec. 6 shall be

brought:
a. after the expiry of 6 months from the date of dispossession, or
b. against the Government;

Sub-section (3) of section 6 provides that neither appeal nor review

shall lie from any order or decree passed in any suit instituted under
this section.

Sub-section (4) of section 6 provides that, “Nothing in this section shall,

however, bar any person from suing to establish his title to such property
and to recover possession thereof”.

The object of section 6 is clearly to discourage forcible dispossession on

 

the principle that disputed right are to be decided by due process of law
and no one should be allowed to take the law into his own hands,
however good his title may be. The restoration of possession is without
prejudice to the ultimate rights of the parties, which must be determined
in a court of law. Section 6 does not in any way contemplate an enquiry
into title; the court is required to confine itself to evidence of possession
and possession only. The result is that even if the defendant has a better
title than the plaintiff, he cannot resist the plaintiff’s suit for recovery of
possession if the plaintiff proves the allegation made by him.

The dispossession should be without the consent of plaintiff;

In Sukhjeet Singh v. Sirajunnisa (AIIR 2001MP 59), the tenant handed

over possession of premises to the landlord for marriage of former’s son.
The landlord failed to hand over the possession again to the tenant after
his son’s marriage.

It was held that even though the tenant may have been deceived later on,
but since he handed over the possession of his total volition, he could
not claim the possession again under section 6, as the section was not
attracted in this situation.

Expression any person claiming through him under section 6 also includes
landlord since he continues to have legal possession over tenanted
property through his tenant. [Sadashiv Shyama Sawant v. Anita Anant
Sawant (Civil Appeal No. 1930 of 2010)]

The only duty on the court is to see that the person has been
dispossessed without due course of law. I.T.C limited v. Adarsh co-
operative housing society ltd. (2012) 8 LJ 188
 

A landlord may sue on behalf of the tenant, in case the tenant has been
dispossessed by any third party without following due course of law.
[Sadashiv Shyama Sawant v. Anita Sawant (2010) 3 SCC 385]

No suit for dispossession against the government

When a person has been dispossessed of the immovable property by the
State he cannot bring an action under the Specific Relief Act. The
plaintiff who was peacefully in possession was entitled to remain in
possession and only the State could evict him. Thus, a suit for regaining
possession under section 6 can be brought against a private person and
not the Government.

NAIR SERIVE SOCEITY V. K C ALEXENDER 1968 SC

WHETHER RELIEF OF SECTION 5 AND 6 BE CLUBBED

TOGETHR-
1. NO SECTION 6 PURPOSE –EXPEDITIA
REMEDY AND IF SECTION 5 INCLUDES
TITLE IT DECISION MAY GET DELAYED
2. INCONSISTENT DECREE-ONE WILL BE
TITLE AND OTHER ON THE BASIS OF
POSSESSION.

Section 6 does not bar a person from instituting a suit to established

his title to immovable property and to recover the possession to the

same-

The said section does not bar any person to bring a regarded the suit

founded upon his title in respect of the immovable property as to recover

possession thereof even though a suit instituted under sub-section (1) of

 

Section 6 of the said Act has been decreed against him. A regular suit for

title and recovery of possession maintainable in view of the language of

sub-section (4) of Section 6 of the said Act and the legislature did not

intend to give the proceeding under Section 6 (1) of the said Act in

character of finalise. The only point, which arises for determining in

such a suit whether the plaintiff was in possession within six months of a

dispossession. The defeated party can bring a suit for declaration his title

and for recovery of possession and it is his duty in the subsequent suit to

prove his title. If the plaintiff in the subsequent suit is in possession, that

is, the decree passed in the earlier suit to yet having been executed

against him, he can pray for maintainable of status quo and the Court in

the subsequent suit can pass an order restraining the defendants of the

subsequent suit from disturbing a possession of the plaintiff in the said

such it.

 IF THE PLAINTIFF DOES NOT FILE A SUIT UNDER

SECTION 6 WITHIN 6 MONTHS CAN HE FILE A SUIT

UNDER ARTICLE 64 LIMIIATION- YES. 12 years from the

 

date of dispossession under section 5 SRA because person entitled

to get possession.

 SHASHI PROPERTIES AND INDUSTRIES LTD V. SUNIL

AKASH SINHA (2004)-it was held by sc that in a suit plaintiff

cannot claim that he had the title to such properties even he had a

title he cannot claim on his plaint however if a opposite party claim

the title as a defence to the suit that he has a title than plaintif can

claim in his defence and raise his title.

 NO OTHER REMEDY CAN BE CLUBB TOGETHER AS IT

WILL DELAY THE PROCEEDING.

WHETHER COURT PASSED THE DECREE UNDER SECTION

6 ON THE BASIS OF POSSESSION WHETHER THE
DEFENDANT AN FILE SUIT AND PRINICIPLE OF RES
JUDICATA NOT APPLICABLE.

HALF COURT FEES FILED

 

NO OTHER RELIEF REQUIRED TO BE JOINED

Distinction between Section 5 and Section 6

 Under Section 5, a person entitled to the possession of specific
immovable property may institute a suit to recover it in the manner
prescribed by the Code of Civil Procedure. A suit under the provisions
of this section is therefore to be based on title. Section 6, however,
provides a summary remedy to the person dispossessed of immovable
property without establishing title.

 Under Section 6, all that the plaintiff has to prove is his previous
possession and dispossession by the defendant within a period of six
months from the date of suit. The remedy provided by Section 6 is
thus an additional/supplementary one and does not preclude the party
dispossessed to assert his title in the ordinary court of law Under
section 5 r/w article 65.

EXPEDETIA REMEDY AND TITLE BASED

RECOVERY OF MOVABLE PROPERTY SECTION 7 AND 8

SPECIFIC PERFORMSNCE OF CONTRACT

AND 9 AND 10
DEFENCES ALLOWED IN CASE OF SRA
2018 AMENDMENT CHANGES – DISCREATIONARY
MANDAYORY RELEIF
 Lecture -3
Recovery of possession of movable property
Recovering Possession of Movable Property

Sections 7 and 8 provide for the possession of movable property.

Section 7 lays down that a person entitled to the possession of specific
movable property may recover the same in the manner provided by the
Code of Civil Procedure.

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 entitled (Explanation 1).

A special or temporary right to the present possession of movable

property is sufficient to support a suit under this section (Explanation 2)

The right to recover the possession of specific movable property in a

manner provided by the CPC is available to a person entitled to the
possession of the same. It means that when the specific movable
property is not in possession of the person entitled thereto but the same
is in possession of some other person, the suit can be filed against the
person wrongfully detaining the same.

It may be noted that the remedy under section 7 can be invoked if, and
so long as, the plaintiff remains entitled to the possession of the goods. If
right to possession has expired the suit under section 7 is liable to be
dismissed.

A pledges certain jewels to B to secure a loan. B disposes of them before

he is entitled to do so. A, without having paid or tendered the amount of
the loan, sues B for the possession of the jewels. The suit should be
dismissed, as A is not entitled to their possession, whatever right he may
have to secure their safe custody.

Section 7 provides that recovery in specie (the property itself and not it’s
substitution in money). Temporary and special right is enough, provided
property must be ascertained and identified.

The person entitled to the possession may not be the owner of the goods.
If a person is entitled to the possession may recover certain goods as
agent, or bailee or trustee of those goods, he may recover the same.

Specific Movable Property

Property of every description except immovable property is movable
property. Government securities, share certificates are movable property,
but not money. For application of the section, it must be specific, i.e.,
ascertained and ascertainable; capable of being seized and delivered.
The remedy of recovery of specific movable property means the
property itself, and not its equivalent.

Section 8 in the Specific Relief Act, 1963

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.

Recovery of Specific Movable Property

Sections 7 and 8 embody the English rules as to detinue. An action in
detinue would lie only for some specific article of movable property
capable of being recovered in species, and of being seized and delivered
up to the party entitled. A person can seek recovery of his personal
belongings under this section. The cases in which movable property can
be recovered in specie are given in section 8. However, if the goods have
ceased to be recoverable, the remedy lies in compensation.

Under the hire purchase agreement, till such time as the ownership is not
transferred to the purchaser, the hirer normally continues to be the owner
of the goods, but that does not entitle him, on the strength of the
agreement, to take back possession of the vehicle by use of force. If any
action is taken for recovery in violation of the guidelines of the Reserve
Bank of India for repossession, or the principles laid down by the
Supreme Court, such action cannot but be struck down. Recovery must
be effected by due process of law and not by use of force.
A provision in the contract by which the hire purchaser had agreed not to
prevent or obstruct repossession of the hire purchase asset by the lender,
including by breaking open the hire-purchaser's premises was held to be
a void agreement being contrary to law, including section 7 of the
Specific Relief Act.

Who can Sue under this Section

To succeed under this section, it is sufficient if the plaintiff seeking
possession has a right to present or immediate possession, or by way of
special or temporary right to present possession, viz. that of a bailee,
pawnee, holder or lien, finder of lost goods. In terms of section 180 of
the Contract Act, the bailor or bailee would be entitled to bring a suit
against a third party who wrongfully deprives the use or possession of
goods bailed or does them any injury. A trustee can sue under this
section for possession of movable property to protect the beneficial
interest of the beneficiary; and it is not necessary to make the
beneficiaries, parties to the suit.

Illustrations

The following illustrations to the repealed section 10 of the 1877 Act are
examples of the various cases to which the procedure can be applied. So
far as they state or involve propositions of substantive law those
propositions have no special connection with the Act.

(i) A bequeaths land to B for his life, with remainder to C. A dies, B

enters on the land, but C, without B's consent, obtains possession of
the title deeds. B may recover them from C.
(ii) A pledges certain jewels to B to secure a loan. B disposes of them
before he is entitled to do so. A, without having paid or tendered the
amount of the loan, sues B for possession of the jewels. The suit
should be dismissed, as A is not entitled to their possession,
whatever right he may have to secure their safe custody.
(iii) A receives a letter addressed to him by B. B gets back the letter
without A's consent. A has such a property therein as entitles him to
recover it from B.

Remedy under the Code of Civil Procedure

Movable property can be recovered by filing a suit for the purpose under
the provisions of the Code of Civil Procedure, 1908. Where the Court
decrees delivery of such property, the decree shall also state the amount
of money to be paid as an alternative, if delivery cannot be had. This
does not preclude any person entitled to delivery of property, to sue only
for its value. The Court may also decree only value of the property
instead of ordering its delivery.

According to Section 8, 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 thing claimed,
(c) When it would be extremely difficult to ascertain the actual damage
caused by its loss (viz. rare pictures or articles of antiquity), and
(d) When the possession of the thing claimed has been wrongfully
transferred from the plaintiff (e.g. by a tort).

A, proceeding to Europe, leaves his furniture in charge of B as his agent

during his absence. B, without A’s authority, pledges the furniture to C,
and C knowing that B had no right to pledge the furniture, advertises it
for sale. C may be compelled to deliver the furniture to A for he holds it
as A’s trustee.
Essential of Section 8
1. The defendant should be in possession or control of a particular
articles;
2. Such article should be movable property, rather than immovable
property;
3. The defendant should not be the owner of such article, and
4. The plaintiff should be entitled to the immediate possession of such
article.

There may be a thing which may not have much intrinsic value, but by
reason of peculiar association have obtained in the eye of it’s holders a
value that cannot be estimated in money e.g. the family idol.

This section provides for the relief of specific delivery of movable

property at the instance of the plaintiff entitled to its immediate
possession from the defendant (any person other than its owner) having
possession or control of it, in four cases, viz
. where the defendant holds it as the trustee or agent of the plaintiff,
if compensation for its loss will not be an adequate relief, if the actual
damage caused by its loss is extremely difficult to ascertain, or when its
possession has been wrongfully transferred from the plaintiff. The
explanation provides for a presumption in two of these cases.

In Kizhakkumpurath v. Thanikkuzhiyil (AIIR 1998 KER 244) there

was oral and documentary evidence that the plaintiff was the owner of
certain scheduled items and the defendants had trespassed into those
items. The plaintiff was held entitled to recover those items from the
defendants, and also mesne profits or compensation as well.
Difference between Section 7 and Section 8
 Under Section 7 a person having temporary or special right to the
possession of specific movable property may sue even the owner of
the property; a suit under Section 8 is incompetent against the owner.
Section 7 provides general relief for the recovery of movables; Section
8 provides relief in special cases detailed above.
 Under Section 7 the suit may be for recovery of special movable
property or, in the alternative, for compensation. Under Section 8,
pecuniary compensation is not an adequate relief to the plaintiff for
the loss of the article and the relief prayed is for injunction restraining
the defendant from disposing of the article or otherwise injuring or
concealing it, or for return of the same.
 CHAPTER - IV
SPECIFIC PERFORMANCE OF CONTRACT

The subject of ‘specific performance’ is dealt in part II, chapter II from

(sections 9 to 25) of the Specific Relief Act, 1963 which may be
classified under following heads:
10 14 14 A 20 20 A 20 B 20 C 11

Discreationary power 2018 mandatory

a. Specific performance in respect of contract 10 and 12
b. Contracts which cannot be specifically enforced 14 and 14 A
c. Person for or against whom contracts may be specifically enforced 15
and 16
d. Substituted performance of contracts 20 2018 amendent
e. Enforcement of award and direction to execute settlements

Specific performance consists in the contracting party’s exact fulfillment

of the obligation which he has assumed - in his doing or omitting the
very act which he has undertaken to do or omit. Specific performance is
an equitable relief given by the court in cases of breach of contract, in the
form of a judgment that the defendant does actually perform the contract
according to its terms and stipulations. As it is an equitable relief, he
who seeks equity can be put on terms to ensure that equity is done to the
opposite party even while granting the relief. He who seeks equity shall
do equity. It may be noted that a claim for specific performance assumes
the existence of an actionable contract.
 

                                      LECTURE 4
CONTRACT WHICH CAN BE SPECIFICALLY ENFORCED
SECTION 10 ,11
AND WHICH CANNOT BE SPECIFICALLY ENFORCED SECTION
14
SUBSTITUTED PERFORMANCE OF CONTRACT AND OTHER
PART 2018 AMENDMENT

Specific Performance in Respect of Contract (Section 10)

The specific performance of a contract shall be enforced by the court
subject to the provisions contained in sub-section (2) of section 11,
section 14 and section 16.

Now the old provision of section 10 has been substituted by this new
provision which speaks that ‘the specific performance of a contract shall
be enforced by the court subject to the provisions contained in sub-
section (2) of section 11, section 14 and section 16’.

Mandatory enforcement of contract by specific performance:

Previously, specific performance of a contract was a remedy that courts

had the discretion to grant, only when, (i) the actual damage caused due
to the non-performance of the action could not be ascertained; or

(ii) when monetary compensation would not be adequate relief for the
non-performance of contract.

However, the Amendment Act now makes it mandatory for a court to

 
 

grant specific performance of a contract (including those relating to

performance of an action agreed to be done in performance of a trust),
unless:
(i) a contract was made by a trustee in excess of his powers or in
breach of trust;
(ii) (ii) the contract for which specific performance is sought, falls
with the categories of contracts specified in Section 14 of the SRA
or
(iii) (iii) specific performance is to be enforced in favour of a person
who falls within the category of persons listed in Section 16 of the
SRA .

Cases in which Specific Performance of Contracts Connected with

Trusts Enforceable
(Section 11)
Section 11 provides that
(1) Except as otherwise provided in this Act, specific performance of a
[contract shall], 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.

Before the amendment of 2018 section 11(1) read as ‘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’.

The discretionary power that was given to the court before the
amendment of 2018 is now been curtailed. Now after the enactment of
this Amendment Act the courts are bound to grant enforcement of ,
specific performance of the contract shall that is agreed to be done is in
the performance wholly or partly of a trust.

 
 

Subsection (2) of section 11 provides that A contract made by a trustee in

excess of his powers or in breach of trust cannot be specifically enforced.
A is a trustee of land with power to lease it for 7 years. He enters into a
contract with B to grant a lease of the land for 7 years, with a covenant to
renew the lease at the expiry of the term. This contract cannot be
specifically enforced. 

Contracts which cannot be Specifically Enforced SECTION 14

The following contracts cannot be specifically enforced, namely:

(a) where a party to the contract has obtained substituted performance of

contract in accordance with the provisions of section 20;
2018 AMENDMENT

(b) a contract, the performance of which involves the performance of a

continuous duty which the court cannot supervise;

The fundamental principle behind this Clause is that the court

cannot stop its normal functions for the purpose of giving effect to
the terms of a contract. Earlier under the Specific Relief Act, 1877,
the continuous duty which the court could not supervise was
considered over a period of 3 years which was later omitted under
the Act and thus at present there is no restriction on the time limit
for the performance of a continuous duty. Examples of contracts
which could come under the purview of Section 14(b) are contracts
of appointment of employees for continuous service, maintenance

 
 

contracts, contracts for transportation of heavy and large material on

consortium basis may also be affected by difficulty of supervision.

In Her Highness Maharani Shantidevi P Gaikwadv. Savjibhai Haribhai

Patel (2001 5 SCC 101), residential houses for the weaker sections of
the society were required to be constructed. The plaintiff and the
defendant got into the respective agreement regarding the construction.
But later, the defendant declared that the agreement and the affidavit-
cum-declaration are illegal and thus the plaintiff and defendant are
incompetent to get into the contractual obligations. Aggrieved, the
plaintiff had filed a decree for specific performance of the agreement
which was granted by both the trial court and the High Court. Later
when the defendants had sought redressal from the Supreme Court, the
appeal was granted, and the Supreme Court held that keeping in mind
the nature of the scheme and the facts and circumstances of the case, the
performance of this contract would involve continuous supervision
which is not possible. It further stated that "... it is extremely difficult, if
not impossible, to continuously supervise and monitor the construction
and thereafter allotment of such houses."

(c) a contract which is so dependent on the personal qualifications of the

parties that the court cannot enforce specific performance of its
material terms; and
(d) a contract which is in its nature determinable. E.G PARTNERSHIP
AT WILL.

The newly substituted Sec. 14 has reduced the categories of contracts that
are not specifically enforceable.

While the Amendment Act intends to prevent contracting parties from

avoiding performance of their contracts, the Amendment Act continues
to maintain the earlier position that contracts which are “determinable”
by their nature, cannot be specifically enforced. Over the years, courts
have interpreted that the mere presence of a termination provision in a

 
 

contract can mean that such a contract is determinable by their nature

(and hence not specifically enforceable). It remains to be seen whether
the existence of this provision even after the Amendment Act will impair
its intended objective.

The specific relief (Amendment) Act, 2018 also added a new provision
namely 14A which gives
 
 
 
 
Power to the court to engage experts, Section 14 A as 
(1) Without prejudice to the generality of the provisions contained in the
Code of Civil Procedure, 1908, in any suit under this Act, where the
court considers it necessary to get expert opinion to assist it on any
specific issue involved in the suit, it may engage one or more experts
and direct to report to it on such issue and may secure attendance of
the expert for providing evidence, including production of documents
on the issue.
(2) The court may require or direct any person to give relevant
information to the expert or to produce, or to provide access to, any
relevant documents, goods or other property for his inspection.
(3) The opinion or report given by the expert shall form part of the record
of the suit; and the court, or with the permission of the court any of
the parties to the suit, may examine the expert personally in open
court on any of the matters referred to him or mentioned in his
opinion or report, or as to his opinion or report, or as to the manner in
which he has made the inspection.
(4) The expert shall be entitled to such fee, cost or expense as the court
may fix, which shall be payable by the parties in such proportion,
and at such time, as the court may direct

 
 

Provision for ‘substituted performance’

Section 20 of the Specific Relief Act, 1963 provides the provision for
substituted performance the provision has been added through the Specific
Relief (Amendment) Act, 2018.

Substituted Performance of Contract (Section 20)

(1) Without prejudice to the generality of the provisions contained in the
Indian Contract Act, 1872 (9 of 1872), and, except as otherwise
agreed upon by the parties, where the contract is broken due to non-
performance of promise by any party, the party who suffers by such
breach shall have the option of substituted performance through a
third party or by his own agency, and, recover the expenses and other
costs actually incurred, spent or suffered by him, from the party
committing such breach.
(2) No substituted performance of contract under sub-section (1) shall be
undertaken unless the party who suffers such breach has given a
notice in writing, of not less than thirty days, to the party in breach
calling upon him to perform the contract within such time as specified
in the notice, and on his refusal or failure to do so, he may get the
same performed by a third party or by his own agency:

Provided that the party who suffers such breach shall not be entitled to
recover the expenses and costs under sub-section (1) unless he has got
the contract performed through a third party or by his own agency.
(3) Where the party suffering breach of contract has got the contract
performed through a third party or by his own agency after giving
notice under sub-section (1), he shall not be entitled to claim relief of
specific performance against the party in breach.
(4) Nothing in this section shall prevent the party who has suffered
breach of contract from claiming compensation from the party in
breach.

