model q. ans for the specific relief act1963

8/10/2019 Model q. Ans for the Specific Relief Act1963

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S.S. Law Academy, Civil & judicial,B-2, B-3-4, Ansal building (Basement); Dr. Mukherjee Nagar, Delhi-09

Model Q.& Ans. for Judicial Service Main Examinationon

The Specific Relief Act, 1963

Q. 1What are the provisions available to a person dispossessed of Immovable

property?

AnsSec5 & 6 of the S.R. Act 1963 provide the right to recover the possession ofimmovable property.

Sec -5 provides that:- who is entitled for specific immovable property canrecover the possession according to the process of C.P.C 1908 i.e itgives the ground of title suit.

S -6 says If any person is dispossessed without his consent fromimmovable property, otherwise than in due course of law, he or any personclaiming through him, may by suit recover possession thereof.

S -6 of S.R. Act 1963 is based on the principle that no one can take lawinto his hands for taking possession, even if he may be lawful owner ofimmovable property in question. S -6 restrains a person from using force andto disposes a person without his consent otherwise than in due course of law.Question of title is irrelevant in a proceeding U/S -6 of S.R. Act 1963, all that

plaintiff has to show is that he has been dispossessed of immovable propertyotherwise than in due course of law, within 6 months prior to filing suit.

Here possession means legal possession which may exist with orwithout actual possession and with or without a rightful origin. Thus wherea trespasser is allowed to continue on the property and the owner sleepsupon his rights and makes no efforts to remove him he will gain possessionU/S -6. The possession of a tenant after the termination of the tenancycontinues to be a juridical possession. His right to possession remains unless

the owner gets a decree of eviction against him. Till then if he is dispossessedhe is entitled to seek restitution of his possession.

Thus vide S -6 of S.R. Act 1963 If any person is dispossessed withouthis consent of immovable property, otherwise than in due course of law, heor any person claiming through him, by suit may seek restitution of his


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possession, within 6 months of his dispossession, on proving his legalpossession on immovable property in question.

Q. 2When specific performance of contract can be enforced and when not?

AnsSpecific performance of contract means actual execution of the contractaccording to its stipulation and terms.

Under the S.R. Act 1963, contracts are two type:-

1. Contracts which are specifically enforceable by law provided u/Ss-10,11(i),&14(iii).

2. Contracts which are not specifically enforceable by law provided u/Ss-

11(ii), 14 (i) & (ii) and 17.

Contracts when specifically enforced

S -10 of S.R. Act 1963 says The specific performance of any contract may inthe discretion of the Court, be enforced

(a) When there exists no standard for ascertaining actual damage caused by thenon performance of the act agreed to be done; or

(b) When the act agreed to be done is such that compensation in money for itsnon performance would not afford adequate relief.

Explanation:-Unless and until the contrary is proved the court shallpresume

(I) that the breach of contract to transfer immovable property cannot beadequately relived by compensation in money; and

(II) that the breach of a contract to transfer movable property can be relievedexcept in the following cases:-

(a) Where the property is not an ordinary article of commerce or is of specialvalue or interest to the plaintiff, or consists of goods which are not easilyobtainable in market.


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(b) Where the property is held by the defendant as the agent or trustee of theplaintiff.

Examples

(a) A agrees to buy and B agrees to sell, a picture by a dead painter and two rarechina vases. Here A may compel B specifically to perform this contract, forthere is no standard for ascertaining the actual damage which would becaused by its non performance.

(b) A contracts with B to sell him a house for Rs. 1,00000/- B is entitled to adecree directing A to deliver the house to him by paying the purchasemoney.

Contracts When not specifically enforced:-

S -14 of S.R. Act 1963 Says The following contracts cannot bespecifically enforced:

(a) A contract for the non-performance of which compensation in money is anadequate 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 orotherwise from its nature is such that the Court cannot enforce specificperformance of its material terms.

(c) When a contract is of the nature that it is determinable i.e. a contract whichcan be determined or put to an end by a party to the contract. e.g. In case ofpartnership at will, any partner can put to an end.

