INTRODUCTION

Large number of remedial aspects of law have been taken care of by the Specific
Relief Act of 1963. This act is a replacement of the earlier Act of 1877. A mere
declaration of rights and duties is not sufficient to give protection to life and property.
Enumeration of rights and duties must be supplemented by legal devices which can
help the individual to enforce his rights. Every person who is injured in the social
process must have a social redress. Only then it will be possible to say that human
societies have been so organized as to assure that wherever there is a wrong there
must be a remedy. This is the mission of this Act.
Generally , remedies are also provided by the branch of substantive law which defines
rights and duties for its own purposes. The law of contract provides the remedy for
breach of contract. The law of torts similarly provides for recovery of damages in
several cases of tortuous wrongs.
Substantive laws however can never affords to be exhaustive in terms of their
remedies and reliefs. Such act does not confer any rights in itself. It only provides a
specific relief so as to remedy the violation of a legal rights. Act not Exhaustive
Though the Act widens the sphere of the civil court, its preamble shows that the act is
not exhaustive of all kinds of specific reliefs. The Act is not restricted to specific
performance of contracts as the statute governs powers of the court in granting
specific reliefs in a variety of fields. Even so the Act does not cover all specific reliefs
conceivable.

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Remedies provided in specific relief Act 1963
 Recovery of Possession of Property
 Specific performance of contracts
 Rectification and cancellation of Instruments and Rescission of Contract
 Preventive relief (injunction)
 Declaratory relief

Following are the relief allowed by the Act falls under the following outlines-
 Recovery of Possession of Property
Sections 5 to 7 of the Act contained provisions regarding recovery of possession of
property. It include both immovable property (Section 5) and movable property
(Section 7). Any person having right of possession of the property can recover it by
the application of provisions of Code of Civil Procedure. Section 6 prevents a person
from possessing immovable property of another without his consent otherwise than by
due process of law, without considering the question of title. A suit for recovery of
such property under S.6 cannot be filed against the Government.

Section 5: I. When a cloud is raised over a person’s title and he does not have a
possession, a Suit for declaration and possession, with or without a consequential
injunction is the remedy;
I. Where a person’s title is not in dispute but he is out of possession, he has to
sue for possession and consequential injunction;
II. Where there is merely an interference with a person’s lawful possession or
where there is a threat of dispossession, it is sufficient to sue for an injunction
simpliciter.1
In a Suit under this Section, the title of both the parties can be gone into and
considered by the court; but the possession claimed by the party should be juridical,
which is recognized by law as such. For example, a Servant or an agent may have
possession of property against strangers, but not against his mater or principal, for he
holds on behalf of the latter.2

1
Anathula Sudhakar v P Buchy Reddy, AIR 2008 SC 2033.
2
Sobha v Ram Phal, AIR 1957.

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Previous possession where it is juridical affords evidence of title and where the
defendant is a trespasser and the Plaintiff is in continuous and peaceful possession, he
is entitled to retain such possession.
Where there is prima facie and clear proof of dispossession the Court can order
restoration at interlocutory stage of the Suit but it should be done on rarest case.3
Possession means the physical possibility of a person dealing with a property as he
likes and not mere physical possession.4; In other words, not merely physical contact,
but also a possibility of the person dealing with a thing exclusively constitutes
possession. It is not necessary that the person possessing should have actual physical
contact.

Section 6: Suit by person dispossessed of immovable property:

This section was incorporated in the Act with a view to provide a summary, cheap
and useful remedy to a person dispossessed of immovable property, without following
the due process of law.
In a Suit under Section 6, the Plaintiff can aver only previous possession and
dispossession by the defendant without following the due process of law, within six
month from the date of dispossession the Suit being brought and claim recovery of
possession. Any other averment or claim made by the Plaintiff will not be relevant for
decision of the Suit under Section 6 and the Court in such case should ignore such
irrelevant averments and claims and confines itself to the averment of possession and
claim for the recovery of possession only. Under this Section the court can neither go
into the question of title nor adjudicate upon the issue of title.5
If the Court finds that ingredients of Section 6 are present and are in favour of the
Plaintiff, the Court would decree his claim for ejectment of the defendant even though
it be patent to the court that the defendant is the owner of the immovable property.
Thus a Landlord commits a trespass when he forcibly enters upon the land in the
possession of the tenant whose tenancy has expired.6

