1.

Specific Relief Act, 1963:

The Act offers remedies for the violation of civil or contractual rights.
Replaced the Specific Relief Act of 1877 to adapt to evolving legal standards.
Two primary remedies for contract breach:
1. Specific Performance: The court orders the actual performance of a contract.
2. Monetary Compensation: If performance is not possible, the court may award
compensation. The principle behind the Act is “Ubi jus ibi remedium” (where there is
a right, there is a remedy).
3. Recovery of Possession of Property:
Possession involves both control (corpus) and intention (animus) over the property.
Classified into:
- Immovable Property: Includes land and things permanently attached to it.
- Movable Property: Includes items like government securities or share certificates but
excludes money.
Three types of legal actions for recovering immovable property:
1. Ownership Title: Suit based on ownership rights.
2. Possessory Title: Suit based on the right to possess, even if not the owner.
3. Previous Possession: Suit based on previous possession where the plaintiff was
dispossessed without consent.
Section 6 of the Act provides protection against wrongful dispossession of immovable
property, allowing recovery if filed within six months of dispossession.
4. Recovery of Movable Property:
Section 7 outlines that an individual entitled to possession of specific movable property may
recover it through legal action.
Movable property must be specific—ascertainable and capable of being delivered.
Examples: Securities, certificates, but not money.
Section 8 deals with the liability of a person holding movable property but not as an owner:
1. The holder may be compelled to return the item if acting as an agent or trustee.
2. If monetary compensation is inadequate, the person entitled to possession can claim
the item itself.

Specific Performance of Contracts:

Specific Performance is an equitable remedy enforcing the exact performance of a contract
rather than offering damages for its breach.
The remedy Is used when damages are inadequate, especially in contracts involving:
1. Immovable Property: Courts generally assume that damages are insufficient for real
estate contracts.
2. Unique Items: Specific performance may be granted for unique goods, such as rare
art, which cannot be replaced by money.
The court exercises discretion in awarding specific performance and can deny it if:
1. The contract is too complex to enforce.
2. Compensation is deemed sufficient.
 3. Contracts Not Specifically Enforceable:
Section 14 outlines contracts that cannot be specifically enforced:
1. Adequate compensation in money is available.
2. Contracts involving personal qualifications or details that depend on the volition of
the parties (e.g., personal skill).
3. Contracts that are determinable or can be revoked at will.
4. Contracts involving the performance of continuous duties which the court cannot
supervise.
5. Defenses in Specific Performance Cases:
Section 9 provides for various defenses that a defendant may use to resist specific
performance:
1. The contract provides adequate compensation in money.
2. The contract runs into minute details or depends on the personal qualifications of the
parties.
3. The contract involves continuous duties that the court cannot oversee.
6. Who May Seek Specific Performance (Section 15):
Specific performance can be obtained by:
1. Any party to the contract or their legal representative.
2. Heirs or legal successors, especially in cases involving property inheritance.
3. Promoters of a company, before its incorporation, if the contract benefits the future
company.

7. Who Cannot Seek Specific Performance (Section 16):

Individuals cannot claim specific performance if:
1. They have obtained substituted performance.
2. They have violated essential terms of the contract.
8. Enforcement of Specific Performance in Unique Cases:
The court may enforce specific performance in special circumstances, like:
1. Contracts involving rare or unique items that are not replaceable by money.
2. Situations where the contract involves trusts (Section 11), and specific performance
is necessary to fulfill the trust’s objectives.

Where specific performance of contracts are enforceable

Section 10 of the Specific Relief Act, 1963, provides as follows:
Except as otherwise provided in this Chapter, the specific performance of any contract may,
in the discretion of the court, be enforced:
(a) when there exists no standard for ascertaining actual damage caused by the non-
performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-
performance would not afford adequate relief.
Explanation: Unless and until the contrary is proved, the court shall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately
relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the
following cases:—
(a) where the property is not an ordinary article of commerce, or is of special value
or interest to the plaintiff, or consists of goods which are not easily obtainable in the
market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.”
There is a clear distinction between the cases giving rise to the filling of a suit for specific
performance in the event of breach of recitals of an agreement for due performance of which
the parties have covenanted to agree and perform and those which the award of
compensation will be adequate relief.

When there exist no standard for ascertaining actual damage

It is the situation in which the plaintiff is unable to determine the amount of loss suffered by
him. Where the damage caused by the breach of contract is ascertainable then the remedy
of specific performance is not available to the plaintiff. For example, a person enters into a
contract for the purchase of a painting of dead painter which is only one in the market and
its value is unascertainable then he is entitled to the same.

When compensation of money is not adequate relief

In following cases compensation of money would not provide adequate relief:
1. Where the subject matter of the contract is an immovable property.
2. Where the subject matter of the contract is movable property and,
3. Such property or goods are not an ordinary article of commerce i.e. which could be
sold or purchased in the market.
4. The article is of special value or interest to the plaintiff.
5. The article is of such nature that is not easily available in the market.
6. The property or goods held by the defendant as an agent or trustee of the plaintiff.
In the case of Ram Karan v Govind Lal , an agreement for sale of agricultural land was made
& buyer had paid full sale consideration to the seller, but the seller refuses to execute sale
deed as per the agreement. The buyer brought an action for the specific performance of
contract and it was held by the court that the compensation of money would not afford
adequate relief and seller was directed to execute sale deed in favour of buyer. Similarly,
Agreement for reconveyance or repurchase
An agreement to repurchase property which had been sold, popularly known as agreement
for reconveyance, has been held to be specifically enforceable.

