SPECIFIC RELIEF ACT

General Introduction:

 The law of Specific Relief is generally based on principles of Equity.

 Equity represents the ‘Conscience of Law’ and a moral correction of law in

order to accord more with justice.

 In its primary sense, equity is fairness or natural justice.

 Equity means to do unto all men as we would they should do unto us.

 Specific Relief was granted by the Courts of Equity is England, in the cases
where there was no Common Law Relief or in such cases where the relief
granted by the common law courts was inadequate.

Specific Relief:

 The law of Specific Relief aims at providing the remedy to the suitor in specie,
i.e. the very thing which the other party was bound to perform.

 It provides for the exact fulfillment of an obligation or the specific

performance of the contract.

 Where pecuniary compensation is not adequate relief for the non- performance
of the contract, the specific relief may be granted.

 The Specific Relief Act, 1963 is based on the Ninth Report of the Law
Commission of India on the Specific Relief Act, 1877. Specific Relief is a
discretionary remedy, i.e., the court is not bound to grant the specific relief
merely because it is lawful to do so or that the suitor has a right to get such
relief.

 However, the discretion of the court is not arbitrary or unreasonable but is

sound and reasonable.

 Specific Relief is the law of procedure as it supplements the procedure given

under the Code of Civil Procedure, 1908.

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Chapter- 1, Recovering Possession of Property:
Section 4

 Specific Relief Act applies only to civil suits

 and not for enforcing criminal (penal) laws.

Section 5

 Recovery of Specific Immovable Property will be as provided under CPC.

Section 6 - Suit by person dispossessed from immovable property

 If a person is “dispossessed”

o From immovable property

o Without his consent

o Otherwise than in due course of law

He or any person through whom he has been in possession or any person

claiming through him
May recover possession by a suit under section 6.
Notwithstanding any other title that may be set up in such suit.

 No suit u/s 6 shall be brought

o After 6 months from the date of dispossession.

o Against the Government.

 No Appeal or Review against any decree/ order passed under section 6.

 Any person is not barred under section 6 from suing to established his title
and recover possession thereof.

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Section 7 - Recovery of Specific Movable Property

 A person entitled to the possession of Specific Movable Property.

o May recover it in the manner provided by the Civil Procedure Code.

 A ‘trustee’ may sue for the recovery of movable property to which he is

trustee.

 A special or temporary right to the present possession of movable property is

sufficient for filing a suit under section 7.

Section 8 - Liability of person in possession not an owner, to deliver to person

entitled to immediate possession.
Any person having the possession or control of a ‘particular’ article of movable
property of which he is not the owner.
May be compelled specifically to deliver it to the person entitled to its immediate
possession:
a) When the thing is held by the defendant as the agent or trustee of the
plaintiff;
b) When compensation in money would not afford the plaintiff adequate
relief for the loss of the thing claimed;
c) When it would be extremely difficult to ascertain the actual damage
caused by its loss;
d) When the possession of the thing claimed has been wrongfully transferred
from the plaintiff.
Unless and until the contrary is proved, the court shall presume (b) or (c).

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Section-9 Defences respecting suits for relief based on Contract

 Enables defendant in a suit for specific performance

 To raise all those defences available under law of contract

 To which the defendant is eligible to raise under the law of contracts

 Any ground which is available to him under any law relating to contracts.

(Ground such as incapacity of parties, coercion, fraud, misrepresentation,

mistake, illegality, want of authority to enter into the contract, absence of
concluded contract, Delay in performance) etc.

 This section exclude void agreement and not voidable agreements

Section- 11 Cases in which Specific performance of contracts connected with

trusts enforceable

 Contracts made by trustees in excess of powers or in breach of trust cannot be

specifically enforced

Section-12. Specific Performance of Part of contract

As a general rule, Court compels specific performance of the whole contract

 This provision provides specific performance

 S-12 would include cases which fall under s-56 of the contract act

 This provision applies where the contracting parties know of and contemplate
the possibility of the whole contract being incapable for reason beyond the
control of either party.

 It provides where unperformed part is small and unperformed portion bear a

small proportion and the said portion admits of compensation in money

 It contemplates circumstances where unperformed part is substantial part of the

contract but admits of compensation, party opting for part performance can do

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so subject to her relinquishing both compensation and the specific
performance.

Section 12(3)

 Where a party to a contract is unable to perform the whole of his part.

 And the part which must be left unperformed either –

(a) Form the considerable part of the whole though admitting of

compensation in money; or
(b) Does not admit of compensation in money,

 He (defaulter) is not entitled to obtain a decree for Specific performance

Section 12(4)

 When a part of a contract capable of Specific Performance is separate and on

independent footing from another part of the same contract, which cannot or
ought not to be specifically performed,

 The court may direct special perform of the former part.

For the purposes of this section, a party to a contract shall be deemed to be unable
to perform the whole of his part if a portion of its subject- matter existing at the
date of the contract has ceased to exist at the time of its performance.