 
 

Section 20 of the amended Act permits a party suffering from a breach

of contract, to have the contract performed by a third-party or through its
agent and recover the costs and expenses incurred in substituting such
performance, from the defaulting party (unless agreed otherwise under
the contract). However, before substituting such performance, the non-
defaulting party will be required to provide a 30 days’ prior notice to the
defaulting party, requiring the latter to perform the contract within a
specified time frame and notifying the defaulting party that the non-
defaulting party intends to have the contract performed by substitution,
in case of defaulting party’s failure to perform the contract. In case a
non- defaulting party exercises the option of such substituted
performance, then, such party can no longer seek any specific
performance of contract; although such party will still be entitled to
claim damages (compensation) from the defaulting party on account of
the defaulting party’s breach of contract.
 
By introducing the remedy of ‘substituted performance’, the Amendment
Act has given statutory recognition to the concept of ‘Right to Cover’ in
contracts (usually an agreed contractual term between parties), which
allows an aggrieved party in case of non-performance of a contract, to
obtain performance from a third party and at the same time recover the
consequent costs or loss for such substituted performance from the
breaching party.” Parties, especially the government, also include ‘Risk
and Cost clauses that gave the government the right to recover such costs
and expenses.

Though a remedy akin to substituted performance is provided under the

Indian Contract Act, 1872 where, a non-defaulting party can buy the
goods or services elsewhere at an additional cost and such cost be
considered for calculating damages to be awarded, the award of damages
is circumscribed by tests of foreseeability and mitigation of losses. Also,
generally any indirect loss/cost incurred by a non- defaulting party does
not fall within the ambit of damages recoverable under Indian contractual
law. Hence the aggrieved party was not assured of covering all his
expenses. By providing the remedy of ‘substituted performance’, the

 
 

Amendment Act seeks to restore a non-defaulting party to the position it

would have otherwise occupied, but for the non-performance of contract.
The new provisions will give him the right to these expenses, and hence
the confidence of getting his work completed from a third person.

The newly substituted Section 20 provides an aggrieved party the option

of ‘substituted performance through a third party or by its own agency. It
is likely to deter the occurrence of the breach in a contract. Further, the
notice period of 30 days may result in parties choosing to perform or
renegotiate the contract thereby not only restoring relationships but also
reducing litigation.

Notably, substituted performance must actually be obtained prior to

promisee (non-defaulting party) recovering expenses of substituted
performance from the promisor (defaulting party). Thus, the costs
recovered from the defaulting party must be those actually incurred,
spent or suffered by the non- defaulting party. Therefore, where the costs
claimed from the defaulting party for ‘substituted performance’ exceed
the contract price leading to a dispute, the non-defaulting party would
need to prove in court (a) performance of the contract by a third party or
own agency; and (b) the quantum of actual costs incurred by such
‘substituted performance.’

Special provision for infrastructure project contracts [Section 20A]

The newly inserted Sec. 20A in the Act, bars courts from granting
injunction in a suit where the contract involved is related to
infrastructure projects listed in the newly inserted Schedule to the Act,
“where granting injunction would cause impediment or delay in the
progress or completion of such infrastructure project” (Section 20A(1)].

 
 

Given the significance of infrastructure projects in India, the amendment

grant special treatment to such projects. ‘Infrastructure project has been
defined to include scheduled categories of projects such as transport,
energy, water and sanitation, communication, social and commercial
infrastructure. ‘Infrastructure projects’ are thus listed in the Schedule to
the Act. The Amendment Act confers power on the Central Government
to amend the Schedule, “depending upon the requirement for
development of infrastructure projects, and if it considers necessary or
expedient to do so” [Section 20A(2)].

Special Courts [Section 20B]

“The State Government, in consultation with the Chief Justice of the
High Court, shall designate, by notification published in the Official
Gazette, one or more Civil Courts as Special Courts, within the local
limits of the area to exercise jurisdiction and to try a suit under this Act
in respect of contracts relating to infrastructure projects” [Section 20B).

The Amendment Act introduces “Special Courts” for trying suits

relating to infrastructure projects contracts. These Special Courts will be
Civil Courts which the State Government, in consultation with the Chief
Justice of the High Court, shall designate, by notification published in the
Official Gazette.

The establishment of Special Civil Courts would come as a much needed

respite to the existing civil courts that are already choked with pendency.

Expeditious Disposal of Suits for Specific Performance [Section 20C]

Section 20C as introduced by the Amendment Act- provides that suits
filed under the Act must be disposed within 12 months from the date of
service of summons to the defendant. Such a period is extendable by a
further period of 6 months, with the reasons for extension to be recorded

 
 

in writing.

SECTION 12,13,SPECIF PERFORMNCE OF THE PART OF

CONTRACT
15,16,17,18,19,21,22,23

 
 

LECTURE- 5
SPECIF RELEIF ACT
SPECIFIC PERFORMANCE OF PART OF CONTRACT SEC 12
SPECIFIC PERFORMANCE AGAINST VENDOR LESSE WHEN TITLE
DEFECTIVE SECTION 13

Specific Performance of Part of Contract (Section 12)

Section 12 provides that
(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 be a only a small
proportion to the whole in value and admits of compensation in
money, the court may, at the suit of either party, direct the specific
performance of so much of the contract as can be performed, and
award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part
of it, and the part which must be left unperformed either
(a) forms a considerable part of the whole, though admitting of
compensation in money; or
(b) does not admit of compensation in money;

he is not entitled to obtain a decree for specific performance; but

the court may, at the suit of the other party, direct the party in
default to perform specifically so much of his part of the contract
 

as he can perform, if the other party

(i) in a case falling under clause (a), [pays or has paid] the agreed
consideration for the whole of the contract reduced by the
consideration for the part which must be left unperformed and
in a case falling under clause (b) pays or has paid the
consideration for the whole of the contract without any
abatement; and
(ii) in either case, relinquishes all claims to the performance of the
remaining part of the contract and all right to compensation,
either for the deficiency or for the loss or damage sustained by
him through the default of the defendant.
(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.

As per general rule the court shall not direct the specific performance of
part of a contract (Section 12(1)] except in the following three cases in
Section 12,
(1) Unperformed small part –
(2) Where a party to a contract
(3) is unable to perform the whole of his part of it
(4) , but the part which must be left unperformed
(5) bears only a proportion to the whole in value
 

(6) and admits of compensation in money, the court may, at the suit of
either party,
(7) direct the specific performance of so much of the contract as can be
performed, and award compensation in money for the deficiency
(Section 12(2)].

A B specific performance of contract

100 ACRES

For instance, A contracts to sell to B a piece of land consisting of 100

bighas. It turns that out of 100 bighas, two bighas belong to a stranger,
who refuses to part with them. The two bighas are not necessary for the
use or enjoyment of 98 bighas, nor so important that the loss of them
may not be made good in money. A may be directed at the suit of B to
convey to B the 98 bighas and to compensate to him for the loss of two
bighas; or B may be directed at the suit of A to pay, on receiving the
conveyance and possession of the land, the stipulated purchase money,
less a sum awarded as compensation for deficiency.

(8) Unperformed large part –

 Where a party to a contract is
 unable to perform 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 (aggrieved
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 Cl.(a), pays or has
 

paid the agreed consideration for the part which must be left
unperformed and
 in a case falling under CI.(b), 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 rights to
compensation, either for the deficiency or for the loss or
damage sustained by him through the defendant’s fault (Sec.
12(3)].

A B FILES SUIT

Thus, if the purchaser relinquishes all claims to further performance and

all rights to compensation either for the deficiency or for the loss or
damage sustained by him, he can sue for specific performance. Therefore,
if in the above illustration the portion belonging to the stranger is 50
bighas and only 50 bighas belong to A, A cannot obtain a decree against
B for the specific performance of the contract, but if B fulfils the
condition laid down in sub-cls. (i) and (ii), he is entitled to a decree
directing A to convey those 50 bighas to him.

The words ‘unable to perform’ implies that the party cannot for any
reason perform the whole of what he has promised. The inability to
perform may arise by any cause whatsoever including statutory
limitations. The inability to perform may arise by deficiency in quantity of
the subject matter, variance in quality, defect in title, some legal
prohibition, or other causes. The expression ‘considerable part implies
that the unperformed part is either large as regards quantity or as regards
 

quality.

(9) Separate and independent part - 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 be specifically enforced, the court
may direct specific performance of the former part (Sec. 12(4)].

In a case where the purchaser asks for specific performance of a

smaller part of the contract as available, the court may either grant or
refuse it and in either case may award compensation to the plaintiff for
the non-performance of that performable part of the contract but not in
respect of the other part which had become incapable of performance
by the defendants, as the plaintiff ’s right to compensation in that
respect will be barred under Sec. 12 (Ram Prasad Sahu v Babu Kashi
Prasad Tewari, 1965 BLJR 214).

Where substantial part of the property contracted to be sold by the

defendant was rebutter and therefore the contract could not be
performed, and the plaintiff sought specific performance of the entire
contract and also claimed damages for non- performance, it was held
that the plaintiff was not entitled to specific performance of the contract
under Section 12 and he could only confine his claim to damages (Sri
Tribeni Debi Podder v Kedarnath Auddy AIR 1978 NOC 73, Cal].

Section 12 involves no question of public policy and hence parties to a

contract can and it is open to the parties to waive any benefit under a
contract except those rendered void by law (e.g. Section 28, Contract
Act). Therefore the parties can conclude an agreement not conforming to
Section 12.

Specific performance in part can be granted only if party is unable to

perform whole of its part and such part bears small proportion to whole
in value and admits compensation in money. Expression “unable to
perform” means that part of property is destroyed after contract or act of
 

God or act by which it would cease to exist. Inability to perform may

arise by deficiency in quantity of subject matter or some legal
prohibition or such other causes. Relief of part performance cannot be
granted where inability to perform arises because of plaintiff's own
conduct, Jaswinder Kaur v. Gurmeet Singh, (2017) 12 SCC 810.

Rights of Purchaser or Lessee against Person with Imperfect Title (Section

13)
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:

(a) If the vendor (seller/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;
R/W SECTION 43 TPA FEEDING IN GRANT OF ESTOPPEL

(b) Where the concurrence of (or conveyance by) other persons is

necessary for validating 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 concurrence (or 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 contract,
and the suit is dismissed on the ground of his want of title or
imperfect title, the defendant has a right to return of his deposit with
 

interest thereon, to his cost of the suit, and to a lien for such deposit,
interest, etc. of the vendor or lessor in the disputed property (Section
13(1)].

The provisions of Section 13(1) shall also apply, as far as may be, to
contracts for the sale or hire of movable property (Section 13(2)].

In Rajasara Ramji Bhai Dahyabhai v J.N. Lallubhai, (AIR 1986 SC

1912), an agreement for the sale of land was entered into between the
parties. The agreement stipulated that the vendor (seller) who was a
tenant of the agricultural land was to apply for permission from the
Collector to convert the land into village site, i.e. for non-agricultural
use. The sale-deed was to be executed by the vendor after he had
obtained the requisite permission from the Collector. The contract was
held not contingent but specifically enforceable, as there was no legal
impediment in this way in executing a sale-deed. There is always in such
contracts an implied covenant on the part of the vendor to do all things
necessary to give effect to the agreement, including the obtaining of the
permission for the transfer of the property.

SECTION 15 WHO OBTAIN SPECIF PERFORMANCE AND 16

PERSONAL BAR TO RELEIF ,
17
 

LECTURE 6
Person for or against Whom Contracts may be Specifically Enforced
Section 15 of the Act provides the list of person who may obtain
specific performance, the section read as follow
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

qualification 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/ principal shall not be entitled to specific
performance, unless such party has already performed his part of the
contract, or the performance thereof by his representative-in- interest/
principal has been accepted by the other party;

A B

REPRESENTATIVE IN ITEREST
SON
ASSIGNEE

A B
AGENT
C
PRINCIPLE ENFORCED AGAINST B
 

A B contract

C A’S DAUGHTER

shahrukh khan will perform my daughter marriage

unless A

SUPPOSE B SAID THAT SHAHRUKH IS BUSY ON THAT

SALMAN KHAN CAN PERFORM IF A’S REPRESENTATIVE
READY AND ACCEPTED THAN SPECIFIC PEFORMANCE
CAN BE DONE.

(c) any person beneficially entitled under a contract which is a settlement

on marriage, or a compromise of doubtful rights between members of
the same family;

A B
C DAUGHTER beneficial interest.

if your daughter married to my son than I will give transfer 100 acres
of land in her name.after marriage a not transfer.

C D F MAKES CONTRACT

THREE BROTHERS
 

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

A B C
Life time absolute interest

D contract
tenant

(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;

Not apply now-EARLIER WOMENS HAS ONLY LIMMITED

INTEREST UNDER HINDU LAW BUT NOW THEY HAVE
ABSOLUTE INTEREST IN PROPERTY

Reversioner in possession
A W for life than he dies than revert back toB

B BROTHER C CONTRACT
 

(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

reversioner in remainder
A W LIMITED INTREST

B BROTHER C CONTRACT violates the condition

(fa) when a limited liability partnership has entered into a contract and
subsequently becomes amalgamated with another limited liability
partnership, the new limited liability partnership which arises out of
the amalgamation.” [clause (fa) has been added through specific
relief (amendment) Act, 2018]

A B

NEW AMALDMATION LLP

(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 contract for the purposes of the company, and such
contract is warranted by the terms of the incorporation, the
 

company:

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

Section 16 provides Personal Bars to Relief (Section 16)

Specific performance of a contract cannot be enforced in favour of a
person-
a. who has obtained substituted performance of contract under section
20;
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 willfully acts at variance with, or in
subversion of, the relation intended to be established by the contract;
or
c. who fails to prove that he has performed or has always been ready and
willing to perform the essential terms of the contract which are to be
performed by him, other than terms of the performance of which 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 prove performance of, or readiness and

willingness to perform, the contract according to its true
construction.
 

This section gives grounds of defense based on plaintiff's conduct. In the

cases given in this section, the Court has regard to circumstances outside
the contract, and looks to the conduct of the plaintiff. The plaintiff's
conduct must be without blemish throughout for the grant of specific
relief. This provision imposes a personal bar.

Plaintiff’s Readiness and Willingness to Perform His Part-

The plaintiff in a suit for specific performance should always treat the
contract as still subsisting; he has to prove his continuous readiness and
willingness, from the date of the contract to the time of the hearing of
the suit, to perform his part of the contract and a failure to make good
that case would lead to a rejection of his claim for specific performance.
Thus, before granting specific performance the court has to see whether
the plaintiff has complied with the condition precedent laid down in
Section 16(c) which is based on the maxim “he who seeks equity, must
do equity (i.e. come to the court with clean hands)”.

Section 16 is a mandatory and imperative provision, because it reads that

specific performance of a contract cannot be enforced in favour of a
person who fails to aver and prove as laid down by it. The word ‘aver’
and the word ‘prove’ are entirely two different things. The word ‘aver’
means that it should be asserted or mentioned in the plaint. The word
‘prove’ indicates that the said averment, which is pleaded in the plaint,
must be proved by leading evidence, in the course of trial. The question
of proof would arise only if an averment is made in the plaint.

Grant of discretionary relief of specific performance- Principles

summarized.-
Specific performance cannot be enforced in favor of a person who fails
to prove that he has performed or was always ready and willing to
perform essential terms of contract which were to be performed by him.
 

Jurisdiction to decree a suit for specific performance is discretionary

jurisdiction. Court is not bound to grant such relief merely because it is
lawful. A party cannot claim that though he may not perform his part of
contract he is entitled for specific performance of same. It is incumbent
on party, who wants to enforce specific performance of contract, to aver
and prove that he has performed or has always been ready and willing to
perform essential terms of contract. Merely because plaintiff is legally
right, court is not bound to grant him relief. Court while exercising
discretionary power is bound to exercise the same on established judicial
principles and in reasonable manner. Discretion cannot be exercised in
arbitrary or whimsical manner. Even if contract is otherwise not
voidable but circumstances make it inequitable to enforce specific
performance, courts can refuse to grant such discretionary
relief, [Surinder Kaur v. Bahadur Singh, (2019) 8 SCC 575].

It is simply sufficient to mention in the plaint the various circumstances

showing the readiness and willingness of the plaintiff to perform his part
of the contract. But he must go further and allege in the plaint that he
was and is ever willing and ready to perform his part of the contract
(Palthur Honnur Saheb v Bopanna Annapurnamma AIR 1986 Kant
109). The mere sending a notice to the defendant for executing the
agreement in pursuance of the agreement cannot amount to averment in
the plaint that the plaintiff was always ready and willing to perform
(Sanawar Ali v Ram Kishore, AIR 1985 NOC 82, All).

Where the plaintiff has failed to aver in the plaint, an amendment of the
plaint could not be allowed,
firstly because a valuable right has accrued to the respondents and
secondly because the amendment seeks to bring out a cause of action in
the plaint which was conspicuous by its absence in the original plaint
(Prem Raj v D.L.F.H. & Co. Ltd. AIR 1968 SC 1355).

“Readiness and willingness cannot be treated as a strait-jacket formula.

These have to be determined from the entirety of facts and circumstances
relevant to the intention and conduct of the party concerned”
 

(Ramesh Chandra v Chuni Lal, AIR 1971 SC 1238; T. Mohan v

Kannammal, (2002) 10 SCC 82]-

Thus, the mere statement in the testimony that the plaintiffs were ready
to pay money and get the sale deed executed would not amount to
compliance of the requirement of Section 16(c), the plaintiffs having
made no averment at all in the plaint. Where the agreement of sale of a
house stipulated that within a period of 6 months the plaintiff had to
purchase stamp papers, tender the balance amount, and call upon the
defendants to execute the sale deed and deliver possession of the
property, but the plaintiff took no steps to perform his part of the
agreement for more than 2½ years, it was held that the plaintiff ’s conduct
(delay/ latches) clearly showed lack of readiness and willingness on his
part to perform his part of the contract, thus a decree for specific
performance of the contract could not be granted to him when the
defendants refused to execute the sale deed (K.S. Vidyanandan v
Vairavan, AIR 1997 SC 1751).

When Section 16(c) of the Act speaks of the requirements of an

averment in the plaint, it clearly deals with the principles governing the
law of pleadings and therefore it is a procedural provision. It will also be
apparent from the Explanation to Section 16 that all that the plaintiff has to
aver is his readiness and willingness to perform his part of the contract
“according to its true construction” and that if the remaining part of the
contract consists merely of payment of money, the plaintiff need not
actually tender the amount to the defendant or to deposit in court except
when so directed. It may be noted that Section 16(c) is procedural
something designed to facilitate justice and further its end, not a penal
enactment (Smt. Dipo v Wassam Singh, AIR 1983 SC 846).

Readiness and willingness- Principles summarized. –

Readiness is capacity for discharge of obligations with regard to

payment. Plaintiff must demonstrate readiness and willingness
 

throughout to perform his obligations.

For ascertaining readiness and willingness, conduct of parties must be

determined having regard to entire attending circumstances of each case.
Bare averment in plaint or statement made in examination-in-chief is not
sufficient. Conduct of plaintiff must be judged having regard to entirety
of pleadings and evidence brought on record.

Failure to deposit within time fixed by court is indicative of incapacity

of plaintiff to perform his obligations. Time can be extended to deposit
balance consideration but mere extension of time to deposit does not
absolve plaintiff of his obligation to demonstrate readiness and
willingness coupled with special circumstances beyond his control to
seek extension. For seeking extension of time for deposit of balance
consideration sufficient, substantial and cogent grounds must be
pleaded. Otherwise it becomes question of his conduct along with all
other attendant surrounding circumstances in facts of case. Merely
because suit is filed within prescribed period of limitation does not
absolve plaintiff from showing as to whether he was ready and willing to
perform his part of agreement. If there was non-performance, the
question would be whether that obstacle was put by seller or otherwise.
The provisions to grant specific performance are quite stringent.
Equitable considerations come into play. Court has to see all attendant
circumstances including if plaintiff conducted himself in reasonable
manner under agreement, [Ravi Setia v. Madan Lal, (2019) 9 SCC 381].

Readiness and willingness of plaintiff to perform his part of agreement

of sale of land must be decided with reference to conduct of parties,
attendant circumstances and evidence on record, [Narinderjit Singh v.
North Star Estate Promoters Ltd., (2012) 5 SCC 712 : (2012) 3 SCC
(Civ) 379]

Breach of agreement.—Vendee committing breach of agreement for

sale of immovable property, not entitled to decree of specific
performance of agreement. Failure of vendee to pay installments of sale
 

consideration within periods as stipulated in deed of sale agreement,

amounted to breach of terms of agreement. Hence, plaintiff vendee
disentitled to decree of specific performance, [Pemmada Pradhakar v.
Youngmen's Vysya Assn., (2015) 5 SCC 355 : (2015) 3 SCC (Civ) 56]

Some illustrations (Section 16)

(i) When the plaintiff has once repudiated the contract and elected to sue
for damages, he cannot thereafter claim specific performance of that
contract and treat the contract as if it were subsisting. Where,
therefore, a party to a contract of sale makes a claim for the refund of
the advance paid and also damages on the footing of its breach by the
other party, it would amount to a definite election on his part to treat
the contract as at an end and thereafter no suit for specific
performance would be maintained by him for by such election he has
disabled himself from making the averment that he had always been
ready and willing to perform his part of the contract [K.S.
Sundaramayyer v K. Jagadesan AIR 1965 Mad 85).
(ii) The readiness and willingness of a party to perform the essential terms
of a contract to be performed by him, has to be a ‘real’ readiness and
willingness, backed by the capacity to do so. A person who is
incapable of performing so cannot be said to be ready and willing to
perform it however much he may say that he is ready and willing to
perform it. Where one of the plaintiffs seeking enforcement of a
contract for re-conveyance of property on payment of Rs. 8,000 had
just attained majority and the other was yet a minor, at the time of the
institution of the suit and the plaintiffs had no means to pay the court
fees on the suit and were allowed to prosecute the suit in forma
pauperis till the very end, and willingness to pay sale consideration
was expressed as last alternative to their primary case that they were
not liable to pay sale consideration at all, the plaintiffs could not be
said to be ready and willing to perform their part of the contract (Har
Pratap Singh v Satya Narain Misra AIR 1980 All 52).
 