Delay
K.S. Vidyanandam v. Vairavan, Unreasonable delay by a plaintiff in performing his part of
the contract operates as a bar to his obtaining specific performance, provided that-
• Time was originally the essential element of the contract; or
• It was made an essential element by a subsequent notice; or
• The delay has been so unreasonable and long that it amounts to abandonment of the
contract.
The word “reasonable” has in law a prima facie meaning of reasonable in regard to those
circumstances of which the person concerned is called upon to act reasonably knows or
ought to know as to what was reasonable.

Specific performance of contracts connected with trust enforceable (Section 11)

Section 11 of the Act provides for cases in which specific performance of contracts
connected with trust enforceable:
(1) Except as otherwise provided in this Act, specific performance of a contract may, in the
discretion of the court, be enforced when the act agreed to be done is in the performance
wholly or partly of a trust.
(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be
specifically enforced.

Specific performance of part of contract (Section 12)

Section 12 deals with specific performance of part of contract and states as
follows:
(1) Except as otherwise hereinafter provided in this section, the court shall not direct the
specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part
which must be left unperformed bears only a small proportion to the whole in value and
admits of compensation in money, the court may, at the suit of either party, direct the
specific performance of so much of the contract as can be performed, and award
compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part
which must be left unperformed either—
(a) forms a considerable part of the whole, though 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.
(1) 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.” A court will not, as a
general rule, compel specific performance of a contract unless it can execute the whole
contract. This section deals with classes of cases in which specific performance may be
granted with or subject to special conditions or restrictions. When a part of the contract is
not capable of performance is always whether the contract can be executed in substance.
This provision can be invoked only where terms of the contract permit segregation of
interests and rights of parties in the property, and if the intention is to the contrary, the
provision cannot be attracted.
Illustrations ‘A’ contracts to sell ‘B’ a piece of land measuring 100 acres. It turns out that 98
acres belong to ‘A’ and 2 acres to a stranger who refused to part with it. 2 acres are not
necessary for the use and enjoyment of 98 acres of neither land nor it is so important that
the loss of it cannot be made good by damages. ‘A’ may be directed at the suit of ‘B’ to convey
to ‘B’ 98 acres of land and to make compensation for not conveying 2 acres of land. At the
suit of ‘A’, ‘B’ may be compelled to pay purchase money less the sum awarded as the
compensation for the deficiency.

Contracts which cannot be specifically enforced

Section 14 provides for contracts not specifically enforceable and states as follows
(1) The following contracts cannot be specifically enforced, namely:--
(a) a contract for the non-performance of which compensation in money is an adequate
relief; (b) a contract which runs into such minute or numerous details or which is so
dependent on
the personal qualifications or volition of the parties, or otherwise from its nature is such,
that the court cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable ;
(d) a contract the performance of which involves the performance of a continuous duty
which the court cannot supervise.
(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present
or future differences to arbitration shall be specifically enforced; but if any person who
has made such a contract (other than an arbitration agreement to which the provisions of
the said Act apply) and has refused to perform it, sues in respect of any subject which he
has contracted to refer, the existence of such contract shall bar the suit.
(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section

(1), the court may enforce specific performance in the following cases:-
(a) where the suit is for the enforcement of a contract,-
(i) to execute a mortgage or furnish any other security for security for securing the
repayment of any loan which the borrower is not willing to repay at once:
Provided that where only a part of the loan has been advanced the lender is willing to
advance the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
(b) where the suit is for,-
(i) the execution of a formal deed of partnership, the parties having commenced to carry on
the business of the partnership; or
(ii) the purchase of a share of a partner in a firm,
(c) where the suit is for the enforcement of a contract for the construction of any building or
the execution of any other work on land:
Provided that the following conditions are fulfilled, namely:-
(i) the building or other work is described in the contract in terms sufficiently precise to
enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest
is of such a nature that compensation in money for non-performance of the contract is
not an adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any
part of the land on which the building is to be constructed or other work is to be executed .
According to Section 14 of Specific Relief Act 1963, there are certain contracts which cannot
be specifically enforced and these are:

Where compensation in money is an adequate relief:

Here the court will not order specific performance of contract as it is expected that the
plaintiff will bank upon the normal remedy for breach of contract i.e. remedy of
compensation. For example contract of mortgage of immovable property (Rambai v.
Khimji), contract of sale of goods (Bharat v. Nisarali) contract of repair of premises etc.
Where a contract runs into minutes or numerous detail:
These contracts includes contract which depends upon the personal qualification or the
violation of the parties or is of such nature that the court cannot enforce specific
performance of its material terms. In Robinson Davison, it was held by the court that the
contract to perform in concert depends upon the personal kill of defendant’s wife, and the
contract cannot be specifically enforced due to her illness. The other example is
construction contract where the detailed terms of contract are not explained.

