ALL INDIA LEGAL FORUM

DAY – 01

DATE – 21/11/2020

THE SPECIFIC RELIEF ACT, 1963

(SEC 1 – SEC 8)

INTRODUCTION
History of Specific Relief Act, 1963
In India, the common law doctrine of equity had traditionally been followed
even after it became independent in 1947. However it was in 1963 that the
Specific Relief Act was passed by the Parliament of India following the
recommendation of the Law Commission of India in its 9th report on the act, the
specific relief bill 1962 was introduced in Lok Sabha in June 1962 and
repealing the earlier ―Specific Relief Act of 1877

 Developed in England by Equity Court

 In England, before the invent of Specific Relief, the only remedy was that of
damages under which the party in breach need not to perform the promise

 Sometimes, the damages would prove to be insufficient

 So, in order to obviate such hardships, the Equity Court developed certain
reliefs called Specific Relief‘

 Originally drafted upon the lines of the draft New York Civil Code, 1862

 passed in 1877

 Amended by Acts of 1882, 1891, 1899, 1929, 1940, 1951, and was repealed
in 1963

 Embodies the doctrines evolved by the English Equity Court

 Principles of Equity, Justice & Good Conscience

 Required to be pleaded specifically to be enforced

 In the event of situation not covered under the 1963 Act, the Indian
Courts can exercise their inherent powers in term of Sec. 151 of C.P.C.

Meaning of specific performance

Laws fall into three categories.

 Those which define Rights.

  Those which define Remedies.
 Those which define Procedure.

The Law of Specific Relief belongs to the second category. It is a law which
deals with “Remedies”.

The expression Specific Relief means a relief in specie. It is a remedy which

aims at exact fulfillment of an obligation. The suit under Specific Relief Act
may be brought to compel the performance of the contract by the person in
default. Such relief may be either positive or negative. It is positive when a
claim to the performance of it and negative when it is desired to prevent the
doing of thing enjoined or undertaken as not to be done.

The Specific Relief Act explains and enunciates the various reliefs which can be
granted under its provisions, provides the law with respect to them. It provides
for the exact fulfilment of the obligation or the specific performance of contract.
It is directed to the obtaining of the very thing which a person is deprived of and
ought to be entitled to ask for. It is a remedy by which party to a contract is
compelled to do or omits the very acts which he has undertaken to do or omit.
The remedies which has been administered by Civil Courts of Justice against
any wrong or injury fall broadly into two classes

(i) those by which the suitor obtains the very thing to which he is
entitled, and
(ii) those by which he obtains not that very thing, but compensation for
the loss of it.

• The former is the Specific Relief. Thus specific relief is a remedy

which aims at the exact fulfilment of an obligation. It is remedial
when the court directs the specific performance of contract and
protective when the court makes a declaration or grants an injunction.

*Specific Relief Act was amended in 2018.

*Q1 – Whether SRA is Exhaustive?
Ans - The Preamble to SR provides that the purpose of the SRA is to “define
and amend”. Since the purpose is not consolidate the law on Specific Relief we
can say that the SRA is not “Exhaustive”.
Futher, it only defines and amends “certain kinds of Specific Relief”. This
implies that all the specific reliefs are not covered in the Specific Relief Act.
For eg :- Sec 58 SOGA provides for specific performance, the Partnership Act
provides for the suit for dissolution of Partnership and suit for settlement of
accounts, Tansfer of Property Act provides specific relief such as redemption
and foreclosure, etc.
Further, Sec 2(e) also suggests that the SRA is not exhaustive.

*Q2 – Whether SRA is Substantive or Procedural?

Ans – Acc to Mulla it is Procedural Law, but exception is Sec 6 which is
Substantive in nature.
In case of Adhunik Steels Ltd vs Orissa Manganese & Minerals (P)
Ltd [2007 SC]
It was held that SRA, in its essence, is a part of the law of Procedure, for
Specific Relief is a form of Judicial redress.
Sec 6 of SRA is Substantive in nature.
Even though SRA does not provide for proceedings like CPC, still is
considered to be a Procedural Law. This is because the SRA neither creates a
cause of action, nor defines the rights and liabilities.

 Nature of Specific Relief Act

The SRA deals with various forms of “Equitable Remedies”. The Specific
Relief is thus a relief in its actual form. It is the remedy which aims at exact
fulfilment of an obligation.

 Jurisprudential Essence
Ubi Jus Ibi Remedium
(Where there is a right, there must be a remedy.)
The right is created by the substantive law. The substantive law also provides
remedy.
But in case such remedy is not adequate, the SRA being remedial in nature
provides the adequate remedy.

 Principles on which SRA is based?

a) He who comes to court must come with clean hands.

b) He who seeks equity must do equity.