SECTION 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 moveable property.

The above provision may be understand through following illustrations-

(i) A without C’s authority, contract to see to B an estate which A knows
to belong to C. A cannot enforce specific performance of his contract,
even though C is willing to confirm it.
(ii) A, being in possession of certain land, contracts it to sell it to Z. On
enquiry it turns out that A claims the land as heir of B, who left the
country several years before, and is generally believed to be dead, but
of whose death there is no sufficient proof. A cannot compel Z
specifically to perform the contract.

Contracts to sell or let out property cannot be specifically enforced in

favour of sellers or lessors who have no title to the property. This section
corresponds with section 25 of the repealed Act, omitting clause (c) of
that section as unnecessary. Section 25 of the repealed Act applied to
movable property; however on the recommendation of the 9th Law
Commission, both sections 13 and 17 of the Act apply to immovable
property, with the inclusion of a specific sub-section making these
provisions applicable to movable property as well so that possible cases
where these provisions may apply (such as contracts relating to sale of
movables of special value) to movables can be covered by these
sections.
 

Please see comments under section 13 on the rights of purchasers to

specific performance of contracts where the vendor or lessor has no title
or imperfect title.

SECTION 18,19,21,22,23,24,25
 

Lecture -7
Specific performance of contract
Section 18-25

Section 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, with the variation so set up, in the following cases,
namely
(a)whereby fraud, mistake of 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.

(a) A, B, C sign a writing by which they purport to contract each to

enter into a bond to D for Rs 1000/-. In a suit by D to make A, B
and C separately liable each to the extent of Rs 1000/- they prove
that the word each was inserted by mistake; that the intention was
they should give a joint bond form Rs. 1000. C can obtain the
performance sought only with the variation thus set-up.

(ii) A sues B to compel specific performance of a contract in writing

to buy a dwelling house. B prove that he assumes that the contract
included an adjoining yard and the contract was so framed as to
 

leave it doubtful whether the yard was so included or not. The

court will refuse to enforce the contract, except with the variation
so set up by B.

The section provides for the cases where the plaintiff cannot obtain
specific performance without submitting to a variation set up by the
defendant. The direction for specific performance subject to the
variation will arise only where the defendant sets up the variation in
terms of this section. This section corresponds with section 26 of the
repealed Act, with some modifications, and additions, viz., clause (a)
now equally applies to cases of misrepresentation as well as fraud or
mistake, and the defendant can set up a variation where the contract is
different from what was agreed, not only in respect of its terms, but also
of its effect. The last part of clause (a) was reworded. A defendant is no
longer entitled to set up a variation arising out of surprise' or
'misapprehension' on his part.

Clauses (a) and (b) deal with defect or insufficiency in the document
arising out of the circumstances at the time of making the contract.
Clause (a) applies where the terms actually embodied in the document
are different from those which had been agreed to by the defendant,
clause (b) applies where the terms are literally those agreed upon, but in
substance or actual import they are different from what was intended by
the parties. The effect of the section in clauses (a) and (b) is that where
fraud, mistake of facts, or misrepresentation has induced the defendant
to sign an agreement, and the contract does not produce the intended
result, that agreement can only be enforced on the terms which the
defendant intended to agree to. A plaintiff cannot claim specific
performance of a contract with a variation set up by her in cases covered
by (a) and (b) above and in terms of section16, this would show that the
plaintiff was not ready and willing to perform the essential terms of the
contract.
 

Clause (c) on the other hand, deals with circumstances arising after the
contract has been made.
Where the defendant sets up a variation in the contract sought to be
performed, then the plaintiff may have the contract specifically
performed subject to the variation set up only in the circumstances
provided in section 18. Thus, where part of the property under the
agreement was inalienable since it was liable to acquisition under the
land ceiling law, the purchaser was not entitled to purchase part of the
land in such a situation which was not a variation covered by any of the
situations covered by section 18, even where the purchaser offered to do
so without deduction of the price.

Persons Against whom Contracts may be specifically Enforced (Sec. 19)

Section 19 of the Act provide the list of the persons against whom
contracts may be specifically enforced, accordingly ‘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;
(ca) when a limited liability partnership has entered into a contract and
subsequently becomes amalgamated with another limited liability
partnership, the new limited liability partnership which arises out of
the amalgamation [added through the Specific Relief (Amendment)
Act, 2018]
(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.

This section recognises and follows the general rule that a stranger to the
contract is not a proper defendant to a suit for its enforcement, unless his
case falls within clause (b) to (e), which give the exceptions to this rule.
The section applies only to suits to enforce specific performance, and
not to suits for possession of land between lessor and lessee. Section 19
is exhaustive on the question as to who are the parties against whom a
contract for specific performance may be enforced.

In a simple suit for specific performance of a contract for sale, a person,

who is not a party to the agreement for sale, is neither a necessary, nor a
proper party. The exceptions are:
(i) cases of novatio;
(ii) interests arising out of prior contracts; and
(iii) where it is necessary to join parties for avoiding multiplicity of
proceedings; viz., where the proposed defendant is in possession of
the property subject matter of the contract.

A suit filed by a plaintiff-purchaser under an agreement of sale against a

third party who has later obtained a registered sale deed of the same
property, seeking registration of his own sale, for possession and
declaration as to nullity of the sale deed of the third party, is really a suit
for specific performance under this section.

Specific Enforcement against a Subsequent Transferee A contract can be

specifically enforced against a person other than a party thereto. Sec.
19(b) lays down a general rule that the original contract may be
specifically enforced against subsequent transferee, but allows an
exception to that general rule not to the transferor, but to the transferee to
establish the circumstances which will allow him to retain the benefit of
 

a transfer which prima facie he had no right to get. However, for that it is
necessary that the transferee has paid money in good faith and he should
have done so without notice of the original contract.

No Compensation in Substitution of Specific Performance [Section

21]
Section 21 of the Act provides the power to award compensation in
certain cases the provision has been amended by the Specific Relief
(amendment) Act, 2018, prior to the amendment the section read as
follow

Section 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 [in addition to] such performance.
(Subs. for “either in addition to, or in substitution of,” w.e.f. 1-10-
2018).
(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 circumstances that the contract has become incapable

of specific performance does not preclude the court from exercising the
jurisdiction conferred by this section.

By an amendment to Section 21 of the Act, compensation can no longer

be sought in substitution of specific performance. However,
compensation can be sought in addition to specific performance.

The amendment to Section 21 takes away the right of a party seeking

specific performance from claiming compensation instead of specific
performance. Previously, under the Act of 1963, when the court refuses
to grant specific performance on grounds given in the law (some of
which the amendment recognizes), a plaintiff can pursue his claim for
compensation. This is now not possible under the amendment. The
plaintiff loses his right because the Civil Procedure Code prevents him
from bringing another suit. Such a plaintiff remains without a remedy.

The plaintiff has to claim for such compensation specifically.

Case Laws
Compensation in lieu of specific performance.-Vendee under agreement
to sell entitled to compensation in lieu of specific performance, where
agreement to sell of immovable property becoming incapable of being
performed due to acquisition of that property by Government under LA
Act, 1894 paid by State for acquisition, [Urmila Devi v. Mandir Shree
Chamunda Devi, (2018) 2 SCC 284].
 

In M/S Pearl Developers Pvt Ltd vs M/S Universal Land And Finance
Co on 8 October, 2018, citing with approval Shamsu Suhara Beevi v
G. Alex & Anr (2004) 8 SCC the court held, in view of the express
language of Section 21 (5) of the Specific Relief Act, 1963 no
compensation could be awarded unless the same had been claimed in the
plaint.

Power to Grant Relief for Possession, Partition, Refund of Earnest

money-
Section 22 of the Act provides to grant for possession, partition and
refund of earnest money etc. according to section 22
(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 made to him, in case his
claim for specific performance is refused.
(2) No relief under 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 the
court shall allow him to amend the plaint at any stage of the proceeding
to clam 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.

It may be seen that sub-section (1) is an enabling provision. A plaintiff

 

in a suit of specific performance may ask for further reliefs mentioned in

clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and
partition and separate possession of the property, in addition to specific
performance. The mandate of sub-section (2) of Section 22 is that no
relief under clauses (a) and (b) of sub-section (1) shall be granted by the
Court unless it has been specifically claimed. Thus it follows that no
court can grant the relief of possession of land or other immovable
property, subject-matter of the agreement for sale in regard to which
specific performance is claimed, unless the possession of the immovable
property is specifically prayed for. In the instant case the suit is for
specific performance of agreement for sale of the suit property wherein
relief of delivery of the suit property has not been specifically claimed as
such it cannot be treated as a suit for land. [M/s. Aditya Real Estates v.
P. Baskar, on 7 March, 2018].

It is a settled position of law that once the bargain to sale/purchase of

any land fails, the unsuccessful buyer becomes entitled in law to claim
refund of earnest money from the seller under section 22 of the Act.

The Hon'ble Supreme Court though held that in a Suit for Specific
Performance of Contract for Sale of immovable property containing
stipulation that on execution of a Sale Deed, the possession of the
immovable property will be handed over to the purchaser, it is implied
that delivery of possession of the immovable property is part of the
Decree of Specific Performance of contract. But in view of the mandate
of sub-section (2) of Section 22 of the Specific Relief Act, no relief
under clauses (a) & (b) of sub-section (1) shall be granted by the Court
unless it has been specifically claimed and therefore, in a Suit where the
prayer is for Specific Performance of Agreement of Sale, without a
prayer for delivery of possession, the Suit cannot be treated as 'Suit for
land' and the Suit is simpliciter for Specific Performance of a Contract
for Sale and it is a Suit for enforcement of terms of contract and the title
to the land as such is not the subject matter of the Suit.

It is further held that as per Section 22(2) of the Specific Relief Act,
 

1963, no relief under clauses (a) & (b) of sub-section (1) of Section 22,
shall be granted, unless it has been specifically claimed and therefore,
without asking for the relief of possession, the same cannot be granted
without amending Plaint. [Adcon Electronics Ltd. v Daulat, (2001) 7
SCC 698]

Section 22 enacts a rule of pleading. The legislature thought it will be

useful to introduce a rule that in order to avoid multiplicity of
proceedings the plaintiff may claim a decree for possession in a suit for
specific performance even though, strictly speaking, the right to
possession accrues only when specific performance is decreed.
Possessory relief mentioned in Section 22(1)(a) is dependent upon and
flows from passing of a decree for specific performance of an agreement
to transfer an immovable property, it cannot be considered as a separate
and distinct one but only ancillary or consequential one (Smt. Dhiraj
Bala v Jethia Estate Pvt. Ltd., AIR 1983 Cal 166).

Refund of earnest money.-Unsuccessful buyer entitled to claim refund of

earnest money, [Revanasiddayya v. Gangamma, (2018) 1 SCC 610].

Court is barred to grant relief of possession in a suit for specific

performance unless prayer for delivery of possession is specifically
sought or is present by necessary implication from nature of relief
prayed for, [Excel Dealcomm (P) Ltd. v. Asset Reconstruction Co.
(India) Ltd., (2015) 8 SCC 219]
Suit for land is a suit in which relief claimed relates to title or delivery of
possession of land or immovable property. To determine if a suit is for
land, court has to look into the plaint and no other evidence. If by
averments in plaint and prayers therein, it appears that said suit is one
for land, it shall be so held, [Excel Dealcomm (P) Ltd. v. Asset
Reconstruction Co. (India) Ltd., (2015) 8 SCC 219].

Liquidation of Damages Not a Bar to Specific Performance (Sec. 23)

Section 23 of the Act provides the provision for the Liquidation of
 

Damages Not a Bar to Specific Performance

a. 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.
b. When enforcing specific performance under this section, the court
shall not also decree payment of the sum so named in the contract.

Sometimes while making a contract the parties may agree to the

payment of liquidated damages, i.e., a specified sum of money in the
event of a breach of contract by a party thereto. Even though a sum be
named in the contract to be paid in the event of breach of contract by a
party thereto, the court may grant specific performance of the contract,
when it is considered proper by the court to grant the relief of specific
performance. While granting such relief the Court is to be satisfied that
the sum was so named 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.

Section 23(2) makes it clear that when the Court grants specific
performance under Section 23(1), it shall not decree additionally
payment of sum of money named in the contract. In such cases the court
cannot grant both reliefs viz., Specific performance as well payment of
compensation amount stipulated in the contract. When a certain sum by
way of compensation in the event of breach of contract is agreed to be
paid to secure performance of the contract, the decree for specific
performance will be enough to meet justice in such a case and, therefore,
the relief by way of award of compensations either as additional or
alternative relief shall not be granted.

The above mentioned provision may be explained through the following

 

illustration:
A, contracts to grant B an under-lease of property held by A under C,
and that he will apply to C for a license necessary to the validity of the
under-lease and that, if the license is not procured, A will pay B
Rs.10,000. A refuses to apply for the license and offers to pay B the
Rs.10,000, B is nevertheless entitled to have the contract specifically
enforced if C consents to give the license.

Thus, according to Section 23, there is no bar to a decree for specific

performance if there is a clause in the contract that in the event of its
breach or non-performance a sum of money specified therein is to be
paid. If the circumstances show that compensation was fixed in order to
secure performance and not to allow the defaulting party an option to pay
compensation, the court may allow specific performance. Thus, where
the plaintiff was willing and able to perform his part of the agreement
for the sale of orchard, it was held that such plaintiff was entitled to
specific performance despite the existence of a penalty clause providing
for payment of Rs.10,000 by the party violating the terms and conditions
of agreement (Manzoor Ahmed v Ghulam Hassan, (1999) 7 SCC 703).

Bar of Suit for Compensation for Breach after Dismissal of Suit for
Specific Performance (Section 24)
 

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.

The section provides that where a plaintiff brings a suit for specific
performance, the dismissal of such suit:
(i) shall bar his right to sue for compensation for the breach of such
contract or part thereof; but
(ii) shall not bar his right to sue for any other relief to which he may be
entitled by reason for such breach.
This section corresponds with section 29 of the repealed Act with verbal
alterations.

Dismissal of Suit for Specific Performance

Section 21 makes it compulsory for a plaintiff to claim compensation in
the suit for specific performance, and the fact that this section bars any
separate suit for compensation appears to be redundant, but seems to
have been enacted as a caution.

No Bar to Suit for Any Other Relief Arising by the Breach

The bar under this section extends only to a suit for compensation for
breach. The latter part of the section has been incorporated because of
section 22, which enables a plaintiff to ask for possession or partition
and separate possession, as well as refund of earnest money or deposit.
These reliefs may be granted in the suit for specific performance, if
asked for; and if not asked for, a separate suit will still lie. Even under
section 29 of the repealed Act it had been held a subsequent suit for the
return of earnest money, or the price paid was not barred.

Section 24 of the Act states that 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. It is clear from this provision
that if the plaintiff is entitled for refund of the earnest money, he is not
barred from filing a fresh suit for the said relief.

As per this section 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.

When the plaintiff claims both the remedies, viz. suit for specific
performance and suit for damages in one suit, he does not real the
contract to be at an end. But where the plaintiff has once repudiated the
contract and elected to sue for damages, he cannot thereafter claim
specific performance of that contract as the contract is taken to be no
longer subsisting to be enforced (Ram Prasad v Babu Kashi Prasad
Tewari, 1965 BLUR 214].

The circumstances that a plaintiff is not entitled to or is ineligible to the

relief of specific performance are not conclusive against his right to
recover damages on account of breach of contract. In other words, a
plaintiff can be granted damages on account of breach of contract in a
suit for specific performance provided there is the necessary averment in
the plaint either initially or by amendment subsequently praying for the
relief of damages [John v Mammotty, AIR 1985 Ker 120].

Enforcement of Awards and Directions to Execute Settlement

Section 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
 

and Conciliation Act, 1996 (26 of 1996), does not apply and to
directions in a will or codicil to execute a particular settlement.

The Arbitration and Conciliation Act, 1996 now not applies to all
arbitrations, including those under statute.

Testamentary Directions or Settlements

Under English Law, testamentary directions to execute a settlement
operate by way of a trust and are not considered under the head of
specific performance, though the Court does, in the course of
administering estates and otherwise, direct them to be specifically
carried out. All equitable jurisdiction rests on the power of issuing
specific orders.
 

Lecture 8
Rectification, rescission and cancelation

CHAPTER - V
RECTIFICATION OF INSTRUMENTS

Rectification means correction of an error in an instrument in order to

give effect to the real intention of the parties. Where a contract has been
reduced into writing, in pursuance of a preious engagements and the
writing, owing to fraud or mistake, fails to express the real intention of
the parties the court will rectify the writing instruments in accordance
with their true intention. Rectification basically consists in bringing the
document in conformity with the actual prior agreement, and without
agreement there is no rectification.

Who can apply for rectification.-

The following persons may apply for rectification:
(a) Either party or his representative in interest;
(b) The plaintiff in any suit;
(c) A defendant in such suit.

Conditions necessary-

The conditions necessary for obtaining rectification are:

1. There must have been a complete agreement reached prior to the

written instrument which is sought to be rectified. There must be two
distinct stages:
(i) an agreement, verbal or written, which clearly expresses the final
intention of the parties, and
(ii) an instrument which purports to embody that intention.
 

2. Both the parties must have intended, and must still intend, that the
exact terms of the prior contract should be reduced to writing.

3. Clear evidence of mistake common to both parties or of fraud.

Principle.- “The principle on which the court acts in correcting

instruments is that the parties, are to be placed in the position they would
have stood if no error had been committed.

RECTIFICATION OF INSTRUMENTS & SPECIFIC

PERFORMANCE
WITH VARIATION-DISTINGUISHED

This remedy is to be distinguished from similar equitable remedies. On

the one hand it is to be distinguished from the relief granted to a
defendant, in a suit for specific performance by way of variation from
the contract on the ground of fraud or mistake. The remedy of specific
performance with a variation is available where fraud or mistake goes to
the root of the agreement and vitiates the contract itself whereas
rectification assumes that there exists a valid contract but the writing has
failed to express the intention either from fraud or mutual mistake. Thus
the remedy of rectification relates only to cases of mistake in expression
only as distinguished from the contract itself. “Courts of Equity do not
rectify contracts, though they may and do rectify instruments purporting
to have been made in pursuance of contract.”

Section 26 of the Act provides the provision for the rectification of the
Instruments, according to it-
(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 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.

The above provision can be well understand through following

illustration

Illustration
A, intending to sell to B his house and one of three godowns adjacent to
it, executes a conveyance prepared by B, in which, through B’s fraud, all
three godowns are included. Of the two godown which were fraudulently
 

included, B gives one to C and lets the other to D for a rent, neither C
nor D having any knowledge of the fraud. The conveyance may, as against
B and C, be rectified so to exclude from it the godown given to C; but it
cannot be rectified so as to affect D’s lease.

This section provides for rectification of:

(a) a contract in writing; or
(b) other instrument in writing,
but not articles of association of a company, if through fraud or mutual
mistake of the parties, it does not reflect the real intention of the parties.
Rectification may be ordered at the instance of either party to the
contract or instrument, or his representative-in-interest. It may be
sought:
(i) by way of suit for rectification instituted by either party to the
contract or his representative; or
(ii) by the plaintiff or the defendant in any suit in which any right
arising under the bare instrument arises.

It is necessary to plead specifically for the relief, but the court may allow
the party to amend his pleading at any stage of the proceeding. A
contract may be first rectified, and then specifically enforced.

This section corresponds to sections 31 and 34 of the repealed Act of

1877, and incorporates additional matter in order to set at rest the
conflict of decisions. The changes have been made in the provisions of
Specific Relief Act to:
(i) exclude articles of association of a company from the operation of
the section;
(ii) enable obtaining of the relief in any suit in which any right arises
under the instrument in issue, without requiring a suit to be
specifically brought for the purpose; the
(iii) enable obtaining of the relief also by the defendant in any such
suit; enable obtaining of the relief only if specifically asked for in the
pleading or by way of amendment.
 

