THE SPECIFIC RELIEF ACT
(ACT NO. 47 OF 1963)
SIXTEENTH EDITION 2007
CONTENTS
PREAMBLE
1. Scope of the Act 1
2. Specific Relief 2
3. Contracts relating to movable property 2
4. Scope of suit 3
5. Defence of non-enforceabiliy 3
6. Remedy of specific performance before consumer forum 3
PART I
PRELIMINARY
S.1. SHORT TITLE, EXTENT AND COMMENCEMENT 5
1. Amendment 5
2. Local Extent 5
3. Applicability 5
S.2. DEFINITIONS 5
1. Amendments 6
2. “Obligation” : [Cl. (a)] 6
3. ‘Settlement’ : [Cl. (b)] 7
4. ‘Trust’ : [Cl. (c)] 8
5. Implied Trust 9
6. Resulting Trust 9
7. Constructive Trust 10
8. Fiduciary character 14
9. ‘Trustee’ : [Cl. (d)] 14
10. Definitions in the Contract Act : [Cl. (e)] 14
11. ‘Movable and Immovable Property’ 15
S.3. SAVINGS 15
1. Amendments 15
2. Specific performance and other reliefs : [Clause (a)] 16
3. Right to relief 16
4. Registration Act not to be affected : [Clause (b)] 16
5. Specific performance of agreements not registered 16
6. Effect of an agreement for sale in India 17
7. Recovery of possession of statutory tenant even outside the scope of Specific Relief Act 18
S.4. SPECIFIC RELIEF TO BE GRANTED ONLY FOR ENFORCING INDIVIDUAL CIVIL RIGHTS AND NOT FOR ENFORCING PENAL LAWS 18
1. Amendment 18
2. Scope of section 18
3. Penal law cannot be enforced by specific relief 18
4. Discovery in aid of criminal prosecution 19
5. Possession obtained by fraudulent sale is bound to surrender possession to the person who had a right to purchase 19
6. No relief of injunction for encroacher of government property 19
7. When the Rent Controller will not be justified in granting relief 19
8. Sale deed, if fraudulent, cannot be decided 19
PART II
SPECIFIC RELIEF
CHAPTER I
RECOVERY POSSESSION OF PROPERTY
S.5. RECOVERY OF SPECIFIC IMMOVABLE PROPER-TY 21
1. Amendment 21
2. Scope of section 21
3. Joint family property—Suit for possession 22
4. “Entitled to the possession of” 23
5. “Effect of destruction of subject matter of lease 23
6. Suit for eviction—Maintainability 24
7. Purchaser’s right to sue for recovery of possession even if possession is recited as handed over 24
8. Declaratory suit based on title would fail if defendant pleads and proves adverse possession 24
9. Power of the executing court to order possession when there is a decree for specific performance 24
10. Right of recovery on a promise of delivery of possession after reconstruction 24
11. Recovery of suit property—Proof 25
12. Proof of adverse possession 25
13. Person who constructs pending application for injun-ction is not entitled to equities 25
14. Possession on the basis of title 25
15. Purchaser pendente lite may be impleaded 25
16. Remedy of true owner is only for possession 25
17. Suit for declaration of title & possession, Maintainability 26
18. “Plaintiff suing for possession can plead title as well as plead adverse possession” 26
19. “Relevant factor in the matter of discretion other than pleading bonafides of purchase and of consideration” 26
20. Original sale deed handing over 26
21. Declaration of title and possession 26
22. Declaration of right and title not proved 27
23. Injunction against cultivating tenant—Maintainability 27
24. Adverse possession and limitation 27
25. Entitlement to decree 27
S.6. SUIT BY PERSON DISPOSSESSED OF IMMOVA-BLE PROPERTY 27
1. Amendment 29
2. Distinction between Ss. 5 and 6 29
3. Applicability 30
4. Nature of proceedings, summary 30
5. Object of s. 6 30
6. Frame of suit 31
7. Licensee with two remedies 32
8. Issue in a suit under this section. 32
9. Permanent Injunction—Grant of 32
10. Mandatory injunction, grant of 32
11. Limited injunction—Grant of 32
12. No amendment of summary suit into a suit for damages. 32
13. Decree or summary eviction 32
14. Challenge to order under execution, when barred 33
15. Institution of suit by co-ower 33
16. Points for determination in a suit under s. 6 33
17. What the plaintiff must prove in a suit under s. 6 34
18. Initial burden of proof: 34
19. Title not required 34
20. Possession 35
21. Benami Transaction, onus of proof 37
22. Suit by tenant against landlord, when evicted without recourse to law 37
23. No right to recover possession if lessee voluntarily surrenders possession 38
24. Suit by landlord on behalf of tenant 38
25. Suit by landlord against ex-tenant 38
26. Option of tenant who is forcibly dispossessed. 38
27. Suit by third party obstructor evicted without enquiry . 39
28. Position of plaintiff vis-a-vis true owner 39
29. Entitlement to possession 39
30. Decree, entitlement to 40
31. Failure to establish possession—Effect 40
32. Control or possession over a portion of land 40
33. Suit of recovery of possession 41
34. Suit for restoration of possession 41
35. Suit for recovery of possession of road margin 42
36. Suit for restoration 42
37. “Dispossession” what is? 43
38. Forcible dispossession, what is not: 44
39. Forcible dispossession, Property 44
40. When dispossession from property which vests in Gram panchayat in due course of law 44
41. Woman in adultery, disentitled to possession 44
42. Immovable property 44
43. Dispossession of immoval property 46
44. “Otherwise than in due course of law” 46
I. Some instances of dispossession ‘in due course of law’ 46
II. Some instances of dispossesion ‘otherwise than in due course of law’ 47
45. Dispossession without due process of law, invalid 48
46. ‘Notwithstanding any other title’ 48
47. ‘Nothing shall bar ........ to establish title’. 48
48. Scope of subsequent suit—not limited only to recovery of possession 49
49. Appointment of local commissioner 50
50. Possessory suit apart from s. 6 50
51. Recovery of possession outside the scope of this section 52
52. No decree under s. 6 when possessory suit fails 53
53. Suit by or against Government 53
54. Mesne profits, not to be granted 53
55. Interim relief of injunction against further construction in the suit for recovery 53
56. Power of court in forced eviction 54
Jurisdiction, Court-Fee, Limitation
57. Jurisdiction to try a suit under s. 6 54
58. Court-fee 56
59. Limitation 56
Who Can Sue
60. ‘Any person’ 57
61. Co-sharers: Whether one can sue a stranger 58
62. Co-sharers: Whether one can sue another under s. 6 59
63. Necessary parties in a suit under this section 59
Form and Effect of Decree
64. Trespasser’s right of recovery 59
65. Entitlement to possession, despite non-execution of sale deed 60
66. Possession held under fraudulent or invalid sale is not entitled to be protected 60
67. Form of decree under s. 6 60
68. Effect of a decree under
S.6. 61
69. Res judicata 61
Remedies after Decree
70. Remedy of person affected by decree under s. 6 62
71. Scope of the order in subsequent proceedings 62
72. Finality of the order 62
73. Alternative remedy by separate suit not barred. 63
74. Review 63
75. Rehearing under Order IX, r. 9 63
76. Appeal 64
77. Bar to appeal 64
78. Revision 64
79. Non-maintainability of review petition in revision 66
80. S. 6, Sp. Rel. Act and s. 145, Criminal Procedure Code 66
81. Effect of order of Criminal Court under Sec. 145, Cr.P. Code 66
82. Proceedings under s. 144 Cr. P.C. 67
83. Recovery of possession and Arbitral award that is illegal —Maintainability 68
84. Person resisting possession, when he is a transferee pending suit: 68
85. Suit against police officer in personal capacity 68
86. S. 6, Sp. Rel. Act and s. 110, Evidence Act 68
87. Protection of possession by injunction—to what extent permissible 68
88. Findings of court 69
89. Claim of ownership on basis of adverse possession 69
S.7. RECOVERY OF SPECIFIC MOVABLE PROPERTY 69
1. Amendment 70
2. Scope and Object 70
3. ‘Specific movable property’ 70
4. ‘Person entitled to the possession’ 70
5. Bailments 71
6. Bailments of Pledge 71
7. Defendant, real owner 71
8. Refusal of injunction in exercise of power of hypo-thecation 71
9. No relief where goods are in possession of third party 71
10. Explanation 1 72
11. Explanation 2 72
12. Form and contents of decree: ‘in the manner prescribed by the C.P. Code’ 72
13. Execution of decree 73
14. Possession of aircraft after lease termination 73
15. Contract of supply of goods and claim for damages 73
16. Delivery of machineries contracted cannot be specifi-cally enforced 73
17. Limitation 73
18. Higher rights, not to be deceaed 73
S.8. LIABILITY OF PERSON IN POSSESSION, NOT AS OWNER TO DELIVER TO PERSONS ENTITLED TO IMMEDIATE POSSESSION 74
1. Amendment 74
2. Liability, confined to special categories [Clauses (a), (b), (c) and (d)] 75
3. Scope of s. 8 75
4. Distinction between Ss. 7 and 8 75
5. Detinue and Conversion or Trover 75
6. Effect of judgment in detinue and conversion 76
7. Possession 76
8. Possession or mesne profits to the plaintiff 77
9. Control 77
10. Possession with third persons 77
11. Trustee, not a baille [Clause (a)] 77
12. Pledge by wife 78
13. Pledge by servant 78
14. Pledge by fraudulent possessor 78
15. Pledge by gratuitous bailee 79
16. Unique articles works of art. & c [Clause (b) and (c)] 79
17. Explanation 79
18. Form of decree 79
19. Limitation 79
CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS
S.9. DEFENCES RESPECTING SUITS FOR RELIEF BA-SED ON CONTRACT 80
1. Amendment 80
2. Defences under the law of contracts 80
3. Suit for specific performance of contract maintainability 82
4. Ineligibility of a declaratory decree for suitability to a post in matter of employment 82
5. Decree or specific performance 82
6. Incomplete agreements 82
7. Agreement of sale unenforceable 85
8. Impermissibility of defence of want of title by vendor 86
9. Secondary evidence not permitted 86