3
Jivanbhai v Bhavanji, AIR 1995 Guj 92.
4
Bahadur Chand v Naina Mal 25 IC 35
5
Babu Khan v Nazim Khan, AIR 2001 SC 1740 (1744).
6
Saraswati v Brindaban, AIR 1972

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Where a person holds possession under a grant resumable at will or in condition in
favour of the grantor and the latter exercises his right to resume and ousts the grantee,
the grantee cannot claim to proceed under this Section and recover his previous
possession. As against third parties, grantee’s possession is good, but as against the
grantor it is precarious and does not give a legal right so long as the exercise of the
right of resumption remains a valid right.
But a wrong doer by committing an act of trespass cannot maintain a possessory
action, if he is in the meantime turned out.7 The reason is that the wrong doer never
acquires juridical or juristic possession.
Where Suit is brought by dispossessed Plaintiff not against the person who
dispossessed him but against who was made to occupy the property, the Suit is
maintainable.
Where previous possession of person claiming relief is in dispute, the injunction
should not be granted and court should attribute possession to person with better title.8

Section 7: Recovery of specific movable property:

The goods that are to be recovered must be specific and ascertainable, and if the
goods are not so specific, the claimant can get only compensation.
In a Suit under this Section, it is not necessary that the Plaintiff should have been
previously in possession or the goods should have been removed from his possession.
It is enough to find the right, that he has acquired a right to present possession. Such
right may arise out of title, where the Plaintiff is the owner or it may be a special or
temporary right, which may have been granted by the owner or created by law. A
special right to possession when arising out of the act of the owner may take the form
of a Bailment or a lien. Property of every description which is not immovable
property is movable property.

Section 8: Liability of person in possession, not as owner, to deliver to persons

entitled to immediate possession.

7
Damayanthi v Theyyan, AIR 1979.
8
Tajul Islam v S M Sheikh, AIR1995.

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  Specific performance of contracts
one of the important aspect of civil right is the fulfillment of the expectations created
by a contract voluntarily made by the parties. Contract is not just an isolated
transaction. It is often link in a chain of several contracts. A failure at one place can
cause a serious dislocation of economic social life. the contract must be enforced. The
only way the law of contract can enforce a contract is by awarding compensation to
the injured person. This is an equitable relief granted by the court to perform the
contract when there is a breach of the same. Court’s jurisdiction to grant specific
performance is only discretionary and Section 14 of the Act enumerated certain
circumstances under which the suit for specific performance will be rejected. This
important function is undertaken by the Second Chapter of this Act.

Section 9: Defences respecting Suits for relief based on Contract.

Section 10: Cases in which specific performance of contract enforceable:

A Suit comprehensive, Suit for the Registration of the Sale Deed and for recovery of
possession, is not barred on the ground that a statutory alternative remedy of
registration is available under section 77 of the Registration Act. An Agreement for
transfer of property implies a contract not only to execute the deed of transfer but also
to appear before the Registering Officer and to admit execution thereby facilitating
the registration of the document wherever it is compulsory.

Section 11: Cases in which specific performance of contracts connected with

trusts enforceable.

Section 12: Specific performance of part of contract.

Generally speaking, court do not entertain jurisdiction in respect of contract which
cannot be enforced as a whole.
There is no principal of law that once there is part performance of the agreement,
there has to be decree of specific performance of such an agreement.9

Section 13: Rights of purchaser or lessee against a person with no title or

9
Kishan Chand v Sita Ram, AIR 2005.

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imperfect title:

Section 14: Contracts which cannot be specifically enforceable and specifically

enforceable:

Section 15: Who may obtain specific performance

Section 16: Personal bars to relief: The conduct of the party applying for relief is
always an important element for consideration.

Section 17: Contracts to Sell or let property by one who has no title not
specifically enforceable
Where the Seller to his knowledge, has not got what he contracted to sell, he has no
equity to enforce against the purchaser.

Section 18: Non enforcement except with variation:

The defendant may prove by evidence, oral or otherwise, that something has to be
added to or altered in the written contract, and then, if the Plaintiff seeks specific
performance, he has to submit to the variation.