In rectifying an instrument, under Section 26, the court has to

determine the intention of the parties with regard to the meaning and
legal consequences of the instrument at the time the contract were
made. Where a contract has been so drawn up that it militates against
the intention of the parties, it has been the established practice of a
court of equity to rectify the instrument so as to conform to the intent
of the parties.
According to Story, “a court of equity would be of little value if it
could suppress only positive frauds and leave initial mistakes
innocently made to work intolerable mischief contrary to the intention
of the parties.”
The court will not rectify an instrument if even after rectification it
does not express the understanding of both parties at the time when the
contract was made. It may be noted that the material question is what
the parties intended to express in the agreement, not what they “always
intended”.

Rectification consists in bringing the document in conformity with the

actual prior agreement, and without agreement there is no rectification.
The essentials for the application of the rule regarding rectification are:

(i) There must have been a genuine agreement different from the
expressed agreement.

(ii) It was through fraud or a mutual mistake of the parties that the
contract in question did not truly express the intention of the parties.
A unilateral mistake will not afford relief for the rectification of an
instrument.
 

(iii) The court before rectifying the instrument has to find out clearly
proved that there has been fraud or mistake in framing the
instrument and it must ascertain the real intention of the parties in
executing the same (Siddique & Co. v Utoomal Assudamal Co.

(iv) The rectification will be done without prejudice to rights acquired by

third persons in good faith and for value (Ram Suchit v 1st Addl.
Distt. Judge, Gorakhpur AIR 1986 All 149].

Section 26 of the Specific Relief Act, 1963 has a limited application, and
is applicable only where it is pleaded and proved that through fraud or
mutual mistake of the parties, the real intention of the parties is not
expressed in relation to an instrument. Such rectification is permissible
only by the parties to the instrument and by none else, Joseph John
Peter Sandy v. Veronica Thomas Rajkumar, (2013) SCC.

Only donor may seek rectification of gift deed, Joseph John Peter
Sandy v. Veronica Thomas Raj Kumar, (2013) SC.

Mistake must be Mutual and Not Unilateral

A mention of the wrong plot number in the deed (agreement of lease)
must be deemed to be a case of mutual mistake and the mistake could be
rectified in the lease deed [Chandan Singh v Atma Ram, 1979 SC).

Thus, the mistake must be common to both the parties, and it is essential
that the parties should have had precisely the same intention on the point
on which the document is inaccurate. Further, in cases of pure ‘unilateral
mistake’, the remedy, if any, may be rescission/refusal of an order of
specific performance. However, a valid contract is rarely rescinded on
 

the ground of unilateral mistake. It has been held that unilateral mistake
is not by itself a ground for rescinding/rectifying a contract unless the
other party had actual knowledge of the mistake (Riverplate Properties
Ltd. v Paul (1975) SC.

Under Section 26(3), it is discretionary for the court to grant specific

performance along with rectification.

This provision has been made to avoid multiplicity of suits.

‘A’, contracts in writing to pay his attorney, ‘B’ a fixed sum in lieu of
costs. The contract contains mistakes as to the name and rights of the
client, which, if construed strictly, would exclude B from all rights under
it. B is entitled, if the court thinks fit, to have it rectified, and to order for
payment of the sum, as if at the time of its execution it has expressed the
intention of the parties.
 

CHAPTER - VI
RESCISSION OF CONTRACT

If a party to a contract commits a breach of contract, the aggrieved party

can seek a remedy of rescission under section 27 of the specific relief
Act. It means that the aggrieved party can withdraw from the contract and
in this way he can free himself from all the obligations of the contract.

The aggrieved party can, by way of specific relief, seek a direction from
the court to rescind the contract. The primary objective of the relief of
rescission is to extinguish all the rights and liabilities of the parties to the
contact and restore the status of the parties to the contact.

Rescission, i.e. revocation or abrogation of a contract is the mode by

which contract may be discharged and as such relief of rescission is the
reverse of the relief of specific performance. In the latter case relief is
granted by the court by enforcing the terms of a contract, while in the
former the court by ordering rescission discharges the party from the
obligation under the agreement.

RESCISSION- WHEN ADJUDGE

Ordinarily a contract may be rescinded by the parties by mutual consent.
But Section 27 of the Specific Relief Act sets out those exceptional
cases in which the aggrieved party can have the relief without the
consent of the other party. Where under a contract a third party has
acquired interest in the subjects of the contract in good faith and for
valuable consideration the court should refuse rescission of the contract
because the intervention of the third party had altered the position of the
parties and has made their restoration to the original position impossible
or impracticable This section gives a right to sue for rescission on the
grounds mentioned in clauses (a) and (b) which mention following two
class of cases when rescission may be granted:
 

(a) Where the contract is voidable or terminable by the plaintiff.

A contract is voidable if it is vitiated by (i) fraud, (ii) misrepresentation,

(ii) coercion, (iv) undue influence, or mistake

Section 27 of the Act provides the provision for the rescission of the
contract, according to section 27 of the Act –

(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.

These provision can be well understand through following illustrations-

(i) A sells a field to B. There is right of passage over the field of which A
has direct personal knowledge, but which he conceals from B. B is
entitled to have the contract rescinded.

(ii) A, an attorney, induces his client B, a Hindu widow, to transfer

property to him for the purpose of defrauding B’s creditors. Here the
parties are not equally in fault and B is entitled to have the instrument
of transfer rescinded.

The remedy by way of rescission is not confined to persons named as

parties to a contract. It is open to any person, who, though not named as a
party to a contract, is interested in the contract (Sec. 27(1)].

Thus, any member of a joint Hindu family is entitled to rescind a

contract entered into by the manager, whereby the former would be
 

defrauded (Ravji v Gangadharbhat (1880) .

Section 27(1) comprises cases referred to in Sections 19, 19A, 39, 53

and 55 of the Indian Contract Act. It also includes cases where a power
to rescind is reserved by the contract to one or both of the contracting
parties. The provisions of this clause do not apply if the parties are in
pari delicto (i.e. in equal fault).

According to Section 19, when the consent to an agreement is caused by

coercion, fraud or misrepresentation the agreement is a contract voidable
at the option of the party whose consent was so obtained. Similarly,
when the consent of a party to the contract has been obtained by undue
influence the contract is voidable at the option of the party whose
consent has been so obtained, under Section 19-A of the Contract Act.

Similarly, in case of anticipatory breach of contract by one party, the

other party to the contract may put an end to the contract, unless he has
signified, by words or conduct, his acquiescence in its continuance.

In the same way, in case the time of performance of a contract is of the

essence of the contract, non-performance of the contract by one party in
such specified time entitles the other to avoid the contract.

Sub section (2) of section 27 states that ‘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.

Like the power of the court to grant specific performance, the power of
the court to grant rescission is discretionary. The limitations on the
court’s power to grant rescission are recognized by Section 27(2). There
can be no rescission if it is not possible to restore the parties to status
quo ante i.e. as it is (Section 27(2)(b)]. Further, rescission will be refused
where a third party has acquired an interest under the contract bona fide
and for value (Section 27(2)(c)].

The court may refuse to rescind the contract where the plaintiff has
expressly or impliedly ratified the contract.

There are two alternatives open to a party having a right to avoid a

contract, either to rescind it, or to affirm it. If the contract is rescinded it
becomes void and unenforceable. On the other hand, if it is affirmed
then it is a valid and binding contract against both the parties.

The court may also refuse to rescind the contract-

Where, owing to 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.

When a party wants to avoid the contract he must do so, so long as the
parties to the contract can be placed in the same position in which they
were before the contract was made. If restitution in integrum is not
possible there can be no rescission.

The court may refuse to rescind the contract-

Where, third parties have during the subsistence of the contract, acquired
 

rights in good faith without notice and for value.

The right of rescission may be gone if before the contract has been
rescinded some third party has acquired a right in the subject matter of
the contract. A voidable contract is valid until avoided and it becomes
void only after it has been avoided. There is a possibility that so long as
the contract has not been avoided, there could be creation of an interest
in favour of a third party.

The court may refuse to rescind the contract-

Where only a part of the contract is sought to be rescinded and such part
is not severable from the rest of the contract.

When a person sues for rescission of a contract he must get the whole of
it rescinded, when the parts of that contract is not separable from the rest
of the contract, the law does not permit rescission of only a part of the
contract.

Principle and Scope- it is a maxim of law that “he who seeks equity
must do equity” in the transaction in respect of which relief is sought. So
where a contract is rescinded, the court may in its discretion, require the
party to whom such relief is granted to make any compensation to the
other party which justice may require that, in cases where rescission is
adjudged against a party who is perfectly innocent and the court
considers that in order to restore the parties to their original position,
compensation should be given to the defendant the court should award
him such compensation, as the justice of the case may require.

Who can Seek Rescission?

The remedy by way of rescission is not confined to persons named as
parties to a contract; it is open to any person, who, though not named as
a party to a contract, is interested in the contract, or whose interests are
affected by it. Thus, any member of a joint Hindu family is entitled to
rescind a contract entered into by the manager, whereby the former
 

would be defrauded. The remedy is also available for legal

representatives, heirs and other assignees, provided that the original
party has not, by his own conduct, disentitled himself to relief, which
does not affect the general rule. However, a legal representative who
was not a party to the suit of specific performance, cannot seek
rescission as to prevent the decree holder from securing fruits of the
decree, if he was aware of the suit.

Rescission and Specific Performance

A person suing for rescission cannot, in the alternative, sue for specific
performance, but a person suing for specific performance can sue for
rescission.
 

Rescission in Certain Circumstances of Contracts for the Sale/Lease

of Immovable Property (Section 28)-

According to Section 28(1), where in a suit a decree for specific

performance of a contract for sale/lease of immovable property has been
made and the purchaser/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 as directed by the court, the vendor/lessor may
apply in the same suit to have the contract rescinded, and the court may
rescind the contract either so far as regards the party in default or
altogether.

According to Section 28(2)-

where a contract is rescinded under sub-section (1), the court –

(a) shall direct the purchaser/lessee, if he has obtained the possession of

the property, to restore such possession to the vendor/lessor, and

(b) may direct payment to the vendor/lessor of all the rents and profits
which have accrued in respect of the property during the period of
possession and the refund of earnest money/ deposit paid by the
vendee/lessee in connection with the contract.

According to Section 28(3), if the purchaser/lessee pays purchase-

money/ other sum referred to in sub- sec. (1), the court may, on
application made in the same suit, award the purchaser/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/lease by the vendor/lessor,

(b) the delivery of possession, or partition and separate possession, of

 

the property on the execution of such conveyance/lease.

According to Section 28(4), no separate suit in respect of any relief

which may he claimed under this section shall lie at the instance of a
vendor, purchaser, lessor or lessee, as the case may be.

Section 28(5) lays down that the costs of any proceedings under this
section shall be in the discretion of the court.

Section 28 additionally gives to the vendor or lessor the right to seek

rescission in the same suit, when after a suit for specific performance is
decreed, the plaintiff fails to pay the purchase money within the period
fixed. This section, therefore, seeks to provide complete relief to both
parties in terms of a decree of specific performance in the same suit
without having to resort to separate proceedings. This aims at avoiding
multiplicity of suits. Likewise, under this section where the purchaser or
lessee has paid the moneys, he is entitled in the suit for specific
performance to the reliefs in sub-section (3) like partition, possession
etc.

When not extinguished:- Contract between parties is not extinguished

when court passes decree for specific performance. Such a decree is
preliminary in nature and suit is deemed to be pending even after the
decree. Court which granted decree does not become functus officio. It
remains vested with power to declare rescission of contract or to extend
time, Bhupinder Kumar v. Angrej Singh, (2009)sc (2009) .

Rescission of contract Default of decree-holder purchaser to pay decretal

amount (balance purchase money with interest) within time stipulated in
contract unless decree-holder property seeks extension of time and the
same is granted by court. There can be no automatic extension of the
time. Failure of judgment-debtor to seek rescission of the contract in
terms of Section 28 SRA does not imply that decree remains executable
in spite of expiry of the period for deposit, with the only obligation on
the part of the decree-holder to pay interest, and would not imply
 

automatic grant of extension of time to decree-holder to deposit decretal

amount, when neither was extension granted, nor explanation furnished
for delay in making deposit, Prem Jeevan v. K.S. Venkata Raman,
(2017) SCC .

As in the case of determining whether a decree for specific performance

is to be granted in the first place where equity weights with the court, so
is the situation in considering an application under Section 28 SRA for
rescinding the contract. If the purchaser is entitled to claim
compensation for deterioration, a fortiori it must be held that the vendor
should also be entitled to compensation for accretion in value of the
subject matter of the agreement for specific performance, in case the
execution thereof is unduly delayed by the purchaser. Section 28
provides that the court has to pass an order as justice of the case
requires, Rajinder Kumar v. Kuldeep Singh, (2014) SCC.

Under Section 28 SRA, a vendor is free to apply to the court which

made decree to have the contract rescinded in case the purchaser has not
paid the purchase money or other sum which the court had ordered him
to pay within the period allowed by the decree or such other period as
the court may allow. On such an application, the court may, by order,
rescind the contract was the justice of the case may require". A suit for
specific performance does not come to an end on passing of a decree and
the court which passed the decree retains control over the decree even
after the decree has been passed and the decree is sometimes described
as the preliminary decree, Rajinder Kumar v. Kuldeep Singh, (2014) .

Alternative Prayer for Rescission in Suit for Specific Performance

(Section 29)
Section 29 lays down that the 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.

Introduction
Where the plaintiff seeks specific performance of a contract in writing,
he may also 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 may pass such an order if it refuses to enforce
the contract specifically.

Alternative Prayer for Rescission in Suit for Specific

Performance
A party suing for the specific performance may, in the alternative, sue
for rescission of the contract but the converse is not true and a person
suing for rescission cannot, in the alternative, sue for specific
performance. A party electing to treat the contract as rescinded cannot in
the alternative seek specific performance which presupposes a subsisting
contract and readiness and willingness to perform the obligations under
the same. Where the plaintiff in a suit for specific performance also
raised an alternative plea that the transaction of mortgage stood
redeemed and he was discharged from the debt, it was held that the latter
relief was inconsistent with the plea of readiness and willingness to
perform the essential terms of the contract. Thus, where a party to a
contract commits an anticipatory breach of the contract, the other party
to the contract may treat the breach as putting an end to the contract and
sue for damages, but in that event he cannot ask for specific
performance. This section corresponds to section 37 of the repealed Act
of 1877.

If possession is given by a person under an agreement, which is

rescinded, irrespective of the nature of right of the defendant, on his
having rescinded the contract, the possession has to be returned to the
person from whom possession was received.
 

PREM RAJ VS D.L.F. HOUSING & CONSTRUCTION 1968 sc

AIR , Apex Court held,
"It is expressly provided by this section that a plaintiff suing for specific
performance of the contract can alternatively sue for the rescission of the
contract but the converse is not provided. It is therefore not open to a
plaintiff to sue for rescission of the agreement and in the alternative sue
for specific performance."

Court may require Parties rescinding to do Equity (Sec. 30)

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.

Introduction
This section is based on the principle that one who seeks equity must do
equity. Section 64 of the Contract Act provides that any party rescinding
a voidable contract is liable to restore to the other party any benefit
which he may have received under the contract, or to make
compensation for it. Section 38 of the repealed Act incorporated the
same principle, but limited it to the payment by the party in whose
favour the relief of rescission was granted, of compensation to the other
party which justice required. Section 30 amplifies the provision
providing that the court decreeing rescission may direct not only
payment of compensation to the other party, but also restoration of
benefit received under the contract by the party in whose favour
rescission is decreed.
 

Parties Rescinding to do Equity

If rescission is to be granted, both parties must be restored to the status
quo ante. If a purchaser seeks rescission, a court of equity can take
account of any profit he has made, and make allowance for any
deterioration in the property. A party claiming restoration of benefit
received must prove the value of that benefit. Where the court has
ordered rescission of decree of specific performance, it can order refund
of advance of purchase price; and such an order may be passed not only
against the vendor, but also against third parties who had purchased the
property with knowledge of the agreement, and who had undertaken
liability to repay the amount paid by the plaintiff to the vendor. The
section enables the courts to make compensation to the party as justice
may require.

The above mentioned provisions are based on the rule that if you want
equity, then do equity. If you get the contract rescinded, you cannot be
allowed to be unjust to retain any benefit which you may have received
under such contract. Any benefit received under the contract by the
plaintiff has to be restored to the defendant.

This section is in accord with English equitable rules, whereby if

rescission is to be granted both parties must be restored to the status quo
ante. If a purchaser seeks rescission, a court of equity can take account
of any profit he has made, and make allowance for any deterioration in
the property (Per Lord Blackburn in Erlanger v New Sambrero
Phosphate (1878) .
 

CHAPTER - VII
CANCELLATION OF INSTRUMENTS

Section 31 of the Act provides for the provision for the cancellation of
the documents, according to the sub-section (1) of section 31
(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.

The above provision can be well understood through following

illustrations

Illustrations
 A, the owner of a ship, by fraudulently representing her to be
seaworthy, induces B, an underwriter, to insure her. B may obtain
the cancellation of the policy.
 A conveys land to B, who bequeaths it to C, and dies. Thereupon D
gets possession of the land, and produced a forged instrument,
stating that the conveyance was made to B in trust for him. C may
obtain the cancellation of the forged instrument.

Section 31 is based on the principle of the administration of a

protective or preventive justice, known in English law as quia timet
(because he fears; fearing future possible injury). The apprehension is
that if the instrument is left outstanding, it may be vexatiously or
injuriously used by the defendant against the plaintiff, “when the
evidence to impeach it may be lost, or that it may throw a cloud of
 

suspicion over his title or interest” .

The essential conditions under which cancellation of an instrument may

be ordered are:
(i) That the written instrument is void or voidable against the plaintiff. It
may be noted that the relief by way of cancellation of an instrument
may be claimed not only by a party to the instrument, but by any
person (including a minor) against whom the instrument is void or
voidable.

Thus, where joint family property is sold by one of them, the other
members of the coparcenary can sue for cancellation of the instrument of
sale, as their interest would be affected if it remains outstanding and
unchallenged.
(ii) That the plaintiff has reasonable apprehension of serious injury from
the instrument if left outstanding or unchallenged (the relief under this
section is granted before any violation of the rights of the plaintiff and
before any actual injury has been sustained by him).
(iii) That in view of the circumstances the court considers it reasonable
and necessary to cancel the instrument. Since the relief is
discretionary the court has the power to put the plaintiff on terms and
impose conditions on the maxim that “he who seeks equity must do
equity/ must come with clean hands”. Thus, where both the parties
are equally guilty, the court will not grant such relief i.e. it will stay
its hand and let the mischief lie where it lies.

Onus to prove invalidity of a registered sale deed.- A registered

document carries with it a presumption that it was validly executed and
it is for the party challenging the genuineness of the transaction to show
that the transaction is not valid in law, Jamila Begum v. Shami Mohd.,
(2019) 2 SCC 727.
 

When Section 31 is not Applicable

Section 31 cannot be applied to the cases of judgments of a court or a
tribunal’s award although they may come within the general expression
“written instrument”. The expression “written instrument” in Section 31
means an instrument which has not already been adjudged by any
formal court/tribunal. A suit cannot, therefore, be maintained for
adjudging an award void and for its being delivered up and cancelled
[Pratabmull v K. Sethia, AIR 1960 Cal 702].
It is, however, held that a suit for adjudging a ‘consent decree’ which is
a contract between the parties, as void or setting aside such decree on the
ground of its having been obtained through fraud lies under Section 31
(Smt. Mohan Bai v Smt. Jai Kishan, AIR 1988 .

Section 31 is not applicable to cases where a document is executed by a

(third) person claiming title adverse to the person whose rights are
affected by the document, e.g. sale by a person claiming against the true
owner. In such a case the plaintiff should have filed a suit for declaration
of his title instead of a suit for the cancellation of the document (Vemula
Maniamma v A. Venkatamma AIR 1984 NOC 80 (A.P.)).

Sub Section (2) of Section 31 States that

(2) If the instrument has been registered under the Indian Registration
Act, 1908, the court shall 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.
 

What Instruments May be partially Cancelled (Section 32)

Section 32 of the Act provide
Where an instrument is evidence of different rights or obligations, the
court may, in a proper case, cancel it in part and allow it to stand for the
residue.

For instance, A draws a bill on B, who endorses it to C, by whom it

appears to be endorsed to D, who endorses it to E. C’s endorsement is
forged. C is entitled to have such enforcement cancelled, leaving the
bill to stand in other respects.

Restoration of Benefits and Compensation on Cancellation (Section

33)
(1) On adjudging the cancellation of an instrument, the court may require
the party to whom such relief is granted (i.e. plaintiff) 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 is voidable, the court may require him to
restore any benefit he has received to the other party or to make
compensation for it;
(b) that the instrument is void, the court may require him to restore
any benefit to the other party, to the extent to which he or his estate
has benefited thereby.