(d) A contract, the performance of which involves the performance of acontinuous duty which the Court cannot supervise, cannot be specificallyenforced. e.g.:

(1) A Contract to give maintenance.

(2) A Contract to execute a deed every year.


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cannot be specifically enforced.

As per S -14 (2) except as provided by the Arbitration Act 1940, Nocontract to refer present or future differences to arbitration shall bespecifically enforced but any person who has made such a contract and hasrefused to perform it ,sues in respect of any subject which has contracted torefer the existence of such contract shall bar the suit .

Vide S- 11(2)- A contract made by a trustee in excess of his power or inbreach of trust cannot be specifically enforced.

Similarly vide S- 17 contract to sell or let property by one who has notitle is not specifically enforceable.

Q. 3Discuss the enforceability of the following contracts:

(1) A an author, contracts with B, a publisher, to complete a literary work.(2) A contracts to sell and B contracts to buy ten tones of iron rods at Rs. 5000/-

per tone.(3) A contracts to sell and B contracts to buy one residential building at

Chandigarh for Rs. 90,000/-(4) A contracts for the sale of property which is under attachment by Courts

order.

(5) Mere agreement to enter into a contract.(6) Contract to marry.(7) A contracts to write a book for B. He writes the book, but refuses to assign

copyright and handover the manuscript to B, who then sues A for specificperformance.

Ans(1) S -14 (1) (b) of S.R. Act 1963 lays down that Whenever in a contract,personal skill or volition is involved, the Court would not enforce specificperformance of such a contract

In the case, in hand, the author has contracted to complete a literarywork for the publisher. Such a contract involves personal skill or volition ofthe author. Therefore, this contract cannot be specifically enforced.

(2) S -10 of the S.R. Act 1963 Says The specific performance of any contractmay, in the discretion of Court, be enforced When the act, agreed to be


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done, is such that compensation in money for its non-performance would notafford adequate relief.

So in the present case, B cannot claim specific performance of thecontract. The obvious reason is that the contract is an ordinary commercialcontract and iron rods are easily obtainable in the market. The pecuniarycompensation would relieve the breach of contract.

(3) S -10 of S.R. Act 1963 provides that: the specific performance of anycontract may in discretion of the Court be enforced When the a ct, agreed tobe done, is such that compensation in money for its non-performance wouldnot afford adequate relief.

Then the explanation provides that unless and until the contrary is

proved, the Court shall presume that the breach of contract to transferimmovable property cannot be adequately relieved by compensation inmoney.

Thus it becomes clear that in a suit to enforce the contract to transferimmovable property the Court will grant specific performance unless specialreasons to the contrary appear.

In the case in hand, A has contracted to sell his residential house at

Chandigarh and B has agreed to purchase the same for Rs. 90,000/-. Thereare no special reasons as to why the specific performance ought to be refused.Therefore, B is entitled to the specific performance of this contract.

(4) When some property has been attached under the order of Court, the samecannot be sold without the permission of that Court. Thus, a contract for thesale of property, which is under attachment by Courts order only after thepermission or approval of the Court. If permission is refused, there is nocontract in the eyes of law, which can be enforced.

(5) In Govind Laxman Vs Hari Chand, AIR 1919 Bomby H.C held A mereagreement to enter into contract is determinable by either of the parties anddoes not create any mutual rights or obligation between the parties.Therefore, the same cannot be specifically enforced.


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(6) S -14 (1) (b) of the S.R. Act, 1963 Says A contract which is dependent onpersonal skill or volition of the parties cannot be specifically enforced.Performance of contract of marriage is dependent on the volition of parties tomarriage. So Court cannot enforce specific performance of contract of

marriage.

(7) In the given problem, the contract is of personal qualification/skill within themeaning of S -14 (1) (b) of the S.R. Act 1963. So Court cannot enforce specificperformance of its material terms. So the contract in question cannot bespecifically enforced.