Section 19: Relief against parties and persons claiming under them by
subsequent title.
This section provides the categories of persons against whom specific performance of
a contract may be enforced.

Section 20: Discretion as to decreeing specific performance:

Section 21: Power to award compensation in certain cases.

The jurisdiction of the court to grant compensation as an apt and flexible instrument
for doing exact justice under diverse and complicated circumstances.
The damages in addition to or in lieu of specific performance can only be granted by
the court on the basis that contract is alive and subsisting and the Plaintiff is entitled
to specific performance, whereas the damages for breach of contract is awarded on
the basis that the contract is dead.

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The common law damages for breach of contract and the damages by way of specific
relief u/s 21 of the Specific Relief Act, 1963 are totally different in nature and
character. In a claim for damages for breach of contract, the Plaintiff comes to the
court with a case that the contract is no longer subsisting. The court has a free hand in
the matter of the assessment of compensation, but the court is to be guided by the
principles specified in Section 73 of the Contract Act, 1872.
Compensation is given for any loss and damages caused by the breach to the
promisee, the losses which naturally arose in the usual course of things from such
breach, or which the parties knew when they made the contract to be likely to result
from the breach of it. A person can only be held responsible for such consequences, as
may be reasonably supposed to be in the contemplation of the parties at the time of
making the contract.10
A Seller of immovable property guarantees his title to the purchaser and when the
purchaser is evicted of the said purchased property, the purchaser is entitled to
recover by way of damages the value of the immovable property at the date of such
eviction, and not merely the purchase money he has paid.11
The obligations of Seller and the buyer of immovable property are set forth in Section
55 of the Transfer of Property Act, 1888. While proceeding upon the principle that the
purchase money belongs to the vendor and the land to the vendee, it can be said that
the vendor may claim interest on this money and the vendee can claim rent and profits
of the land.
Where nothing appears to occasion the delay, the rule is that if the purchaser who on
the face of the contact is under the necessity of paying on a certain day, sets apart his
money, and gives notice that it is ready, interest stops from that time, provided it be
shown that he made no interest on it.
But a purchaser who takes possession before completion must pay interest on the
unpaid part of the purchase money. The act of taking possession is an implied
agreement to pay interest. For, so absurd an agreement as that a purchaser is to
receive the rents and profits to which he has no legal title, and the vendor is not to
have the interest, as he has no legal title to the money, can never be implied.
Courts can take judicial notice of rise in prices of land, when granting damages in a

10
Hadley v Baxendale (1854).
11
Nagardas v Ahmed Khan

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Suit for specific performance of an agreement to sell land.12
Compensation against subsequent purchaser: If the court comes to the conclusion that
the subsequent purchaser has colluded with the Seller defendant, to defeat the rights
of the purchaser, in such cases the court has powers to direct the subsequent purchaser
to pay compensation to the first purchaser.

Under Section 21, a Suit may be brought –

 For specific performance of the contract;
 For specific performance of the contract and damages, in substitution of such
performance;
 For specific performance with an alternative claim for damages for breach of
the contract;
 For a decree for specific performance and in addition for a relief, the right to
which arises out of a contract, for eg, possession of the property which the
defendant has contracted to convey.

Section 23: Liquidation of damages not a bar to specific performance:

Where a clause in the agreement provides that in case of the violation of the terms and
conditions of the agreement, the Plaintiff would be entitled to recover damages, it can
be stated that it is strictly a penalty clause for securing the performance of the contact.
It only provides that if any party violates the terms and condition of the contract, he
would be liable to pay a penalty. This would not mean that contract is not to be
performed.
Where the parties themselves agree to the effect that it would be open to the Sellers
either to repay the money advanced under the agreement or to sell the Suit property, it
would not be just to grant relief of specific performance in such cases.

Section 24: Bar of Suit for compensation for breach after dismissal of Suit for
specific performance:
Where the Suit for specific performance of a contract of sale by the purchaser who
has paid part of the sale price in advance, is dismissed on the ground that he himself
was in the breach, his subsequent Suit for refund of the amount paid is not barred.

12 Shantabai v Manakchand, AIR 1988.

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Section 25: Application of preceding sections to certain Awards and
testamentary directions to execute settlements.