Section 33 equally applies to a minor. Under Section 33(1), when a

minor goes to the court as plaintiff for cancellation of instrument, the
court may require him to restore the benefits and to make any
compensation to the other party. Under Section 33(2)(b), when the
minor is defendant in a case and he resists the enforcement of the suit on
the ground that he is incompetent to contract, the court may ask him to
 

restore such benefits to the other party, to the extent he or his estate has
benefited thereby.9 The phrase ‘estate has benefited’ means some
permanent benefit (viz. buying the assets, deposit in bank account,
etc.) as opposed to a transient one (viz. entertainment, eating, gifts to
friends, etc.); the personal benefits includes money spent on education
or training. Thus, compensation in terms of money is also permitted
against a minor [Khan Gul v Lakha Singh AIR 1928 Lah 609).

The object of Section 33 is to restore the parties to their original position,

as far as possible. It incorporates the principle that he who seeks equity
must do equity. It is not open to a person to claim the asset of the estate
and at the same time repudiate the liability of the State. Therefore
when persons seeks to recover their share of property sold under a void
sale and when the sale proceeds are applied for the discharge of the
debts of the estate, it would be open to the court in view of Section 33
to call upon the person, at whose instance the sale deed was cancelled,
to pay their proportionate share of the debts discharged [Rathima Bivi
v Sadhakatalla AIR 1977 Mad 215].

Distinction between Rectification, Rescission and Cancellation

1. In rectification, there is the presumption of a complete contract, but
the writing designed to embody it does not truly express the intention
of the parties; thus the rectification is sought for. In cancellation and
rescission the instrument is, or has become, void or voidable.
2. In rectification, the aggrieved party prays for bringing the writing into
conformity with the true intention of the parties. While in cancellation
and rescission the prayer is to avoid the contract or instrument by
wiping it out altogether.
3. Rectification of an instrument is prayed because of a fraud or mutual
mistake of the parties. The grounds on which cancellation or
rescission may be sought are wider than those in the case of
rectification.
4. The plaintiff may supplement his prayer for rectification with a prayer
for specific performance. But in cancellation the prayer for specific
performance is out of question, and specific performance can only be
 

alternated with rescission.

5. After rescission the life of instrument is expired, whereas after
rectification the rectified instrument is effective.
6. The suit for rescission can be filed by a person who is affected from
the instrument, whereas rectification suit can be filled only by the
party to the contract or his legal representative.

Distinction between Rescission and Cancellation

(1) Rescission relates to the revocation or abrogation of a contract, while
cancellation applies to any written instrument, be it a contract, a sale
deed, a trust-deed, etc.
The latter relief is, therefore, wider than the relief of rescission.
(2) In rescission the document is still operative and its revocation is
prayed for;
But in case of cancellation the instrument may not be operative.
(3) The relief of rescission is given in voidable contracts only;
But cancellation is prayed both in cases of voidable and void
instruments.
(4) The relief provided in cancellation under Section 33 is wider than
that available in rescission under Section 30. In the former the court
may adjudge the instrument void or voidable and, at the same time,
may also order it be delivered up and cancelled; whereas in the latter
the court may rescind only instrument in question.
(5) Rescission is confined to contracts whereas cancellation applies to
other instruments also such as gifts and wills.
(6) Unlike rescission, cancellation requires that there should be
reasonable apprehension of serious injury if the document be left
outstanding,
 
 

PAHUJA LAW ACADEMY

Lecture :9

DECLARATORY DECREE AND EFFECTS OF

DECLARATORY DECREE SECTION

Section 34 in The Specific Relief Act, 1963

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 some one who is not in
existence, and whom, if in existence, he would be a trustee.

 
 

Section 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.

Section 34

Entitled

Legal character Any right as to any property

1. Any person

2. Entitles

3. Any legal character or any right

4. Suit file against person denying or interested to denying

Any person denying

interested to denying

COA (i) Right as to legal character of property

(ii) Denying/ interest to denying

 
 

In Section 34 The plaintiff has to proof, his entitlement i.e. his existing

right to any legal character i.e. legal status and the present denial by the

defendant of such legal character or right or the defendant in such a

position that he may deny the legal character or right in future.

Section 35

Effect of declaration

Binding only upon the parties.

F is A B threatening to A, he will disposes

son
A

B say, I had purchase the property from F

Now, B has been proof sale deed and A has to proof the succession deed

certificate. If B fails to proof, and A declared the decree

Now, the decrees will binding on parties to the suit.

Now, C is the third person file a suit

C A

 
 

has decree of property

In the given case, in the suit between A & B, B is not able to proof his

title on the basis of sale deed and therefore the decree of declaration

went in favour of A because he was able to proof succession of his

property.

Here the decree between A & B and their representative, it is not a

decree against the world at large, it is a decree in persona and not in rem,

having if subsequently the title of it is challenge by some third person on

the basis of title the fresh should be done between A & C, the previous

Judgment will not be apply as res- judicata. In a subsequent suit by A &

C, C was able proof.

Therefore the present suit the decree will go in for over of C they

declaratory decree are suit passed in abstract rather it was always passed

against specific person and not binding before 3rd person.

 
 

Section 34

The policy of this section to provide certainty e.g. house imprisonment

in house, but other person threatening, so he was declaratory decree

Entitlement has means the present has rights and not on the future rights.

E.g. son thinks his father will die because he went to court for

declaratory decree for property of his father there some cannot file a suit

the person should be in present entitled and in future any right as to any

property broader meaning easement.

e.g. H W

W1

Here, H want to marry to W, but W, says he was my husband than H

files suit for declaratory decree, so that he can do the marriage with W

lawfully

 
 

Section 34- has been provided basically for strengthening or to

establish the legal relation of a person with other person and also

the legal property rights of a person to some legal right. The said

person may want to make some investment or to make some

improvement, in his legal status or the right as to property sent

because of denial or the interest in denial, he may feel restrain in

making those improvement investment. I declaratory decree would

once and for all for a settle his rights with respect to the property

the legal character vise a versa the opposite property. Hence-

It will create a status of status of certainty enable the party to make

investment.

Entitled– (i) Present Entitlement- till the decree passed or while filling

suit

(ii) Entitlement as to legal character

(iii) As to any right

 
 

The entitlement has to be present legal entitlement & it cannot be a past

entitlement or something, to which the person will get entitled in future.

e.g., A & B - contract

30 July 5 August (performance date)

A says that B has to perform the functions on 5 August but A cannot file

a suit entitled the branch has been done or date of performance has been

done.

F If, both are alive

has son
F’s

(i) On F’s want a declaration that the property will be mine?

No, F is die in the future, because it is not an occasion of succession

because in the

F may birth new son so this succession is known as spec succession

which speculation succession means they may get property or not it is

just a question of speculation. If F has author son it F make a will in

 
 

favour of some other person, than F’s does not get the right in the

property. His right F because in the future and not in the present.

Legal character- relates to the legal status of the person i.e. the legal

relationship of the person with another person of his legal status

with respect to some organisation for e.g.

the status the person is the proprietor of the firm or the chairman of

club or managing direction of W, The status of women as a lawfully

wedded wife of a man, the status of the child, as its right mate of

father. To may also relate to the legal right of the person e.g. right to

vote, right to contest the elections, the declaration of the age of the

person , date of building a person , the minority of a child , child

being a adopted child etc.

Q. Can a person seek a right to collect the alms?

Ans. No, because it is not a legal right.

Right as to property means legal right pertaining to property it is not

only right to possession rather it can be either any right related to

 
 

property. the use of the word AS TO widens the scope of rights

pertaining to property it can be easementary right. The right to have

some property attached or right to have some maintenance out of the

usufruct of some property.

mere suspicion on the part of the plaintiff will not amount to denial for

the purpose of Section 34. It is also not essential that there should be

actual denial rather at the circumstance at present suggest that defendant

is interested in matching the denial in future raw also the suit can be

filed but in such cases the count has to be cautions, were spectation of

denial on the basis of suspicion to be mode a basis for filing a suit.

There has to be rather some present circumstance which creates an

apprehensive that, the defendant may used that circumstances as

evidence in future.

e.g. H marries to W, future W is the widow of H, & H, S is the son.

Where H is agree to live to him & after that W want to introduce that H

is the father. After period & there it shows that H, S is the son of H. The

 
 

H go to the court that declaration that the boy is not mine because the

evidences in future shows that H, S is my son. But if the W does not

doing that conduct or other documents in the speculation so H cannot

take the declaration.

Further relief:- enabling (not to ask for further relief) (main section),

Proviso (No)

Further relief :- alternative relief- content- damage,

further relief specific

(Consequential relief) Tort- Damage,

Jugment

If one relief get and due to that consequence relief get,

A B declaration & little here possession is depend upon the little or

he will not get the mesne profit or injunction.

Further relief (Consequential relief)

A B has possession of heir

A file the court fees for title or declaration of the title + court fees of

possession.

 
 

* Here, there are two situation, if A think that B's trespasser may success

than he can file for declaratory decree for title and if thinks he will

succeed than he can also file on later stage the decree for the

Sec. There is are apparent conflict in the language of a main Section &

a proviso, the main section on the one hand enable the plaintiff not claim

further, whereas the proviso makes it mandatory to do so, else the court

will not grant a declaratory decree in his favour. However the harmony

between the 2 sections as already established the enabling provision in

main section is address to plaintiff & is aimed at enabling him to save

any court fees that may be required for further relief. However, the

proviso which addressed to the court aims at preventing multiplicity &

proceeding & therefore it directs the court not to pass declaratory decree

unless it was passed. The rule is initially the plaintiff is free not to claim

future relief, So that he is not required to give court fees for further

relief. However at the stage of trial, the plaintiff find he will succed in

declratory suit & he will respected form him to amount the pleading (0.6

rule 17) to add the further relief for which he has to deposit court fees.

The defendant may raise an objection for such further relief upon which

 
 

it becomes the duty of plaintiff to ament the pleading & if despite the

objection of the defendant, the plaintiff does not amend the further relief,

there his declaratory suit as per proviso dismissed.

As was held in Rukhma bai Vs. lala laxminarayan. (1954 S.C.) It is the

duty of the defendent to raise the objection regarding the plaintiff not

having claimed the further relief as soon as possible & if the defendant

does not raise a objection than proviso will not have its effect.

Thus if there were a claim of further relief a defendant does not raise

objection because of which the lart passed a decree & declaoration. The

Decree will not be set aside because further relief is not claimed rather

plaintiff can file a suit for further relief.

O.16, R 17 - Proviso- Amendment of pleading shall not done, if after the

trial started.

E.G. A knew that he want declaration title relief such amendment cannot

be down. Note_-

Note:- As per the proviso of Sec. O.6 R 17 if the party aware of the fact

before fact did not raise a fact earlier & wants to raise it by amendment

after a trial has commenced than he shall not be allowed to do so, once a

 
 

the trial has commenced in a declaratory suit the plaintiff is aware of

inception of due suit & therefore, he could have claimed it earlier also

but the policy of Sec. 34, SRA is to enable him not to do so on the other

hand, as per the proviso, the suit shall be dismissed if he not do so.

Therefore if he files are application of pleading after the that

commenced to add an further relief than proviso of O. 6, R 17 will not

apply rather the court shall allow the amendment.

Discreation:- The court under S. 34 has a discreation to grant or not to

grant declratory decree were if the condition of Sec. 34 fulfilled by the

plaintiff Sec. 34 provide equitable remedy, equity cannot be see in rigid

term, the court will have to do more an balancing & before granting

declaratory decree.

1) whether any other more comprehensive remedy is available.

2) The malafide intention of the plaintiff

3) Whether any other more comprehensive suit is pending in some other

court or

4) whether the suit has such filed with an unreasonable delay.

 
 

5) The casess where all the intersted parties has not joined the suit, court

refuges to grant to decree.

Sec. 34 — (+ve) Fs is son of F - means he is son means positive

declaration.

— (-ve) Fs is not the son of S. mean he is not son, nagative

declaration.

Here, Sec. 34 here it deals with positive declration.

* In Sec. 34 if in its +ve & -ve declauation +ve is ____ them it can be

Verua Reddi Ramaraglonce Reddy Vs. Kanduru sesha Reddy (1967

S.c)

Sec. 34 is not exaustive about declacatory decree rather a suit for

declacation can be directly filed v/s 9 of CPC.

e.g. :- Club — President - M/r.x- electea.

A know mr. X Selection is faudulent, A file a suit that X declration was

vied, but this can be allowed v/s 9 of CPC.

Preventive relief-36-42

Temporary injunction-cpc order 39 rule 1 and section 94©

Perpetual injunction

 
 

Mandatory injunction

When perpetual cannot be granted

Damegs in liu of injuction

Injunctions to perform a negative agreement

 
 

PAHUJA LAW ACADEMY

Lecture 10
Specific Relief Act

PREVENTIVE RELIEF OR INJUNCTIONS

(SECTIONS 36- 44)

Preventive relief is said to be such a relief by which a person is prevented

to do an act which he is not validly liable to do.
For Example, A is constructing a wall in B’s land, at the suit of B by
providing him preventive relief A can be prohibited to do so because A is
not legally liable t do so. According to section 36 of the Specific Relief Act,
1963, specific relief given by preventing a party from doing that which he is
under an obligation not to do, is called preventive relief. The relief is
given by the court by issue of injunction whether temporary of perpetual.
Basically Specific relief afforded by means of an injunction, temporary or
perpetual, is called ‘preventive relief ’.
 
According to Section 36 preventive relief is granted at the discretion of 
the court by injunction temporary or perpetual. 
 
A  preventive  relief  (injunction)  is  an  order  or  command  of  the  Court 
preventing a party from doing something which he is under a legal duty 
not  to  do.  For  instance,  every  person  is  legally  bound  not  to  commit 
trespass or not to defame a person, and, therefore, the court may issue 
an  injunction  preventing  a  party  from  committing  a  trespass,  or 
defaming someone. 
 
Discretion of the court 
The jurisdiction of the court to grant injunctions, whether temporary, or 
perpetual,  is  discretionary.  It  is  the  discretion  of  the  court  to  grant  or 
 

refuse  such  relief.  The  discretion  does  not  mean  that  court  can  act 
arbitrarily.  The  court  is  to  be  guided  by  the  principles  of  justice,  equity 
and  good  conscience.  The  court  has  to  weigh  the  amount  of  mischief 
done  or  threatened  to  be  done  to  the  plaintiff  and  harm  likely  to  be 
caused to the defendant by the issue of injunction. 
 

Grant of preventive relief or injunction (Section 36)

According to Section 36 preventive relief is granted at the discretion of

the court by injunction temporary or perpetual.

Coparcener could not seek injunction against other coparceners

A coparcener could not seek an injunction against the other coparceners

restraining them from enjoying the joint family properties. Therefore in

the instant case second defendant was not entitled to seek an injunction

restraining the plaintiffs from enjoying the plaint schedule property.

 

Temporary and Perpetual injunctions (Section 37)

Temporary Injunctions Section 37(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.

Status quo and to prevent the suit from becoming infructous.

Temporary or interlocutory injunctions are to continue temporarily either

until a specified time, or until further order of court. It is only provisional

in nature and does not conclude a right or finally settle the matter. For

instance, these may be an order to preserve the property until the final

hearing of the case. The object may be to maintain status quo, so that the

alleged harm is avoided which could otherwise occur until the case is

finally disposed of by the Court, on merits.

 

In case of Dalpat kumar v. prahlad singh 1993 SC

Principles Governing Issue of Temporary Injunction

Before a court issues a temporary injunction, it must be satisfied with
regard to the following matters:
(1) The court will first see that there is a bona fide contention between the
parties and then which side, in the event of success, will lie the “balance
of inconvenience” if the injunction does not issue. The court ought to
weigh the amount of substantial mischief done or threatened to the
plaintiff and compare it with that which, if injunction is granted, would
inflict upon the defendant.
(2) The court must be satisfied that the applicant (plaintiff) has made out a
strong “prima facie case” for the issue of an interim injunction.
(3) The court must be satisfied that there is a likelihood of the plaintiff
suffering from an “irreparable injury” if the injunction is not granted.
(4) Where doubt exists as to the right and when an injunction might be a
great hardship on the defendant, an interlocutory injunction will be
refused on the defendant undertaking to keep an account.
(5) The crucial point for determination whether injunction should be
granted or not is whether pecuniary compensation would afford
adequate relief. If ‘yes’, an injunction should not be granted.
(6) The injunction will also not issue when if granted it will operate
oppressively, inequitably, or is contrary to the real justice of the case.
(7) Gujrat bottling case even though it is a discreation of the court to
grant temporary injunction
 

The court will ordinarily decline to grant an interim injunction if the

plaint and the affidavit filed by the parties show on the face of them that

the case is not for a perpetual injunction

 

To obtain temporary injunction the plaintiff has to prove that there is a

prima facie case in his favour indicating existence of a legal right asserted

by him. It has to be shown by him that the balance of convenience is in

his favour so that mischief likely to be caused by the act of the defendant

is prevented.

Order 39, Rule 1, section 94(C) Code of Civil Procedure, 1908 contains

the following provision regarding the grant of temporary injunction-

"1. Cases in which temporary injunction may be granted. Where in any

suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted,

damaged or alienated by any party to the suit, or wrongfully sold in

execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his

property with a view to defrauding his creditors.

 

(c) that the defendant threatens to dispossess the plaintiff or otherwise

cause injury to the plaintiff in relation to any property in dispute in

the suit,

the Court may by order grant a temporary injunction to restrain such act,

or make such order for the purpose of staying and preventing the wasting,

damaging, alienation sale, removal or disposition of the property or

dispossession of the plaintiff, or otherwise causing injury to the plaintiff

in relation to any property in dispute in the suit as the court think fit until

the disposal of he suit or until further orders.

Setion 37 (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.

 

Perpetual Injunction when Granted (Section 38)

(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 (viz. relating
to specific performance of contracts: Ss. 9-25). r/w secion 41 (e)
(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 plaintiff ’s property;
(b) Where there exists no standard for ascertaining the actual damage
caused, or likely to be caused, by the invasion (viz, if the defendant
prevents the plaintiff from carrying on his business in his premises
by closing the windows of the plaintiff under easement acquired by
the plaintiff);
(c) Where the invasion is such that the compensation in money would
not afford adequate relief (viz. A pollutes the air with smoke from
his factory so as to interfere materially with the physical comfort of
B);
(d) Where the injunction is necessary to prevent a multiplicity of
judicial proceedings (viz. successive encroachment of the plaintiff ’s
rights by the defendants).

Illustrations
(i) A lets certain land to B, and contracts not to dig or gravel there out.
A may sue for an injunction to restrain B from digging in violation
of his contract.
(ii) The directors of a fire and life insurance company are about to engage
in marine insurance. Any of the shareholders may sue for an injunction
to restrain them.
(iii) A is B’s medical adviser. He demands money of B which В declines to
 

pay. A then threatens to make known the effect of B’s communication

to him as a patient. This is contrary to A’s duty, and B may sue for an
injunction to restrain him from so doing.
(iv) A, pirates B’s copyright. B may obtain an injunction to restrain the
piracy, unless the work of which copyright is claimed is libelous or
obscene.

Principles of Grant of Perpetual Injunction

The relief of perpetual injunction is equitable and discretionary, and he
who seeks equity must come with clean hands. The party seeking
injunction must possess some right which the opposite party is trying to
invade or there must exist an obligation in its favour whether contractual
or otherwise in respect of which the opposite party is trying to commit a
breach. If injunction is the only means of enforcing a right an injunction
will be granted.

The ‘Obligation contemplated in Section 38(1) is legal obligation i.e. a

duty enforceable by law. The obligation may arise from contract, or it may
be in the nature of a trust, or it may be an obligation the breach of which
amounts to a tort or civil wrong (Kuldip Singh v Subhash Chander Jain,
AIR 2000 SC 1410), or it may be any other legal obligation. However, a
‘breach of natural justice’ may not always result in a successful action for
injunction. An injunction against a Vice Chancellor’s order suspending a
student even though a quasi judicial function will be refused even though it
is a breach of natural justice where the student admits commission of the
offence (Glynn v Keele University, (1971) 2 All ER 89).

The prohibiting power of equity therefore extends through the whole range
of rights and duties which are recognized by law and would be applied to
every case of intended violation. Thus, imposition of an illegal tax by a
municipal committee is a breach of an obligation. Further, a vendor of land
is under a duty to a purchaser to disclose latent defects which the
purchaser could not with due diligence discover; if the vendor fails in his
duty he does not commit a breach of contract, but he does commit a
 

breach of an obligation [Parul Bala Roy v Srinibash 1952 A. Cal. 364].

As regards ‘contracts’ the court is to be guided, in granting an injunction
by the rules in chapter-II as to specific performance (Section 38(2). Thus,
an injunction cannot be granted to prevent the breach of a contract the
performance of which would not be specifically enforced, viz. contracts
which are dependent on personal qualifications or volition of the parties.
The remedy of a contractor on a wrongful termination of the contract is
damages, he cannot obtain an injunction as that would amount to specific
performance (Ranjit Chandra v Union of India (1963) A. Cal. 594].

