Specific Relief Act

Introduction: The Specific Relief Act, 1877 provides remedies for persons whose civil
or contractual rights have been violated. The following kinds of remedies may be granted
by a court under the provisions of the Specific Relief Act:
 Recovery of possession of property
 Specific performance of contracts
 Rectification of instruments
 Rescission of contracts
 Cancellation of Instruments
 Declaratory decrees
 Injunction
It aims fulfillment of an obligation and obtaining of the thing for which a person is
entitled under a contract and of which he has been deprived. In another words it is
compliance of a contract specifically, which has been refused to comply with.
Background: it is important to understand its roots in the common law and equity.
Pollock and Mulla in their commentary explained how from the default King Justice the
course move on to the Chancellor is fulfilling the king‟s role in giving adequate remedies
to the parties when the money compensation would fall inadequate.On one hand, the
common law could only provide for payment for the breaches of the contract, the equity
courts stepped in to restrain and coerce the faulting party to actually perform what he or
she had earlier promised to perform. The confusion was that the law courts could not give
specific relief due to their well defined ordinary civil jurisdiction whereas the equity
courts could not order for damages given their equitable jurisdiction.
Section 7 of this act explains that this Act grants special relief for the enforcement
of individual rights and not for imposing penal laws. The enforcement under this Act
only bases itself on the individual civil right and specific relief cannot be granted for
mere purpose of enforcing a penal law.

Network for Relief

 Recovery of Possession of  Specific Performance of Contract

Property (Sec 8-11) (Sec 12-29)

 Rectification of Contract (30-34)  Declaratory Decree ( 42-43)

 Recession of Contract ( 35-38)  Appointment of Receiver (Sec 44)
 Cancellation of Contract (39-41)  Injunctions (Sec 52-57)
 Recovering the possession of Property
The recovery of possession of this Act is provided under two heads: recovery of the
immovable property and recovery of the movable property. The law of Specific Relief
Act, 1877 works on a basic principle that “Possession is itself a prima facie evidence of
the ownership”.
i) Recovery of the possession of immovable property:Section 8 explains the remedies
available to a person when he is disposed from his property. If a person has been
removed through the line of possession or wants to recover what lawfully is his property,
then that person can do so through the recovery procedure provided by the Code of Civil
Procedure, 1908 and in which the person will prove that the title belongs to him.The
essence of this section is „title,‟ i.e. the person who has better title is a person entitled to
the possession.
Section 9 of this Act details that if a person has been dispossessed or divested from
the property without due process of law, then that person can file a suit for recovery of
possession. This section is not only a mere legal rule but also has a wide practical
approach. There are certain essential requirements for fulfillment of recovery under this
section that are as follows:
 The person suing for dispossession must be in possession of that property.
 The person must be dispossessed from the property and such divest from the
property must bewithout his consent and without due process of law.
 Section 9 sub-clause (2) also explains that no suit by a person can be brought
against the government.
Section 9 has certain limitations which explain that if any order or decree has been
directed by the court in regards to this section then, no appeal or review shall lie against
such order or decree but such order is open to revision.
The objects of section 9 are as follows
 To discourage people from taking the law into their hands (however good their
title may be).
 To provide a cheap and useful remedy to a person dispossessed of immovable
property in due course of law.
if „A‟ enters into peaceful possession of land claiming his own although he might have no
title, still he has the right to sue another who has ousted him forcibly from possession
because he might have no legal title but at least has a possessory title.A person who is in
possession cannot be ejected by the latter trespasser on the base that prior possessor or
trespasser has not title.
It is a principle of law that a person, who has been in a long continuous possession of the
immovable property, can protect the same by seeking an injunction against any person in
the world other than the true owner. It is also a settled principle of law that owner of the
property can get back his possession only by resorting to due process of law. It states that
a suit for possession must be filed having regard to the provision of the Code of Civil
Procedure.