Q. 4What are the main principles on the basis of which specific performance ofa contract is decreed or Refused.

Ans.Ss -20 to 24 of the S.R. Act 1963 provides discretion and powers of Court.

S -20 provides Discretion as to decreeing specific performance:

(1) The jurisdiction to decree specific performance is discretionary and the Courtis not bound to grant such relief merely because it is lawful to do so; but thediscretion of court is not arbitrary, but sound and reasonable, guided by

judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may properly exercise discretionnot to decree specific performance

(a) Where the terms of the contract or the conduct of the parties at the time ofentering into the contract or the other circumstances under which thecontract was entered into are such that the contract, though not voidable,gives the plaintiff an unfair advantage, over the defendant; or

(b) Where the performance of the contract would involve some hardship on the

defendant, which he did not foresee, whereas its non-performance wouldinvolve, no such hardship on the plaintiff; or

(c) Where the defendant entered into contract under circumstances, whichthough not rendering the contract voidable, makes it inequitable to enforcespecific performance.


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(3) The court may properly exercise discretion to decree specific performance inany case where the plaintiff has done substantial acts or suffered losses inconsequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contractmerely on the ground that the contract is not enforceable at the instance ofother party.

In Sardar Singh Vs Krishna Devi 1994 the S.C held Thecircumstances specified in S -20 are only illustrastrative and not exhaustive.The Court would take into consideration, the circumstances in each case, theconduct of the parties and the respective interest under the contract.

In M.N. Mirza Vs B. Subhan 1993All H.C held Under the S.R. Act

1963, the Court exercises equitable jurisdiction. S -20 of the Act makes it clearthat the jurisdiction to decree specific performance is discretionary and thereis no obligation on the part of court to grant relief sought, merely because it islawful to do so. But the discretion has to be exercised by the Court guided bysound judicial principles. It is settled law that false allegation in the plaintdisentitled the plaintiff for the relief of specific performance.

Q. 5Whether all contracts can be specifically enforced? If not, stateexceptions.

AnsSs -10 to 14 of the S.R. Act 1963 provide the cases in which the specificperformance of a contract may be enforced or cannot be enforced.

S -20 of the Act provides that the jurisdiction to decree specificperformance is discretionary, and the Court is not bound to grant such reliefmerely because, it is lawful to do so, but the discretion of the Court is notarbitrary but sound and reasonable guided by principles.

In Satya Narayan Vs Yellogiroa, AIR 1965the S.C held that the reliefof specific performance of contract is discretionary. The circumstancesspecified in S 20 are illustrative not exhaustive. The Court should take intoconsideration the circumstances of the case, the conduct of parties and theirrespective interests under the contract mere delay is no ground for refusingrelief.


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It was further observed that it is not possible or desirable to lay downthe circumstances under which a Court can exercise its discretion against theplaintiff. But they must be such that the representation by the conduct orneglect of the plaintiff is directly responsible to the defendant to change his

position to his prejudice or such as to bring about a situation when it wouldbe inequitable to give him such a relief.

So, specific performance of contract shall not be granted

(a) Where damages would be sufficient compensation

(b) Where the contract is dependent on the personal qualifications or volition ofthe parties.

(c) Where the Court is unable to supervise the performance, or

(d) Where the contract is determinable in its nature, specific performance may berefused

(i) Where the contract gives the plaintiff an unfair advantage over thedefendant.

(ii) Where the performance would involve unforeseen hardship on the

defendant, or

(iii) Where it is inequitable to do so.

However, where the plaintiff has done substantial acts or sufferedlosses in consequence of a contract, capable of specific performance, theCourt may decree specific performance.

Q. 6What is rectification of an instrument. When instrument may be rectified?

Ans.Rectification of Instrument denotes correction of an instrument in order togive effect to the real intention of the parties. Thus the rectification of aninstrument consists in making it conform to the intention of the parties or theexecutants. So when the Court is of the opinion that a deed as executed is notin accordance with the intention of the party, it will rectify the deed in orderto bring it into conformity with the actual intention.