Where there is an invasion of the plaintiff’s right to, or enjoyment of,

property, an injunction may be granted only in the four cases mentioned in
Section 38(3). Where a breach of trust is threatened the court may grant an
injunction, even though compensation in money would afford adequate
relief. Under Section 38(3), before an injunction may be granted there must
be an “invasion” or “a threatened invasion” of the plaintiff’s right to or
enjoyment of his property. A mere prospect of apprehension of injury is not
sufficient, it must be shown that the act complained of is violative of
plaintiff’s right or if carried out will result in such violation. Even though
no injury has actually ensued, it must, however, be shown that injury will
be inevitable result; it will not do to say that injury may be the result
(Pattison v Gilford (1874) LR 18 Eq 259).

Maintainability of suit.- Suit for permanent injunction to protect

possession of one from interference by the other, between two private
parties in respect of land which falls within State Ceiling Law without
impleading State as party-defendant, liable to be dismissed, Agnigundala
Venkata Ranga Rao v. Indukuru Ramachandra Reddy, (2017) 7 SCC
694.

Suit for quiet enjoyment and peaceful possession-Suit cannot be

dismissed on the ground that the earlier suit was dismissed for non-joinder
of necessary parties, Shrikrishna Vijaya Saw Mill v. Subhash, (2016) 12
SCC 442 : (2016) 4 SCC (Civ) 782.
 

Consequential relief of injunction.-Suit for declaration of title coupled

with permanent injunction, held, is not a suit for perpetual injunction
alone, as title has also been claimed, Nagar Palika Parishad, Mihona v.
Ramnath, (2014) 6 SCC 394 : (2014) 3 SCC (Civ) 569.

Judicial proceedings cannot be used to protect or to perpetuate a wrong

committed by a person who approaches the court. It is settled law that no
injunction could be granted against the true owner at the instance of
persons in unlawful possession, Sopan Sukhdeo Sable v. Asstt. Charity
Commr., (2004) 3 SCC 137.

For grant or refusal of injunction court should carefully examine entire

pleadings and documents. It should give short notice on injunction
application and after hearing parties pass appropriate order. Only in grave
urgency should it grant ad interim ex parte order for a specified period
such as two weeks. Court should record in its order that in event of
dismissal of suit, plaintiff undertakes to pay restitution, actual or realistic
costs. It should also pass order for mesne profits, Maria Margarida
Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) SCC .
 
 

The provision contained in Section 38 may be explained through the

following illustrations:

(d) The directors of a fire and life-insurance company are about to engage

in marine insurances. Any of the shareholders may sue for an injunction

to restrain them.

(e) A, an executor, through misconduct or insolvency, is bringing the

property of the deceased into danger. The Court may grant an injunction

to restrain him from getting in the assets.

(f) A, a trustee for B, is about to make an imprudent sale of a small part of

the trust-property. B may sue for an injunction to restrain the sale, even

though compensation in money would have afforded him adequate relief.

(g) A makes a settlement (not founded on marriage or other valuable

consideration) of an estate on B and his children. A then contracts to sell

the estate to C. B or any of his children may sue for an injunction to

restrain the sale.

(h) In the course of A's employment as a vakil, certain papers belonging

to his client, B, comes into his possession. A threatens to make these

 

papers public, or to communicate their contents to a stranger, B may sue

for an injunction to A from so doing.

(i) A is B's medical adviser. He demands money of B, which В declines to

pay. A then threatens to make known the effect of B's communications to

him as a patient. This is contrary to A's duty, and B may sue for an

injunction to restrain him from so doing.

(j) A, the owner of two, adjoining houses, lets one to B and afterwards lets

the other to C. A and C begin to make such alterations in the house let to

C as will prevent the comfortable enjoyment of the house let to B. B may

sue for an injunction to restrain them from so doing.

(k) A lets certain arable lands to B for purposes of husbandry, but without

any express contract as to the cultivation. Contrary to the mode of

cultivation customary in the district, B threatens to sow the lands with

seed injurious thereto and requiring many years to eradicate. A may sue

for an injunction to restrain B from sowing the lands in contravention of

the implied contract to sow them in a husbandry like manner.

(1) A. B and C are partners, the partnership being determinable at will. A

threatens to do an act tending to the destruction of the partnership

 

property. B and C may, without seeking a dissolution of the partnership,

sue for an injunction to restrain A from doing the act.

(m) A, a Hindu widow in possession of her deceased husband's property,

commits destruction of the property without any cause sufficient to justify

her in so doing. The heir-expectant may sue for an injunction to restrain

her.

(n) A, B and Care members of an undivided Hindu family. A cuts timber

growing on the family-property, and threatens to destroy part of the

family-house and to sell some of the family-utensils. B and C may sue for

an injunction to restrain him.

(o) A, the owner of certain houses in Calcutta, becomes insolvent, B buys

them from the Official Assignee and enters into possession. A persists in

trespassing on and damaging the houses, and B is thereby compelled at

considerable expense, to employ men to protect the possession. B may sue

for an injunction to restrain further acts of trespass.

(p) The inhabitants of a village claim a right of way over A’s land, In a

suit against several of them, A obtains a declaratory decree that his land is

subject to no such right. Afterwards each of the other villagers sues A for
 

obstructing his alleged right of way over the land. A may sue for an

injunction to restrain them.

(q) A, in an administration-suit to which a creditor B, is not a party, obtain

a decree for the administration of C's assets, B proceeds against C's estate

for his debt. A may sue for an injunction to restrain B.

(r) A and B are in possession of contiguous lands and of the mines

underneath them. A works his mine so as to extend under B’s mine and

threatens to remove certain pillars which help to support. B's mine. B may

sue for an injunction to restrain him from so doing.

(s) A, rings bells or makes some other unnecessary noise so near a house

as to interfere materially and unreasonably with the physical comfort of

the occupier. B. may sue for an injunction restraining A from making the

noise.

(t) A pollutes the air with smoke so as to interfere materially with the

physical comfort of B and C, who carry on business in a neighbouring

house, B and C may sue for an injunction to restrain the pollution.

 

(u) A infringes B's patent, if the Court is satisfied that the patent is valid

and has been infringed. B may obtain an injunction to restrain the

infringement.

(v) A pirates B's copyright. B may obtain an injunction to restrain the

piracy, unless the work of which copyright is claimed is libelous or

obscene.

(w) A improperly uses the trademark of B, B may obtain an injunction to

restrain the user, provided that B's use of the trademark is honest.

(x) A, a tradesman, holds out B as his partner against the wish and

without the authority of B, B may sue for an injunction to restrain A from

so doing.

(y) A, a very eminent man writes letters on family-topics to B. After the

death of A and B, C who is B's residuary legatee, proposes to make

money by publishing A's letters. D, who is A's executor, has a property in

the letters, and may sue for an injunction to restrain C from publishing

them.

(z) A carries on a manufactory and B is his assistant. In the course of his

business, A imparts to B a secret process of Value B afterwards demands

 

money of A, threatening, in a case refusal to disclose the process to C, a

rival manufacturer. A may sue for an injunction to restrain B from

disclosing the process.

Permanent injunction can bind successors in interest also  
It has been held by the Supreme Court in Kanahiyalal v. Babu Ram, that 
in  a  suit  for  permanent  injunction  regarding  partition  of  property,  the 
partition  deed  contemplated  giving  use  of  gallery  to  one  of  the  co‐
owners.  It  was  held  that  the  condition  in  the  partition  deed  binds  not 
only the two co‐owners but their successor‐in‐interest also. Hence, issue 
of permanent injunction restraining successor in interest of the other co‐
owner was valid. 

Illustrations/ Case Law (Section 38)

(i) Obligation - Where it was found that the State Government was
under no legal obligation to assign the land to the Municipality, the
Municipality committed no breach of obligation in not securing the
assignment and, in the circumstances, no injunction was granted for
restraining the State and Municipality from proceeding with
construction of inspection bungalow on a land which was earmarked
for Gandhi Memorial under the draft Master Plan which, however,
was not published under the relevant Town Planning Act (State of
Orissa v Puri Municipality AIR 1984 Ori 132].
(ii) Breach of contract -Where under an agreement an Indian film
producer had rendered valuable services to help the foreign film
producer to obtain the Government’s permission for shooting a T.V.
serial in India and having obtained such permission the foreign film
producer turned a cold shoulder towards him, the court held that the
Indian film producer was entitled to an interim relief directing the
 

defendant not to exhibit the film on the T.V. /other medium in India
unless it carries, in its title shots, an acknowledgement of the services
rendered by him in some appropriate language. The gain by way of
reputation as well as goodwill which the plaintiff would secure if his
services
(iii) Protection of possession - An injunction is not the appropriate
remedy where the plaintiff has been ousted from possession, and a suit
for possession will give him full relief (R. Pillai v R. Aiyar (1910 sc) .
A person in wrongful possession is not entitled to an injunction
against the rightful owner to protect his possession (Alamelu Achi v
Ponniah (1962) A.M. 149).section 5 or 6 sr r/w 38 SRA.

Landlord and tenant - A tenant has no right to get a permanent

injunction to prevent his eviction for all times to come. But when in
possession of the premises, he will be entitled to a temporary injunction to
the extent that he will not be dispossessed except by operation of law
(Smt. Shakuntala v Hiranand Sharma AIR 1986 .

(v) Defamation - The defendants had published in their newspaper

defamatory statements against a sugar mill accusing it of
overcharging, cheating and forgery. The plaintiffs brought a suit for
damages and perpetual injunction and prayed for an interim
injunction. The defendants pleaded justification (a defence of
defamation) and produced a receipt showing a lesser amount charged
whereas a higher price was received. The plaintiffs admitted that and
pleaded that they were entitled to charge a higher price and that they
had given separate receipt for the excess price and produced their
accounts. They were held entitled to interim injunction as they made
out a prima facie case (National Sugar Mills Ltd. v Ashutosh
Mukherjee (1962) .
 
 
 

(vi) Co-sharers -- Injunction in the case of co-owners is granted where the

act complained of amounts to waste of the joint property or to an
illegitimate use thereof or to ouster of the plaintiff from possession and
enjoyment of the property viz. closing of the door of a staircase which
affords access to the roof, or of a door which affords the only access
to the portion in the plaintiff ’s occupation (Anant v Gopal (1895) .

(vii) Landlord and tenant - A tenant has no right to get a permanent

injunction to prevent his eviction for all times to come. But when in
possession of the premises, he will be entitled to a temporary
injunction to the extent that he will not be dispossessed except by
operation of law and no further (Smt. Shakuntala v Hiranand
Sharma AIR 1986 .

(viii) Partners – An injunction can be granted as between partners where

the complaining partner is excluded wrongfully from the enjoyment
of the affairs of partnership or where the assets of the partnership are
misused. But mere squabbles and improprieties arising from
infirmities of temper are not sufficient ground for an injunction, e.g.
relations becoming strained on account of differences. In such cases
the proper remedy is dissolution of partnership [Bishamber Dayal v
Moolchand (1964) A. Raj 179].

(ix) Consent unreasonably withheld - An injunction would lie even if its

effect is to terminate a lawful agreement between the vendee and his
purchaser, since, as a matter of principle, a court will not refuse to
enforce an earlier contract against a party because he had entered into
a later contract inconsistent with it. It is immaterial that the plaintiff
 

might get no benefit from it (Sefton v Tophans Ltd. (1963)

(x) Nuisance – As regards nuisance, where it is of the kind to injure the

health or seriously imperil the life of those complaining of it, the court
will not hesitate to prevent it by way of injunction. But where it goes
no further than to diminish the comforts of human life, there will
always be a question whether the court will proceed against him who
causes that nuisance by injunction or compensate the sufferer in
damages (Bhicaji v Pirojshaw (1916)

(xi) Husband and wife - A suit by a wife for an injunction against her
husband restraining him from marrying a second wife is maintainable
(Shankrappa v Basamma (1964 sc).

(xii) Private right versus public right - The plaintiff who purchased a
house close to a cricket ground in a village brought an action against
the club for injunction on the ground that cricket ball damaged the
house and garden of the plaintiff and precautionary measures taken by
the club did not give complete protection. The court granted the
injunction preventing the club from using the ground for playing
cricket (Miller v Jackson (1977)SC .

A trespasser is not entitled to perpetual injunction against the owner of

property nor is the owner required to resort to legal proceedings to
establish his right of ownership over the property in question. The
position may however be different where the trespasser has acquired
rights in the property by virtue of his long possession (State of J&K v
Ghulam Rasool AIR 1979 ).
 

PERPETUAL AND TEMPORARY INJUNCTION

DISTINGUISHED
The main differences between perpetual and temporary injunction may be
summed up as follows:
1. While a temporary injunction may be granted at any time after the
commencement of the suit, a perpetual injunction can be granted only
after the plaintiff has established his right to it at the trial.
2. A temporary injunction is passed by an order while a perpetual
injunction can only be granted by a decree.
3. A temporary injunction is provisional and continue until a specified
time or until the orders of the court, while a permanent injunction is
granted and holds good without any time limit.
4. Perpetual injunction is a final determination of the rights of the parties
and restrains the defendant for ever from doing the act complained of,
while temporary injunction lasts till the decree and concludes a right.
The interlocutory injunction is a remedy provincial in its nature and
does not conclude a right.
5. The effect and object of a temporary injunction is to preserve the
property in dispute in status e quo whereas that of the perpetual one is
to give effect to and protect the plaintiff's right.
6. A temporary injunction restrains the defendants for a particular time
only while a perpetual injunction restrains him forever.
7. Temporary injunctions are regulated by the Code of Civil Procedure;
ORDER 39 AND SECTION 94(C)) perpetual injunctions are governed
by Section 38, 39, 40 and 41 of the Specific Relief Act, 1963.

SECTION 39 ,40,41,42-MANDATORY INJUNCTION

COMPENSATION WHEN PERTUETAL INJUNCTION NOT
GRANTED
AGREEMENT POSTIVE AND NEGATIVE WHETHER
 

ENFORCEMENT CAN BE DON OF NEGATIVE AGREEMENT

Mandatory Injunctions (Section 39)

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.

Illustrations

 A, by new building, obstructs lights to the access and use of which B

has acquired a right under the Indian Limitation Act. B may obtain an
injunction, not only to restrain A from going on with the buildings, but
also to pull down so much of them as obstructs A’s lights.
 A threatens to publish statements concerning B which would be
punishable under the Indian Penal Code. The court may grant an
injunction to restrain the publication, even though it may be shown not
to be injurious to B’s property.

Introduction
Mandatory injunction is an injunction in a positive form, requiring a
person or party to a suit to do a particular thing. It provides a remedy
where it is not possible to restore the status quo, unless the wrongdoer is
made to undo the wrong, which he has committed. It is granted when to
prevent a breach of obligation, it is necessary to compel the performance
of certain acts. This section is the same as section 55 of the repealed Act.

Purpose of the Provision

The purpose of granting such an injunction is to compel a defendant to
restore things to the condition in which they were when the plaintiff's
 

complaint was made. It aims at restoration of things to status quo ante. A

mandatory injunction cannot be granted to create a new state of things.
Where the possession of the plaintiff has been violated pending
proceedings, an order of mandatory injunction can be passed to restore
possession; such order can be passed even at the stage of execution by an
executing court. Amendment of plaint for the purpose is not necessary.

A ‘mandatory’ injunction is an order requiring the defendant to do some

positive act for the purpose of putting an end to a wrongful state of things
created by him, or otherwise in fulfillment of his legal obligation. It is a
command to undo that which has been done or to do a particular act to
restore things to their former condition. In comparison, when a party
threatening to invade the legal /equitable rights of another is restrained
from continuing or commencing such wrongful act, the injunction so
issued is termed a ‘prohibitory’ injunction as it incorporates a negative act.

An illustration will make the point quite clear. A is B’s medical advisor.
He demands money from B, which A declines to pay. A then threatens to
make known the effect of B’s communication to him as patient. This is
contrary to A’s duty and B may not only obtain a prohibitory injunction to
restrain A from so doing, but also obtain a mandatory injunction ordering
A to destroy all written communications made by B as patient of A.

Considerations for the Grant of Mandatory Injunction

Two elements must be considered for the grant of a mandatory
injunction:
(i) what acts are necessary in order to prevent a breach of the
obligation; and
(ii) whether these acts are such as the court is capable of enforcing.

In a case where the defendant, a co-owner of the property unilaterally

occupied the front portion of the property abutting the road and put up a
construction in the property, without partition of the land, and without the
consent of the plaintiff, who was the other co-owner, and in disregard of
 

the plaintiff's protests, a mandatory injunction was granted directing the

defendant to demolish the property, on considerations that the plaintiff
could not be adequately compensated and that the refusal to grant
mandatory injunction will result in greater injury to the plaintiff.

When a mandatory injunction is granted under Section 39, two elements

have to be taken into consideration: firstly, the court has to determine
what acts are necessary in order to prevent a breach of the obligation;
secondly, the requisite act must be such as the court is capable of enforcing.
These acts may assume a variety of forms, e.g., the pulling down of a
building, destruction of copies produced by piracy of copyright and of
trademarks, removal of trees on the defendant’s land or the removal of
overhanging branches, providing maintenance to the widow of the testator
[Bhagwan Kaur v Chetan Singh AIR 1988 P & H 198], to restore the
building in its original condition, etc.

The jurisdiction of the court to grant mandatory injunction is discretionary

and the court will consider all the facts and circumstances with great
caution -- the balance of convenience and inconvenience, whether injury
can be adequately compensated by money, the conduct of the parties and
the nature and extent of the encroachment or infringement of the rights of
the party complaining. It cannot be said that mandatory injunction should
only be granted when pecuniary compensation would not afford adequate
relief. Even if it could be said that it is a consideration for the grant of
injunction, the discretion has to be exercised on the basis of facts of each
case [Pabbar Ram v Bhagwan Dass, 1987 All LJ 403].

Where no relief for a mandatory injunction was ever claimed, it would not
be possible to entertain a prayer for any such relief, or to decree it by
permitting an amendment of the plaint, or in the suo motu exercise of the
judicial discretion of the court (State of U.P. v Prag Ice & Oil Mill, Aligarh
1983 All LJ 1155). It may be noted that where a discretionary relief is
disallowed on the ground that in the circumstances of the case it was not a
proper relief, it could not be said that the civil court had no jurisdiction to
entertain the suit as originally brought before it. Where it could not be
 

considered to be an equitable relief, the suit would not fail not because the
civil court had no jurisdiction to entertain it but because it did not consider
that the relief prayed for was an equitable relief (Ram Awalamb v Jata
Shankar 1968 All LJ 1108 (F.B.)].

Mandatory Injunction at Interlocutory Stage

In the case of Sukerma Rani Kapoor vs. Om Prakash Kapoor And Ors.
On 18 January, 2002 DC HC the Delhi High Court affirmed that a
mandatory injunction at interlocutory stage should not normally be
granted which has the effect of granting the final relief. However, it is not
an absolute principle of law. There is no such mandate by any law that in
all circumstances such a relief at an interlocutory stage had to be refused.
Of course, normally such a relief is not to be granted, but in exceptional
circumstances mandatory injunction at interlocutory stage, particularly to
restore the status quo ante, can be granted by the Courts.

It was also observed that the balance of convenience is in favor of the one
seeking such relief, being essentially an equitable relief the grant or
refusal of an interlocutory mandatory injunction shall ultimately rest in
the sound judicial discretion of the Court to be exercised in the light of the
facts and circumstances in each case.
In the case of Banu Mithra vs M. Balu on 9 February, 2009 Madras high
Court, referred supported the decision of the case of 'Dorab Cawasji
Warden vs. Coomi Sorab Warden, (1990) 2, Supreme Court cases 117, at
page No.118 wherein the Hon'ble Supreme Court has observed that the
relief of interlocutory mandatory injunctions are granted generally to
preserve or restore the status quo of the last non contested status which
proceeded the pending controversy until the final hearing when full relief
may be granted or to compel the undoing of those acts that have been
illegally done or the restoration of that which was wrongfully taken from
the party complaining. But since the granting of such an injunction to a
party who fails or would fail to establish his right at the trial may cause
great injustice or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party who succeeds or
 

would succeed may equally cause great injustice or irreparable harm,

Courts have evolved certain guidelines which are:-
(i) The plaintiff has a strong case for trial that is, it shall be of a high
standard than a prima facie case that is normally required for a
prohibitory injunction.
(ii) It is necessary to prevent irreparable or serious injury which normally
cannot be compensated in terms of money.
(iii) The balance of inconvenience is in favour of the one seeking such
relief. “And further at page 120, it is also observed that 'the grant or
refusal of an interlocutory mandatory injunction shall ultimately rest
in the sound judicial discretion of the Court to be exercised in the
light off acts and circumstances in each cases. Though the above
guidelines are neither exhaustive nor complete or absolute rules and
there may be exceptional circumstances needing action, applying
them as prerequisite for the grant of refusal, such injunctions would
be a sound exercise of a judicial discretion.

In Sakthi Durga Builders & Developers vs. P.S. Raman, 2007(SC),-

The Court held that interim mandatory injunction can be granted only
when there is a strong prima facie case apart from other aspect regarding
irreparable loss and the balance of inconvenience and tests to be satisfied
are far more stringent in case of an interim mandatory injunction and can
be granted only in exceptional cases.
 