Contracts of determinable nature:

Determinable contract means a contract which can be determined or revoked or put to an
end by a party to the contract. For example in case of partnership at will any partner can retire
by giving notice in writing to other partners and can dissolve the firm.
Contracts which involve the performance of continuous duty which court cannot supervise:
Earlier under Specific Relief act, 1877 the continuous duty which court cannot supervise is
considered over a period of 3 years which was omitted under Specific Relief Act, 1963 and
no time limit restricted for the performance of a continuous duty. These include contract of
appointment of employees for continuous service or contract to execute sale deed every
year.
In Central Bank v. Vyankatesh, the defendant was required to execute deed every year for
the period of 25 years and contract is held to be specifically unenforceable.
Contract of arbitration:
According to Section 14(2), a contract to refer present or future differences to arbitration
shall not be specifically enforceable. However, Section 14(3) contains certain exception and
the following kinds of contract are specifically enforceable
1. A contract to execute a mortgage or furnish other security for repayment of any loan
which the borrower is not willing to repay at once, the court would grant specific
performance to execute mortgage or to give any other security.
2. A contract to take up and pay for any debentures of a company.
3. A contract to execute a formal deed of partnership at will when the business has
already commenced.
4. A contract for the construction of any building or the execution of any other work on
land if;
5. Detailed or the terms of the contract has been sufficiently explained & the court can
determine the exact nature of building or work.
6. The plaintiff has a substantial interest in performance of the contract and
compensation in money is not an adequate relief.
7. The defendant has in accordance with the contract, obtained possession of whole or
part of the land on which the building is to be constructed or other work is to be
executed.
Exceptions
Despite the clauses of Section 14(1), the court may enforce specific performance in the
circumstances provided under Section 14(3).
• Where the suit is for the enforcement of a contract to execute a mortgage or secure the
repayment of any loan which the borrower is not willing to repay at once: Provided that
where only a part of the loan has been advanced the lender is willing to advance the
remaining part of the loan in terms of the contract; or to take up and pay for any debentures
of a company;
• Where the suit is for the execution of a formal deed of partnership, the parties having
commenced to carry on the business of the partnership; or the purchase of a share of a
partner in a firm;
• Where the suit is for the enforcement of a contract for the construction of any building or
the execution of any other work on land:
Certain conditions being maintained, these being:-
- the building or other work is described in the contract in terms precise enough for the
court to determine the exact nature of work;
- the plaintiff has a substantial interest in the performance of the contract and the interest
is of such a nature that compensation in money for non-performance of the contract is
not an adequate relief; and
- the defendant has, in pursuance of the contract, obtained possession of the whole or any
part of the land on which the building is to be constructed or other work is to be
executed.
In Executive Committee, State Warehousing Corporation v. Chandra Kiran Tyagi, the
Supreme Court held that ordinarily the contracts for personal services cannot be specifically
enforced subject to certain exceptions.
Person for or against whom contracts may be specifically enforced Section 15 talks about
who may obtain specific performance:
Except as otherwise provided by this Chapter, the specific performance of a contract may
be obtained by
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto:
Provided that where the learning, skill, solvency or any personal quality of such party is a
material ingredient in the contract, or where the contract provides that his interest shall not
be assigned, his representative in interest of his principal shall not be entitled to specific
performance of the contract, unless such party has already performed his part of the
contract, or the performance thereof by his representative in interest, or his principal, has
been accepted by the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights
between members of the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power,
the remainder man;
(e) a reversioner in possession, where the agreement is a covenant entered into with his
predecessor in title and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner
is entitled to the benefit thereof and will sustain material injury by reason of its breach;
(g) when a company has entered into a contract and subsequently becomes amalgamated
with another company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract
for the purposes of the company, and such contract is warranted by the terms of the
incorporation, the company:
Provided that the company has accepted the contract and has communicated such
acceptance to the other party to the contract.

Defenses available in a suit for specific performance

Defendant in a suit for specific performance of a contract may prove that-
1. Compensation in money could be adequate relief to plaintiff. Section 14(a)
2. The contract runs in to such minute details or is dependent on personal qualifications
of the parties or is of such a nature that the court cannot enforce performance of its
material terms. Section 14 (b)
3. The performance of the contract involves the performance of a continuous duty which the
court cannot supervise. Section 14 (d)
4. The contract in its nature is determinable.
5. It is a contract by the plaintiffs in breach of their trust or in excess of their powers.
Section 11(2)
6. A contract though not voidable when made gave the plaintiff an unfair advantage over the
defendant. Section 20
7. The performance of the contract would involve hardship on the defendant which he did
not foresee where as its non-performance would involve non such hardship on the
plaintiff. S. 20
8. The conduct of the defendant is such as to disentitle him to relief. Section 16
9. Plaintiff cannot give a title free from reasonable doubt. Section 17
10. Defendant is entitled to get the contract enforced with a variation which he may setup.
Section 18.
In T.M. Balakrishna Mudaliar v. M. Satyanarayana Rao, the expression “representative- in-
interest” includes the assignee of a right to purchase the property and, therefore, he would
have the title to claim specific performance.