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The circumstances when a Court can order rectification have beenenumerated in S -26 of the S.R. Act 1963 which provides as under:

When Instrument may be rectified:

(1) When, through fraud or a mutual mistake of the parties to contract or otherinstrument in writing does not express their real intention, then

(a) Either party or his representative in interest may institute a suit to have theinstrument rectified; or

(b) The plaintiff may, in any suit in which any right arising under the instrumentis 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 toany 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 rectifiedunder sub-section (1), the Court finds that the instrument, through fraud ormistake, does not express the real intention of the parties, the Court may, inits discretion, direct rectification of the instrument, so as to express thatintention, so far as this can be done, without prejudice to rights acquired bythird person in good faith and for value.

(3) Any contract in writing may be first rectified, and then if the party claimingrectification has so prayed in his pleading and the Court thinks fit, may bespecifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any partyunder this section unless, it has been specifically claimed:

Provided that where a party has not claimed any such relief in hispleading, the Court shall, at any stage of the proceeding, allow him to amendthe pleading on such terms as may be just for including such claim.

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 Bs fraud, all three


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godowns are included. Of the two godowns which were fraudulentlyincluded, B gives one to C and lets the other to D for rent, neither C nor Dhaving any knowledge of fraud. The conveyance may, as against B and C, berectified so as to exclude from it the godown given to C, but it cannot be

rectified so as to affect Ds lease.

Q. 7 where rescission may be adjudged or refused?

Ans.S -27 of the S.R. Act 1963 provides

Where rescission may be adjudged or refused:

(1) Any person interested in a contract may sue to have it rescinded and suchrescission 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 thedefendants is more to blame than the plaintiff.

(2) not withstanding anything contained in sub-section (1) the Court may refuseto rescind the contract:

(a) where the plaintiff has expressly or impliedly rectified the contract; or

(b) where, owing to the change of circumstances, which has taken place, sincethe 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 theystood, when the contract was made; or

(c) where third parties have, during the subsistence of the contract, acquiredrights 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 isnot severable from the rest of the contract.


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Illustration

A Sells a field to B. There is a right of way over the field of which A has directpersonal knowledge, but which he conceals from B. B is entitled to have thecontract rescinded.

In Hungerford Investment Trust Vs Haridas, AIR 1972the S.C held A party has an option to rescind a contract and no aid of the Court isnecessary in this behalf. The Court only adjudicates upon the antecedentright of the parties. By grant of declaration that a contract has been validlyrescinded the Court, does not create a right in favour of a party.

Distinction between rectification & Rescission:

In case of rectification the contract subsists and can be specifically enforcedafter rectification but in case of rescission, the contract is cancelled and theparties are not liable for any obligation there under in future.

Q. 8what is declaratory Remedy under the S.R. Act 1963?

Ans.S -34 of the S.R. Act, 1963 deals with

Discretion of Court as to declaration of status or right: it says

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 titleto such character or right and the Court may in its discretion make therein adeclaration that he is so entitled, and the plaintiff need not in such suit askfor any further relief:

Provided that no court shall make any such declaration where theplaintiff, 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 titleadverse to the title of someone, who is not in existence, and whom, if inexistence, he would be a trustee.


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In Bala Krishna Agarwal Vs. State of Assom AIR 1994Gauhati H.Cheld that The object of the proviso to the section 34 is to preventmultiplicity of suits by preventing a person from getting a mere declarationof right in one suit and then seeking in another suit the remedy without

which the declaration would be useless and which could have been obtainedin the first suit.

Essentials for relief U/S -34 are:

(1) That the plaintiff is entitled to a legal character at the time of suit, or to anyright as to any property, or as to entitlement to property on family partition.

(2) The defendant has denied these or he is interested in denying that characteror right of the plaintiff, and

(3) The plaintiff is not in position to ask for relief consequential upon thedeclaration.