10. Relief of recovery of possession claiming a right of repurchase, not maintainable without praying for specific performance 86
11. Delay in institution of suit for specific performance: Effect of 86
12. Suit for possession on basis of prior possession—relevant consideration 86
13. Restoration of possession 86
14. Fraud as a ground for avoiding the agreement 86
15. Alteration in date and time—Effect 86
Contracts which can be Specifically Enforced
S.10. CASES IN WHICH SPECIFIC PERFORMANCE OF CONTRACT ENFORCEABLE 87
1. Amendment 88
2. Scope of the section 89
General Principles Relating To Specific
Performance
3. Specific performance—Meaning of 89
4. Applicability of English Principles 89
5. Provisions of the Act which differ from the English rules of Equity relating to specific performance 90
6. General Principles relating to Specific Performance 90
7. Specific performance is the normal rule 91
8. Specific performance, when can be refused? 92
9. No specific performance of Agreement 92
10. Requisites in a suit for specific performance 92
11. Suit for specific performance of contract, maintainability 93
12. Concluded Contract 93
13. When there is no concluded contract 93
14. Existence of agreement, sine qua non for specific performance 93
15. Grant of temporary injunction—Conditions for 94
16. Special defences in a suit for specific performance 94
17. Whether a suit for specific performance lies on refusal to register a sale deed 96
18. ‘Except as otherwise provided’ 97
19. ‘Contract’ 97
20. Issue of tenancy under Karnataka Land Reforms Act not relevant in a suit for specific performance 98
21. Discretion 98
22. Discretionary jurisdiction 98
23. No standard for ascertaining actual damage [Clause (a)] 98
24. Pecuniary compensation no adequate relief [Clause (b)] 98
25. Contract for transfer of immovable property 98
26. Agreement to sell immovable property 99
27. Burden of proof 99
28. Contract for transfer of movable property 100
29. S. 58, Sale of Goods Act 101
30. Alternative relief 102
Contracts which may be Specifically Enforced
31. Agreement to sell or transfer immovable property 102
32. Specific performance—Entitlement 106
33. Enforcement of reciprocal promises 107
34. Effect of escalation of prices on the purchase price fixed by parties 107
35. Agreement for sale need not be registered 107
36. Enforceability of a contract signed by only one of the parties 108
37. Contract of building construction, enforcement of 108
38. Specific performance of oral agreement 108
39. Reliefs available in a suit for specific performance of an agreement to sell 109
40. When the purchaser is the plaintiff 109
41. When the vendor is plaintiff 110
42. Form of decree 110
43. Costs 112
44. Execution of decree for specific perfomance of agreement to sell 113
45. Agreement to sell by co-sharers 113
46. Sale with a condition to repurchase 113
47. Agreement for exchange of immovable property 115
48. Agreement to lease 115
49. Reliefs that may be asked for in a suit for specific performance of agreement to lease 116
Omission of S. 27A, effect thereof on Unregistered
Agreement for Lease
(A) Law before the Act of 1963
50. Scope and Object of s. 27A 116
51. S. 27A, Sp. Rel. Act and Proviso to s. 49, Registration Act 118
52. S. 27A of the Specific Relief Act and s. 53A of the Transfer of Property Act 118
53. Conditions for application of the Section 119
54. ‘Contract’ 120
55. ‘Contract to lease’ 120
56. ‘In writing signed by the parties’ 120
57. ‘Continues in possession in part performance of the contract 121
58. S. 49 of the Registration Act 121
(B) Law under the Act of 1963
59. Form of decree 123
60. Contract by limited owner to sell or lease 124
61. Effect of want of authority for sale in respect of company property/ partnership property 124
62. No specific performance against a person not a party to agreement 125
63. Agreement to sell or divide reversionary interest &c 125
64. Agreement to partition 125
65. Compromise of doubtful rights and family settlement 125
66. Adjustment after decree 126
67. Agreement for sale of shares having a limited market 126
68. Agreement to execute a mortgage 126
69. Contract with products of public company 126
70. Award 126
71. Direction in will or codicil to execute a particular settlement 126
72. Other contracts which may be enforced 126
Court-fee in Suit for Specific Performance
73. Agreement for sale 127
74. Where recovery of possession is added to prayer for specific performance of an agreement for sale or lease 127
75. Agreement for exchange 129
76. Agreement to execute a deed of trust 129
77. Agreement for lease 129
78. Agreement to mortgage 129
79. Award 129
80. Jurisdiction of Courts in suit for specific performance of contract 130
81. Limitation in suit for specific performance 130
82. Limitation in suit for enforcement of award 132
83. Amendment of the relief of mandatory injunction for specific relief, when barred by limitation 132
84. Parties in suit for specific performance 132
85. Strangers not necessary party 132
86. One out of several persons interested cannot sue 133
87. Execution of decree for specific performance 133
88. Extension of time 134
89. No time essence contract 134
90. Execution of deed by Court: Passing of title 134
91. Delivery of Possession in execution proceeding 134
92. Readiness to perform 135
93. Enforcement of part only of the contract 135
94. Interference of court of appeal in the suit for specific performance regarding the issue of readiness and willingness 135
95. Specific Relief Act and not Canon Law applicable 135
96. Of admissibility of proof that a document purporting to be an agreement of sale was not meant to be such 135
97. Agreement not vitiated by fraud or misrepresentation 136
S.11. CASES IN WHICH SPECIFIC PERFORMANCE OF CONTRACTS CONNECTED WITH TRUSTS ENFO-RCEABLE 136
1. Scope of section 11 136
2. In performance of a trust : [Sub-sec. (1)] 136
3. Specific performance—Denial of 137
4. Contract involving breach of trust [Sub-sec. (2)] 137
S.12. SPECIFIC PERFORMANCE OF PART OF CONTR-ACT 138
1. Amendments 140
2. Scope of section 12 140
3. Part enforcement possible even if a claim for pre-emption is possible in respect of such part 140
4. Specific performance contract not given effect in entirety [Sub-sec. (1)] 141
5. Specific performance cannot be refused if area differ agreement 141
6. Specific performance, part performance, compensation for deficiency [Sub-sec. (2)] 141
7. Effect on whole contract, if the purchase of lesser interest is not possible 142
8. Specific performance with abatement 144
9. Enforcement of part only of agreement, when enforcement of the whole is sought 145
10. 'Unable to perform' 146
11. When the part unperformed cannot be compensated in money 147
12. Specific performance of contract, proportionate abate-ment [Sub-sec. (3)] 147
13. Specific performance partly performed [Sub-secs. (2) and (3)] 147
14. “Unable to perform the whole” 148
15. “May” 148
16. 'Forms a considerable part of the whole' : [Cl. (a)] 148
17. Contract for sale by one of several Hindu coparceners 149
18. Sale agreement by kartha without necessity 151
19. 'May, at the suit of the other party' 151
20. 'Relinquishes all claim to further performance' 152
21. Contract executed by one of several promisors 153
22. Inapplicabilty of Sec.12(3), if both parties were aware that the vendor was not the owner of whole property 154
23. Plaintiff could relinquish part even at the stage of second appeal 154
24. Pre-conditions for grant of part performance 155
25. Specific performance of sale—Entitlement to decree 155
26. Specific performance exception to general rule of [Sub-sec. (4)] 156
27. “Cannot”—“Ought not” 156
28. Instances of divisible and indivisible contracts 156
29. Specific performance for one part and damages for another part of a contract 159
30. Right to abatement not excluded by sub-sec. (4) 159
31. Costs 159
32. No specific performance if prior sanction of authority contemplated in the agreement does not materialise 159
33. No enforcement of part if purchaser is not ready and willing 159
34. Effect of abatement of claim against L.R. of one defendant does not affect suit for specific performance and for damages 159
35. Part performance at the instance of one only of plaintiffs 160
36. Enforceability of family agreement 160
37. Specific performance of part of contract 160
38. Part of contract—Performance of 160
39. Mis-conduct of plaintiff will disentitle relief for specific performance 160
40. Conduct of plaintiff as disentitling specific performance 160
41. Readiness essential to claim performance even in part 161
42. Courts have not power to split contract into parts of varying consideration 161
43. Compensation in lieu of specific performance 161
44. Plea for performance of part of contract and inference of lack of readiness and wllingness 161
45. Effect of knowledge of defective title of the vendor, if disentitles the plaintiff to obtain specific relief 162
46. Signature of only one party, effect 162
47. Relief for part of subject matter and nature of pleadings 162
48. Nature of pleadings in suit and stage of amendment 163
49. Election for specific performance of part in first appeal, not permissible, when 163
50. Amendment seeking for restrictive right 164
51. Plea could be raised even without specific amendment 164
52. Whether pleadings could be amended at the appellate court 164
53. Relief of partition, if could be claimed for the portion that could be performed 164
