Specific Relief Act
Specific Relief Act
The Law of Specific Relief in India was originally codified by Specific Relief Act, 1877. The
provision of this enactment was considered by the Law Commission in its Ninth Report which
was later replaced by the present act of 1963. The Specific Relief Act, 1963 deals with
the remedies granted at the discretion of the court for the enforcement of individual civil
rights. In case of breach of contract, the general remedy available to the aggrieved party is
compensation or damages of loss suffered. For this, a civil suit is filed against the guilty party
who had made the default in performance of its duty or obligation as per the terms of contract
under the statutory provision of Section 73-75 of Indian Contract Act 1872. However,
sometimes pecuniary compensation does not satisfy the plaintiff so he may ask for specific
relief. For example if somebody unlawfully dispossess a person without his consent having
peaceful possession over the property then specific relief may enable him to have the
possession of same property instead of claiming pecuniary compensation.
In Case of Ram Karan v. Govind Lal [1], an agreement for sale of agricultural land was
made & buyer had paid full sale consideration to the seller, but the seller refuses to execute
sale deed as per the agreement. The buyer brought an action for the specific performance of
contract and it was held by the court that the compensation of money would not afford
adequate relief and seller was directed to execute sale deed in favour of buyer.
Similarly, it was held by the court where the part payment was paid by plaintiff and defendant
admitted that he had handed over all documents of title of property to the plaintiff. Sale price
in an agreement is not low and defendant had failed to establish that said document was only
a loan transaction then the agreement is valid and defendant is liable to perform his part (M.
Ramalingam v. V. Subramanyam
However, Section 14(3) contains certain exception and the following kinds
of contract are specifically enforceable
Types of Injunction
Specific Relief Act, 1963 is an act to provide specific Relief in deserving cases. It extend whole
of India except in the state of Jammu & Kashmir. The act came into force on 1st March, 1964.
In Civil Law, legal remedies are for enforcing primary rights or for enforcing secondary rights.
When there is a breach of contract, if the court orders specific performance in favor of innocent
party, this is in nature of enforcement of a primary rights. If court orders for payment of
compensation against damage this is enforcement of secondary rights of parties. The Specific
Relief Act, 1963 is to protect and enforce primary rights of parties.
Following types of Injunctions are granted by the Court.
1. Temporary and Permanent Injunctions ( Sections 36 & 37)
2. Perpetual Injunctions ( Section 38)
3. Mandatory Injunctions ( section 39)
4. Damages in lieu of or in addition to Injection( Section 40)
5. Injunction to perform a negative covenant( section 42)
We shall now discuss all injunctions respectively;
Temporary and Permanent Injunction;
An injunction is an order of competent court which-
1. Which forbids commission of a threatened wrong, or
2. Forbids the commission of a wrong already began, or
3. Commands the restoration of status quo
Clauses 1 and 2 deal with preventive relief, whereas clause 3 refer to mandatory injunction, which
seeks to rectify the defendants’ wrongful conduct.
The Preventive Injunction wills b granted on sole discretion of the court, which will be based and
guided by sound and reasonable judicial principals.
Temporary Injunctions or Interim Injunctions are those which remain in force until specified
time or till date of next hearing of the case, or until further orders of the court. Such injunctions
can be granted at any stage of the suit and are governed by Order 39 of the Code of Civil Procedure,
1908 and not by Specific Relief Act, 1963.
Permanent Injunctions on the other hand, are contained in a decree passed by the court after fully
hearing the case. Such an injunction perpetually prohibits the defendants from asserting a right or
committing an act which would contrary to the rights of plaintiff. It is based on end suit. It remains
in force for all time to come.
Perpetual Injunctions may be granted, at the discretion of the court, to prevent the breach of an
obligation existing in the plaintiff’s favor, whether expressly or by implication.
Whenever the defendant invades or even threatens to invade the plaintiff’s right to property or the
enjoyment thereof, the court may grant a Perpetual Injunction to the plaintiff in the following four
cases;
1. Where the defendant is a trustee of the property for the plaintiff.
2. Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to
the plaintiff, by invasion of his rights.
3. Where the invasion of the plaintiff’s right is such that compensation in money would not afford
adequate relief.