Who cannot claim specific performance of a contract

As per sec 16 specific performance of a contract cannot be enforced in favour of a person or
be claimed by a person—
(a) who has obtained substituted performance of contract under section 20;
(b) who has become incapable of performing,
(c) who has violated any essential term of, the contract that on his part remains to be
performed
(d) who has acted in fraud of the contract, or wilfully acts at variance with, or in subversion
of, the relation intended to be established by the contract; or
(e) who has failed 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 have been prevented or waived by the defendant. Hence,
Specific performance of contract is to be granted on all grounds except when covered by the
aforementioned grounds.
I.T.C Ltd. V. George Joseph Fernandes,the court held that a person who makes himself a
party to an illegal contract cannot enforce his rights under this section.
Rakha Singh v. Babu Singh, the court held that where the plaintiff showed that he was ready
and willing to pay the purchase price and continued to be so, the failure to plead that he had
money in the bank and had not withdrawn it, was immaterial because this was a matter of
evidence and had not to be pleaded.

RESCISSION (Section 27-30)

In contract law, rescission has been defined as the unmaking of a contract between parties.
Rescission is the unwinding of a transaction. This is done to bring the parties, as far as
possible, back to the position in which they were before they entered into a contract (the
status quo ante).
When is recession available?
Sections 27 to 30 of specific relief act deals with rescission of contract. The relief of
rescission is available to a person who has become the victim of fraud or illegality or
something equivalent which makes the contract either void or voidable. Section 27(1)
provides for circumstances when a party to a contract may rescind it and are as follows:
i. When the contract is voidable or terminable by the plaintiff.
ii. Where the contract is unlawful for causes not apparent on its face and the defendant is
more to blame.
Loss of right of rescission
Section 28(2) provides that the right of rescission is not available in the following cases
i. Affirmation
Where the plaintiff on becoming aware of his right to rescind has expressly or impliedly
ratified/affirmed the contract. An express affirmation takes place when the right to rescind is
openly waived. An implied a formation takes place when the party having the right to
rescind is instead enjoying the benefits of the contract.
ii. Where restitution is not possible
The right of rescission is lost when the position of the parties has been altered to such an
extent that they cannot be put back to their original status. For example, where one party has
already resold the goods or consumed them, restoration off the status quo becomes
impossible.
iii. Intervention of third parties
Where, for example, a person has obtained goods by fraud and, before the seller is able to
catch him, he transfers the goods to a bona fide buyer, the deceived seller would not be
allowed to get rid of the sale on account of the fraud.
iv. Severance
Rescission is not allowed by the plaintiff is seeking rescission of only a part of the contract
and that part is not severable or being separated from the rest of the contract.
Inbuilt remedy of rescission in decree of specific performance (Section 28)
Where a decree of specific performance has been passed in respect of a contract for the
sale or lease of immovable property, but the party to whom such relief has been granted does
not pay the price within the time prescribed by the court, the seller may ask the court for
rescission. The court may:
i. direct the purchaser or lessee, if he has already taken over possession, to restore it to the
seller and
ii. to pay him rent for the period during which he enjoyed the benefits of possession.
Limitation
An application for rescission should be filed within 3 years from the date of the decree for
specific performance.
Rescission as an alternate prayer is specific performance not granted (Section 29)
A plaintiff instituting a suit for specific performance of contract may pray that if
the contract cannot be specifically enforced it may be rescinded and delivered up
to be cancelled.

CANCELLATION OF INSTRUMENTS (Section 31-33)

Section 31 to 33 of the Specific Relief Act, 1963 provide for the cancellation of
instruments. When a document is valid, no question arises of its cancellation. When a
document is void ab initio, a decree for setting aside the same would not be necessary as
the same is non est in the eye of the law, as it is a nullity. Section 31 explains the remedy of
cancellation as follows: “Any person against whom a written instrument is void or voidable,
and who has a 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.”
It provides for a discretionary relief. The above-mentioned provision encompasses three
essential conditions on the fulfilment of which this remedy can be granted by the court-
1. The instrument must be void or voidable.
2. The plaintiff must have a reasonable apprehension of serious injury if the instrument is left
outstanding.
3. Under the circumstances of the case, the court exercises its discretion and orders the
instrument to be delivered up and cancelled.
Who can seek cancellation?
Any person against whom a written instrument is void or voidable and who has reasonable
apprehension that such instrument of if left outstanding may cause him serious injury, may
sue to have it adjudged void or voidable Under this section not only parties to the instrument
but also persons affected by such instrument can maintain an action. For example, under
Section 53 of Transfer of Property Act, with regard to a fraudulent transfer, one creditor on
behalf of other creditors can sue for cancellation of the sale deed executed by the debtor to
delay, defraud or defeat the rights of the creditor.
In the case of Chajulal v. Gokul, the neighbor of an owner of the house, while mortgaging
his property wrongfully stated in the deed that the wall adjoining the property belonged to
him and that he had the right of way over the owner’s property. Hence, the court considered
the owner eligible to get such terms in the deed cancelled as this specifically work affecting
his title and interest.
Partial Cancellation (Section 32)
As per Section 32, to court in its discretion can very well cancel only a part of an instrument.
It means, in residue, the instrument can stand in a proper case where there is evidence of
different rights or different obligations. This means that rights and obligations identified must
be distinct and separable. In Ram Chander v. Ganga Saran, the court held that the plaintiff
claimed endorsement on a document to be an act of forgery and thus false, hence, liable to
be cancelled. The court answered in affirmative and partially cancelled only the
endorsement because it is a document in itself separate and distinct from the rest of the
document. Doing equity for seeking equity (Section 33)
The maxim of ‘he who seeks equity must do equity’ is inherent in Section 33 of the 1963 Act.
It puts an obligation on the party to whom the relief of cancellation is granted, to restore any
benefit which he may have received from the other party and to make any compensation to
him which justice require. This provision would apply to a case where the plaintiff has not
specifically asked for the relief of cancellation and the defendant has successfully resisted
the instrument sought to be enforced against him on grounds of the instrument being void or
voidable.