 Rectification and cancellation of Instruments and Rescission of Contract

Many transactions are required by law to be in writing. A written transaction is an
instrument. An instrument is the result of negotiations. Occasionally it happens that
the instrument that emerges fails to express the intention of the parties. Its
rectification may become necessary. Chapter III helps in this aspect.
Chapter IV deals with the category of documents which are afterwards discovered to
be void or which becomes void. They ought to be cancelled. Chapter V deals with a
category of contract which, for one reason or another, such as for example, lacks of
free consent are voidable at the option of the party whose consent was not free. He
has right to have the contract rescinded.

Section 26: When instruments may be rectified.

An omission in a Sale deed can be rectified under this Section 26. But if the parties
themselves execute a supplementary deed to rectify an omission in the original
document, such supplementary deed is not an extraneous evidence, Both the
documents have to be read together.13
Whenever a prayer is made for rectification of an instrument, the question to be
considered is not what the parties would have done, had they been able to anticipate
subsequent developments, but what was their intention at the time contact was made.
If the parties have deliberately left out something from the written instrument, that
cannot be put in.

 Recession of Contracts:
Where consent to an agreement is caused by coercion, fraud or mistake or
misrepresentation, the agreement is a contract voidable at the option of the party
whose consent was so caused. On the other hand where both the parties to an
agreement are under a mistake of fact essential to the agreement, the agreement is
void.
A person who fails to obtain specific performance of a contract, may get it rescinded

13 Brij Lal v kartar Kaur, AIR (1989).

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and delivered up to be cancelled.
If the defrauded party chooses to sue, three remedies are open to him, namely –
 He may rescind the contract absolutely and sue to recover the consideration
parted with upon the fraudulent contract; or
 He may bring an action to rescind the contract and in that action have full
relief; or
 He may retain what he has received and bring an action to recover the
damages sustained.
An examination of this section shows that the relief of rescission may be asked for in
respect of contracts, whether in writing or not, wherever transfer of property Act is in
force; and in respect of written contracts only on other places, and it may be asked for
in the following classes of cases:
 Voidable contracts;
 Terminable contracts;
 Unlawful contracts;
 Void contracts.

Section 28: Rescission of contracts in certain circumstances where the specific

performance for the sale or lease of immovable property is decreed:

Section 29 and 30:- Cancellation of instruments:

In the matters of voidable contracts in writing, the powers of judicial rescission are
co-extensive with those of directing the cancellation and surrender of the instruments.
A forged instrument, so long as the forgery has not been judicially determined, may
cause the greatest mischief, and a court of equity will order its cancellation in
anticipation. And it does not matter that the Plaintiff is not a party to such a
document, it does not embody a contract which binds him personally.

Section 31: Where cancellation may be ordered.

Cases occurs where a written instrument, originally valid, becomes inefficacious by
subsequent events, such as, by satisfaction or payment, or other causes; and its
existence casts either a cloud upon the title of the other party or subject him to the
danger of some future litigation; under such and like circumstances, although the

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written instruments have become void, courts interpose to prevent injustice or
hardship and will decree a delivery and cancellation of the instrument.

Section 32: what instruments may be partially cancelled: the court is not bound
to annul the whole of the instrument impugned, but may in its discretion, allow a
part of it to stand, if it is evidence of different rights or different obligations.

Section 33: power to require benefit to be restored or compensation to be made

when instrument is cancelled or is successfully resisted as being void or voidable.

Section 34: Discretion of court as to declaration of status or right:

It is certainly for the interest of the State that this jurisdiction of the court should be
maintained and the causes of apprehended litigation, respecting real property
necessarily affecting its use and enjoyment, should be removed; for as long as they
remain, they will prevent improvement and consequent benefit to the public. It is a
matter of everyday observation that many plots of lands in our cities remain
unimproved because of conflicting claims.
The section does not lay down as a rule, that any one who claims any interest in
property, present or future, may ask the court to give an opinion, on his title.; it does
not warrant every kind of declaration but only a declaration that the Plaintiff is
entitled to a legal character or to any right as to any property, and it warrants this kind
of relief only under certain special circumstances.
Where a Suit is simpliciter for perpetual injunction under Section 38, on the basis of
possession only, Section 34 does not apply.14
A declaratory decree is not capable of execution as it does not require the judgment
debtor to do or not to do anything. No proceeding for contempt of court lies against
the judgment debtor if he ignores the decree, the decree holder can seek his remedy
by Suit on the basis of the declaratory decree.
Section 35: Effect of declaration: The judgment passed under this Section is
judgment in personam and judgment in rem.