ii) Recovery of the possession of movable property:Section 10 and 11of the Specific
Relief Act, 1877 contains provisions for recovery of possession of some specific movable
property.The main ingredients of section 10 are as follows.
 First, the plaintiff must be entitled to the possession of the movable property. A
person may be entitled to the possession of a thing either by ownership or by
virtue of a temporary or a special right as provided under explanation 2 of section
10. A special or temporary right to an individual may arise by either act of the
owner of goods i.e. bailment, pawn etc. or not by the act of the owner of goods i.e.
a person may be the finder of goods and finder of goods enjoys special right to
possession except against true owner.
Only those persons can maintain a suit under section 10, who has the present possession
of the movable property. A person who does not have present possession of the movable
property cannot maintain a suit under this section.
Illustration: „A‟ pledges some jewels to „B‟ to secure for the loan he had taken. „B‟
disposes those jewels to „C‟ before he is entitled to do so. „A‟ without having paid the
amount of loan sues „C‟ for possession of jewels. The suit shall be dismissed as he is not
entitled to immediate possession of jewels.
Further, the property in question must be specific movable property means that
property should be ascertained or ascertainable. Specific property means the very
property not any property equivalent to it. The disputed specific movable property must
be capable of being delivered and seized.
The following ingredients must coexist in order to bring section 11 into operation:
 The defendant has full control or possession of the article claimed.
 Such an article is movable property.
 The person claiming the possession must be entitled to immediate possession;
 The defendant is not the owner of the article.
  The thing claimed is held by the defendant as an agent or when compensation in
money would not afford adequate relief for the loss or when it is extremely
difficult to ascertain the actual damage of the thing claimed.
Difference between Section 10 and 11
Under section 8 no suit can be brought against the owner, while under section 7 a person
enjoying special or temporary right to present possession can bring suit even against the
owner and under section 7 a decree is for the return of movable property or for the money
value in alternative while under section 8 decree is only for return of specific article.
Conclusion: The remedies provided by the Specific Relief Act become essential because
the Contract Act, 1872 provide relief only in the form of compensation in case of breach
of contract. In the case where the damage is not ascertainable and where compensation in
the form of relief is not adequate to the loss, the plaintiff had no remedy for specific
performance.Through the provisions of section 8 and 9, a person entitled to the
possession of immovable property or having a special right to the possession may recover
it through the due process of law. Similarly, section 10 and 11 empowers the person to
recover possession of the movable property.

Specific Performance of Contract

Introduction:A contract is an agreement upon sufficient consideration to do or not to do

a particular act. The party on whom this contractual obligation rests must not fails to
discharge such obligation. In case of his failure, the other party will have a right sue for
performance of the contract. This is called „Specific Performance‟. Orders of specific
performance are granted when damages are not an adequate remedy, and in some specific
cases such as land sale. Such orders are discretionary, as with all equitable remedies, so
the availability of this remedy will depend on whether it is appropriate in the
circumstances of the case. Specific performance is an equitable remedy in the law of
contract, whereby a court issues an order requiring a party to perform a specific act, such
as to complete performance of the contract.At common law, a claimant's rights were
limited to an award of damages. Later, the court of equity developed the remedy of
specific performance instead, should damages prove inadequate. The remedy of specific
performance of contract revolves around the subject of “contract”. There can be no
specific performance without a valid contract. Specific performance may be obtained of
valid and voidable contracts but cannot be of void contracts.
Section 12-29 of SRA 1877 deals with Specific Performance of Contract.Specific relief
Act provides guiding principles and grounds for when specific performance may be
granted and refused. After thorough perusal of the sections under the Act, one can deduce
the following principles for when might specific performance be given and when refused.
Cases where court may grant specific performance of the contract:
a) Where compensation is not an adequate relief:The court may grant specific
performance to the plaintiff where it is of the opinion that compensation as a remedy for
breach of the contract would not be a sufficient relief. Where plaintiff would be at
disadvantage if specific performance of the contract was not granted. Hence the court
may order specific performance. For example, A contracts to sell and B contracts to buy a
certain number of railway shares of a particular description. A refuses to complete the
sale. B may compel A specifically to perform this agreement, for the shares are limited
and not always available in market.
b) Where compensation is undeterminable and there is no standard for ascertaining actual
damage caused by non-performance of the act agreed to be done:A agrees to buy and B
agrees to sell a painting by a dead painter. B refuses. A can compel specific performance.

c) When the act agreed to be done is in the performance of a trust:A assigned B as a

trustee for property to be used for benefit of C. B misappropriates the property for
himself. C can compel specific performance of the trust and its objective.
d) Where compensation cannot be procured i.e. defendant not in a position to grant
compensation for non-performance of the contract:A is liable to pay B compensation for
non-performance of the contract to build a canopy, held A has already been declared
insolvent. The court ordered specific performance of the contract.
In this case, the court directs the defendant to perform his promise as agreement as
agreed at the time of making the contract.