If these conditions are satisfied, the plaintiff need not ask for anyfurther relief than a mere declaration. But the Court shall not make any suchdeclaration, if he, being able to seek further relief than a mere declaration oftitle, omits to do so.

S -35 of S.R. Act 1963 deals with Effect of declaration:It Says

A declaration made under this chapter VI, S -34 is binding only on the partiesto the suit, persons claiming through them respectively and where any of theparties are trustees, on the persons for whom, if in existence at the date ofdeclaration, such parties would be trustees.

In American Exp Bank Ltd. Vs Calcutta Steel Co. 1993 the S.C heldthat the plaintiff cannot claim the relief as of right. It has to be granted

according to sound principles of law. While exercising its discretionarypower, the Court must keep in its mind the well settled principles of justiceand fair play.


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Q. 9What is injunction. When different kinds of injunction are granted.

Ans.According to Halsbury An Injunction is a judicial process whereby a partyis ordered

(i) To refrain from doing or

(ii) To do particular act or thing.

Thus injunction order is an order of court, whereby a party to suit isordered to do any particular act or to refrain from doing any particularwork/act.

As per S -36 of the S.R. Act 1963 A preventive relief is granted at the

discretion of court by injunction temporary or perpetual.

S 37 deals with Temporary and perpetual injunction. It says

(1) Temporary injunctions are such as are to continue until a specific time oruntil the further order of the court, and they may be granted at any stage of asuit and are regulated by the CPC 1908.

(2) A perpetual injunction can only be granted by the decree made at the hearingand upon the merits of the suit: the defendant is thereby perpetually enjoinedfrom the assertion of a right or from commission of an act, which would becontrary to the rights of the plaintiff.

The grant of injunction is discretionary; the same must be exercised onsettled principles of law to advance the cause of justice. It is subject tocorrection by the appellate Court.

In Surya Nath Singh Vs Khedu Singh 1994the S.C held The HighCourt has an equitable jurisdiction to issue injunction in appropriate cases

independent of power under CPC 1908.

In Ravi Singhal & Ors Vs Manali Singhal & Ors 2002 the S.C heldthat In a suit for the specific enforcement of a family settlement, grantinginterim relief is discretion of court. Therefore, where the court below had


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exercised the discretionary power in such a manner, which cannot be said tobe perverse or irrational. The S.C cannot interfere in the matter.

S -38 of the S.R. Act tells

Perpetual Injunction when Granted:

(1) A perpetual injunction may be granted to the plaintiff to prevent the breachof an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided bythe rules and provisions contained in chapter II.

(3) When the defendant invades or threatens to invade the plaintiffs right to, or

enjoyment of, property, the court may grant a perpetual injunction in thefollowing cases, namely:

(a) Where the defendant is trustee of the property for the plaintiff:

(b) Where there exists no standard for ascertaining the actual damage caused orlikely to be caused, by the invasion

(c) Where the invasion is such that compensation in money would not affordadequate relief

(d) Where the injunction is necessary to prevent a multiplicity of judicialproceedings.

Principles governing temporary injunction:

The principles on which temporary injunctions will issue or will becontinued pending the final disposal of the suit are well settled. These are asfollows:

Party to litigation, who seeks an injunction, must satisfy the court thatthese is serious question to be tried at the hearing of the suit and everyprobability lies in his favour for the relief sought for that it is prima facie inhis favour. However at this stage, prima facie case may not be confused withprima facie success, but simply there is a serious question to be tried, if the


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test of prima facie is satisfied and further courts reference is necessarywithout which a right accrued in favour of the party concerned cannot beprotected from species of injury, which is known as irreparable injury andcomparative mischief which is likely to cause in the absence of the injunction

will be greater and not compensable, thus balance of convenience also tilts inhis favour.

In Padmanabhan Vs Thomas AIR 1989Karnataka H.C held that Asuit for injunction is an equitable remedy and the primary requirement forgrant of an equitable remedy is that the person who claims the remedy, mustcome before Court with clean hands.