Section 14 – The following contracts cannot be specifically enforced, namely:

(a) where a party to the contract has obtained substituted performance of
contract in accordance with the provisions of section 20;
(b) a contract, the performance of which involves the performance of a
continuous duty which the court cannot supervise
(c) a contract which is so dependent on the personal qualifications of the
parties that the court cannot enforce specific performance of its material
terms; and

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(d) a contract which is in its nature determinable.

Section 20 - Substituted performance of contract

 The party who suffers by breach shall have the option of substituted
performance through a third party or by his own agency, and, recover the
expenses and other costs actually incurred, spent or suffered by him, from the
party committing such breach.

 No substituted performance of contract shall be undertaken unless the party

who suffers such breach has given a notice in writing, of not less than thirty
days, to the party in breach calling upon him to perform the contract within
such time as specified in the notice, and on his refusal or failure to do so, he
may get the same performed by a third party or by his own agency:
Provided that the party who suffers such breach shall not be entitled to recover
the expenses and costs under sub-sec. (1) unless he has got the contract
performed through a third party or by his own agency.

 Where the party suffering breach of contract has got the contract performed
through a third party or by his own agency after giving notice, he shall not be
entitled to claim relief of specific performance against the party in breach.

 Nothing in this section shall prevent the party who has suffered breach of
contract from claiming compensation from the party in breach.
S-13. Rights of purchaser or lessee against person with no or imperfect title
This section applies:

 When the seller of immovable property has no title or imperfect title and if the
seller subsequently acquire interest in the property, the purchaser can compel
him to make good the contract out of such interest

 When concurrence or conveyance is necessary for validating the title,

purchaser or lessee may compel him to procure such conveyance

 When the vendor has agreed to sell unencumbered property, but if the property
sold is mortgaged property and the vendor has only right to redeem it, the
purchaser can compel him to redeem the mortgage.

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 If the vendor approach the court of law for specific performance and the relief
is refused for invalid title, the purchaser is entitled to a return of his deposit
Section 15-who may obtain specific performance

 Any party to the contract

 The representative in interest or the principal, of any party thereto

Where the learning, skill, solvency or any personal quality is a material

ingredient, or where the contract provides that his interest shall not be
assigned, his representative in interest or his principal shall not be entitled to
specific performance of the contract, unless such party has already performed
his part of the contract, or the performance thereof by his representative in
interest, or his principal, has been accepted by the other party;

 where the contract is a settlement on marriage, or a compromise of doubtful

rights between members of the same family, any person beneficially entitled
thereunder;

 where the contract has been entered into by a tenant for life in due exercise of a
power, the remainderman

 a reversioner in possession, where the agreement is a covenant entered into

with his predecessor in title and the reversioner is entitled to the benefit of such
covenant

 a reversioner in remainder, where the agreement is such a covenant, and the

reversioner is entitled to the benefit thereof and will sustain material injury by
reason of its breach

 when a limited liability partnership has entered into a contract and

subsequently becomes amalgamated with another limited liability partnership,
the new limited liability partnership which arises out of the amalgamation

 when a company has entered into a contract and subsequently becomes

amalgamated with another company, the new company which arises out of the
amalgamation

 when the promoters of a company have, before its incorporation, entered into a
contract for the purposes of the company, and such contract is warranted by the
terms of the incorporation, the company:
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Provided that the company has accepted the contract and has communicated
such acceptance to the other party to the contract.
Section 16. Personal bars to relief
Specific performance cannot be enforced in favour of person:

 who has obtained substituted performance of contract under section 20

 who has become incapable of performance or

 who has violated essential terms

 who has acted in fraud of contract

 who has willfully acted in variance or in subversion

 who fails to prove that he has performed or has always been ready and willing
to perform

Section 17, Contract to sell or let property by one who has no title, not
specifically enforceable:
A contract to sell or let any immovable or movable property cannot be special
enforceable in favour of a lessor or vendor, who –
(a) Knowing not to have any title, contracted so.
(b) Believing good title, but can not give title free from reasonable doubt at
the fixed time.
The above provisions shall also apply, as far as may be, to contracts for the sale or
hire of movable property.

Section-36. Preventive relief how granted

 Preventive relief is granted at the discretion of the court

 By granting injunction

(a) Temporary injunction (Regulated by the provisions of CPC).

(b) Permanent injunction (S-38)
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(c) Mandatory injunction (S-39)
Injunction is restraining a defendant from interfering with the plaintiff exercise of
his right.

 It’s a remedy in personam

 It’s an equitable relief

Section -37. Temporary and Perpetual injunctions

 Temporary injunction is granted:

o To maintain status quo (restoration of prior position)

o To stop mischief

 Injunction is granted when damages are not adequate relief

 Relief of injunction will be granted if compensation will not afford adequate

relief.

 Temporary injunction to continue

a) until a specified time or until further order of the court

b) may be granted at any stage of a suit

 The injunction relief is granted during the pendency of the proceedings.