Cases where court may refuse specific performance of a contract:

a) Where compensation in money is an adequate relief for non-performance of the
contract:A contracts to sell, B contracts to buy 50 boxes of meezan oil at Rs 1000 per
box. Held compensation in money would not be an inadequate relief.
b) Where contract runs into numerous minute elaborations and is detailed abnormally; so,
it is difficult for court to supervise each and every provision of the contract to its
execution, hence the court may refuse because of contract‟s technicalities. Contracts
relating to buildings and repairs are usually as such. For example, A contracts B to let
him land for cultivation in a particular manner which is impractical for common course of
nature. Or A contracts B to write a critique on the communist manifesto not offending to
Marxists, etc. Such contracts are not specifically enforceable.
c) Where contract involves performance of a skill, courts are then hesitant to grant
specific performance because a skill performed involuntarily may not solve as much
problems as it may create. Hence such contracts usually courts don‟t grant specific
execution. For example, A contracts B to compose and sing a melody/song but refuse to
do afterwards or couldn‟t perform the task, so it is most likely that court won‟t order
specific performance.
d) Where the terms and conditions of contract are not certain enough but vogue, hence
court may refuse specific performance. For example, A contracts B to build him a well-
furnished house and to be on the developed standards. Such terminologies held have no
consonance in law and must have been described in detail. Court won‟t allow specific
performance as standard varies for each second person what a well-furnished house is.
e) When contract made by trustee is in breach of trust or excess of trust, court won‟t
decree specific performance. Where trustee was entitled to let a certain property of trust
for not more than 5 years, a contract of lease for 7 years with Mr. B would not be
specifically enforceable because of lack of authority.
f) A contract which in its nature is revocable,will not be specifically enforced by the
court. For example, A & B contracts to become partners in a certain business, the contract
not specifying the duration of proposed partnership (partnership at will). This contract
cannot be specifically performed, for if it were so performed either A or B might at once
dissolve the partnership.
g) A contract which involves performance of a continuous duty over a longer period than
3 years. For example, A contracts to let for 18 years to B the right to use such part of a
certain railway made by A as was upon B‟s land. Specific performance of this contract
must be refused to B.
Conclusion: The cases principles and instances mentioned hereinabove are to guide the
courts when determining the issue of specific performance among litigants to the
contract. It must be kept in mind that court has only the discretion to either refuse or grant
such equitable remedy of specific performance. And courts must too observe such
principles and exercise their discretion judicially, for the discretion bestowed upon them
is not of arbitrary nature but a rational and judicious one. The court must not grant
specific relief on merely this ground that it is lawful, but it shall take into consideration
various grounds which a judicious mind may perceive. Courts must be observant that by
granting specific performance they aren‟t giving plaintiff any unfair advantage over the
defendant though there may be no fraud or misrepresentation on the plaintiff‟s part. It
should take into account balance of convenience and duly consider whether granting
specific performance of contract would involve some hardship upon the defendant which
he couldn‟t foresee whereas its nonperformance might not prejudice the plaintiff. Hence
it is a matter of time and development of legal acumen and practice that would serve the
best interests of both the parties.