S -39 of S.R. Act 1963 deals with Mandatory Injunction: It Says

When to prevent the breach of an obligation, it is necessary to compel, theperformance of certain acts which the court is capable of enforcing, the courtmay in its discretion grant an injunction to prevent the breach complained of,and also to compel performance of the requisite acts.

Illustrations

(i) A, being Bsmedical advisor, threatens to publish Bs written communicationwith him, showing that B had led an immoral life. B may obtain an injunction

to restrain the publication.

(ii) A by constructing new buildings, obstructs light, to the access and use ofwhich B has acquired a right under the Indian Limitation Act, part IV. B mayobtain an injunction, not only to restrain A from going on with the buildings,but also to pull down so much of them as obstructs Bslights.

A mandatory injunction forbids the defendant to permit thecontinuance of a wrongful state of things that already exists at the time, when

the injunction is issued. Thus purpose of mandatory injunction is to restore awrongful state of things to their former rightful order.

The relief by way of mandatory injunction is discretionary. The courtwill weigh the amount of substantial mischief done or threatened to theplaintiff and compare it with that of the defendant in the event of grant ofinjunction.


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The relief of interlocutory & mandatory injunction is granted generallyto preserve or restore the status quo of the last non-contested status whichpreceded the pending controversy until the final hearing when full relief maybe granted or to compel the undoing those acts that have been illegally done,

or the restoration of that which was wrongfully taken from partycomplaining.

Since the granting of interlocutory mandatory injunction to a partywho fails or would fail to establish his right at the trial, may cause greatinjustice or irreparable harm, therefore the courts have evolved certainguidelines. These guidelines are

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standardthan a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannotbe compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

Q. 10- When injunction may be refused?

Ans.S -41 of the S.R. Act 1963 provides the following circumstances in which

injunction cannot be granted:

(1) Stay of pending judicial proceedings: An injunction cannot be granted torestrain any person from prosecuting a judicial proceeding pending at theinstitution of the suit on which an injunction is sought, unless such restraintis necessary in to prevent the multiplicity of proceedings. (S -41 (a)

It means that a perpetual injunction cannot be granted to stay anyjudicial proceedings, which is pending in other courts. However, in an

exceptional situation, to prevent a multiplicity of proceedings, an injunctionmay be granted.

(2) Stay of proceeding in Court not subordinate.: S -41 (b) Says Aninjunction cannot be granted to restrain any person either (i) from institutingor (ii) from prosecuting, any proceeding in a court, not subordinate to thatfrom which the injunction is sought.


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S S L A d Ci il & j di i l

It means that an injunction can only be granted to stay proceedings incourts which are subordinate to the court from which the injunction issought. Therefore no injunction can be granted to stay proceedings before thesame court from which injunction is sought.

(3) Restraining any person from applying to legislative body:As per S -41 (c) An injunction cannot be granted to restrain any person from applying toany legislative body.

(4) Stay of proceedings in a criminal matter: As per S -41 (d) An injunctioncannot be granted to restrain any person from either- (i) instituting (ii)prosecuting any proceeding in a criminal matter.

However the High Court has a power to stay criminal proceedings in

the Court of a Magistrate until the disposal of civil proceedings in which theissue of criminal proceedings is to be decided.

(5) No injunction order to prevent a breach of contract: As per S -41 (e) Aninjunction cannot be granted to prevent the breach of a contract, theperformance of which would not be specifically enforced.

It means that if the contract is of such a nature that the same cannot bespecifically enforced, a Court will not grant an injunction to prevent the

breach of such a contract.

(6) As per S -41 (f): An injunction cannot be granted to prevent on the groundof nuisance, an act of which it is not reasonably clear that it will be anuisance.

(7) As per S -41 (i): An injunction cannot be granted when the conduct of theplaintiff or his agent has been such as to disentitle him to the assistance ofCourt.

(8) As per S -41 (j): An injunction cannot be granted when the plaintiff has Ano personal interest in the matter.

model q. ans for the specific relief act1963

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