SPECIFIC RELIEF ACT, 1977 [REPEALED] SPECIFIC RELIEF ACT, 1977 (1920 A.D.) [REPEALED] [Act No. 38 of 1977] [11th
September 1920] An Act to define and amend the law relating to certain kinds of Specific
Relief. Whereas it is expedient to
define and amend the law relating to certain kinds of specific relief
obtainable in civil suits, It is hereby enacted as follows:- (1)
This Act may be called the Specific Relief Act, 1977. (2)
It extends to the whole of Jammu and Kashmir State. It shall come
into force on the 1st day of Baisakh, 1978. [Omitted]. In this Act unless there be
something repugnant in the subject or context- "obligation"
includes every duty enforceable by law; "trust" includes
every species of express, implied or constructive fiduciary ownership; "trustee"
includes every person holding, expressly, by implication, or constructively, a
fiduciary character. Except where it is herein
otherwise expressly enacted, nothing in this Act shall be deemed- (a)
to give any right to relief in respect of any agreement which is
not a contract; (b)
to deprive any person of any right to relief, other than specific
performance, which he may have under any contract; or (c)
to affect the operation of the Registration Act on documents. Specific relief is given- (a)
by taking possession of certain property and delivering it to a
claimant; (b)
by ordering a party to do the very act which he is under an
obligation to do; (c)
by preventing a party from doing that which he is under an
obligation not to do; (d)
by determining and declaring the rights of parties otherwise than
by an award of compensation; or (e)
by appointing a receiver. Specific relief granted
under clause (c) of section 5 is called preventive relief. Specific relief cannot be
granted for the mere purpose of enforcing a penal law. A person entitled to the
possession of specific immovable property may recover it in the manner
prescribed by the Code of Civil Procedure. If any person is
dispossessed without his consent of immovable property otherwise than in due
course of law, he or any person claiming through him may, by suit recover
possession thereof, notwithstanding any other title that may be set up in such
suit. Nothing in this section
shall bar any person from suing to establish his title to such property and to
recover possession thereof. No suit under this section
shall be brought against the Government. No appeal shall lie from
any order or decree passed in any suit instituted under this section, nor shall
any review of any such order or decree be allowed. A person entitled to the
possession of specific movable property may recover the same in the manner
prescribed by the Code of Civil Procedure. Explanation 1. ? A trustee
may sue under this section for the possession of property to the beneficial
interest in which the person for whom he is trustee is entitled. Explanation 2. ? A special
or temporary right to the present possession of property is sufficient to
support a suit under this section. Any person having the
possession or control of a particular article of movable property, of which he
is not the owner, the owner, may be compelled specifically to deliver it to the
person entitled to its immediate possession, in any of the following cases:- (a)
when the thing claimed is held by the defendant as the agent or
trustee of the claimant; (b)
when compensation in money would not afford the claimant adequate
relief for the loss of the thing claimed; (c)
when it would be extremely difficult to ascertain the actual
damage caused by its loss; (d)
when the possession of the thing claimed has been wrongfully
transferred from the claimant. Except as otherwise
provided in this Chapter, the specific performance of any contract may in the
discretion of the Court be enforced,- (a)
when the act agreed to be done is in the performance, wholly or
partly, of a trust; (b)
when there exists no standard for ascertaining the actual damage caused
by non-performance of the act agreed to be done; (c)
when the act agreed to be done is such that pecuniary compensation
for its non-performance would not afford adequate relief; or (d)
when it is probable that pecuniary compensation cannot be got for
the non-performance of the act agreed to be done. Explanation. ? Unless and
until the contrary is proved, the Court shall presume that the breach of a
contract to transfer immovable property cannot be adequately relieved by
compensation in money, and that the breach of a contract to transfer movable
property can be thus relieved. Notwithstanding anything
contained in section 56 of the Contract Act, a contract is not wholly
impossible of performance because a portion of its subject-matter, existing at
its date, has ceased to exist at the time of the performance. Where a party to a contract
is unable to perform the whole or 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. Where a party to a contract
is unable to perform the whole or part of it, and the part which must be left
unperformed forms a considerable portion of the whole, or 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; provided that the plaintiff relinquishes all claim to further
performance, and all right to compensation either for the deficiency or for the
loss or damage sustained by him through the default of the defendant. When a part of a contract
which, taken by itself, can and ought to fee 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. The Court shall not direct
the specific performance of a part of a contract except in cases coming under
one or other of the three last preceding sections. Where a person contracts to
sell or let certain property, having only an imperfect title thereto, the
purchaser or lessee except as otherwise provided by this Chapter has the
following rights:- (a)
if the vendor or lessor has subsequently to the sale or lease
acquired any interest in the property, the purchaser or lessee may compel him
to make good the contract out of such interest; (b)
where the concurrence of other person is necessary to validate the
title, and they are bound to convey at the vendor's or lessor's request, the
purchaser or lessee may compel him to procure such concurrence; (c)
where the vendor professes to sell unencumbered property, but the
property is mortgaged for an amount not exceeding the purchase-money, and the
vendor has in fact only a right to redeem it, the purchaser may compel him to redeem
the mortgage and to obtain a conveyance from the mortgagee; (d)