Summary of Specific Relief Act, 1877

With the passage of time, courts have been recognizing remedies such as retribution,
restoration and compensation. In other words, a wrongdoer can make up for the wrong
committed, by either suffering in person or by restoring the deed. Specific relief is about
this last form of expiation and has been defined as relief in specie which means relief in
exact form instead of compensation. When it comes to civil law or the enforcement of
civil rights arising out of a breach of duty or non-performance, remedies available are
either compensatory or specific. Compensatory remedy includes damages, while specific
remedy is enforced by directing a person to do or forbear the very thing which he or she
is under an obligation to do or forbear. The remedy of specific relief may also be awarded
in the shape of a declaration when no person is at fault. Compensatory remedies are
sometimes either useless or inadequate; useless where a person decreed against has
become insolvent, thereby making damages ineffectual; and inadequate where a contract
is for the transfer of a particular house or piece of land or any movable property or good
to which any special interest is attached.
Following are the remedies available in this act,
 Taking possession of certain property, (Immovable & Movable)
 Directing parties to perform the very act which they are under an obligation to
perform,
 Preventing parties from doing something which they are not under an obligation
to do,
 Rectifying instruments,
 Rescinding contracts in writing,
 Cancelling instruments,
 Determining and declaring the rights of parties to a status or property,

Chapter I of Specific Relief Act 1877 provides for recovery of possession, whether
belonging to movable or immovable property. It contains provisions for proprietary as
well as possessory remedies. Proprietary remedies are those which protect title or
ownership, while possessory remedies are those which assist in securing possession even
against ownership or title. Section 8 of the Act provides to a person on the basis of title,
the remedy of possession of specific immovable property. Section 9 provides remedy to a
wrongfully dispossessed person, irrespective of ownership or title of property. The
purpose to protect possession is two-fold. First, possession is considered as evidence of
ownership and second, to discourage parties from taking the law into their hands. Section
10 deals with the recovery of specific movable property. Explanation 2 and illustrations d
and e in the Act show that not only may the persons entitled to a specific movable
property recover it, a person who has temporary or immediate right of possession may
also recover the same. Section 11 provides a remedy for the recovery of specific movable
property on grounds similar to Section 9 for specific immovable property.

Chapter II is the most important part of the Specific Relief Act, contains the
provision for specific performance of a contract. It is widely believed that the
granting of specific performance is at the discretion of the court. This so-called discretion
is controlled by the rule that it has to be exercised soundly, reasonably, not arbitrarily and
in harmony with judicial principles. It is not to be exercised to confer unfair advantage
upon any party claiming specific performance or put the party defending a claim of
specific performance in unforeseen hardship. Sections 13, 14, 15 and 16 of the Specific
Relief Act 1877 provide for the part performance of a contract as far as it can be
performed, and compensation as far as performance is impossible. The noticeable thing is
that the party at default for non-performance of the entire contract may seek specific
performance where a part unperformed is small, but cannot seek compensation. Again, it
cannot have specific performance where a part unperformed is large. A party not at fault
may seek performance with compensation when a part unperformed is small, but it can
only seek specific performance without compensation where a large part of the contract
has been left unperformed.

Section 18 of the Act provides for the specific performance of a contract entered into by
a vendor or lessor with imperfect title, who subsequently acquires an interest in the
property. Such corresponding provisions are contained in Section 24 of
the Act and Section 43 of the Transfer of Property Act. The difference
between Sections 18 and 25 of the Act is that the former provides the right of a purchaser
to be enforced against a vendor or lessor with an imperfect title, while the latter provides
defenses which a purchaser may maintain against a vendor or lessor with imperfect title.
Section 19 of the Act permits a person suing for the specific performance of a contract to
also sue for compensation for its breach in addition or in substitution. The object of this
provision is obvious and two-fold; first, to prevent multiplicity of proceedings and
second, to do complete justice between the parties. Other similar provisions which may
be confusing are contained in Sections, 4(b), 24(c), and 29 of the Act and Order II, Rule
2, Code of Civil Procedure 1908. The difference between these provisions is
that Section 4 (b) saves the ordinary right of seeking compensation for breach of
contract, if one does not opt for specific performance dealt by the Act. While on one
hand Section 19 permits a person to seek compensation in addition to or substitution of
breach of contract, on the other hand it empowers the court to grant it when concluding
that a person is not entitled to specific performance, despite finding that a contract
between parties has been broken. Such a conclusion would entitle the aggrieved party to
compensation. According to Section 24 (c) of the Act, where a party to a contract has
already chosen a remedy other than specific performance, it is not entitled to specific
performance. Section 29 of the Act and Order II, Rule 2, Code of Civil Procedure
1909 bars a plaintiff from filing a fresh suit after the dismissal of the first one based on
the same cause of action. A considerable difference between the last two provisions is
that the former extinguishes the very right to relief while the latter only bars the remedy.

