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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.
2
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.
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
3
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
7
Damayanthi v Theyyan, AIR 1979.
8
Tajul Islam v S M Sheikh, AIR1995.
4
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.
9
Kishan Chand v Sita Ram, AIR 2005.
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imperfect title:
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 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.
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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.
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.
8
Section 25: Application of preceding sections to certain Awards and
testamentary directions to execute settlements.
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
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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.
10
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.
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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.
12
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.
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.
13
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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