‘A mandatory injunction can be granted on an interlocutory application as
well as at the hearing, but, in the absence of special circumstances, it will
not normally be granted.

However, if the case is clear and one which the Court thinks ought to be
decided at once, or if the act done is a simple and summary one which can
be easily remedied or if the defendant attempts to steal a march on the
plaintiff, such as where, on receipt of notice that an injunction is about to
be applied for, the defendant hurries on the work in respect of each
complaint is made, so that when he receives notice of an interim
 

injunction it is completed, a mandatory injunction will be granted on

interlocutory application.'

Absence of concluded contract.-

A declaration that rejection of the bid is illegal, itself, held, does not
entitle the plaintiff (highest bidder) to consequential mandatory injunction
for issuance of formal letter of allotment when bid had not yet been
accepted i.e. in absence of concluded contract, HUDA v. Orchid
Infrastructure Developers (P) Ltd., (2017) SC.

DISCRETION OF THE COURT

The discretion of the court must be based on the recognized principles and
should not be arbitrary. The granting or refusal of injunction is not a
matter 'debito justitae’ but purely within sound discretion of the court.

In Delhi Municipality vs. Suresh Chandra it was held that in exercising

its discretion the court will consider among other things, whether the act
complained of, if not restrained by an injunction, can be atoned for
appropriately and completely through the relief of damages.

Illustrations/Case Law (Sec. 39)

(i) Co-owners- Where one co-owner without the consent of the other puts
up a construction on the joint land and the other co-owner brings a suit
for mandatory injunction the court will take the following
circumstances into consideration: If the plaintiff comes at the earliest
opportunity, then unless there is a special equity in defendant’s favour,
the relief will be granted but not if the plaintiff lets the defendant
proceed with the construction including the defendant to believe that
there is no objection.
(ii) Injury to land - Trees grown on the defendant’s land were damaging
the crops on the plaintiff’s land and affecting its fertility. Therefore, a
 

mandatory injunction for their removal was granted [Mahabir

Chowdhary v Jadu Nandan Tiwari (1972).

(iii) Contracts - A court would uphold a contract by means of a mandatory

injunction; but it would exercise its discretion so as to withhold an
injunction more readily if it were mandatory than if it were prohibitive.
In Khawaza Bux v Mirza Md. Ismail (AIR 1984 All 83), the court
issued La mandatory injunction directing the defendant to forthwith
execute the necessary documents required to effectuate the transfer of
permit (under Motor Vehicles Act) in plaintiff ’s favour.

(iv) Breach of confidence --The communication in a commercial contract

of information regarded by the given a accepted by the recipient as
‘confidential and which had a material connection with the
commercial interest of the giver imposes on the recipient a fiduciary
obligation to maintain that confidence unless the giver relaxes it
[Schering Chemicals Ltd. v Falkman Ltd. (1981 SC).

(v) Breach of an obligation - The obligation should normally be towards

the plaintiff but in Raghunath v Mathura Municipality (1950) , a
mandatory injunction was exceptionally granted against a defendant,
who was under no direct obligation to the plaintiff, but whose
performance of an obligation to the Collector, who did owe a duty to
the plaintiff, was a condition precedent to the enforcement of the
plaintiff’s right against the Collector.

(vi) Plaintiffs conduct and pecuniary compensation - Injunction will not

be granted where the plaintiff’s conduct is not proper and also where
pecuniary compensation is an adequate relief. This was in a case where
the plaintiff had pledged his shares with a Bank against an overdraft
 

and the Bank had brought a suit for recovery of its debt and threatened
to sell the shares if the debt was not paid. The plaintiff brought a suit
for injunction restraining the Bank from selling the shares as the Bank
had no longer any right to sell the shares in view of the suit brought by it
(Haridas Mundra v National & Grindlays Bank Ltd. (1963) SC.

MANDATORY AND PROHIBITORY INJUNCTION

DISTINGUISHED
As defined above, a mandatory injunction calls upon a person to do some
positive act while the prohibitory injunction is restrictive in nature.

Mandatory injunction is awarded where temporary injunction is

meaningless, the fearful anticipations of the plaintiff having been
translated into accomplished fact.

A perpetual injunction is issued after the trial of a case, when the plaintiff
has establishment his right. The injunction holds good forever, and
restrains the defendant forever, and it is in the nature of a decree. It is
granted where there is involved a question of substantial damage which
cannot be compensated by money and also where a legal right has been
broken.

Madan Jena v. Saraswati Jena, AIR 2003 , one co-sharer locked the
entrance of the passage room of the other co-sharer preventing her from
having access to the public road on that side. The affected sharer was
granted an injunction restraining the guilty co-sharer from doing so, the
latter having already admitted the right of the co-sharer to the use of the
passage.

Damage in lieu of, or in addition to, injunction (Sections 40)

Section 40 of the Act provides that-
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.

Introduction
This is a new section added in the year 1963, but embodies what has been
the law accepted in India. The aim of the provision is to prevent
multiplicity of suits, compelling the plaintiff to sue for all the reliefs
arising from the infringement of this right, in the same suit. Damages
must be claimed in the plaint, which may be amended at any stage, and if
damages are not claimed in the suit, a subsequent suit for damages will be
barred. The section also provides that if a suit for injunction is dismissed,
the plaintiff cannot seek damages for the same breach of obligation. The
section would apply, irrespective of whether the suit is for prohibitory, or
for mandatory injunction.

Damages and Injunction

Damages may be awarded in substitution for or in addition to injunction.
The court has jurisdiction to grant damages in lieu of an injunction not
only where the act complained of has been done and there is an intention
to continue it, but also in lieu of a quia timet injunction for an injury not
yet committed, but only threatened and intended;" as for instance where
the erection of a building has not yet commenced, but according to plans
prepared when completed, it will infringe the right to light enjoyed by a
neighbouring tenement.
 

Damages in Substitution
Conditions for giving damages instead of an injunction are:
(i) injury to plaintiff's right is small;
(ii) it is one capable of being estimated in money;
(iii) it is one which is capable of being compensated by a small money
payment; and
(iv) The case is one in which it would be oppressive to the defendant to
grant an injunction.

Compensation for Damage

A court granting temporary injunction has the jurisdiction and power to
grant compensation to mitigate the damages caused to the defendant by a
grant of injunction, viz., damage caused to the defendant because it could
not proceed with the works due to a pending injunction. Such award is
consequential to adjudication of the dispute, and incidental to the
determination of the case by the court. This grant or refusal to award
damages is not founded upon the original cause of action, but on the
consequences of the adjudication by the conduct of the parties.

Damages in lieu of injunction can be granted under Sec. 40, but it is for
the plaintiff to claim damages. If he does not so claim, the question of
awarding damages does not normally arise. Where the court allowed
the plaintiffs an opportunity to amend the plaint under the proviso to
Section 40(2), but they failed to avail of that opportunity, the court has
no option but to dismiss the suit. [Chandra Bhan Singh v Sheo
Shankar AIR 1984 SC.

Injunction when Refused (Section 41)

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 sub-ordinate 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;
(ha) if it would impede or delay the progress or completion of any
infrastructure project or interfere with the continued provision of
relevant facility related thereto or services being the subject] matter of
such project.
(i) when the conduct of the plaintiff or his agents has been such as to
disentitle him to be the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.

Section 41 gives a list of cases in which a perpetual injunction cannot be

granted. It must, however, we remembered that the jurisdiction to grant
injunction is discretionary, and an injunction, therefore, may be refused
even if the case be one not covered by the present section.

Introduction
This section gives a list of cases in which a perpetual injunction cannot be
granted. The jurisdiction to grant injunction is discretionary, and an
injunction therefore, may be refused even if the case be one not covered
by the present section. Clauses (a) and (b) are now so expressed as to
make it clear that the injunction is not directed against a court, but in
personam, setting at rest the conflict in the decisions of various courts.
 

Clause (a): Restrain Prosecuting Judicial Proceeding

This clause applies where a judicial proceeding is pending in another
court, and not to one which has been threatened;" as against clause (b)
which applies to proceedings pending, as well as those threatened. An
injunction cannot be granted restraining any person from prosecuting a
proceeding pending when the suit for injunction has been filed; unless
granting the injunction would prevent multiplicity of proceedings, viz,
where it is necessary to prevent a continuing wrong.

Clause (b): Proceeding in a Court

The clause applies to pending proceedings as well as to those which are
threatened.
Access to court in search of justice according to law is the right of a
person who complains of infringement of his legally protected interest
and a fortiori therefore, no other court can by its action impede access to
justice. As a corollary it must yield to another principle that the superior
court can injunct a person by restraining him from instituting or
prosecuting proceedings before a subordinate court.

In an arbitration agreement executed before the judgment of the Supreme

Court in BALCO case, the Supreme Court restored the anti-suit injunction
granted by the trial court on proceedings in English courts on
consideration of the following factors: (i) the contract was to have been
performed in India, (ii)the parties were Indian and German, (iii) the
respondent had participated and initiated proceedings in India, which
indicated that the respondent did not consider the Indian courts forum non
conveniens, (iv) the governing law of the contract, the arbitration
agreement and the law of arbitration/ curial law was the law of India, (v)
the award would have to be enforced in India, (vi) interim measures
would have to be sought against assets in India. The only factor of the
venue of arbitration being in London could not be understood as
conferring concurrent jurisdiction on the English courts over arbitration
proceedings or disputes in general. Once the seat of arbitration has been
 

fixed in India, it follows that Indian courts have exclusive jurisdiction to

exercise the supervisory powers over the arbitration.

Court - No jurisdiction under Section 41(b) or CPC.- Court has no

jurisdiction either under Section 41(b) or under its inherent powers under
Section 151, Civil Procedure Code to grant temporary injunction
restraining a person from instituting any proceeding which such person is
otherwise entitled to institute in a court not subordinate to that from which
the injunction is sought, Cotton Corpn. Of India Ltd. v. United Industrial
Bank Ltd., (1983) SCC.

The equitable principle underlying Section 41(b) is that access to court in

search of justice according to law is the right of a person who complains
of infringement of his legally protected interest and a fortiori therefore, no
other court can by its action impede access to justice, except the superior
court which can injunction a person by restraining him from instituting or
prosecuting a proceeding before a subordinate court. A subordinate court
is precluded from granting an injunction restraining any person from
instituting or prosecuting any proceeding in a court of coordinate or
superior jurisdiction. Section 41(b) has curtailed the power to grant
injunction in personam. Moreover, Section 41(b) was enacted in order to
avoid the inevitable multiplicity of proceedings.

Accordingly, Section 41(b) must receive such interpretation as would

advance the intendment, and thwart the mischief it was enacted to
suppress, and to keep the path of access to justice through obstructed.
Access to justice must not be hampered even at the hands of judiciary,
Cotton Corpn. of India Ltd. v. United Industrial Bank Ltd., (1983) 4
SCC 625.

'Injunction' under covers perpetual as well as temporary injunctions. If

final relief cannot be granted, temporary injunction also cannot be availed
of, Cotton Corpn. of India Ltd. v. United Industrial Bank Ltd., (1983) 4
SCC 625.
 

Clause (c): Legislative Body

Injunction cannot be granted to restrain any person from applying to any
legislative body.

Clause (d): Prosecuting Criminal Proceedings

An injunction cannot be issued restraining any person or authority from
lodging a First Information Report to the police.

Clause (e): Prevent Breach of Contract

Section 38 provides that when perpetual injunction to prevent breach of
an obligation arising from a contract is sought, the court will be guided by
the rules and provisions relating to grant of specific performance of
contracts under Chapter II. Section 14 enumerates the classes of contracts
which the courts will not enforce; section 16 specific the personal bars to
relief.

Clause (e) of section 41 provides that injunction cannot be granted to

prevent the breach of contract, the performance of which would not be
specifically enforced. Thus injunction cannot be granted in contracts
where specific performance would not be enforced.

Clause (f): Nuisance

A person is entitled to enjoy his own property in any way he pleases
provided he does not create a nuisance or interfere with the rights of
others; and no injunction can be granted where there is no nuisance or
interference with rights, or apprehension thereof. To determine whether
the act complained of amounts to nuisance, the court must consider the
ordinary physical comfort of human existence according to plain and
simple notions obtaining amongst the people of the neighbourhood.

Clause (g): Acquiescence of Plaintiff

If a person stands by and knowingly, but passively, encourages another to
expend money under an erroneous belief as to his rights, and then comes
to the court for relief by way of a perpetual injunction, it will be refused
and will be left to his remedy if any, in damages.
 

A plaintiff disentitles himself to the relief of injunction if he has

acquiesced in defendant's act infringing his right. But submitting to a
nuisance for a while is not acquiescence; nor does mere delay amount to
acquiescence." Thus, where the plaintiff, being entitled to a restrictive
covenant against the defendant opening more windows in a wall, kept
silent until the defendant's building was completed, he was not entitled to
any injunction. Nor could the plaintiff restrain the defendant from doing
business on the premises against the purposes for which it was let out,
where the defendant did that business from the inception of the tenancy.

Clause (h): Equally Efficacious Relief

An injunction which is a discretionary equitable relief cannot be granted
when an equally efficacious relief is obtainable in any other usual mode
or proceeding except in cases of breach of trust.

Where the plaintiff is in a position to claim specific performance or

mandatory injunction, the court would refuse to grant a prohibitory
injunction, unless the plaintiff brought his case within section 42.

A perpetual injunction cannot be granted when equally efficacious relief

can be obtained by any other usual mode of proceeding. The purpose of
this clause is to prevent multiplicity of proceedings.

Clause (i): Plaintiff's Conduct

Courts have, over centuries, frowned upon litigants who, with intent to
deceive and mislead the courts, initiated proceedings without full
disclosure of facts. Courts held that such litigants have come with
“unclean hands" and are not entitled to be heard on the merits of their
case. It is one of the fundamental principles of jurisprudence that litigants
must observe total clarity and candour in their pleadings and especially
when it contains a prayer for injunction. A prayer for injunction, which is
an equitable remedy, must be governed by the principles of “uberrima
fides".
 

Where attempt was made to create unnecessary confusion through

deliberately filing irrelevant documents and untenable pleas, the court
must be cautious in not granting relief to such a party. These factors must
be taken into consideration while granting relief and/ or imposing costs.

Injunction to Perform Negative Agreement (Section 42)

Notwithstanding anything contained in Section 41(e), 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.

Illustrations
(a) A contracts to sell to B for Rs.1,000 the goodwill of a certain business
unconnected with business premises, and further agrees not to carry on
that business in Calcutta. B pays A the Rs.1,000 but A carries on the
business in Calcutta. The court cannot compel A to send his customers
to B, but B may obtain an injunction restraining A from carrying on the
business in Calcutta.
(b) A, contracts to sell to B the goodwill of a business. A then sets up a
similar business close to B’s shop, and solicits his old customers to deal
with him. This is contrary to his implied contract, and B may obtain an
injunction to restrain A from soliciting the customers, and from doing
any act whereby their goodwill may be withdrawn from B.
(c) A, contracts with B to sing for twelve months at B’s theatre and not
to sing in public elsewhere. B cannot obtain specific performance to
sing, but he is entitled to an injunction restraining A from singing at
any other place of public entertainment.
(d) A, contracts with B that he will serve him faithfully for 12 months as a
clerk. B is not entitled to a decree for specific performance of this
contract, but he is entitled to an injunction restraining A from serving a
  

rival house as a clerk.

Essentials of Section 42
Section 42 is an exception to the provisions contained in Section 41(e).
The essential requirements of Section 42 are:
(i) The contract consists of two agreements i.e. an affirmative agreement to
do a certain act and a negative agreement not to do a certain act.
(ii) The negative part is capable of being separated from the rest of the
contract.
(iii) The applicant must not have failed to perform the contract so far as it is
binding on him (proviso to the section: An illustration - A contracts
with B that, in consideration of Rs.1,000 to be paid to him by B on a
day fixed, he will not set up a certain business within a specified
distance. B fails to pay the money. A cannot be restrained from carrying
on the business within the specified distance).

Halsbury while explaining the law on the subject observes that “in the
case of a contract containing both positive and negative covenants, the
court can and will in a proper case restrain breaches of the negative
covenant with a view to the complete performance of the contract. Thus,
jurisdiction will be exercised even where the positive covenants are of
such a nature as to be incapable of specific performance as, for example, in
the case of a contract for personal service, or for the sale of chattels etc.”

Negative agreement may be implied

In the case of a contract containing both positive and negative covenants,
the court in a proper case will restrain breaches of the negative covenants
with a view to the complete performance of the contract.

The negative agreement need not be ‘express’, as in Lumley v Wagner

(1852) I D.M. & G 604 [the facts of which are stated in illustration (c) to
Section 42). It may be ‘implied’ as in illustration (b) and (d) above.
Illustration (d) to Section 42 is an instance where the implication of an
 

express affirmative agreement was extended to the farthest limit so as to

incorporate an implied negative stipulation. It is based on the observation
made in the case of Lumley v Wagner where it was observed that the
agreement to perform at one theatre must necessarily exclude the right to
perform at the same time at another theater and that even in the absence of
any negative stipulation if she had attempted to perform at another theatre,
she would have broken the spirit and true meaning of the contract as much
as she would not do with reference to the contract into which she had
actually entered.
 

LECTURE 11
SPECIFIC RELIEF ACT
MANDATORY INJUNCTION AND
PERPUETAL INJUNCTION WHEN NOT GRANTED AND
COMPENSATION IN LIU OF INJUNCTION AND
POSTIVE AGREEMENT AND NEGATIVE AGREEMENT

Mandatory Injunctions (Section 39)

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.

Illustrations

 A, by new building, obstructs lights to the access and use of which B

has acquired a right under the Indian Limitation Act. B may obtain an
injunction, not only to restrain A from going on with the buildings, but
also to pull down so much of them as obstructs A’s lights.
 A threatens to publish statements concerning B which would be
punishable under the Indian Penal Code. The court may grant an
injunction to restrain the publication, even though it may be shown not
to be injurious to B’s property as well as court may also order for
destroy of if any documents contains statements of such publication.

Introduction
Mandatory injunction is an injunction in a positive form, requiring a
person or party to a suit to do a particular thing. It provides a remedy
where it is not possible to restore the status quo, unless the wrongdoer is
made to undo the wrong, which he has committed. It is granted when to
 

prevent a breach of obligation, it is necessary to compel the performance

of certain acts. This section is the same as section 55 of the repealed Act.

Purpose of the Provision

The purpose of granting such an injunction is to compel a defendant to
restore things to the condition in which they were when the plaintiff's
complaint was made. It aims at restoration of things to status quo ante. A
mandatory injunction cannot be granted to create a new state of things.
Where the possession of the plaintiff has been violated pending
proceedings, an order of mandatory injunction can be passed to restore
possession; such order can be passed even at the stage of execution by an
executing court. Amendment of plaint for the purpose is not necessary.

A ‘mandatory’ injunction is an order requiring the defendant to do some

positive act for the purpose of putting an end to a wrongful state of things
created by him, or otherwise in fulfillment of his legal obligation. It is a
command to undo that which has been done or to do a particular act to
restore things to their former condition. In comparison, when a party
threatening to invade the legal /equitable rights of another is restrained
from continuing or commencing such wrongful act, the injunction so
issued is termed a ‘prohibitory’ injunction as it incorporates a negative act.

An illustration will make the point quite clear. A is B’s medical advisor.
He demands money from B, which A declines to pay. A then threatens to
make known the effect of B’s communication to him as patient. This is
contrary to A’s duty and B may not only obtain a prohibitory injunction to
restrain A from so doing, but also obtain a mandatory injunction ordering
A to destroy all written communications made by B as patient of A.

Considerations for the Grant of Mandatory Injunction

 

Two elements must be considered for the grant of a mandatory

injunction:
(i) what acts are necessary in order to prevent a breach of the
obligation; and
(ii) whether these acts are such as the court is capable of enforcing.

In a case where the defendant, a co-owner of the property unilaterally

occupied the front portion of the property abutting the road and put up a
construction in the property, without partition of the land, and without the
consent of the plaintiff, who was the other co-owner, and in disregard of
the plaintiff's protests, a mandatory injunction was granted directing the
defendant to demolish the property, on considerations that the plaintiff
could not be adequately compensated and that the refusal to grant
mandatory injunction will result in greater injury to the plaintiff.

When a mandatory injunction is granted under Section 39, two elements

have to be taken into consideration: firstly, the court has to determine
what acts are necessary in order to prevent a breach of the obligation;
secondly, the requisite act must be such as the court is capable of enforcing.
These acts may assume a variety of forms, e.g., the pulling down of a
building, destruction of copies produced by piracy of copyright and of
trademarks, removal of trees on the defendant’s land or the removal of
overhanging branches, providing maintenance to the widow of the testator
[Bhagwan Kaur v Chetan Singh AIR 1988 P & H 198], to restore the
building in its original condition, etc.