INJUNCTIONS
Burney defined injunction as, “a judicial process, by which one who has invaded or
threatening to invade the rights of another is restrained from continuing or commencing
such wrongful act”.
The most expressive and acceptable definition is the definition of Lord Halsbury. According
to him, “An injunction is a judicial process whereby a party in an order to refrain from doing
or to do a particular act or thing”.
• Injunction acts in personam. It does not run with the property. For example, A secures
injunction against B forbidding him to erect a wall. A sells the property to C. The sale
carries with it the injunction against B.
• Injunction maybe issued against individuals, public bodies or even the State.
• Disobedience of an injunction attracts consequences of attachment/sale of property as
per Section 94(c) and Rule 2A of Order 39 of CPC.
Injunction has three characteristic features:
1. It is a judicial process.
2. The relief obtained thereby is a restraint or prevention
3. The act prevented or restrained is wrongful.
Kinds of Injunction
Preventive relief is granted at the discretion of the court by injunction that could be either
temporary or perpetual.(Section 36)
Temporary Injunction (Section 37)
Order XXXIX, Rules 1 and 2 of CPC governs the procedure for granting temporary injunction.
When injunction maybe granted
1. For the protection of interest in the property
This category will cover the following cases:
(a) That property in dispute 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 to remove or dispose of his property with a view to defraud
his creditors; and
(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.”
2. Injunction to restrain, repetition or continuance of breach
In any suit for restraining the defendant from committing a breach of contract or other injury,
of any kind, whether compensation is claimed in the suit or not, the plaintiff may at any time
after the commencement of the suit and either after or before judgment, apply to the court
for a temporary injunction to restrain the defendant from committing the breach of contract
or an injury complained of, or any breach of contract or injury arising out of same contract.
Injunction is a discretionary relief
The power of the court to grant an injunction is a discretionary one i.e. it is not the right of an
individual to get the injunction. Section 36 expressly lays down that, “Preventive relief is
granted at the discretion of the court by an injunction, temporary or perpetual”.
Conditions to be fulfilled for grant of TI:
1. The plaintiff must be able to establish a prima facie case.
He is not required to establish a clear title but a substantial question that requires to be
investigated and that matter should be preserved in the same status as it is until the
injunction is finally disposed of. The court must be satisfied that there is a bona fide dispute
raised by the applicant. The existence of a prima facie right and infraction of such right is a
condition precedent for grant of temporary injunction. The burden is on the plaintiff to satisfy
the court by leading evidence or otherwise that he has a prima facie case in his favour. In
deciding a prima facie case, the court is to be guided by the plaintiff's case as revealed in the
plaint, affidavits or other materials produced by him.
2. An irreparable injury may be caused to the plaintiff if the injunction is refused and that
there is no other remedy open to the applicant by which he could protect himself from the
feared injury. The applicant must further satisfy the court about the second condition by
showing that he will suffer irreparable injury if the injunction as prayed is not granted, and
that there is no other remedy open to him by which he can protect himself from the
consequences of apprehended injury. In other words, the court must be satisfied that refusal
to grant injunction would result in 'irreparable injury' to the party seeking relief and he needs
to be protected from the
consequences of apprehended injury. Granting of injunction is an equitable relief and such
a power can be exercised when judicial intervention is absolutely necessary to protect rights
and interests of the applicant. The expression irreparable injury however does not mean that
there should be no possibility of repairing the injury. It only means that the injury must be a
material one, i.e., which cannot be adequately compensated by damages. An injury will be
regarded as irreparable where there exists no certain pecuniary standard for measuring
damages.
3. The conduct of the plaintiff has not been blameworthy.
The plaintiff should come before the Court with clean hands. If he suppresses material
facts, documents then he is not entitled for the relief of injunction and further points of
balance of convenience, irreparable injury even not required to be considered in such
case.
4. The balance of convenience requires that the injunction should be granted and
compensation in money would not serve an adequate relief.
The court must be satisfied that the comparative mischief, hardship or inconvenience which
is likely to be caused to the applicant by refusing the injunction will be greater than that
which is likely to be caused to the opposite party by granting it. It is to be noted that it
is a settled principle of law that if in a suit where there is no permanent injunction
sought for in the final prayer, ordinarily a temporary injunction cannot be granted. So,
the principles that govern the grant of a perpetual injunction would govern the grant of
a temporary injunction also.