where the vendor or lessor sues for specific performance of the
contract, and the suit is dismissed on the ground of his imperfect title, the
defendant has a right to a return of his deposit (if any) with interest
thereon, to his costs of the suit, and to a lien for such deposit interests and
cost on the interest of the vendor or lessor in the property agreed to be sold
or let. Any person suing for the
specific performance of a contract may also ask for compensation for its
breach, either in addition to, or in substitution for, such performance. If in any such suit the
Court decides the specific performance ought not to be granted, but that there
is a contract between the parties which has been broken by the defendant and
that the plaintiff is entitled to compensation for that breach it shall award
him compensation accordingly. If in any such suit the
Court decides specific performance ought to be granted but that it is not
sufficient to satisfy the justice of the case, and that some compensation for
breach of the contract should also be made to the plaintiff, it shall award him
such compensation accordingly. Compensation awarded under
this section may be assessed in such manner as the Court may direct. Explanation. ? The
circumstance that the contract has become incapable of specific performance
does not preclude the Court from exercising the jurisdiction conferred by this
section. A contract, otherwise
proper to be specifically enforced, may be thus enforced, though a sum be named
in it as the amount to be paid in case of its breach, and the party in default
is willing to pay the same. The following contracts
cannot be specifically enforced:- (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 the terms of which the Court cannot find With
reasonable certainty; (d)
a contract which is in its nature revocable; (e)
a contract made by trustee either in excess of their powers or in
breach of their trust; (0 a contract made by or on
behalf of a corporation of public company created for special purposes or by
the promoters of such company, which is in excess of its powers; (f)
a contract the performance of which involves the performance of a
continuous duty extending over a longer period than three years from its date; (g)
a contract of which a material part of the subject matter,
supposed by both parties to exist, has, before it has been made, ceased to
exist; and, save as provided by
the [1][Jammu
and Kashmir Arbitration Act 2002] no contract to refer present or future differences
to arbitration shall be specifically enforced. The jurisdiction to decree
specific performance is discretionary, and the Court is not bound to grant such
relief merely because it is lawful to do so; but the discretion of the Court is
not arbitrary but sound and reasonable, guided by judicial principles and
capable of correction by a Court of Appeal. The following are cases in
which the Court may properly exercise a discretion not to decree specific
performance:? I.
Where the circumstances under which the contract is made are such
as to give the plaintiff an unfair advantage over the defendant, though there
may be no fraud or misrepresentation on the plaintiff's part. II.
Where the performance of the contract would involve some hardship
on the defendant which he did not foresee, whereas its non-performance would
involve no such hardship on the plaintiff. The following is a case in
which the Court may properly exercise a discretion to decree specific
performance:? III. Where the
plaintiff has done substantial acts or suffered losses in consequence of
contract capable of 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 or his principal shall not be entitled to specific performance of the
contract, unless where his part thereof has already been performed; (c)
where the contract is a settlement of 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 to 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 public company has entered into contract and subsequently
becomes amalgamated with another public company, the new company which arises
out of the amalgamation; (h)
when the promoters of a public company have, before its
incorporation, entered into a contract for the purposes of the company, and
such contract is warranted by the terms of incorporation, the company. Specific performance of a
contract cannot be enforced in favour of a person,- (a)
who could not recover compensation for its breach; (b)
who has become incapable of performing, or violates, any essential
term of the contract that on his part remains to be performed; (c)
who has already chosen his remedy and obtained satisfaction for
the alleged breach of contract; or (d)
who previously to the contract, had notice that a settlement of
the subject-matter thereof (though not founded on any valuable consideration)
has been made and was then in force. A contract for the sale or
letting of property, whether movable or immovable, cannot be specifically
enforced in favour of a vendor or lessor,? (a)
who, knowing himself not to have any title to the property, has
contracted to sell or let the same; (b)
who, though he entered into the contract believing that he had a
good title to the property, cannot, at the time fixed by the parties or by the
Court for the completion of the sale or letting, give the purchaser or lessee a
title free from reasonable doubt; (c)
who, previous to entering into the contract, has made a settlement
(though not founded on any valuable consideration) of the subject-matter of the
contract. Where a plaintiff seeks
specific performance of a contract in writing, to which the defendant sets up a
variation, the plaintiff cannot obtain the performance
sought, except with the variation so set up, in the following cases (namely):- (a)
where by fraud or mistake of fact the contract of which
performance is sought is in terms different from that which the defendant
supposed it to be when he entered into it; (b)
where by fraud, mistake of fact, or surprise the defendant entered
into the contract under a reasonable misapprehension as to its effect as
between himself and the plaintiff; (c)
where the defendant, knowing the terms of the contract and
understanding its effect, has entered into it relying upon some
misrepresentation by the plaintiff, or upon some stipulation on the plaintiffs
part, which adds to the contract, but which he refuses to fulfil; (d)
where the object of the parties was to produce a certain legal