4. Where injunction is necessary to prevent multiplicity of judicial proceedings.
If the payment of damages will not adequately compensate the plaintiff, the court will grant an
injunction, unless there is special reason against it. The court may refuse injunction and award
damage in the following cases, if the injury is (i) small and (ii) capable of being estimated in money
and being adequately compensated by a sum of money and grant of injunction would be
oppressive. An injunction may also be refused on the ground of the plaintiff’s acquiescence and
delay. Similarly, injunctions should not be granted where they inflict more injury on the person
sought to be injected than advantage on the applicant as decided in the case of Tituram V. Cohen.
Perpetual Injunction when refused (section 41) in following cases perpetual injunction cannot
be granted;
1. To restrain any person from prosecuting a judicial proceeding pending at the institution of the
suit in which the injunction is sought, unless such restraint is necessary to prevent multiplicity of
judicial cases.
2. To restraint any person from insulting or prosecuting any proceeding in a court not subordinate
to that from which injunction is sought.
3. To restraint any person from applying any legislative body.
4. To restraint any person from instituting or persecuting any proceeding in a criminal matter.
5. To prevent breach of a contract, the performance of which would not specifically enforced.
6. To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a
nuisance.
7. To prevent a continuing breach in which the plaintiff acquiesced.
8. When equally efficacious relief can certainly be obtained by any other usual mode of
proceeding, except in case of breach of trust.
9. When conduct of plaintiff or his agent is such to disentitle him to the assistance of the court.
10. When the plaintiff has not personal interest in the matter.
The provisions of Section 41 is not exhaustive a refusal of injunction will depend on the discretion
of the court.
Mandatory Injunctions (section 39) at times it so happens that, in order to prevent the breach of
an obligation, it is necessary to compel the performance of certain acts which the court is capable
of enforcing. In such case the court may in its discretion , grant an injunction (i) to prevent such
brech , and also (ii) to compel the performance of the requisite acts.
This relief is applicable to the breach of any obligation, whether arising out of a contract or tort. It
may be perpetual or temporary, though in rare cases that of temporary injunction of this nature will
be issued.
An injunction is, in its nature, prohibitory. The defendant is first called up to restore the place to
the position in which it was before the act was done, and then he is restrained , when he has so
restored it, from doing anything in respect of it which would be breach of obligation on his part.
The object in every case is to compel the defendant to restore things to their former condition. This
type of injunction will be granted to prevent more injury and damages to the plaintiff.
Lane V New gate, a lased his land to B for erecting a mills and bound himself to supply water
thereto from canals and reservoirs on his own land. An impeded the enjoyment of water by B, by
keeping works out of repair by the use of locks, and by removing the stop-gate. B asked for an
injunction which was granted. In this case an affirmative covenants were enforced.
Damages in lieu of, or in addition to, injunction ( section 40) When a plaintiff sues for Perpetual
Injunction or a Mandatory Injunction , he may also claim damages, either in addition to , or in
substitution for , theinjuction, and the court, if it thinks fit , award such damages.
An injunction or damage are not alternate remedies but can be granted at the discretion of the court.
The damages cannot be granted unless the plaintiff has claimed damages in the plaint or in
proceedings he will be allowed to amend the plaint by incorporating clause for damages.
Injunction to perform a negative covenant (section 42) some time in a given contract, there
may be affirmative agreement to do certain act, coupled with a Negative Covenant, express or
implied, not to do a certain other act. Now the fact that the court is unable to compel specific
performance of the affirmative part does not mean that it cannot grant an injunction in respect of
the negative part. It is necessary in this case that the plaintiff has performed its part mentioned in
the contract.
Lumley V Wagner , A a singer , agreed that she would sigh for 12 months at B’s theatre and that
she would not sing elsewhere in the public during that period. Here B cannot obtained specific
performance of the first part of the contract (i.e. to sing at his theatre), but he is entitled to an
injunction, restraining A from singing at other public places during that period. In this case though
there is one contract but contain two parts one is positive and other is negative. The two parts are
independent contracts. In this case court cannot debar itself to give injunction in case of negative
covenant.
The Supreme Court has also observed that the jurisdiction to grant an injunction under the Act is
discretionary and must be exercised according to sound principals of law, and ex debito justito.
The plaintiff cannot claim this relief as a matter of right. Before refusing or granting the injunction,
the court must weigh the pros and cons in each case, consider the facts and circumstances in their
proper perspectives, and then exercise its discretion in the best interest of justice.