Perpetual/Permanent Injunction
According t Section 37(2) permanent injunction can be granted only on the merits of the case
and it finally decides the rights of the parties whereas temporary injunction is granted on
prima facie case.
When is Perpetual Injunction granted?
According to Section 38 perpetual injunction may be granted to
1. To prevent the breach of an obligation existing in favour of the applicant, whether expressly
or by implication. This obligation may arise from either a tort, contract, trust or any legal
obligation.
Illustration: Ram is a tenant at Shyam’s flat. Shyam has specifically asked Ram
to not displace the prayer room, as it had a gold statue of a deity. Ram wilfully disobeyed and
tried to remove the statue. Here, the court may grant a permanent injunction, in order for
Ram to fulfil the request of Shyam.
2.When any such obligation arises from contract, the court shall be guided by the rules and
provisions contained in Chapter II i.e., only in cases where contract is capable of specific
performance. Section 41(e) states that no injunction can be granted to prevent breach of a
contract that is not capable specific performance. But Section 42 states that where a
contract comprises of a positive act coupled with a negative agreement to not do an act, the
court can enforce the negative covenant although the positive act is not capable of specific
performance.
Illustration: A contracts with B to sing for twelve months at B’s theatre and notto sing in
public elsewhere. B cannot obtain specific performance of the contract to sing, but he is
entitled to an injunction restraining A from singing elsewhere.
3. Where the defendant is a trustee of the property for the plaintiff. Illustration: A, an
advocate comes in possession of his client B’s documents during employment. A threatens
to communicate the contents of the document to a third party/public. B may sue for an
injunction to permanently restrain A from doing so. An advocate is under an obligation in the
nature of trust not to disclose secrets of his clients.
4. Where there is no standard for ascertaining the actual damage caused, or likely to be
caused, to the plaintiff, by invasion of his rights. Illustration: the installation of an electric
transformer in front of the plaintiff’s land causing nuisance, hindrance and obstruction to
free access to the highway was restrained by issuing permanent injunction.
5. Where the invasion of the plaintiff’s right is such that compensation in money would not
afford adequate relief. Illustration: An injunction may be sought by an author of a book from
restraining a publisher from publishing the book without consent.
6.Where injunction is necessary to prevent multiplicity of judicial proceedings.
Illustration:
Arya has 7 tenants, out of which, 5 tenants have failed to pay the rent for 5 months,
consecutively. She files a suit against all of them, with the same cause of action.
The court may allow an injunction, in order to prevent multiple proceedings, simultaneously.
Conditions for Section 38 to be applicable
1. There must be a legal right express or implied in favour of the applicant.
2. Such a right must be violated or there should be a threatened invasion.
3. It must be an existing right.
4. The case should be fit for the exercise of court’s discretion.
5. It should not fall within the sphere of the restraining provisions contained in or referred to
in Section 41 of the SRA, 1963.

Refusal of injunctive relief

As per sec 41 of specific relief act 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:
Kukkala Balakrishna v. Vijaya Oil Mills, an immovable property was sought to be sold
(b) to restrain any person from instituting or prosecuting any proceeding in a court not
subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
Sangram Singh v State of U.P ,No injunction can be issued restraining any person or
authority from lodging an FIR. A temporary injunction cannot be issued where permanent is
not possible.
(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.
Where a wrong can be compounded in money, compensation will be an equally efficacious
relief. But in such a case if the defendant is an insolvent or a pauper a decree for damages
would be a mere mockery and therefore the court may grant injunction.
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the court. The clause incorporated the maxim: ‘He who comes to equity must
come with clean hands’.
For example, in Premji Ratansey Shah v. UOI, it was held that no injunction
can be issued in favour of a trespasser or a person who has gained unlawful possession as
against the true owner.
(j) when the plaintiff has no personal interest in the matter.

Mandatory injunction
Section 39: When to prevent breach of an obligation it is necessary to compel the
performance of certain acts which the code 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 act. The injunction which commands the defendant to do
something is termed as a mandatory injunction. Salmond defines mandatory injunction as
“an order requiring the defendant to do appositive act for the purpose of putting an end to a
wrongful state of things created by him, or otherwise, in fulfilment of the legal obligations,
for example, and order to pull down a building which he has already erected to the
obstruction of the plaintiff’s lights”.
Illustrations A, by new buildings obstructs the light to the axis and use of which B has
acquired a right under the Indian Limitation Act, 1963. B may obtain an injunction, not only
to restrain A from going on with the buildings, also to pull down so much of them as obstructs
B’s light.
When a mandatory injunction is granted under the section, two elements have to be taken
into consideration:
(i) the court has to determine what acts are necessary in order to prevent a breach of
the obligation;
(ii) the requisite acts must be such that the court is capable of enforcing them.
When is Injunction not granted:
Mandatory injunction will not be granted in the following cases:
a. The compensation in terms of money be would be an adequate relief to the plaintiff.
b. Where the balance of convenience is in favour of the defendant.
c. Where the plaintiff is guilty of allowing the obstructions to be completed before coming
to the court, i.e. where the plaintiff has shown acquiescence in the acts of the defendant. In
the case of Daniya Bai v. Jiwan, the sister constructed a house adjacent to that of her
brother and the brother actively participated in the construction activity and also allowed
her to take support of his wall. The court refused to order demolition since the brother never
objected for 2 years and later changed his mind claiming demolition of the construction.
d. Where it is desired to create a new state of things. It can only be granted to restore status
quo.
In Sheo Nath v. Ali, where the defendant constructed a structure which interfered with the
privacy of the plaintiff's house, he could not be ordered to erect a wall on the roof, so as to
prevent a view of the plaintiff’s house from the roof.
Damages in lieu of or in addition to injunction (Section 40)
Section 40 provides that the plaintiff in a suit for injunction under Section 38 or 39, may
claim damages either in addition to or in substitution for such injunction. The court may
award such damages only if it is included in his plaint. But where is suit in which damages
were not claimed, is dismissed, a subsequent separate suit for damages would not lie.