54. When specific enforcement of part is not maintainable 165
55. Joint property—Specific performance of Sale agreement 165
56. Refusal of relief of specific performance 165
S.13. RIGHTS OF PURCHASER OR LESSEE AGAINST PERSON WITH NO TITLE OR IMPERFECT TITLE 165
1. Amendment 166
2. Principle underlying s. 13(1)(a) & (b) 167
3. Scope of clause (a) 167
4. Rights of purchaser or lessee against person with no title or imperfect title 167
5. Transfer of Property Act [S. 13(1)(a), Sp. Rel. Act and s. 43] 169
6. Agreement of sale by vendor with imperfect title but subsequently becoming an owner limitation 169
7. ‘The contract’ 170
8. Limitations to s. (13)(1)(a) 170
9. Right of third parties [Clause (b)] 171
10. Specific performance, unencumbered property, sale of [Clause (c)] 173
11. Specific performance—Enorcement of 174
12. Refund of deposit [Clause (d)] 175
13. Costs 176
14. Lien 176
15. ‘Imperfect title’ 176
16. ‘Purchaser’s right to refund in other cases’ 177
17. No valid agreement, no decree for specific performance 177
S.14. CONTRACTS NOT SPECIFICALLY ENFORCEA-BLE 177
1. Amendments 179
2. Scope of section 179
3. No specific performance of void contract 180
Contracts which cannot be specifically enforced
4. Sub-sec. (1). 180
5. Where compensation in money is an adequate relief [Clause (a)] 180
6. Hire-purchase agreement 182
7. Contract running into minute details etc. [Clause (b)] 182
8. Contracts not specifically enforced 183
(A) Contracts running into details
9. Contract to build or repair 183
(B) Contracts dependent on personal volition
10. Contract of Service 184
11. Specific perormance on family settlement 194
12. No writ remedy against termination 194
13. Writ remedy against action of corporation 194
14. Injunction 194
(C) Contracts which are by their nature not
capable
of specific performance
15. Contract for the sale of goodwill 196
16. Time essence of contract 197
17. Specific performance revocable contracts [Clause (c)] 197
18. Sale deed executed in favour of third party 197
19. Termination of agreement, how effected 198
20. Contract to give in marriage 198
21. Contracts involving the performance of duties extending over three years [Clause (d)] 198
22. Sec. 14(d) & Or.2 R.2 of C.P.C 200
23. Agreement to refer to arbitration [Sub-sec. (2)] 200
24. Requirements of sub-sec. (2). 201
25. Suit for damages for breach of arbitration agreement 202
26. Suit after award 202
27. Agreement to lend money and mortgage [Sub-sec. (3) (a)(i)] 202
28. Contract not enforceable [Sub-cl. (ii)] 204
29. Partnership Contracts [Clause (b)] 204
30. Contract to build or repair [Clause (c)] 204
31. Burden of proof on non-enforceability 205
Persons for or against whom contracts may be
Specifically Enforced
S.15. WHO MAY OBTAIN SPECIFIC PERFORMANCE 206
1. Amendments 207
2. Scope of section 207
3. “Any Party” [Clause (a)] 207
4. Specific performance, who may obtain? 208
5. Suit by some of several co-contractors 209
6. Representative in interest, etc. [Clause (b)] 209
7. Assignment of right under contract 210
8. Right of legal representative 211
9. Burden of proof as to non-assignability 212
10. Specific performance marriage settlement, persons bene-ficially entitled [Clause (e)] 212
11. Settlement on marriage 212
12. Family compromises 213
13. Person beneficially entitled 214
14. Reversioner’s interest [Clauses (d), (e) and (f)] 215
15. Enforceable contracts [Clause (g)] 215
16. Decree for specific performance, not granted 215
17. Pre-formation of company [Clause (h)] 215
18. Stranger to a contract, if entitled to sue 216
19. Competency of unregistered society to enforce agree-ment (see section 10 also) 217
20. No financial capacity in vendee, no specific performance 218
20A. Agreement signed by vendor only maintainable 218
21. Plaintiff’s willingness, not to be proved 218
S.16. PERSONAL BARS TO RELIEF 218
1. Amendments 220
2. Scope of section 221
3. Suit for specific performance, maintainability 221
4. Specific performance, compensation against defendent [Clause (a)] 221
5. Escalation of price of property 222
6. Specific performance, breach of contract [Clause (b)] 222
7. Specific performance, Essential conditions 222
8. Specific performance, not entitled to 222
9. Readiness and willingness 223
10. Specific performance, Entitlement to 224
11. Plaintiff becoming incapable of performing his part 225
12. Specific performance, Drafting of plaint 226
13. Obligation to secure prior permission of public authori-ties 226
14. Effect of failure to perform 227
15. Destruction of title-deeds 227
16. ‘Has become.’ 227
17. Violation of essential terms of the contract 228
18. Subsequent disposal of property 229
19. Readiness to perform [Cl. (c)] 229
20. Averment—Nature of 230
21. Nature of pleadings 230
22. Effect of no pleading of ‘readiness and willingness’ 230
23. Amendment of plaint 231
24. No mechanical reproduction of words, ‘readiness and willingness’ need be expressed 232
25. Readiness and willingness must be continuous 235
26. Readiness and willingness cannot be inferred by mere averment in plaint 235
27. Pleadings and truth regarding readiness and willingness 235
28. Effect of uncontroverted statement of readiness and willingness 235
29. Plea of lack of readiness in defence 236
30. Plea of non-performance 236
31. Effect of inartistic pleading 236
32. Relevance of specific issue regarding readiness and willingess 236
33. Readiness and willingness, proof by conduct 237
34. Need for notice prior to suit 238
35. Effect of non-examination of plaintiff for proof of readiness and wllingness 238
36. Readiness and willingness – meaning of 238
37. Meaning of willingness 238
38. Readiness and willingness, distinguished 239
39. Redelivery of land by purchaser not proof of lack of readiness, when consideration has been paid 239
40. Readiness and willingness, Essential condition 239
41. Right of enforcement by assignee of the purchaser 239
42. Need to tender money 239
43. Effect of insufficiency of funds 240
44. Effect of non-performance of agreement 241
45. Factors not proving readiness and willingness 241
46. Plea in defence of want of readiness and willingness, if available to the subsequent purchaser 241
47. Defence of part performance shall be on proof of readiness and willingness to perform contract that is left unperformed 241
48. Conduct not proving readiness 242
49. Circumstantial evidence of proof of readiness 242
50. Effect of failure to discharge a loan contracted, proof of lack of readiness 243
51. Insitution of suit as indigent person 244
52. Conduct of plaintiff seeking for time of payment conceded by the vendor—Does not prove want of readiness and willingness 244
53. Nature of proof of readiness and willingness of purchase, when vendor/defendant persistently seeks for extension 244
54. Lack of readiness and willingness—Proof 244
55. Readiness and willingness—pleading—adequacy of 245
56. Readiness and willingness—Proof, no need to reconsider 245
57. Readiness and willingness—interference of finding in 2nd appeal 245
58. Readiness and willingness—Lack of proof by mere oral assertion 245
59. Specific performance of verbal agreement 246
60. A financial capacity of an assignee from a purchaser is irrelevant 246
61. Circumstances of proof of lack of readiness and willing-ness 246
62. Willingness to pay interest on balance of consideration as per contract – proof of lack of readiness 246
63. Balance consideration—Payment of 247
64. Consideration payable in instalments—failure to pay instalment, interest, inference 247
65. Variation in sale consideration 247
66. Payment through post dated cheque that was dis-honoured on presentation 247
67. No specific performance when the transaction is really to secure a loan 247
68. No specific performance of agreement not consented by other co-sharers 247
69. No prior notice necessary to express readiness and willingness 248
70. Ingredient of readiness and willingness equally applicable to agreement of reconveyance 248
71. Time, when essence of contract 252
72. Issue whether time is of the essence shall be specifically framed 253
73. Effect of mere delay 254
74. Delay when relevant to deny the relief 254
75. Mere specification of time will not make time the essence 254
76. Time subsequently made the essence 254
77. Time is essence of contract, how enforced 255
78. In respect of agreement of re-conveyance 255
79. Time, when not of the essence : Extent of Judicial Review by Supreme Court 255
80. Power of court 256
81. Prolonged proceedings and effect of rise in prices 256
82. Sale with condition for right of re-purchase—Not mortgage 257
83. Effect of non-examination of plaintiff 257
84. Mere delay would not mean want of readiness and willingness 257
85. Delay of 9 months after denial by vendor to execute the sale—Denial of relief 258
86. Suit for specific performance, not barred by limitation 258
87. Suit for specific performance barred by limitation 258
88. Delay in institution of suit after death of vendor 258
89. ‘His part of the contract’ 264
90. Explanation (i): Whether tender necessary 265
91. Failure to deposit consideration in court in a suit for specific performance not fatal 267
92. Burden of proof of readiness and willingness on purchaser 267
93. Proof of readiness and wiliness is a question of fact 267
94. Bar by satisfaction 268
95. Issue regarding readiness and willingness 268
96. Defence of lis pendens, if could be raised without pleading 268
97. Suspicious circumstances regarding agreement disentitle the relief of specific performance 269