Section 21 of the Act provides instances of contracts which are not enforceable. Section
23 describes persons entitled to specific performance. Section 24 covers personal bars to
relief. Section 24 of the Act is different from other provisions in the chapter concerning
defenses as it provides defenses by the default of a party and not arising out of the
contract itself. Section 26 covers cases in which specific performance cannot be enforced
except with variation. This section with its corresponding provision contained in Article
103 of the Qanun-e-Shahadat Order, 1984 stands in exception to the general principle
according to which, where terms of contract have been reduced into writing, a party
cannot give oral evidence to set out a defense. This section only provides a defense to the
party defending specific performance of a contract on grounds of fraud or
misrepresentation. A party claiming specific performance with variation may enforce its
right through the remedy of rectification provided in Chapter III of the Act on similar
grounds. Sections 27 and 28 of the Act cover persons against whom specific performance
may or may not be enforced respectively.
Chapter III of the Actcontains provisions for the rectification of instruments
founded on the principle according to which „defect in expression should not be allowed
to defeat the intention of parties‟. If a contract has been entered into with true intent by
the parties, but gets a defect due to some fraud or mistake, then enforcing it without
rectifying the defect would injure at least one party, while rescinding it altogether would
injure both.
Chapters IV and V of the Act provide for the rescission of a contract and the
cancellation of an instrument respectively, almost on similar grounds, whereby the
contract or instrument will be void or voidable at the option of one party. It is necessary
to point out two major differences between these two chapters. Firstly, Chapter
IV provides for rescission of contract while Chapter V provides for cancellation of
instrument. The latter is wider in scope than the former as the term „instrument‟ also
includes „contracts‟. The second noticeable difference is the court conferring the power
of rescission upon itself to declare its own decree void, where a vendee or lessee defaults
in the payment of purchase money or any other sum due. This provision contained
in Section 35(c) of the Act renders every decree passed by the court for specific
performance of contract as preliminary.
Chapter VI of the Act deals with declaratory decrees and in essence differs from all
other remedial provisions of the Act which culminate into executory decrees. This
remedy regarding a declaratory decree is founded upon two principles; one, to remove
cloud from title and two, to perpetuate the testimony. It is not exhaustive of all
declarations, which a civil court is competent to entertain and adjudicate upon, but is
limited to legal character i.e. a position recognized by the law or any right recognized and
enforced by the law for a property in existence.
Chapter VII of the Act deals with the appointment of a receiver pending litigation in
order to secure the property. This section has its corresponding provisions in Order
XL of the Code of Civil Procedure, 1908.
The Act deals with preventive relief in Chapters IX and X.It governs the provision of
preventive relief in the form of temporary, permanent and mandatory injunctions
respectively.Temporary injunction is intended to simply preserve the status quo pending
litigation. Temporary injunction is treated in the nature of the procedure, which is the
reason why it is also regulated by Order XXXIX of the Code of Civil Procedure, 1908.
Perpetual injunction may be granted to prevent the breach of an obligation in favour of
the party seeking it. Where such obligation arises from contractual obligation, the court is
guided by provisions contained in Chapter II of the Act related to the specific
performance of a contract. Another peculiarity attached with perpetual injunction is that it
is granted in form of a decree at the hearing and upon the merits of the case. Lastly,
mandatory injunction is granted where, besides preventing the breach of an obligation,
circumstances of a case compel the performance of a certain act, for example, if a person
has raised a wall in breach of an obligation in favour of the other party, circumstances
will not only require preventing of the breach of obligation but also the undoing of the
raised wall.
Some more specific remedies have also found their place in other statutes. In a
mortgage contract, a mortgagee may sue for foreclosure or sale. At the same time the
mortgagor may sue for redemption of property. These remedies are governed by
provisions under the Transfer of Property Act 1882 and the Code of Civil Procedure
1908. If a partnership is dissolved or wound up, its accounts are to be taken into account
and its assets realized, while each of its partners may be compelled to discharge his or her
liability by paying the balance due from him or her.The law regarding taking an account
of property of a deceased person and administering it is contained in the Succession Act
1925.Matters regarding the administration of trust property are dealt with by the Trust
Act 1882.