14 Fabrica do Igreja v Union of India, AIR (1995).

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  Preventive Relief (Injunction)
There are cases which the nature of the contract does not admit of specific
performance, nor are damages likely to serve any purpose. In such cases the court
may have to restrain the party threatening breach, to the extent to which it is possible
to do so. This type of remedy is known as preventive relief. It is granted by issuing an
order, known as injunction, upon the party concerned directing to him not to do a
particular act or asking him to perform a particular duty, known as mandatory
injunction.

Section 36: Injunction

Injunction is a judicial process by which one who has invaded or is threatening to
invade the rights, legal or equitable, of another, is ordered to refrain from doing, or to
do a particular act or thing. The thing required to be done is what the defendant ought
to do, and the act or thing restrained is a wrongful act or thing.
Injunction is a form of relief given, to prevent a party from doing which he is under
an obligation not to do, or called upon to do a certain ac, which he is under an
obligation to do. Section 2(a) defines “obligation” to include every duty enforceable
by law. This right may arise out of contract or may arise of statutory obligations or
may arise under common law.
As a rule, the proper remedy of a person, seeking to enforce, the observance of a
positive contract, is an action for specific performance, as distinguished from the
enforcement of a negative contract by injunction. The obligations arising under an
instrument, which regulates the rights of the parties, are enforced not by decree for
specific performance but by a decree for an injunction.
A person obtaining possession under an agreement of sale cannot be said to be a
person in wrongful possession, though his possession is not based on title, such a
person is entitled to clam preventive relief of injunction to protect his possession,
during the pendency of his Suit for specific performance, from being violated.
In granting or withholding an injunction, the court should exercise its judicial
discretion, as defined in section 20 of the Act, and weight the amount of substantial
mischief done, or threatened, to the Plaintiff, and compare it with that which the
injunction, if granted, would inflict upon the defendant.
In the exercise of sound discretion, an injunction will not be granted where –

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There is no evidence, that the defendant has done, or threatens to do, anything, which
would interfere with the enjoyment of any right vested in the Plaintiff;
The invasion of the right, if any, of the Plaintiff, is of a theoretical or trivial character,
which would at most, give the Plaintiff a right to claim nominal damages; The
injunction would inflict far more injury on the defendant than the advantage which the
Plaintiff could derive from it.

Section 37: Temporary and perpetual injunction:

Section 38: perpetual injunction when granted:

Where Plaintiff is apprehending encroachment on his land, he is entitled to permanent
injunction, against defendant from encroaching or interfering with his peaceful
possession.
In order to entitle a litigant to a perpetual injunction, he must establish that the
injunction is required to prevent the breach of an obligation. The word obligation
includes every duty enforceable by law. So that when a legal duty is imposed on one
person in respect to another, that other is invested with the corresponding legal right.
The obligation or duty enforceable by law may be express or implied, and may arise
out of contract, trust or tort.
Whenever a right exists, or is created, which is cognizable by law, an infringement of
that right is prohibited by injunction, unless some consideration of Policy, or
expediency, forbid, a resort to this remedy. But the court will not interfere if the legal
remedy for compensatory damages would be complete and adequate. The
completeness or inadequacy of compensatory remedy is the criterion which
determines the right to an injunction.

 Declaratory Relief
Occasionally it may happen that a person is entitled to some status or character or has
a right in some property, but there are persons who are denying him the enjoyment of
his right. He is allowed by Chapter VI of this Act. The court may issue a general
declaration as to his entitlement to such rights.

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Refrences:-

 www.hrdiap.gov.in/87fc/study_meterial/law/L-9%20Dr.GK.ppt
 https://indiankanoon.org/doc/1671917
 https://en.wikipedia.org/wiki/Specific_Relief_Act_1963
 commonlaw-sandeep.blogspot.com/.../specific-relief-act-1963-quick-
summary.html
 www.lawctopus.com/academike/equitable-remedies/

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