98. Ex parte decree against only some of the defendants; Effect of setting aside the decree and a composite decree against all defendants, after trial 269
99. Subsequent Purchaser’s right to deny readiness and willingness 269
100. Effect of decision under Art 142 of the Constitution of India 269
101. No specific performance when the transaction is really to secure a loan 270
102. Entitlement of plaintiff for recovery of advance even if plaintiff is shown to have been not ready and willing 270
103. Sections 12 and 16(c) 270
104. Fixation of price to be done after stipulated period 270
105. Finality on proof of readiness and willingness 270
S. 17 . CONTRACT TO SELL OR LET PROPERTY BY ONE WHO HAS NO TITLE, NOT SPECIFICALLY ENFORCEABLE 271
1. Amendment 271
2. Scope of section 272
3. “Knowing himself not to have any title” [Clause (a)] 272
4. Remedy 272
5. What title must be shown by the vendor 272
6. “Believing that he had a good title” [Clause (b)] 273
7. Must, however, be read along with s. 13(1)(a), s. 17(1)(b) 273
8. Title free from reasonable doubt means a marketable title 274
9. Burden of proof 276
10. Inquiry as to title 277
11. Special contracts 278
12. “Such title as the vendor has” 278
13. Title to the satisfaction of solicitor 279
14. Agreement for sale, enforceability 279
15. Other cases 280
S.18. NON-ENFORCEMENT EXCEPT WITH VARIATION 280
1. Amendment 281
2. Principle and Scope 281
3. Analogous Provisions 282
4. Specific performance variation in contract due to fraud or misrepresentation, not enforceable [Clause (a)] 282
5. Suit agreement, enforcement 282
6. Effect of material alteration of document 282
7. Analogous remedies in cases of Fraud 283
8. Analogous remedies in cases of Mistake 283
9. Misrepresentation 284
10. Interpretation of parties [Clause (b)] 285
11. Validity of contract [Clause (c)] 285
S.19. RELIEF AGAINST PARTIES AND PERSONS CLAI-MING UNDER THEM BY SUBSEQUENT TITLE 285
1. Amendments 287
2. Scope and principle 287
3. Parties to the Contract [Clause (a)] 287
4. Persons claiming under a party [Clause (b)] 287
5. Conditions for the application of [cl. (b)] 288
6. Subsequent purchaser entitled to protection is not a pur-chaser Lis pendens 289
7. Notice 290
8. Meaning of ‘notice’ 290
9. What Constitutes Notice 291
10. Effect of purchase without notice—what does not consti-tute notice 291
11. Actual Notice 292
12. Constructive Notice 292
13. Possession When Amounts to Notice 293
14. Registration whether notice 295
15. Notice to the Agent is Notice to the principal 295
16. Onus 296
17. Onus of proof 296
18. Onus to prove notice 298
19. Good Faith 298
20. Notice of contract 299
21. Bonafides of subsequent purchaser without notice of agreement 299
22. Bona fides of subsequent purchaser, essentially a que-stion of fact 300
23. Defence to bona fide purchaser, availability 300
24. Circumstance that evidences bona fides of subsequent purchaser 300
25. Relief of specific performance, discretionary 302
26. Effect of non-framing of issue—Enforcement of specific performance of agreement of sale against subsequent purchaser 302
27. Third party claiming title independently of parties to suit—not necessary party 302
28. Binding nature of an agreement on subsequent pur-chaser, when tenable? 303
29. Right of subsequent purchaser to question, Agreement for sale 303
30. Right of subsequent purchaser to challenge readiness and willingness of the prior purchaser 303
31. Readiness and willingness, proof of 303
32. Stranger setting up independent title not necessary party 303
33. Impeadment of subsequent purchaser cannot be denied on the ground of delay 304
34. No indemnity to subsequent purchaser with notice 304
35. No equities to subsequent purchaser putting up construc-tion 304
36. Specific performance, essential ingredients to be proved 304
37. Equity, if enforceable to perform contract [Clause (c)] 305
38. Assent of creditor [Clause (d)] 306
39. Benefit of contract [Clause (e)] 306
40. Parties to a suit for specific performance 306
41. Effect of non-joinder 308
42. Ancillary relief 308
43. Form of decree when subsequent purchaser is bound 308
44. Specific performance—objection as to 309
45. Specific performance, entitlement 309
46. Specific performance against subsequent purchaser 309
Discretion and Powers of Court
S.20. DISCRETION AS TO DECREEING SPECIFIC PER-FORMANCE 309
1. Amendment 312
2. Notes on changes 312
3. Object and Scope: Jurisdiction discretionary 313
4. Discretion always to be exercised, unless plaintiff has by conduct disentitled 314
5. Discretion of specific relief is guided by sound judicial principles, etc 315
6. Change of identity of property, effect 315
7. New conditions for payment of balance of consideration not mentioned in contract—Denial of discretionary relief 316
8. Mere occupation of tenants, no ground to refuse relief 316
9. Lack of bona fides of subsequent purchaser 316
10. Specific performance not to be refused merely because alternate relief for recovery of money is sought 316
11. Subsequent suit for specific performance, not barred 317
12. Alternative relief’s claim instead of main relief 317
13. Discretion not to extend the relief where the vendor had been given option to terminate the agreement 317
14. Discretion—No refusal even if statutory requirement of “no objection” from public authorities is not given 317
15. Agreement dependent on the consent of third party 317
16. Agreement subject to sanction 318
17. Oral agreement, proof 319
18. Discretion, when not exercised 319
19. Specific performance, readiness and willingness 319
20. Circumstances when the discretionary relief is not granted 319
21. Specific performance, if defendats ownership is perverse 320
22. Agreement was indeed a loan transaction—Refusal of discretion 320
23. Discretion to refuse specific performance—intervention of third party interests 321
24. Discretion of Court—when refusal is unjustified 321
25. Construction of deed 321
26. Escalation of price, no ground to deny relief 321
27. Specific performance, Discretionary remedy 322
28. Discretion, when to be exercised in favour of the purchaser 323
29. Alteration by scoring off one of purchaser’s name, when not relevant to deny relief 324
30. Specific performance of different property than what is decreed 324
31. For specific performance, proof of agreement mus be clear 325
32. Land Ceiling as a bar to plaintiff to purchase 325
33. Stipulation for sanction from Urban Land Ceiling Act-subsequent repeal of the Act and its effect 325
34. Payment of consideration 325
35. Non-interference with relief of specific performance if agreement is esta blished 325
36. Discretion of enforcement to bona fide transactions 326
37. Conversion of suit for injunction into specific performa-nce 326
38. Preliminary issue in a suit for specific performance 326
39. Strict requirement of adequate pleadings 326
40. Correction by a Court of appeal 327
41. Subsequent purchasers would not be injuncted 327
42. Delay and laches 327
43. Entitlement to 328
44. Relief of specific performance as an alternative to the relief that the agreement was void, maintainable 328
45. Suit for specific performance, limitation 329
46. Whether period of limitation if not pleaded could be entertained by court 329
47. Limitation—Relief to quondam minor 330
48. Enforcement of agreement prior to the period stipulated, whether permissible 330
49. No enforcement of unregistered agreement of sale 330
50. No laches, when 330
51. Time when essence of the contract 333
52. Agreement to reconvey—time whether of essence 336
53. Where the plaintiff was guilty of undue delay 336
54. Delay in seeking enforcement—ground for denying relief 336
55. Considerable delay in enforcing agreement—Discretion of court to award interest 336
56. Delay alone would not be a factor to deny specific performance 336
57. Effect of delay caused by defendant/ vendor 337
58. Framing of issue 337
59. Bar to decree/suit 337
60. Agreement with illiterate woman 337
61. Return of sale consideration—tenability 337
62. Failure to discharge part of contract—effect 337
63. Joint property sale, execution of 338
64. Competent authority may not be necessary party 338
65. Specific performance of consent decree 338
66. Addition of party 338
67. Findings based on evidence, not to be interfered 338
67A. Suit for specific performance on registered agreement for sale 338
68. Subsequent Conduct 339
69. Proof of payment of consideration—when irrelevant 339
70. Consequences of time being of the essence of the contract 341
71. Waiver of delay 341
72. Where no time is specified in the contract 341
73. Unfair advantage—instance 342
74. Unenforceability of contract where the performance would involve hardship to the defendants which he did not forsee 342
75. Unfair advantage in the context of Rent Control Act 342
76. Illiteracy of the vendor as circumstance disentitling the relief 343
77. Effect of dominating influence on the vendor by pur-chaser 343
78. Undue advantage to one party, example 344
79. Sub-sec. (2) 344
80. Unfair advantage [Cl. (a)] 344
81. Conduct of plaintiff disentitling him to the relief 345
82. Discretionary relief—conduct of vendor in not respond-ing to notice will be relevant to grant decree 345
83. Existence of earlier agreement 346
84. What is not unfair advantage 348
85. Want of details of unfair advantage, effect 349
86. Parameters for determination of unfair advantage 349
87. Time for judging fairness of the contract 349
88. Discretion—specific performance is to be granted when plaintiff is not shown to have acted unfairly 350