DECLARATORY DECREEE
Section 42 of the Specific Relief Act, 1877. It ensures a remedy to the aggrieved person not
only against all persons who actually claim an adverse interest to his own, but also against
those who may do so.

Requisites:
Section 34 of the Specific Relief Act, 1963 contemplates certain conditions which are to be
fulfilled by a plaintiff. In the State of M.P v. Khan Bahadur Bhiwandiwala and c, the court
observed that in order to obtain the relief of declaration the plaintiff must establish that
(1) the plaintiff was at the time of the suit entitled to any legal character or any right to any
property
(2) the defendant had denied or was interested in denying the character or the title of the
plaintiff
(3) the declaration asked for was a declaration that the plaintiff was entitled to a legal
character or to a right to property
(4) the plaintiff was not in a position to claim a further relief than a bare declaration of his
title. It is to be submitted that the fourth requisite is not correct as the section only says
that if any further relief could be claimed it should have been prayed for. Since
declaration is an equitable remedy the court still has discretion to grant or refuse the relief
depending on the circumstances of each case.
Thus a person claiming declaratory relief must show that he is entitled
1. to a legal character, or
2. to a right as to property, and that
3. the defendant has denied or is interested to deny his title to such character or right
4. he has sought all reliefs in the suit.

Discretion of court as to declaration of status

As in the Section 34 of Special Relief Act, 1963 the condition mentioned for the declaration
of status or right i.e.
(1) the plaintiff at the time of suit was entitled to any legal character or any right to any
property
(2) the defendant had denied or was planning or interested in denying the rights of the
plaintiff
(3) the declaration asked for should be same as the declaration that the plaintiff was entitled
to a right
(4) the plaintiff was not in a position to claim a further relief than a mere declaration of his
rights which have been denied by the defendant.
But, it is not compulsory that even after the fulfilment of all the four essential conditions
required for declaration, the specific relief will be provided through a declaration to the
plaintiff.
It is totally on the discretion of the court whether to grant the relief or not to the plaintiff. The
relief of Declaration or specific relief cannot be asked as a matter of right; it is a total
discretionary power which is in the hands of the court.
In the case of Maharaja Benares v. Ramji khan, it was declared that if the suit is filed and
the necessary party is absent then the court will dismiss the suit for the declaration. So, it is
necessary that both parties should be available. There is no specific rule to decide whether
the discretionary power of the courts should be granted or not, the discretionary power of
the court is being exercised according to the case and there are no specific criteria to decide
in which cases the court will exercise its discretionary power.

Essentials of a declaratory suit

There are a total of four essential elements considered for a declaratory Suitor for the valid
suit for Declaration and all the four elements are mentioned below.
• The plaintiff at the time of suit was entitled to any legal character or any right to any
Property.
• The defendant had denied or was planning or interested in denying the rights of the
plaintiff.
• The declaration asked for should be the same as the declaration that the plaintiff was
entitled to a right.
• The plaintiff was not in a position to claim a further relief than a mere declaration of
his rights which have been denied by the defendant.

Legal Character
We have talked about the requisites that a person should be entitled to the legal character.
So, what we mean about the Legal Character. Legal character is attached to an individual’s
legal status which shows the person’s capacity. Legal character by names itself denotes
character recognized by law. In the case of Hiralal v. Gulab, it was observed that variety of
status among the natural person, can be referred to the following listed causes i.e. Sex,
minority, rank, caste, tribe, profession and many more list.
Person Entitled to a Right to any Property
The second condition which is to be fulfilled by the Plaintiff for the successful relief of
Declaration or we can just say that for getting Special relief which should be related to
Plaintiff Right to Property. A person seeking special relief has a condition that they must have
a right to any property, only then they can go for special relief under Special relief Act, 1963.
The Bombay High Court has made a distinction in ‘Right to Property’ and ‘Right in Property’
and it has been held that to claim and go for a declaration the Plaintiff need not show the
right in Property. The Plaintiff only has to show that he has Right to Property from which he
has been denied.
Declaration asked should be the same as the declaration that the plaintiff entitled.
The third condition is to be fulfilled by the Plaintiff for the Declaration and for Special relief.
This is considered as essential because it is very necessary to look that the Plaintiff asking
for the declaration from the Court should be the same as the declaration to which the
Plaintiff is entitled under the right to any Property.

Cloud upon title

A dispute between the parties may relate either to a person's legal character or rights or
interest in the property. A cloud upon the title is something which is apparently valid, but
which is in fact invalid. It is the semblance of the title, either legal or equitable, or a claim of
an interest in property, appearing in some legal form, but which is in fact in founded, or which
it would be inequitable to enforce.

Consequential Relief
There may be real dispute as to the plaintiffs legal character or right to property, and the
parties to be arrayed, yet the court will refuse to make any declaration in favour of the
plaintiff, where able to seek further relief than a mere declaration, he omits to do so. The
object of the proviso is to avoid multiplicity of suits. What the legislature aims at is that, if the
plaintiff at the date of the suit is entitled to claim, as against the defendant to the cause some
relief other than and consequential upon a bare declaration of right, he must not vex the
defendant twice; he is bound to have the matter settled once for all in one suit.