The jurisdiction of the court to grant mandatory injunction is discretionary

and the court will consider all the facts and circumstances with great
caution -- the balance of convenience and inconvenience, whether injury
can be adequately compensated by money, the conduct of the parties and
the nature and extent of the encroachment or infringement of the rights of
the party complaining. It cannot be said that mandatory injunction should
only be granted when pecuniary compensation would not afford adequate
relief. Even if it could be said that it is a consideration for the grant of
injunction, the discretion has to be exercised on the basis of facts of each
 

case [Pabbar Ram v Bhagwan Dass, 1987 All LJ 403].

Where no relief for a mandatory injunction was ever claimed, it would not
be possible to entertain a prayer for any such relief, or to decree it by
permitting an amendment of the plaint, or in the suo motu exercise of the
judicial discretion of the court (State of U.P. v Prag Ice & Oil Mill, Aligarh
1983 All LJ 1155). It may be noted that where a discretionary relief is
disallowed on the ground that in the circumstances of the case it was not a
proper relief, it could not be said that the civil court had no jurisdiction to
entertain the suit as originally brought before it. Where it could not be
considered to be an equitable relief, the suit would not fail not because the
civil court had no jurisdiction to entertain it but because it did not consider
that the relief prayed for was an equitable relief (Ram Awalamb v Jata
Shankar 1968 All LJ 1108 (F.B.)].

Mandatory Injunction at Interlocutory Stage

In the case of Sukerma Rani Kapoor vs. Om Prakash Kapoor And Ors.
On 18 January, 2002 DC HC the Delhi High Court affirmed that a
mandatory injunction at interlocutory stage should not normally be
granted which has the effect of granting the final relief. However, it is not
an absolute principle of law. There is no such mandate by any law that in
all circumstances such a relief at an interlocutory stage had to be refused.
Of course, normally such a relief is not to be granted, but in exceptional
circumstances mandatory injunction at interlocutory stage, particularly to
restore the status quo ante, can be granted by the Courts.

It was also observed that the balance of convenience is in favor of the one
seeking such relief, being essentially an equitable relief the grant or
refusal of an interlocutory mandatory injunction shall ultimately rest in
the sound judicial discretion of the Court to be exercised in the light of the
facts and circumstances in each case.
In the case of Banu Mithra vs M. Balu on 9 February, 2009 Madras high
Court, referred supported the decision of the case of 'Dorab Cawasji
Warden vs. Coomi Sorab Warden, (1990) 2, Supreme Court cases 117, at
 

page No.118 wherein the Hon'ble Supreme Court has observed that the
relief of interlocutory mandatory injunctions are granted generally to
preserve or restore the status quo of the last non contested status which
proceeded the pending controversy until the final hearing when full relief
may be granted or to compel the undoing of those acts that have been
illegally done or the restoration of that which was wrongfully taken from
the party complaining. But since the granting of such an injunction to a
party who fails or would fail to establish his right at the trial may cause
great injustice or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party who succeeds or
would succeed may equally cause great injustice or irreparable harm,
Courts have evolved certain guidelines which are:-
(i) The plaintiff has a strong case for trial that is, it shall be of a high
standard than a prima facie case that is normally required for a
prohibitory injunction.
(ii) It is necessary to prevent irreparable or serious injury which normally
cannot be compensated in terms of money.
(iii) The balance of inconvenience is in favour of the one seeking such
relief. “And further at page 120, it is also observed that 'the grant or
refusal of an interlocutory mandatory injunction shall ultimately rest
in the sound judicial discretion of the Court to be exercised in the
light off acts and circumstances in each cases. Though the above
guidelines are neither exhaustive nor complete or absolute rules and
there may be exceptional circumstances needing action, applying
them as prerequisite for the grant of refusal, such injunctions would
be a sound exercise of a judicial discretion.

In Sakthi Durga Builders & Developers vs. P.S. Raman, 2007(SC),-

The Court held that interim mandatory injunction can be granted only
when there is a strong prima facie case apart from other aspect regarding
irreparable loss and the balance of inconvenience and tests to be satisfied
are far more stringent in case of an interim mandatory injunction and can
be granted only in exceptional cases.
 
 

‘A mandatory injunction can be granted on an interlocutory application as

well as at the hearing, but, in the absence of special circumstances, it will
not normally be granted.

However, if the case is clear and one which the Court thinks ought to be
decided at once, or if the act done is a simple and summary one which can
be easily remedied or if the defendant attempts to steal a march on the
plaintiff, such as where, on receipt of notice that an injunction is about to
be applied for, the defendant hurries on the work in respect of each
complaint is made, so that when he receives notice of an interim
injunction it is completed, a mandatory injunction will be granted on
interlocutory application.'

Absence of concluded contract.-

A declaration that rejection of the bid is illegal, itself, held, does not
entitle the plaintiff (highest bidder) to consequential mandatory injunction
for issuance of formal letter of allotment when bid had not yet been
accepted i.e. in absence of concluded contract, HUDA v. Orchid
Infrastructure Developers (P) Ltd., (2017) SC.

DISCRETION OF THE COURT

The discretion of the court must be based on the recognized principles and
should not be arbitrary. The granting or refusal of injunction is not a
matter 'debito justitae’ but purely within sound discretion of the court.

In Delhi Municipality vs. Suresh Chandra it was held that in exercising

its discretion the court will consider among other things, whether the act
complained of, if not restrained by an injunction, can be atoned for
appropriately and completely through the relief of damages.

Illustrations/Case Law (Sec. 39)

 

(i) Co-owners- Where one co-owner without the consent of the other puts
up a construction on the joint land and the other co-owner brings a suit
for mandatory injunction the court will take the following
circumstances into consideration: If the plaintiff comes at the earliest
opportunity, then unless there is a special equity in defendant’s favour,
the relief will be granted but not if the plaintiff lets the defendant
proceed with the construction including the defendant to believe that
there is no objection.
(ii) Injury to land - Trees grown on the defendant’s land were damaging
the crops on the plaintiff’s land and affecting its fertility. Therefore, a
mandatory injunction for their removal was granted [Mahabir
Chowdhary v Jadu Nandan Tiwari (1972).

(iii) Contracts - A court would uphold a contract by means of a mandatory

injunction; but it would exercise its discretion so as to withhold an
injunction more readily if it were mandatory than if it were prohibitive.
In Khawaza Bux v Mirza Md. Ismail (AIR 1984 All 83), the court
issued La mandatory injunction directing the defendant to forthwith
execute the necessary documents required to effectuate the transfer of
permit (under Motor Vehicles Act) in plaintiff ’s favour.

(iv) Breach of confidence --The communication in a commercial contract

of information regarded by the given a accepted by the recipient as
‘confidential and which had a material connection with the
commercial interest of the giver imposes on the recipient a fiduciary
obligation to maintain that confidence unless the giver relaxes it
[Schering Chemicals Ltd. v Falkman Ltd. (1981 SC).

(v) Breach of an obligation - The obligation should normally be towards

the plaintiff but in Raghunath v Mathura Municipality (1950) , a
mandatory injunction was exceptionally granted against a defendant,
who was under no direct obligation to the plaintiff, but whose
 

performance of an obligation to the Collector, who did owe a duty to

the plaintiff, was a condition precedent to the enforcement of the
plaintiff’s right against the Collector.

(vi) Plaintiffs conduct and pecuniary compensation - Injunction will not

be granted where the plaintiff’s conduct is not proper and also where
pecuniary compensation is an adequate relief. This was in a case where
the plaintiff had pledged his shares with a Bank against an overdraft
and the Bank had brought a suit for recovery of its debt and threatened
to sell the shares if the debt was not paid. The plaintiff brought a suit
for injunction restraining the Bank from selling the shares as the Bank
had no longer any right to sell the shares in view of the suit brought by it
(Haridas Mundra v National & Grindlays Bank Ltd. (1963) SC.

MANDATORY AND PROHIBITORY INJUNCTION

DISTINGUISHED
As defined above, a mandatory injunction calls upon a person to do some
positive act while the prohibitory injunction is restrictive in nature.

Mandatory injunction is awarded where temporary injunction is

meaningless, the fearful anticipations of the plaintiff having been
translated into accomplished fact.

A perpetual injunction is issued after the trial of a case, when the plaintiff
has establishment his right. The injunction holds good forever, and
restrains the defendant forever, and it is in the nature of a decree. It is
granted where there is involved a question of substantial damage which
cannot be compensated by money and also where a legal right has been
broken.

Madan Jena v. Saraswati Jena, AIR 2003 , one co-sharer locked the
entrance of the passage room of the other co-sharer preventing her from
 

having access to the public road on that side. The affected sharer was
granted an injunction restraining the guilty co-sharer from doing so, the
latter having already admitted the right of the co-sharer to the use of the
passage.

Damage in lieu of, or in addition to, injunction (Sections 40)

Section 40 of the Act provides that-
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.

Introduction
This is a new section added in the year 1963, but embodies what has been
the law accepted in India. The aim of the provision is to prevent
multiplicity of suits, compelling the plaintiff to sue for all the reliefs
arising from the infringement of this right, in the same suit. Damages
must be claimed in the plaint, which may be amended at any stage, and if
damages are not claimed in the suit, a subsequent suit for damages will be
barred. The section also provides that if a suit for injunction is dismissed,
the plaintiff cannot seek damages for the same breach of obligation. The
section would apply, irrespective of whether the suit is for prohibitory, or
for mandatory injunction.
 

Damages and Injunction

Damages may be awarded in substitution for or in addition to injunction.
The court has jurisdiction to grant damages in lieu of an injunction not
only where the act complained of has been done and there is an intention
to continue it, but also in lieu of a quia timet injunction for an injury not
yet committed, but only threatened and intended;" as for instance where
the erection of a building has not yet commenced, but according to plans
prepared when completed, it will infringe the right to light enjoyed by a
neighbouring tenement.

Damages in Substitution
Conditions for giving damages instead of an injunction are:
(i) injury to plaintiff's right is small;
(ii) it is one capable of being estimated in money;
(iii) it is one which is capable of being compensated by a small money
payment; and
(iv) The case is one in which it would be oppressive to the defendant to
grant an injunction.

Compensation for Damage

A court granting temporary injunction has the jurisdiction and power to
grant compensation to mitigate the damages caused to the defendant by a
grant of injunction, viz., damage caused to the defendant because it could
not proceed with the works due to a pending injunction. Such award is
consequential to adjudication of the dispute, and incidental to the
determination of the case by the court. This grant or refusal to award
damages is not founded upon the original cause of action, but on the
consequences of the adjudication by the conduct of the parties.

Damages in lieu of injunction can be granted under Sec. 40, but it is for
the plaintiff to claim damages. If he does not so claim, the question of
awarding damages does not normally arise. Where the court allowed
the plaintiffs an opportunity to amend the plaint under the proviso to
 

Section 40(2), but they failed to avail of that opportunity, the court has
no option but to dismiss the suit. [Chandra Bhan Singh v Sheo
Shankar AIR 1984 SC.

Injunction when Refused (Section 41)

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 sub-ordinate 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;
(ha) if it would impede or delay the progress or completion of any
infrastructure project or interfere with the continued provision of
relevant facility related thereto or services being the subject] matter of
such project.
(i) when the conduct of the plaintiff or his agents has been such as to
disentitle him to be the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.

Section 41 gives a list of cases in which a perpetual injunction cannot be

 

granted. It must, however, we remembered that the jurisdiction to grant

injunction is discretionary, and an injunction, therefore, may be refused
even if the case be one not covered by the present section.

Introduction
This section gives a list of cases in which a perpetual injunction cannot be
granted. The jurisdiction to grant injunction is discretionary, and an
injunction therefore, may be refused even if the case be one not covered
by the present section. Clauses (a) and (b) are now so expressed as to
make it clear that the injunction is not directed against a court, but in
personam, setting at rest the conflict in the decisions of various courts.

Clause (a): Restrain Prosecuting Judicial Proceeding

This clause applies where a judicial proceeding is pending in another
court, and not to one which has been threatened;" as against clause (b)
which applies to proceedings pending, as well as those threatened. An
injunction cannot be granted restraining any person from prosecuting a
proceeding pending when the suit for injunction has been filed; unless
granting the injunction would prevent multiplicity of proceedings, viz,
where it is necessary to prevent a continuing wrong.

Clause (b): Proceeding in a Court

The clause applies to pending proceedings as well as to those which are
threatened.
Access to court in search of justice according to law is the right of a
person who complains of infringement of his legally protected interest
and a fortiori therefore, no other court can by its action impede access to
justice. As a corollary it must yield to another principle that the superior
court can injunct a person by restraining him from instituting or
prosecuting proceedings before a subordinate court.

In an arbitration agreement executed before the judgment of the Supreme

Court in BALCO case, the Supreme Court restored the anti-suit injunction
 

granted by the trial court on proceedings in English courts on

consideration of the following factors: (i) the contract was to have been
performed in India, (ii)the parties were Indian and German, (iii) the
respondent had participated and initiated proceedings in India, which
indicated that the respondent did not consider the Indian courts forum non
conveniens, (iv) the governing law of the contract, the arbitration
agreement and the law of arbitration/ curial law was the law of India, (v)
the award would have to be enforced in India, (vi) interim measures
would have to be sought against assets in India. The only factor of the
venue of arbitration being in London could not be understood as
conferring concurrent jurisdiction on the English courts over arbitration
proceedings or disputes in general. Once the seat of arbitration has been
fixed in India, it follows that Indian courts have exclusive jurisdiction to
exercise the supervisory powers over the arbitration.

Court - No jurisdiction under Section 41(b) or CPC.- Court has no

jurisdiction either under Section 41(b) or under its inherent powers under
Section 151, Civil Procedure Code to grant temporary injunction
restraining a person from instituting any proceeding which such person is
otherwise entitled to institute in a court not subordinate to that from which
the injunction is sought, Cotton Corpn. Of India Ltd. v. United Industrial
Bank Ltd., (1983) SCC.

The equitable principle underlying Section 41(b) is that access to court in

search of justice according to law is the right of a person who complains
of infringement of his legally protected interest and a fortiori therefore, no
other court can by its action impede access to justice, except the superior
court which can injunction a person by restraining him from instituting or
prosecuting a proceeding before a subordinate court. A subordinate court
is precluded from granting an injunction restraining any person from
instituting or prosecuting any proceeding in a court of coordinate or
superior jurisdiction. Section 41(b) has curtailed the power to grant
injunction in personam. Moreover, Section 41(b) was enacted in order to
avoid the inevitable multiplicity of proceedings.
 

Accordingly, Section 41(b) must receive such interpretation as would

advance the intendment, and thwart the mischief it was enacted to
suppress, and to keep the path of access to justice through obstructed.
Access to justice must not be hampered even at the hands of judiciary,
Cotton Corpn. of India Ltd. v. United Industrial Bank Ltd., (1983) 4
SCC 625.

'Injunction' under covers perpetual as well as temporary injunctions. If

final relief cannot be granted, temporary injunction also cannot be availed
of, Cotton Corpn. of India Ltd. v. United Industrial Bank Ltd., (1983) 4
SCC 625.

Clause (c): Legislative Body

Injunction cannot be granted to restrain any person from applying to any
legislative body.

Clause (d): Prosecuting Criminal Proceedings

An injunction cannot be issued restraining any person or authority from
lodging a First Information Report to the police.

Clause (e): Prevent Breach of Contract

Section 38 provides that when perpetual injunction to prevent breach of
an obligation arising from a contract is sought, the court will be guided by
the rules and provisions relating to grant of specific performance of
contracts under Chapter II. Section 14 enumerates the classes of contracts
which the courts will not enforce; section 16 specific the personal bars to
relief.

Clause (e) of section 41 provides that injunction cannot be granted to

prevent the breach of contract, the performance of which would not be
specifically enforced. Thus injunction cannot be granted in contracts
where specific performance would not be enforced.

Clause (f): Nuisance

 

A person is entitled to enjoy his own property in any way he pleases

provided he does not create a nuisance or interfere with the rights of
others; and no injunction can be granted where there is no nuisance or
interference with rights, or apprehension thereof. To determine whether
the act complained of amounts to nuisance, the court must consider the
ordinary physical comfort of human existence according to plain and
simple notions obtaining amongst the people of the neighbourhood.

Clause (g): Acquiescence of Plaintiff

If a person stands by and knowingly, but passively, encourages another to
expend money under an erroneous belief as to his rights, and then comes
to the court for relief by way of a perpetual injunction, it will be refused
and will be left to his remedy if any, in damages.
A plaintiff disentitles himself to the relief of injunction if he has
acquiesced in defendant's act infringing his right. But submitting to a
nuisance for a while is not acquiescence; nor does mere delay amount to
acquiescence." Thus, where the plaintiff, being entitled to a restrictive
covenant against the defendant opening more windows in a wall, kept
silent until the defendant's building was completed, he was not entitled to
any injunction. Nor could the plaintiff restrain the defendant from doing
business on the premises against the purposes for which it was let out,
where the defendant did that business from the inception of the tenancy.

Clause (h): Equally Efficacious Relief

An injunction which is a discretionary equitable relief cannot be granted
when an equally efficacious relief is obtainable in any other usual mode
or proceeding except in cases of breach of trust.

Where the plaintiff is in a position to claim specific performance or

mandatory injunction, the court would refuse to grant a prohibitory
injunction, unless the plaintiff brought his case within section 42.

A perpetual injunction cannot be granted when equally efficacious relief

can be obtained by any other usual mode of proceeding. The purpose of
this clause is to prevent multiplicity of proceedings.
 

Clause (i): Plaintiff's Conduct

Courts have, over centuries, frowned upon litigants who, with intent to
deceive and mislead the courts, initiated proceedings without full
disclosure of facts. Courts held that such litigants have come with
“unclean hands" and are not entitled to be heard on the merits of their
case. It is one of the fundamental principles of jurisprudence that litigants
must observe total clarity and candour in their pleadings and especially
when it contains a prayer for injunction. A prayer for injunction, which is
an equitable remedy, must be governed by the principles of “uberrima
fides".

Where attempt was made to create unnecessary confusion through

deliberately filing irrelevant documents and untenable pleas, the court
must be cautious in not granting relief to such a party. These factors must
be taken into consideration while granting relief and/ or imposing costs.

Injunction to Perform Negative Agreement (Section 42)

Notwithstanding anything contained in Section 41(e), 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.

Illustrations
(a) A contracts to sell to B for Rs.1,000 the goodwill of a certain business
unconnected with business premises, and further agrees not to carry on
that business in Calcutta. B pays A the Rs.1,000 but A carries on the
business in Calcutta. The court cannot compel A to send his customers
to B, but B may obtain an injunction restraining A from carrying on the
  

business in Calcutta.
(b) A, contracts to sell to B the goodwill of a business. A then sets up a
similar business close to B’s shop, and solicits his old customers to deal
with him. This is contrary to his implied contract, and B may obtain an
injunction to restrain A from soliciting the customers, and from doing
any act whereby their goodwill may be withdrawn from B.
(c) A, contracts with B to sing for twelve months at B’s theatre and not
to sing in public elsewhere. B cannot obtain specific performance to
sing, but he is entitled to an injunction restraining A from singing at
any other place of public entertainment.
(d) A, contracts with B that he will serve him faithfully for 12 months as a
clerk. B is not entitled to a decree for specific performance of this
contract, but he is entitled to an injunction restraining A from serving a
rival house as a clerk.

Essentials of Section 42
Section 42 is an exception to the provisions contained in Section 41(e).
The essential requirements of Section 42 are:
(i) The contract consists of two agreements i.e. an affirmative agreement to
do a certain act and a negative agreement not to do a certain act.
(ii) The negative part is capable of being separated from the rest of the
contract.
(iii) The applicant must not have failed to perform the contract so far as it is
binding on him (proviso to the section: An illustration - A contracts
with B that, in consideration of Rs.1,000 to be paid to him by B on a
day fixed, he will not set up a certain business within a specified
distance. B fails to pay the money. A cannot be restrained from carrying
on the business within the specified distance).

Halsbury while explaining the law on the subject observes that “in the
case of a contract containing both positive and negative covenants, the
court can and will in a proper case restrain breaches of the negative
covenant with a view to the complete performance of the contract. Thus,
jurisdiction will be exercised even where the positive covenants are of
 

such a nature as to be incapable of specific performance as, for example, in

the case of a contract for personal service, or for the sale of chattels etc.”

Negative agreement may be implied

In the case of a contract containing both positive and negative covenants,
the court in a proper case will restrain breaches of the negative covenants
with a view to the complete performance of the contract.

The negative agreement need not be ‘express’, as in Lumley v Wagner

(1852) I D.M. & G 604 [the facts of which are stated in illustration (c) to
Section 42). It may be ‘implied’ as in illustration (b) and (d) above.
Illustration (d) to Section 42 is an instance where the implication of an
express affirmative agreement was extended to the farthest limit so as to
incorporate an implied negative stipulation. It is based on the observation
made in the case of Lumley v Wagner where it was observed that the
agreement to perform at one theatre must necessarily exclude the right to
perform at the same time at another theater and that even in the absence of
any negative stipulation if she had attempted to perform at another theatre,
she would have broken the spirit and true meaning of the contract as much
as she would not do with reference to the contract into which she had
actually entered.