89. Hardship [Clause (b)] 350
90. Proof of comparative hardship 352
91. Where specific performance would be inequitable [Cl. (c)] 353
92. Discretion—Refusal of relief when plaintiff is guilty of interpolation 353
93. Refusal of relief of specific performance 353
94. No specific performance when there exists a bar to sell 355
95. Effect of ceiling on holding on a right to enforce specific performance 355
96. Unconscionability of bargain 357
97. Material alteration of the document 359
98. Unregistered sale deed, if could be treated as evidence of agreement for specific enforcement 360
99. No discretion for grant of relief if plaintiff makes false allegations in the plaint 362
100. Unenforceability of gift 362
101. Material alteration, when it is 363
102. Effect of false case, if it is immaterial 363
103. Refusal of discretionary relief, if plaintiff’s case is false 363
104. Non enforceability of contract without the concurrence of the owner 364
105. Conflict in pleadings and evidence – effect 364
106. Declaratory suit 364
107. Inadequacy of consideration etc. [Expl. 1] 364
108. Time when the hardship must arise [Expl. 2] 366
109. When plaintiff has suffered loss [Sub-sec. (3)] 367
110. Abolition of the doctrine of mutuality [Sub-sec. (4)] 368
111. Interim orders 371
112. Discretion to pass interim orders 371
113. No interim relief of injunction in the suit for specific performance does not establish a clear prima facie case 372
114. Enforceability of agreement against member of society—society is not a necessary party 372
115. Lack of proof of readiness 372
116. Discretion—Refusal of even partial performance 372
117. Decree against non executant member of HUF where sale is to discharge antecedent family debt 372
118. Enforcement of agreement in respect of HUF property 373
119. Agreement by Kartha not for family necessity 373
120. Discretion—Refusal of specific performance when contract is void 373
121. No relief when property is under attachment 373
122. Where terms of agreement are vague 373
123. Vagueness in description of property 374
124. Non-enforceability against a person who is not privy to contract 374
125. Relief of specific performance unhampered by possibility of suit under Sec. 4 of Partition Act 374
126. Defence of benami by vendor cannot be raised 374
127. Plea of non-alienability, when not available 374
128. Defect in title could not be a ground of defence by vendor 374
129. Specific performance of agreement by bhumidari. 374
130. When interference in second appeal not justified 375
131. Denial of sanction for sale by public authority illegal and collusive—decree for specific performance could be still odered 375
132. Agreement enforceable if condition of securing N.O.C is not fulfilled 375
133. U.P. Consolidation of Holdings—Effect of allotment to a person other than vendor 375
134. Time essence cotract—specific performance 375
135. Specific performance of sale deed, dismissal of 376
136. Fiding of fact, no interference with 376
137. Sale deed, validity of 376
138. Conveyance deed—Execution of 376
139. Sale deed executed by children of vendor 376
140. Decree for specific performance, subject to sanction of collector 376
141. Reasonable time, to be ascertained 376
142. Court can appoint other arbitrator 376
143. No concluded contract, no specific performance 377
144. Agreement to sell—Effect of disqualification—U.P. Zamindari (Abolition & Land Reforms) Act 377
145. Assessment to sell enforcement of 377
146. Agreement to sell, minor’s property 378
147. Decree in respect of land covered under consolidation proceedings 378
148. Plea of defence of inequitability of contract not available to subsequent purchaser 378
149. Circumstance when power of executor to sell subor-dinated to pre-emptive purchase right of beneficiary under will 379
150. Agreement to sell, signature basic necessity 380
151. Sale agreement as additional evidence 380
152. Power of arbitrator to grant specific performance 380
153. The grant of a consequential relief of injunction or alternatively the relief of recovery of possession could be made in a suit for specific performance 381
154. Refund of advance—Ground 381
155. When specific performance is refused, refund shall always be awarded 381
156. Scope for interference in L.P.A 382
157. Court fee payable in appeal against conditional decree 382
158. Decree of specific performance and sale in execution thereof, nature 382
159. Specific relief once granted, plaintiff himself cannot appeal to deny the relief 382
160. Specific performance, Entitlement to 382
161. Specific performance, no entitlement 384
S.21. POWER TO AWARD COMPENSATION IN CERT-AIN CASES 385
1. Amendments 386
2. Notes on Changes 386
3. Legislative history 387
4. Scope and Principle 387
5. Damages in addition 387
6. Specific performance to be refused 389
7. Damages in addition to the specific performance when not claimed in plaint 389
8. Damages, entitlement to 390
9. Damages in substitution 391
10. Damages instead of specific performance 392
11. Amendment of Plaint for Damages in Substitution 393
12. Damages contemplated under this section does not envisage adjustment against sale price 394
13. Effect of the vendor, in a contract for sale disposing of the property to a third party 394
14. Compensation o refusal of specific performance 395
15. Compensation, standard of 395
16. Claim for compensation under S.R.A and Indian Contract Act—Distinction 397
17. Plea for damages essential 397
18. Amendment for claim of damages 398
19. Claim for compensation and acquisition proceedings 398
20. Whether claim to compensation could be made at the execution stage 398
21. Explanation 399
22. Specific performance impossible after decree 400
23. Limitation 400
24. Power of court to grant interest 400
25. Suit for refund of earnest money 400
26. Refund of earnest money with damages 402
S.22. POWER TO GRANT RELIEF FOR POSSESSION, PARTITION, REFUND OF EARNEST MONEY, ETC. 402
1. Amendment 403
2. Claim for possession and ancillary reliefs [Sub-sec. (1), Cl. (a)] 403
3. Relief of Possession in execution decree 404
4. Relief of possession complementary to specific relief 404
5. Possession could be granted even if decree is silent 405
6. “In An Appropriate Case” 405
7. Proviso: “At Any Stage of The Proceeding” 406
8. Power to direct refund [Cl. (b)] 406
9. Refund of earnest money has to be claimed 406
10. Refund of money with interest 406
11. Refund of advance with no interest 407
12. Refund of advance should be specifically pleaded 407
13. Refund of advance, quantum of loss not relevant 407
14. Grant of decree for refund of money will not disentitle the appeal for the main relief 407
15. Refund of money, no entitlement to 408
16. Right of purchaser of a fractional share to sue for partition 408
17. Relief of Partition and separate possession [Sub-sec. (2)] 408
18. Amendment of the plaint to include alternate relief [Proviso to Sec. 22(2)] 409
19. No separate fee for alterenative relief 409
20. Specific performance—Abandonment of 409
21. Liberal approach to amendment to include relief of recovery of possession 409
22. No limitation for amendment in plaint for claiming the relief of refund of advance 409
23. Limitation 410
24. Enforcement against successor in interest of owner 410
25. Character of possession of a non-statutory tenant continuing in possession after the tenure of lease 410
26. Declaratory decree about the fraud without ancillary relief, maintainability 410
S.23. LIQUIDATION OF DAMAGES NOT A BAR TO SPE-CIFIC PERFORMANCE 411
1. Amendment 411
2. Notes on changes 411
3. Principles underlying the section 412
4. Breach of contract [Sub-sec. (1)] 413
5. “Otherwise proper to be specifically enforce” 416
6. Applicability of the principle in cases of injunction 416
7. Twin Reliefs [Sub-sec. (2)] 416
S.24. BAR OF SUIT FOR COMPENSATION FOR BREACH AFTER DISMISSAL OF SUIT FOR SPECIFIC PER-FORMANCE 417
1. Amendment 417
2. Rectification of deed—Right of third party 417
3. Refund of deposit 417
4. Limitation for suit for refund 418
5. Procedure where specific performance is impossible after decree 418
Enforcement of Awards and Directions to Execute
Settlements
S.25. APPLICATION OF PRECEDING SECTIONS TO CE-RTAIN AWARDS AND TESTAMENTARY DIRECT-IONS TO EXECUTE SETTLEMENTS 418
1. Amendment 419
2. Scope of the new section 419
3. Suit to enforce an award 420
4. Limitation in suits for specific performance of award 420
5. Frame of suit 420
6. S. 14 of the Arbitration Act and s. 30, Sp. Rel. Act, 1877 421
7. Direction in a will or codicil to execute a particular settlement 421
CHAPTER III
RECTIFICATION OF INSTRUMENTS
S.26. WHEN INSTRUMENT MAY BE RECTIFIED 423
1. Amendment 424
2. Notes on Changes 424
3. Rectification 424
4. Rectification distinguished from analogous remedies 425
5. Rectification of deed—inclusion of party 426
6. Conditions for application of the section 426
7. Right of parties [Sub-sec. (1) Cl. (a)] 428
8. Who may bring the suit 428
9. Relief of rectification [Sub-sec. (1), Cls. (b) & (c)] 428
10. Instrument 429
11. “Contract” 429
12. ‘Mutual' mistake’ 429
13. Unilateral mistake 431
14. Rectification of document permissible only if there is mutual mistake or fraud 431
15. Mistake of law 431
16. Rectification of mistakes with reference to survey Nos 431
17. Rectification of deed with reference to boundaries 432
18. Rectification after Decree 432
19. Rectification by inclusion of the name of a purchaser 432
20. Rectification in case of denial by one party 432
21. Nature of evidence required 433