result, which the contract as framed is not calculated to produce; (e)
where the parties have subsequently to the execution of the
contract, contracted to vary it. Except as otherwise
provided by this Chapter, specific performance of a contract may be enforced
against- (a)
either party thereto; (b)
any other person claiming under him by a title arising
subsequently to the contract, except a transferee for value who has paid his money
in good faith and without notice of the original contract; (c)
any person claiming under a title which though prior to the
contract and known to the plaintiff might have been displaced by the defendant; (d)
when a public company has entered into a contract and subsequently
becomes amalgamated with another public company, the new company which arises
out of the amalgamation; (e)
when the promoters of a public company have, before its
incorporation, entered into a contract, the company; provided that the company
has ratified and adapted the contract and the contract is warranted by the
terms of the incorporation. Specific performance of a
contract cannot be enforced, against a party thereto in any of the following
cases:- (a)
if the consideration to be received by him is so grossly
inadequate, with reference to the state of things existing at the date of the
contract, as to be either by itself or coupled with other circumstances
evidence of fraud or of undue advantage taken by the plaintiff; (b)
if his assent was obtained by the misrepresentation (whether
wilful or innocent), concealment, circumvention or unfair practices, of any
party to whom performance would become due under the contract, or by any
promise of such party which has not been substantially fulfilled; (c)
if his assent was given under the influence of mistake of fact,
misapprehension or surprise; provided that, when the contract provides for
compensation in case of mistake, compensation may be made for a mistake within
the scope of such provision, and the contract may be specifically enforced in
other respects if proper to be so enforced. The dismissal of a suit for
specific performance of a contract or part thereof shall bar the plaintiffs
right to sue for compensation for the breach of such contract or part, as the
case may be. The provisions of this
Chapter as to contracts shall, mutatis mutandis, apply to awards and to
directions in a will or codicil to execute a particular settlement. When, through fraud or a
mutual mistake of the parties, a contract or other instrument in writing does
not truly express their intention, either party, or his representative in
interest, may institute a suit to have the instrument rectified; and if the
Court find it clearly proved that there has been fraud or mistake in framing
the instrument, and ascertain the real intention of the parties in executing
the same, the Court may in its discretion rectify the instrument so as to
express that intention, so far as this can be done without prejudice to rights
acquired by third persons in good faith and for value. For the purpose of
rectifying a contract in writing, the Court must be satisfied that all the
parties thereto intended to make an equitable and conscientious agreement. In rectifying a written
instrument, the Court may inquire what the instrument was intended to mean, and
what were intended to be its legal consequences, and is not confined to the
enquiry what the language of the instrument was intended to be. A contract in writing may
be first rectified and then if the plaintiff has so prayed in his plaint and
the Court thinks fit, specifically enforced. A contract in writing may
be first rectified and then if the plaintiff has so prayed in his plaint and
the Court thinks fit, specifically enforced. Any person interested in a
contract may sue to have it rescinded and such rescission may be adjudged by
the Court in any of the following cases, namely;- (a)
where the contract is voidable or terminable by the plaintiff; (b)
where the contract is unlawful for causes not apparent on its
face, and the defendant is more to blame than the plaintiff; (c)
where a decree for specific performance of a contract of sale, or
of a contract to take a lease, has been made and the purchaser or lessee makes
default in payment of the purchase-money or other sums which the Court has
ordered him to pay. When the purchaser or
lessee is in possession of the subject-matter, and the Court finds that such
possession is wrongful, the Court may also order him to pay to the vendor or
lessor the rents and profits, if any, received by him as such possessor. In the same case, the Court
may, by order in the suit in which the decree has been made and not complied
with, rescind the contract, either so far as regards the party in default, or
altogether, as the justice of the case may require. Rescission of a contract
cannot be adjudged for mere mistake, unless the party against whom it is
adjudged can be restored to substantially the same position as if the contract
has not been made. A plaintiff instituting a
suit for the specific performance of a contract in writing may pray in the
alternative that if the contract cannot be specifically enforced, it may be
rescinded and delivered up to be cancelled; and the Court, if it refuses to
enforce the contract specifically, may direct it to be rescinded and delivered
up accordingly. On adjudging the rescission
of a contract, the Court may require the party to whom such relief is granted
to make any compensation to the other which justice may require. Any person against whom a
written instrument is void or voidable, who has reasonable apprehension that
such instrument, if left outstanding may cause him serious injury, may sue to
have it adjudged void or voidable; and the Court may, in its discretion, so
adjudge it and order it to be delivered up and cancelled. Where an instrument is
evidence of different rights or different obligations, the Court may in a
proper case, cancel it in part and allow it to stand for the residue. On adjudging the
cancellation of an instrument, the Court may require the party to whom such
relief is granted to make any compensation to the other which justice may
require. 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, title to such character or
right, and the Court may in its discretion making therein a declaration that he
is so entitled, and the plaintiff need not is such suit ask for any further
relief. Bar to such declaration. ?