 Rule of Purposive Interpretation

If there are multiple interpretation possible, the interpretation that serves the
larger purpose of equity & justice and that provides complete relief must be
given.

Since SRA is based on the principles of equity & justice, the application of SRA
should be flexible. To do complete justice and equity, the courts must do
balancing of interest between the parties.

PART I
PRELIMINARY
(Sections 1 – 4)

SECTION 1 - SHORT TITLE, EXTENT AND

COMMENCEMENT
(1) This Act may be called the Specific Relief Act, 1963.
(2) It extends to the whole of India including Jammu & Kashmir
(3) It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint.

1. Commencement of the Act

The Specific Relief Act,1963 came into force on 1 March,1964

SECTION 2 – DEFINITIONS
1. Obligation [Section 2(a)] “Obligation” includes every duty enforceable by
law;
2. Settlement [Section 2(b)] “Settlement” means an instrument (other than a
will or codicil as defined by the Indian Succession Act, 1925 (39 of 1925),
whereby the destination or devolution of successive interests in movable or
immovable property is disposed of or is agreed to be disposed of;

3. Trust [Section 2(c)] “Trust” has the same meaning as in Section 3 of the
Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of
a trust within the meaning of Chapter IX of that Act;

4. Trustee [Section 2(d)] “Trustee” includes every person holding property in

trust;

All other words and expressions used herein but not defined, and defined in the
Indian Contract Act, 1872, have the meanings respectively assigned to them in
that Act. [Section 2(e)].

SECTION 3 – SAVINGS

a) Sec 3(a) -----> SAVING AS TO RIGHT UNDER ANY

CONTRACT
Under Indian Contract Act, 1872, the remedy for Breach of Contract is
provided under sec 73. Overtime, inadequacy of this remedy was
recognised and the courts in equity started provided the remedy of
Specific Performance.
The present clause makes clear that specific relief, except when expressly
provided (Sec 21 & 24), does not take away the remedy of damages or
any relief under any contract. The SRA only entitles the aggrieved party
to sue for specific performance at his option.

b) Sec 3(b) -----> REGISTRATION OF DOCUMENTS

Indian Registration Act will prevail over Specific Relief

Act
 IRA > SRA
1) Sec 3(b) in terms of Sec 17, Indian Registration Act, certain documents are
compulsory registered and if those are not registered, then those documents
cannot be used to create any rights nor can those be received in evidence.
If a document is required to be registered and if it is not registered,
despite the purpose of SRA being equity and justice, no relief can be granted to
a party on such unregistered documents. So we can say that the IRA will prevail
over SRA.

2) Effect of Non- Registration :-

If a relief is based on a document which is required to be registered under
Sec 17 of IRA, even though the court finds it just and equitable relief cannot
be granted on the basis of such document. As per Sec 49 of IRA :-
i) No right will be granted on the basis of such documents
(unregistered).
ii) Such documents cannot be used in evidence. However, the exception
to this is in Sec 49 of IRA proviso.
By virtue of proviso of Sec 49, an unregistered document affecting
immovable property and required by Registration Act oor Transfer of Property
Act to be registered, maybe received as evidence of a contract in a suit for
specific performance.

SECTION 4 - SPECIFIC RELIEF TO BE GRANTED ONLY

FOR ENFORCING INDIVIDUAL CIVIL RIGHTS AND NOT
FOR ENFORCING PENAL LAWS

 Individual Civil Rights means “Right in Personam”.

 SRA provides “Rights in Personam” i.e Individual Rights.

Sec 4 of SRA enforces Individual Civil Rights. Individual implies that it

provides for a “Right in Personam”.
A suit of civil nature is the one in which the principle question relates to a
civil right that is triable by a Civil Court as per Sec 9 of CPC. For enforcing a
right under SRA, only a suit of a civil nature can be filed. Even if a civil wrong
has criminal counterpart (for e.g – defamation , nuisance) the civil and
criminal case cannot be clubbed together at all.
The word ‘mere’ signifies 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.

PART II
SPECIFIC RELIEF
Chapter I
Recovering Possession of Property
(Sections 5 – 8)

To be read with : To be read with :

 CPC Schedule Appendix – A  Sec 9 of CPC

Form No. 32 & 39  Sec 27 of Limitation Act
 Order 20, Rule 10  Art 64 & 65 of Limitation Act
 Order 21, Rule 31  Order 21, Rule 35 & 36 of CPC
 Art 68 & 69 of Limitation Act.  Sec 110 of Indian Evidence
Act.