22. Limits to rectification 433
23. “So far as this can be done without prejudice to rights acquired by third persons in good faith and for value” 433
24. Limitation 434
CHAPTER IV
RESCISSION OF CONTRACTS
S.27. WHEN RESCISSION MAY BE ADJUDGED OR RE-FUSED 435
1. Amendment 436
2. Rescission 436
3. Rescission distinguished from analogous remedies 437
4. Order for rescissionn not proper, restored to executing court 437
5. Cases in which rescission is available 437
6. “Any person” 438
7. Voidable contract [Sub-section (1), Clause (a)] 438
8. “Terminable Contract” 439
9. Unlawful contract [Clause (b)] 439
10. Limits to the right of rescission of voidable Contract [Sub-sec. (2)] 441
11. Burden of proof of subsequent purchaser—extent 442
12. Rescission—not available 443
13. Remedy for cancellation—Not under Art.226 of the Constitution of India 443
14. Limitation 443
15. Court-fee 443
S.28. RESCISSION IN CERTAIN CIRCUMSTANCES OF CONTRACTS FOR THE SALE OR LEASE OF IM-MOVABLE PROPERTY, THE SPECIFIC PERFOR-MANCE OF WHICH HAS BEEN DECREED 443
1. Amendment 445
2. Note 445
3. Rescission after decree [Sub-sec. (1)] 445
4. The failure to deposit amount within stipulated time doe not rescind decree 446
5. Enlargement of time for payment under decree and rescission 446
6. Nature of decree in specific performance suit 447
7. Rescission of contract, validity 449
8. Orders consequential upon rescission 449
9. Further relief [Sub-sec. (3)] 449
10. Separate suit and Relief [Sub-sec. (4)] 450
11. No rescission of decree if amount is deposited within time given by appellate court 450
12. Rescission of contract, when not justified 451
13. U.P. Zamindari Abolition and Land Reforms Act (1 of 1951), S. 331(1) 451
14. Discretion to extend time, how exercised 451
15. Illustration of ground for extension of time 452
16. Unexplained delay, rise in prices as justification for not extending time 452
17. Rescission of decree for failure to cash deposit within time, whether proper – yes 453
18. Discretion of court to extend the time when not justified 453
19. Extension of time, powers of court 453
20. No specific petition is necessary for extension of time 454
21. Direction for payment of consideration by court is directory and not madatory 454
22. Compensation 454
23. “Proceeding” meaning 454
24. Power of court to extend suit for deposit – want of notice to judgment debtor, irregular but not illegal 454
25. Court, where the application for extension could be filed 455
26. Inapplicability of the section when there is no rescission 455
27. Discretion of court for extension of time for deposit 455
28. Limitation for filing an application for rescission of contract 455
29. No Rescission of a decree, where the time stipulated in the decree is self-limiting 456
30. Rescission of decree includes right to challenge the sale deed itself 456
S.29. ALTERNATIVE PRAYER FOR RESCISSION IN SUIT FOR SPECIFIC PERFORMANCE 456
1. Rescission in the alternative 456
S.30. COURT MAY REQUIRE PARTIES RESCINDING TO DO EQUITY 457
1. Amendment 457
2. Notes on changes 457
3. Compensation as condition for rescission 457
4. Court may require the party rescinding to do equity 458
5. Suit by reversioners to set aside alienations by a Hindu widow refund of purchase money 458
6. On rescission of minor’s contracts Court may require him to make compensations 459
7. Contracts by Lunatic: Lunacy not known to the other contracting party 459
CHAPTER V
CANCELLATION OF INSTRUMENTS
S.31. WHEN CANCELLATION MAY BE ORDERED 461
1. Amendment 461
2. Principle and Scope 462
3. Cancellation and Rescission 463
4. Suit for cancelling sale deed, who can file? 463
5. Suits for declaration [Secs. 31 and 34] 463
6. No need for declaration of cancellation 464
7. Conditions for the application of s. 31 464
8. Any person against whom an instrument is void or voidable 464
9. Suit filed on Promissory note, relief not granted 466
10. Challenge to sale on the ground of fraud and misre-presentation 466
11. Void—Voidable 466
12. Competency to challenge sale by father 467
13. Cancellation of settlement deed, separate suit required 467
14. Locus standi of representative in interest to challenge sale 467
15. Written Instrument 467
16. Reasonable apprehension of serious injury 467
17. May in its discretion 469
18. Cancellation decree could be granted only by civil court 470
19. Civil Court Juridiction, not barred 470
20. Cancellation to remove obstacle of doubtful claim 470
21. Onus of proof 470
22. Burden of proof of vitiating circumstances 471
23. Section 31 is permissive: Suits outside the section 471
24. Equitable Defence 472
25. Sec.31 prevails over U.P.Z.A & L.R Act 472
26. Limitation 472
27. Bar of limitation 473
28. Court fee 474
29. Cancellation of sale through writ does not lie 475
30. Cancellation of rectification deed 475
31. Cancellation of sale deed 476
S.32. WHAT INSTRUMENTS MAY BE PARTIALLY CAN-CELLED 476
1. Amendment 476
2. Partial cancellation, where allowed 476
3. No requirement for setting aside the decree, if the plaintiff was not a party to the previous suit 477
4. Infringement of Easementary Right of Light and Air 477
5. Recovery of possession of owner tenable if defendant in possession under an agreement did not perform his part of contract 477
S.33. POWER TO REQUIRE BENEFIT TO BE RESTO-RED OR COMPENSATION TO BE MADE WHEN INSTRUMENT IS CANCELLED OR IS SUCCESS-FULLY RESISTED AS BEING VOID OR VOIDABLE 478
1. Amendment 478
2. Principle underlying s. 33 479
3. Principle according to which the discretion under s. 33 would be exercised 479
4. Restitution of benefit by minor 480
5. Contract by lunatic 483
6. Transfer of inalienable property 483
7. Application of s. 33 to suits for possession 483
8. Suit for cancellation of sale by father need not be accompanied by offer to refund 483
9. Compensation 483
CHAPTER VI
DECLARATORY DECREES
S.34. DISCRETION OF COURT AS TO DECLARATION OF STATUS OR RIGHT 485
1. Amendment 487
2. Object of section 34 487
3. Scope of section 488
4. Requisities for a declaratory action 488
5. “Court may in its discretion” 490
6. Declaratory suit—principles of equity, equally appli-cable with principles of natural justice 490
7. Demolition of structure—Prior notice 490
8. When relief can be refused 490
9. Power of Appellate Court 493
10. ‘Legal character’ 493
11. ‘Right as to any property’ 495
12. What are rights to property— 496
13. Where no legal character or rights to property involved 497
14. “Any person denying or interested to deny” 497
15. Whether a suit lies for a declaration that defendant does not possess a right 498
16. Scope of the Proviso 499
17. Proviso, Applicability 499
18. Declaratory relief of void nature of document without ancillary relief of possession—Maintainability 500
19. Suit for title baed on adverse possession 500
20. Suit for declaration and injunction—power to decree for possession on the basis of subsequent event even without prayer 500
21. Suit for declaration of right to common track 500
22. Suit for declaration of coins’ owner, maintainability 501
23. ‘Being able to seek further relief’ 501
24. “Further Relief” 503
25. Consequences of omission to seek further relief where the Proviso applies 507
26. When ancillary relief is mandatory 507
27. Amendment of plaint 508
28. Amendment in Appeal 508
29. Power of the Court to pass Declaratory decrees independently of sec. 34 509
30. Amendments 510
31. Declaratory decree binds only parties to suit 511
32. Declaration of right of way 511
33. Grant of declaratory relief when not prayed for—ten-ability 511
34. Declaration of Bhumiswami rights 512
35. Parties to a suit under s. 34 512
36. Declaratory deree by nominee 512
37. Effect of non-joinder of children of defendant 512
38. Declaratory suits barred by Special Act 512
39. Declaration of sale deed as void 513
40. Declaratory decree not barred by Forest Act 513
41. Court-fee and valuation in declaratory suits 514
42. Cases coming under Art. 17(iii) of Sch. 11 514
43. Some cases coming under s. 7(iv)(c) of Court-Fees Act 516
44. Declaration of title with recovery of possession 517
45. dissolution of partnership [Secs. 7(iv) (c) and (f)] 517
46. Suit for declaration that decree is void 517
47. Suit for declaration under Or. 21, r. 63, C.P. Code 518
48. Suit for declaration of joint possession 518
49. Declaration that an Act (Statute) is void and injunction 519
50. When plaintiff’s valuation insufficient 519
51. ‘Further’ relief and ‘consequential’ relief 523
52. Limitation in suit for declaratory decrees 523
Different Kinds of Declaratory Suits
Adoption suit to declare valid or invalid
53. Suit for declaratory relief, maintainabilty 525
54. Declaration of negative declaration disputing marital status 525
55. Right of legal heirs of adopted son 525
56. Legal Heirs, Class I 525
57. Auction sale 525
58. Authority to adopt 526
59. Award 526
60. Benami 526
61. Declaration as regards benami nature of purchase 527
62. Bund 527
63. Caste 527
64. Certificate 527
65. Certificate of sale 527
66. Companies 527
67. Compensation 528
68. Termination of service 528
69. Constitutionality of statute 528
70. Contingent right 528
71. Contracts 529
72. Co-sharers (A) 529
73. Right of purchaser from a co-owner to sue for Khas possession 530
74. No ancillary relief of injunction against co-owner 530
75. Court of Wards 530
76. Criminal Court, orders of 531
77. Decree 532
78. Demarcation and survey of lands 534
79. Dismissal 535
80. Divorce 535
81. Documents, invalidity or forgery of, declaration as to 535