Discretionary relief
Even though if the essential elements are established, yet it is discretion of the court to grant
the relief. The relief of declaration cannot be claimed as a matter of right. In cases where the
necessary parties are not joined the court can reject the suit for declaration. Under Section
34, the discretion which the court has to exercise is a judicial discretion. That discretion has
to be exercised on well-settled principles. The court has to consider the nature of obligation
in respect of which performance is sought. No hard and fast rule can be laid down for
determining whether this discretionary relief should be granted or refused. The exercise of
the discretion depends upon the chances of each case. A remote chance of succeeding an
estate cannot give a right for obtaining a declaration that alienation by a limited owner is void.

Negative Declarations
A suit for a negative declaration may be maintained in a proper case, e.g., where it relates to
a relationship. Thus, a suit for a declaration that a person was not, or is not, the plaintiff's
wife, and the defendant not her son through him, may be maintainable. Similarly, a suit lies
for obtaining a negative declaration that there is no relationship of landlord and tenant
between the plaintiff and defendant. But where the rights of the plaintiff are not affected or
likely to be affected, suit simpliciter for a negative declaration is not maintainable. Such a
suit would be regarding the status of the defendant which, in no way, affects the civil rights
of the plaintiff.

When suit for declaration is not maintainable

A suit for the declaration will not be maintainable under some circumstances which are to
be mentioned below.
i. In the case of a declaration that the Plaintiff did not infringe the defendant’s trademark.
ii. For a declaration that during the lifetime of the testator, the will is invalid.
iii. No one can ask for a declaration of a non-existent right of succession.
iv. A suit by a student against a university for a declaration that he has passed an
examination.
If any person is seeking for a mere injunction without seeking for any declaration of title to
which the Plaintiff is entitled so, then the suit will not be maintainable and will not be laid
down within its ambit. In the case of P. Buchi Reddy and Others vs. Ananthula Sudhakar,
it was held that the Plaintiff’s suit for a mere injunction without seeking a declaration of the
title is not maintainable.
‘Suit for a bare injunction’ is a condition where the suit is not maintainable because in the
case of the bare injunction, Plaintiff and Defendant both are claiming the title on which
effective possession cannot be proved. And the suit for bare injunction is not maintainable
under Section 41(h) of the Specific Relief Act, 1963.
‘Suit for a bare injunction’ is a condition where the suit is not maintainable because in the
case of the bare injunction, Plaintiff and Defendant both are claiming the title on which
effective possession cannot be proved. And the suit for bare injunction is not maintainable
under Section 41(h) of the Specific Relief Act, 1963.

Effect of Declaration
Section 35 makes it clear that a declaration made under this section does not operate a
judgment in rem. Section 35 says: “A declaration made under this chapter is binding only on
the parties to the suit, persons claiming through them respectively, and where any of the
parties are trustees, on the persons for whom, if in existence at the date of the declaration,
such parties would be trustees”.
Thus a declaratory decree binds-
(a) the parties to the suit;
(b) persons claiming through the parties;
(c) where any of the parties are trustees, on the persons for whom, if in existence at the date
of the declaration, such parties would be trustees. It is only the parties to the suit and the
representatives in interest, but not the strangers who are bound by the decree. By virtue of
this Section, a judgment is binding only if it is inter parties, which is not in rem, and does not
operate as res-judicata, may be admissible under Section 13 of the Evidence Act.

Judicial Discretion and Court Power

The discretion and power of courts, particularly judges, are fundamental aspects of the judicial
system. Here are some key points:
 1. Judicial Discretion: This refers to the power of judges to make decisions based on their
own judgment and interpretation of the law. It allows judges to consider the unique
circumstances of each case and make rulings that they believe are just and fair 1.
2. Constitutional Provisions: In India, several articles of the Constitution grant
discretionary powers to the Supreme Court. For example, Article 136 allows the Supreme
Court to grant special leave to appeal from any judgment or order passed by any court or
tribunal in the country. Article 142 empowers the Supreme Court to pass any decree or
order necessary to do complete justice in any case pending before it1.
3. Section 151 of the Civil Procedure Code (CPC): This section recognizes the inherent
powers of the court to make orders necessary to meet the ends of justice and prevent
abuse of the court’s process. It allows courts to act in situations not specifically covered
by the CPC, provided the action is just and fair2.
4. Scope and Limits: While judicial discretion is broad, it is not unlimited. Judges must
exercise their discretion within the bounds of the law and established legal
principles. They cannot act arbitrarily or outside the scope of their legal authority2.
5. Judicial Activism: Sometimes, the exercise of judicial discretion is referred to as judicial
activism, where judges make rulings based on personal or political considerations rather
than existing law. This can be controversial as it may be seen as judges overstepping their
traditional role1.
6. Sentencing: Judges often have the discretion to determine the appropriate punishment
within a legal framework, choosing among fines, probation, or imprisonment.
7. Interpreting Laws: Courts can interpret statutes, legal precedents, and constitutional
provisions. Their interpretation becomes authoritative and can shape future legal
decisions.
8. Granting Injunctions: Judges have the discretion to grant or deny injunctions (orders to
do or not do something), often considering factors like urgency or harm.
9. Evidentiary Rulings: Courts decide what evidence can be admitted or excluded during a
trial.

The court’s power, however, is limited by statutes, legal precedents, and constitutional
constraints, and judicial discretion must be exercised fairly and consistently.