POSSESSION OF IMMOVABLE PROPERTY (De- facto relation b/w

man & an object)

Possession is prima facie proof of ownership of property. It is good title against

all who cannot show better title. Since it implies a right to possess it becomes a
title or a root of title. Possession ripens into title in course of time by
prescription.
Section 5 - RECOVERY OF SPECIFIC IMMOVABLE
PROPERTY

To recover specific immovable property a person has a choice in law to bring an

action in any of the following way:
way:-

1. To bring a suit based on title by ownership

2. To bring a suit based on possessory title.
3. To bring 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.

ENTITLEMENT

OWNERSHIP POSSESSORY TITLE

Eg : Eg :
Sales Deed, Gift, Etc Lease, Charge, Etc

Ownership is the De jure claimed to certain property. Possession is the De facto

exercise of a claim to certain property. A person may be entitled to the
possession of any immovable property either as an owner or as a possessor.
 RECOVERY OF SPECIFIC IMMOVABLE PROPERTY

Sec 5 of SRA read Sec 5 of SRA read with

Sec 6 of SRA.
with Art 65 of Art 64 of Limitation Act.
Limitation Act.

Suit based on Title. Suit based on Settled

Suit based on Prior Settle
Possession &
Cause of Action : Possession & Dispossession.
Dispossession.
Title + Denial Cause of Action : Right to continue
Cause of Action : Right
Matter in Issue : + possession + dispossession.
to continue settled
Ownership or Matter of Issue : Settled possession. possession
Tenancy +dispossession.

Matter of Issue :

Plaintiff cannot raise Title. Settled Possession.

But defendant can raise Title.
And once defendant rose
title then Plaintiff can also
Neither Plaintiff nor
raise Title.
Defendant can raise Title.
Limitation Period : 12 years.
Limitation Period : 6
months.

Sec 5 : A suit for recovery of possession of an immovable property can be filed.

This suit can only be filed by a person who is entitled to the property.
Entitlement can be by way of Ownership or by way of Possessory Title in the
property.
The suit under Sec 5 must be filed with respect to a specific immovable
property, i.e the property must be identifiable.
This suit can be filed in the manner provided by CPC (Sec 9). This suit is called
as a suit for Ejectment.
A suit under Sec 5 can be filed either read with Article 64 of Limitation Act
or Article 65 of Limitation Act. The limitation for filing a suit under these two
Articles is 12 years.
A suit can be filed under Art 65 on the basis of title, when the possession has
become adverse to the plaintiff.
The COA for filing the suit under Art 65 is Right to possess on the basis of title
and the violation of this right. The law laid down in Art 64 & Art 65 is based
upon the decision Asher vs Whitecock (1865) decision by Queen’s Bench
which was accepted by the House of Lords in Perry vs Chissold ( 1907) On the
other hand, the suit under Art 64 is filed on the ground of Dispossession. In this
suit, the plaintiff does not file the suit based on title, but he files the suit on
dispossession. The COA for this suit is the right to continue the settled
possession and the violation of this right by dispossession.
In Ramaiah vs N. Narayana Reddy 2004 SC It was held that in order to bring a
suit within the purview of Art 64, it must be shown that the plaintiff has been in
possession and has subsequently lost possession. On the other hand, suits based
on plaintiff title in which there is no allegation of settled possession and
dispossession can fall within Art 65. The question about which Article of
Limitation Act will apply in a particular suit has to be decided by reference to
pleadings.

SECTION 6 - SUIT BY PERSON DISPOSSESSED OF

IMMOVABLE PROPERTY

The essential requisites of a suit under Section 6 are:

a) The person suing was in possession;
b) The person suing must have been dispossessed,
c) The dispossession must have been without his consent or otherwise than
in due course of law ;
d) The dispossession must be from immovable property
e) The suit must be brought within a period of six months from the date of
dispossession.

No suit under this section can be brought:

 a) after the expiry of 6 months from the date of dispossession; or

b) against the Government; nor does an appeal or review lie from any order
or decree passed in any suit instituted under this section.

b) Nothing in this section shall bar any person from suing to establish his
title to such property and to recover possession thereof.

Sec 6 of SRA provides for a speedy remedy. The object of Sec 6 is to provide
an immediate and speedy remedy to restore possession to person who has been
unjustly and forcibly dispossessed. This section prevents the person’s from
taking the law into their own hands, howsoever good title there maybe.
The COA to file a suit u/s 6 is the right to continue the settled possession and
dispossession. The MII is settled possession. In suit u/s 6, neither the plaintiff
nor the defendant can raise “Title”. Notwithstanding “overriding” means that
this provision overrides any title that maybe claimed in a suit under Sec 6. In
case, either the plaintiff or defendant raise their title in a suit under Sec 6, court
will strike out such pleadings as per Order VI, Rule 16 of CPC.

*Who can file suit under Sec 6?