82. Findings of Court—No interference 536
83. Election 536
84. A declaratory suit of an ex-parte decree on the ground of fraud – maintainability 537
85. Hindu Widow 538
86. Honorary office 538
87. Insolvency 538
88. Titlle suit 539
89. Ownership 544
90. Joint ownership 544
91. Joint family property 544
92. Landlord and tenant 545
93. Possession—Entitlement to 547
94. Relief of declaration of possession 547
95. Land title to or right in 547
96. Leases, suits relating to 547
97. Continuous possession, basis of claim 548
98. Lien or attachment enforcing or removing 548
99. Transaction for minor’s property, voidable 550
100. Legitimacy 550
101. Entitlement to use service connection of CMP 550
102. Lunatic-Suit on behalf of 550
103. Restoring status quo ante 550
104. Marriage 551
105. Marriage, nullity of 551
106. Misdescription of survey number 551
107. Property, demarcation of 551
108. Money 552
109. Sale deed, voidable, not valid 552
110. Mortgage 553
111. Oral agreement 555
112. Municipalities 555
113. Declaratory relief and injunction against Municipality 556
114. Municipal assessment 556
115. Mutation 556
116. Muth, Mohuntship, Wakf, etc: Suits relating to 556
117. Orders 557
118. Partition, fraudulent 557
119. Partition, Preliminary decree for 557
120. Partition 558
121. Partition in joint venture 558
122. Partition, entitlemeent 558
123. Personal service 559
124. Pre-emption 559
125. Procession 559
126. Patta holder 559
127. Public demands 559
128. Injunction relating in public place 560
129. Permissive occupant 560
130. Records of rights, entries in 560
131. Registration of names by Collector 561
132. Religious endowment 562
133. Religious and customary offices 563
134. Religious and customary rights 565
135. Worshipper’s right to protect property 566
136. Religious procession 566
137. Declaration for right to worship 566
138. Revenue Courts, decisions of 566
139. Reversioner, suits by 566
140. Contract of service—when declaratory relief not permi-ssible 569
141. Effect of declaration in respect of public service 570
142. Statute, constitutionality of 572
143. Statutory order 572
144. Statutory Tribunal, order of 572
145. Taxation 572
146. Date of birth 572
147. Title to immovable property 572
148. Declaration title on the basis of unregistered document 573
149. Suit for declaration only, not maintainable 573
150. Proof of title as belonging to joint family 573
151. Burden of proof 574
152. When plaintiff is in possession 574
153. When plaintiff is out of possession 575
154. When actual possession is neither with the plaintiff nor with the defendant, but with the tenants 577
155. Possession partly with the plaintiff and partly with the defendants 577
156. Possession, grant of, validity 578
157. Declaration of title by wife against husband—possession of property of husband cannot be adverse 579
158. Omission to sue for further relief in a declaratory suit does not bar a subsequent suit for possession 579
159. When possession is with Court 579
160. Trade mark 579
161. Trust 580
162. University 581
163. Wakf 581
164. Wakf property 581
165. Wills 581
166. Injunction relief —Plea of easementary right in defence 582
167. Exclusion of civil jurisdiction on matters relating to state service 583
168. Exclusion of jurisdiction of civil court, when can be inferred 583
169. Institution of civil suit as regards matter governed by Himchal Pradesh Abolition of Big Landed Estate and Land Reforms Act 1963 583
170. Enforceability of building agreement: The enforcement of a building agreement before Consumer forum 584
171. Power of a civil court to mould relief 584
172. T.N. Occupants of Kudiyiruppu Act 1971 [Sec. 3(2)] 584
173. The order to be challenged for declaratory relief 584
174. Plaintiff suing on title is entitled to consequential relief of recovery if defendant has no better title 584
175. Licensee’s possession cannot be adverse 585
176. Value of revenue entries in a suit on title 585
177. Effect of document like property receipts electoral cards etc. 586
178. Certified copies of field maps as evidence of fact situation—regarding absence of lane 586
179. Declaratory suit—River boundary ensures correct identity of suit property 586
180. Declaratory relief on document and adverse possession —Plea is not inconsistent 586
181. Declaration as to release deed 586
182. Plaintiff suing in ejectment ought to succeed on the strength of title and not on weakness of defence 586
183. Declaratory relief on the basis of admission in written statement 587
184. Declaratory suit without a prayer for setting aside sale, maintainability 587
185. Concurrent finding of fact regarding title and possession not liable to be reopened in second appeal 588
186. No injunction directing enforcement of an agreement to construct 588
187. Injunction by landlord against illegal construction 588
188. Injunction against defamation 588
189. Declaratory relief in respect of illegality of disconn-ection of electric supply 588
190. Declaration and for injunction not maintainable, if the party is not in possession 589
191. Perpetual injunction and declaratory suit—Effect of notarized sale deed 589
S.35. EFFECT OF DECLARATION 589
1. Amendment 590
2. Old S. 43 and S. 11 C.P.C. 590
3. Suit for injunction – Receiver when can be appointed 590
4. Nature of decree in specific performance suit 591
5. Survival of cause of action of restrictive injunction against persons 591
PART III
PREVENTIVE RELIEF
CHAPTER VII
INJUNCTIONS GENERALLY
S.36. PREVENTIVE RELIEF HOW GRANTED 593
1. Amendment 594
2. Preventive relief 594
3. Injunction 594
4. Scope of Chs. VII and VIII 594
5. Discretion of the Court 594
6. Prohibitory and Mandatory Injunction 595
7. Original jurisdiction of chartered court-jurisdiction when subject of agreement is outside territorial jurisdiction 596
8. Bare relief of injunction adjudicated on title, not irrelevant 597
9. Relief of injunction—whether entrustment and posse-ssion are synonymous 597
10. Injunction not to dispossess, when can be granted 597
11. Mere possession not sufficient for relief of injunction 597
12. Entitlement to relief of Injunction 598
13. Entitlement to relief of injunction against the portrayal of a person’s life 598
14. Refusal of relief of injunction against co-owner 598
15. Injunction against co-owner against carrying out repairs to common wall 598
16. Injunction against coparceners 598
17. Injunction by tenant against landlord 598
18. Declaratory relief in respect of educational institution 599
19. Injunction against true owner when possible 599
20. Entitlement for injunction by unauthorized occupier against Municipality 599
21. Injunction against Government in respect of water channel 599
22. An order of injunction when effective? 599
23. Relevance of revenue entries in injunction suits 600
24. Injunction by grantee of Government land 600
25. Relief of injunction whether barred by Karnataka Land Reforms Act 600
26. Forcible eviction with order of injunction obtained by fraud 600
27. Entitlement to injunction when defendant makes no objection 600
28. Importance of pleading by party claiming declaration and injunction 600
29. Injunction without declaratory relief 601
30. Injunction against alienation 601
31. Trespasser cannot obtain injunction against owner 601
32. Injunction in favour of trespassers, when justified 601
33. Person in possession without authority—No injunction 601
34. Entitlement to injunction by a person in settled posses-sion 602
35. Ingredients for injunctive relief against further nuisance 602
36. Suit for bare injunction without seeking relief of declaration of title—not maintainable 602
37. Injunction not to be refused, merely for non-production of revenue records 602
38. Injunction for action arising out of unilateral act of cancellation of deed 603
39. Injunction relating to transmission of signals to TV 603
40. Scope of discretion 603
41. Protection of trade mark—Injunction 603
42. Temporary or perpetual 604
S.37. TEMPORARY AND PERPETUAL INJUNCTIONS 604
1. Amendment 605
2. Injunction—Nature of 605
I. Temporary Injunction
3. Temporary injunctions 605
4. Principles governing temporary injunctions 607
5. Patna and Orissa Amendments 613
6. Allahabad Amendment 613
7. Calcutta and Assam Amendments 613
8. Kerala Amendment 613
9. Who may apply 614
10. Temporary injunctions are regulated by the Civil Pro-cedure Code 614
11. Temporary injunction in different cases 615
12. Temporary injunction to stay execution and sale 618
13. Violation of Trade Mark as compared to passing off 619
14. Title of Claimant : Violation of registered marks 620
15. Exclusive licensee 620
16. Injunction 620
17. Further violation must be threatened or it should be likely to occur 620
18. Some Judicial Decisions 620
19. Form of injunction 621
20. Qualified injunctions 622
21. Interim injunctions, application for 622
22. Only application, no notice 623
23. Appeal against order granting or refusing interim injunction 623
24. Guidelines for granting an interim, injunction 623
25. Application of American Cyanamid principles to trade mark cases 624
26. Status quo 624
27. Balance of convenience : other relevant factors 625
28. Injunction : Enforcement of 626
29. Breach of the injunction : Unintentional 626
30. A new mark by the defendant : Choice of 626
31. Application to commit : delay in 627
32. Statutory remedies 627
33. Injunction 627
34. Identity of infringers 628
35. Temporary mandatory injunctions 629
36. Suit for temporary and mandatory injunction, maintaina-bility 630
37. Appeal 630