Provided that no Court shall make any such declaration where the plaintiff,
being able to seek further relief than a mere declaration of title, omits to do
so. Explanation. ? A trustee of
property is a "person interested to deny" a title adverse to the
title of someone who is not in existence, and for whom, if in existence, he
would be a trustee. A declaration made under
this Chapter is binding only on the parties to the suit, person claiming
through them respectively, and, where any of the parties are trustee, on the
persons for whom, if in existence at the date of the declaration, such parties
would be trustee. The appointment of a
receiver pending a suit, is a matter resting in the discretion of the court. Reference to Code of Civil
Procedure. ? The mode and effect of his appointment and his rights, powers,
duties and liabilities, are regulated by the Code of Civil Procedure. [Omitted.] Preventive relief is
granted at the discretion of the Court of injunction, temporary or perpetual. Temporary injunctions are
such as are to continue until a specified time, or until the further order of
the Court. They may be granted at any period of a suit, and are regulated by
the Code of Civil Procedure. Perpetual injunctions. ? A
perpetual injunction can only be granted by the decree made at the hearing and
upon the merits of the suit; the defendant is thereby perpetually enjoined from
the assertion of a right, or from the commission of an act, which would be
contrary to the rights of the plaintiff. Subject to the other
provisions contained in, or referred to by this Chapter, a perpetual injunction
may be granted to prevent the breach of an obligation existing in favour of the
applicant, whether expressly or by implication. When such obligation arises
from contract, the Court shall be guided by the rules and provisions contained
in Chapter II of this Act. When the defendant invades
or threatens to invade the plaintiffs right to, or enjoyment of, property, the
Court may grant a perpetual injunction in the following cases, namely:- (a)
where the defendant is trustee of the property for the plaintiff; (b)
where there exists no standard for ascertaining the actual damage
caused, or likely to be caused, by the invasion; (c)
where the invasion is such that pecuniary compensation would not
afford adequate relief; (d)
where it is probable that pecuniary compensation cannot be got for
the invasion; (e)
where the injunction is necessary to prevent a multiplicity of
judicial proceedings. Explanation. ? For the
purpose of this section a trademark is property. When to prevent the breach
of an obligation, it is necessary to compel the performance of certain acts
which the Court is capable of enforcing, the Court may in its discretion grant
an injunction to prevent the breach complained of, and also to compel
performance of the requisite acts. An injunction cannot be
granted- (a)
to stay a judicial proceeding pending at the institution of the
suit in which the injunction is sought, unless such restraint is necessary to
prevent a multiplicity of proceedings; (b)
to stay proceedings in a Court not subordinate to that from which
the injunction is sought; (c)
to restrain persons from applying to any legislative body; (d)
to interfere with the public duties of any department of the
Government of India or [2][the
Government of a State within the Indian Union excluding the Jammu and Kashmir
State] or the State, or with the sovereign acts of a Foreign Government; (e)
to stay proceedings in any criminal matter; (f)
to prevent the breach of a contract, the performance of which
would not be specifically enforced; (g)
to prevent, on the ground of nuisance, an act of which it is not
reasonably clear that it will be a nuisance; (h)
to prevent a continuing breach in which the applicant has
acquiesced; (i)
when equally efficacious relief can certainly be obtained by any
other usual mode of proceeding except in case of breach of trust; (j)
when the conduct of the applicant or his agents has been such as
disentitle him to the assistance of the Court; (k)
where the applicant has no personal interest in the matter. Notwithstanding section 56,
clause (f), where a contract comprises an affirmative agreement to do a certain
act, coupled with a negative agreement, express or implied, not to do a certain
act, the circumstance that the Court is unable to compel specific performance
of the affirmative agreement shall not preclude it from granting and injunction
to perform the negative agreement; provided that the applicant has not failed
to perform the contract so far as it is binding on him.
Preamble - SPECIFIC RELIEF ACT, 1977 [REPEALED]PREAMBLE