1] Person dispossessed {himself}

2] Any person through whom the person dispossessed has been in possession.
3] Any person claiming through the person dispossessed like legal
representatives.

The possession must be Juridical.

“Otherwise than in due course of law”

This phrase simply means that nobody ought to be condemned unheard.

Here it means that a person in settled possession will not be dispossessed
except by due process of law. Ejectment from settled possession can only
be held by a recourse to a court of law.

Burden of Proof in a suit under section 6 of SRA :-

The plaintiff has to prove :-

 I. That he was in possession
II. That he has been dispossessed
III. That the dispossession took place without his consent
IV. That it was done otherwise than due course of law
V. That dispossession was done within 6 months from the institution
of suit under section 6
Section 6 (3) is considered to be an exhaustive provision and a complete code in
itself. It is due to this reason that an appeal does not lie against a decree u/s 6 in
that case a party always has a remedy to file a suit based on title. It is due to
same reason that even review is not allowed. However, in exceptional cases,
revision may be available.
In ITC Ltd vs Adarsh Housing Co-op Society Ltd (2012 SC) It was held that
small window by way of revision was kept open by legislature possibly to
enable the High Court to have a second look in the exceptional cases.
Section 6 (4) Subsequent suits
The person unsuccessful in the suit u/s 6 can file a regular suit establishing his
title, and in the event of his succeeding, he is entitled to recover possession not
with standing the adverse decision in the suit under section 6.
The decree u/s 6 (1) is a conditional and temporary decree subject to final
result of a decree in a title suit filed in accordance with sec 6 (4). And once a
decree under sec 6 (4) has been passed, a decree under sec 6 (1) would become
in operative and unenforceable.

SECTION 7 - RECOVERY OF SPECIFIC MOVABLE

PROPERTY
1. Section 7 provides for the recovery of movable property in specie i.e., the
very property itself and not its substitute of money equivalent. The present
section and the following section i.e. Section 8 embody the English Common
Law doctrine of detinue., The plaintiff must have acquired a right to present
possession. The plaintiff may not be the owner of the movable property but
may have temporary or special right independently of ownership by virtue of
being a trustee, bailee or pawnee.

2. Specific movable property

As indicated above, the movable property must be specific, capable of being
ascertained and identified. The nature of property must also continue without
 alteration. The section has, therefore, no application where relief is sought
for the recovery of money – unless the contract is for delivery of particular
coins – or where relief is with respect to a quantity of grain unless they are
capable of being specifically ascertained by being placed in a bag or sack so
as to be distinguishably marked.

3. Manner Prescribed by CPC

The plaint for recovery of specific movable property must contain the
particulars provided in Form No. 32 given in Schedule I, Appendix A, Civil
Procedure Code. The usual decree will follow under Order 20, R., 10 which
shall state the amount of money to be paid as an alternative if delivery
cannot be had. This decree is to be executed under O.21, R. 31 by (a) the
seizure of movable or share and by the delivery to the winning party, (b) by
imprisonment of the judgment debtor or by attaching his property, or (c) by
both.

In Nirmala Gupta v. Ravendra Kumar AIR 1996 M.P.

It was observed that section 7 of the SRA provides that a person may claim a
Specific movable property. It is the substantive right of an individual to get
back the property from the trustee.

SECTION 8 - LIABILITY OF A PERSON IN POSSESSION OF

MOVABLE PROPERTY NOT AS OWNER TO DELIVER TO
THE PERSON ENTITLED TO IMMEDIATE POSSESSION
A suit under section 8 can be filed to recover the possession of a movable
property if the case of the plaintiff falls in any of the clause to section 8 [sec
8(a) – (d)].
The burden of proof is on plaintiff if his case falls under clause (a) and (d). If
the plaintiff’s case falls under clause (b) and clause (c), the burden of proof is
upon defendant.
This is because of rebuttable presumption of law in favour of plaintiff given in
the explanation to section 8.
The suit under section 8 is to be filed as per form no. 39 of Appendix A of CPC.
As per sec8 and form no. 39, the plaintiff in a suit u/s 8 can pray for the delivery
of the movable property. Unlike sec 7, in a suit u/s 8, equivalent of the movable
property. This is why sec 7 is considered as a General Relief and sec 8 is
considered as Specific Relief. Thus the purpose of section 8 is only to recover
the movable property. A suit u/s 8 cannot filed against the owner of the
property.
The decree of a sec 8 suit is executed as per Order XXI, Rule 31 of CPC.
The executing court can execute decree by seizure, civil imprisonment or by
attachment of property. Although sec 8 decree does not specify the money
equivalent, still the executing court under Order XXI, Rule 31(2) of CPC, can
award compensation in its discretion in case the judgment deter files to deliver
the property.

By Anushka Sharma, Content Board, All India Legal Forum