38. Grant of interim injunction where handing over of possession was a triable issue 630
39. Interim injunction when refused 630
40. Insufficient pleadings, ground for denial of relief of temporary injunction 630
41. Mandatory injunction, Issuance of 631
II. Perpetual Injunction
42. Perpetual injunction 631
43. Lawful possession, to be proved or permanent 631
44. Suppression of facts—Effect 631
45. No permanent injunction, if Power of Attorney is revoked 631
46. Perpetual injunction execution of decree 631
47. Permanent injunction, casting embargo on owner’s right 632
48. Permanent injunction, not to covert civil suit into title suit 632
49. Permanent injunction, entitlement to 632
CHAPTER VIII
PERPETUAL INJUNCTIONS
S.38. PERPETUAL INJUNCTION WHEN GRANTED 633
1. Amendment 634
2. Scope and analysis of s. 38 635
3. Nature of right to relief u/s. 38 636
4. Perpetual Injunction 636
5. Principles on which Perpetual Injunction is granted 637
6. Suit for injunction without declaration of title, maintai-nable 637
7. Perpetual injunction is tenable even when the defendant denies the title. 639
8. Perpetual injunction in respect of right of passage 639
9. In a suit for permanent injunction, issue of declaration of title, whenever can be gone into 640
10. In a suit for injunction, no relief of possession 640
11. Amendment of plaint in suit for permanent injunction 640
12. Permanent restraint against landlord by tenant—Not maintainable 641
13. Scope of ss. 38 and 41 641
14. Requisites for the issue of perpetual injunction 641
15. ‘Obligation’ 642
16. Different kinds of obligations for breach of which an injunction may be issued 643
17. ‘Existing’ 643
18. ‘Plaintiff’ 644
19. ‘Expressly or by implications’ 644
20. Injunction to prevent breach of contract 644
21. Negative covenant 645
22. Contracts of personal service 645
23. When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property 646
24. ‘Invades’ 648
25. Breach of trust [Clause (a)] 648
26. No standard for ascertaining damage caused [Cl. (b)] 650
27. Where compensation in money would not afford adequate relief [Cl. (c)] 651
28. Prevention of multiplicity of proceedings [Clause (d)] 652
General Grounds for Refusing Injunctions
29. No injunction, if obedience impracticable 653
30. Registration 653
31. General injunction 653
32. Conditional injunction 653
33. Representative suit 654
34. Stamp and valuation of suits for injunction 654
35. Limitation 654
36. Decree for injunction: Mode of execution and disobed-ience of order 654
37. Fresh suit 655
38. Injunction wrongfully obtained—Liability for damages 656
39. No interference in second appeal 656
Particular cases in which Perpetual
Injunctions
may or may not be Granted
40. Adjoining Owners 656
41. Arbitration proceedings 657
42. Burden of Proof 658
43. Business 658
44. Caste and religion 659
45. Community, Injunction against 660
46. Company 660
47. Occupiers, not owners 660
48. Confidential Communications 660
49. Continuing trespass and other wrongs 661
50. Contracts 661
51. Coparcenary property 662
52. Copyright 662
53. Permanent injunction 665
54. Enforcement of injunctions 666
55. Ownership 666
56. Co-owners 666
57. Corporation 671
58. Customary Right to graze 671
59. Defamation 672
60. Easement 672
61. Execution of decree 672
62. Family property 673
63. Son from entering house, to restrain 673
64. Fishery right 674
65. Flags, Right to use 674
66. Guarantee 674
67. Landlord and tenant: Alteration of condition of tenancy 674
68. Licence 676
69. Light and Air 676
70. Letters 678
71. Marriages, Injunction to restrain 679
72. Municipality 679
73. Office, Intrusion on 681
74. Partners, Injunction between 682
75. Passing Off 683
76. Possession, restoration of 684
77. Possession under Will 684
78. Adverse possession—Burden of proof 684
79. Privacy 684
80. Processions along highway 685
81. Public Nuisance 685
82. Rent Collection of 686
83. Religious ceremonies at a public religious institution 687
84. Right of way 687
85. Society registration of, under particular name 688
86. Trade mark, Trade name 689
87. Trespass 692
88. Trusts 696
89. Trustees, Executors, Directors, etc. 696
90. Waste 697
91. Waste by Hindu widow 698
92. Waste by tenant 698
93. Watercourse or right to flow of water 698
94. Right to use water 699
95. Watercourse, diversion of 699
96. Other Cases 699
97. Cases in which perpetual permanent injunction granted or not granted 700
S.39. MANDATORY INJUNCTIONS 706
1. Amendment 706
2. Scope of Section 706
3. Mandatory injunction 706
4. Principles governing the issue of mandatory injunction-Discretion 709
5. When refused 711
6. No mandatory injunction to perpetuate wrong 714
7. Triviality of damage to plaintiff 714
8. ‘Obligation’ 714
9. Mandatory injunction to restrain election, when mainta-inable 715
10. Capable of being enforced by the Court 715
11. Granting of relief of mandatory injunction suo motu 715
12. Temporary mandatory injunction 716
13. Form of mandatory injunction 717
14. Appeal from order granting or refusing mandatory injunction 718
15. Limitation 718
Particular Cases for Mandatory Injunction
16. Adjoining owners: Obstructing High-way and right of access to Highway 719
17. Permanent injunction, entitlement to 719
18. Opening new apertures facing neighbour’s land 719
19. Projecting Eaves 720
20. Right to discharge water 720
21. Building by strangers 721
22. Mandatory injunction—Regularization of unauthorized construction—Effect of 722
23. Building by Co-sharers 722
24. On the other hand 724
25. Abuse of process of Court 724
26. Business 724
27. Anton Piller orders 725
28. Conditions for making order 725
29. Digging well 726
30. Municipality 726
31. Noise, Nuisance 726
32. Mandatory injunction against trespass 727
33. Transfer of property 727
34. Injunction directed to future consignments of goods only 728
35. Mandatory injunctions; order to change name 729
36. Suit outside scope of provision 729
S.40. DAMAGES IN LIEU OF, OR IN ADDITION TO, IN-JUNCTION 729
1. Amendment 730
2. Scope of section 730
3. Refusal of interim injunction, when compensation is adequate remedy 731
4. Refusal of even the relief of damages, when justified 731
5. Prayer for damages in addition or in the alternative for injunction 731
Financial Remedies-Damages and
Accounts of Profits
6. No distinction between infringement and passing off 732
7. Assessments of damages, basic principles 732
8. Damages caused to subsidiary 733
9. Order for account 734
10. Basic principles 734
11. Damages and profits 735
12. Order on account on profits, denial of 735
13. Election between damages and account of profits 735
III. Damages and Profits
14. Damages or account of profits 736
15. Principle on which damages assessed 736
16. Principles applicable to an account of profits 736
S.41. INJUNCTION WHEN REFUSED 737
1. Amendment 738
2. Notes on changes 739
3. Scope of section 739
4. No injunction against being in possession could be granted 740
5. No injunction to licensee 740
6. Stay of pending judicial proceedings. Multiplicity of proceedings [Clause (a)] 740
7. No temporary injunction can be granted 740
8. Object of Sec. 41(a) 741
9. Stay of proceedings in a Court not subordinate [Clause (b)] 743
10. Expression ‘Court’ in S.41(b) 746
11. Foreign Court 746
12. Restraining person from applying to legislative body [Clause (c)] 747
13. Staying proceedings in criminal matter [Clause (d)] 747
14. Preventing breach of contract [Clause (e)] 749
15. Refusal of injunction in respect of franchise agreement 751
16. Breach of Contract to employ and wrongful dismissal 751
17. Preventing nuisance [Clause (f)] 752
18. No injunction against construction complaining of inconvenience 754
19. Nuisance to dwelling house and business premises 755
20. Nuisance by public bodies, companies, etc. 758
21. Who may sue for nuisance 759
22. Public nuisance 759
23. Preventing a continuing breach [Clause (g)] 759
24. “Equally efficacious relief” [Clause (h)] 763
25. No injuction where compensation in money is adequate 767
26. Conduct of the plaintiff [Clause (I)] 767
27. Refusal of a discretionary relief of injunction if plaintiff comes to court with unclean hands 768
28. Circumstances of inequitable conduct—injunction, when refused 769
29. Delay in suing 769
30. Where plaintiff has no personal interest [Clause (j)] 770
31. Possession of property in Part Performance 772
32. Injunction against true owner 772
33. Declaratory relief of void nature of document without ancillary relief of possession—Maintainability 773
34. No injunction against recovery under Excise Act. 773
35. Injunction against electricity board 773
36. Injunction relating to election 773
37. Remedies before Special Tribunals, if available. civil suit for injunction is not maintainable 773
38. Where court cannot effectively supervise 774
39. No injunction when there is alternative remedy 774
40. No injunction against disposition through will 774
41. No interference in possession, no injunction 775
S.42. INJUNCTION TO PERFORM NEGATIVE AGREE-MENT 775
1. Amendment 775
2. Principle and Scope 775
3. Express negative agreement 777
4. Implied negative agreement—limitation of the doctrine 779
5. Injunction in relation to disturbance of use of pathway 781
6. Contract relating to personal service 781
7. Restrictive covenant-in-contract 783
8. Other instances of implied negative covenant 783
9. When Court declines to import negative covenant 784
10. Suit for declaration simplicitor 785
11. Liquidation of damages and injunction 785
S.43. AMENDMENT OF ACT 10 OF 1940 785
S.44. REPEAL 785