 Perpetual injunction is granted

a) after a final determination of the right of parties

b) on merits of the suit

Section -38. Perpetual injunction when granted

 To prevent breach of an obligation, express or implied existing in favour of the

plaintiff

 If such obligation arises out of the contract, the court will be guided by
principles of specific performance

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 The court may grant a perpetual injunction in the following cases, namely

(a) Where the defendant is a trustee

(b) Where actual damage cannot be ascertained.
(c) Compensation in money would not afford adequate relief
(d) To prevent multiplicity of proceedings

Section-39. Mandatory injunctions

 It requires a person to do a particular thing

 To compel performance of certain acts to prevent breach

 Acts directed by the court must be capable of enforcement by court

Section -40. Damages in lieu of, or in addition to injunction

 A person can claim damages in substitution of injunction

 The relief must be claimed by person

 Where no such damages have been claimed,

 The court shall allow the plaintiff to amend the plaint

 Amendment is permissible at any stage of the proceedings

Section-41. Injunction when refused

 Injunction can not be granted to restrain any person from prosecuting a

pending proceeding unless the same is granted to prevent multiplicity of
proceedings

 Injunction can not be granted to restrain any person from instituting

proceedings, cannot restrain person from prosecuting in a court not sub-
ordinate to that from which the injunction is sought;

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 Injunction can not be granted to restrain any person from applying to any
legislative body

 Injunction cannot be granted to restrain criminal proceeding,(civil court cannot

stay criminal proceedings against complainants.

 No injunction can be granted to prevent breach, the performance of which

cannot be specifically enforced,

 to prevent, on the ground of nuisance, an act of which it is not reasonably clear

that it will be a nuisance;

 No relief of injunction can not be granted, to prevent a continuing breach in

which the plaintiff has acquiesced.

 When equally efficacious remedy is available no injunction can be granted

except in cases of breach of trust

 If it would impede or delay the progress or completion of any infrastructure

project or interfere with the continued provision of the relevant facility related
thereto or services being subject matter of such project

 Where the conduct of the plaintiff or agent is such so as to disentitle him the
assistance of court

 No injunction can be granted when the plaintiff has no personal interest in the
matter

Section -42. Injunction to perform Negative agreement

This provision consist of two parts:-
a) a positive agreement to do a certain act
b) a negative agreement, not to do a certain act(express or implied)

 If the court is unable to compel specific performance of the affirmative

agreement, the court may still grant injunction to perform the negative
agreement

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Notes on the Specific Relief Act, 1963

The Act is based on equity and justice and is complimentary to the other
substantive law. As the Preamble to the Act suggests it ‘defines and amends the
law relating to certain kinds of Specific Relief’. As the Short Title to the Act states
‘Specific Relief Act’, it is called specific relief, because the suit seeks a particular
relief specifically and since the defendant is ordered to do that specific act, it is
called Specific Relief. The Act also gives greater discretion to the Court to weigh
and measure the facts and circumstances of each case and to grant the relief to do
equity and justice.
The Section 4 of the Act makes it quite clear that the Act is to enforce civil rights
against specific individuals and the Act has no application in criminal trial.

POSSESSION – SECTION 5-8 – IMMOVABLE (5-6) & MOVABLE (7-8)

For Section 5 & 6 SRA, Art.64 and 65 of the Schedule to the Limitation Act, 1963
are to be read together. Section 27 of the Limitation Act is also attracted.
Section 5 only refers the Plaintiff to consult CPC, 1908, the phrase is important to
discussion is ‘entitle to the possession of the specific immovable property’. This
limits the application of the section. Section 5 only provides for relief of
possession of the property. The word ‘entitle’ means that the Plaintiff need not be
having an absolute ownership, but anyone having any possessory title can sue
under section 5.
Section 6 is however more peculiar, it uphold the rule of law. It provides that no
one is above the law and relief if any is to be sought through legal process. Any
person who is in possession of the property, cannot be removed without his
consent, it even includes a trespasser who has come in possession of immovable
property. To make it clear from an example – A from country side, comes in Delhi
and starts living on a piece of land. The land was actually owned by B. Here, B
even though is the owner, cannot throw A out of the property by money or muscle
power. If B forcibly dispossess A, then A can approach the Court within 6 months
to put him back in the possession. Also, this Section cannot be claimed against the
Government that is, you cannot be on possession of a government property/
premises and claim section 6 SRA upon eviction. Also, there is no appeal or
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review from decree passed under this section, only revision is possible that too
very rarely on the grounds strictly for revision.
Section 5 and 6 differs in many ways. Section 5 presupposes some possessory title,
where Section 6 only requires a possession and illegal dispossession. In Section 5,
the title can be claimed by any party and the limitation period is 12 years be it
under Article 64 or 65 of the Schedule to the Limitation Act, 1963. Whereas,
Section 6 suit can be filed within 6 months and neither of the party can claim any
title.
The most common doubt which arises is what if an owner lives somewhere and a
stranger encroaches and comes into possession of which property. Now the owner
cannot evict the trespasser via money or muscle power. If the owner forcibly
evicts the trespasser, then the trespasser has remedy under section 6 SRA.
However, the actual owner in not remediless. The owner can file suit under
Section 5 SRA anytime and even after Section 6 is decreed against the owner, he
still can file suit under Section 5 [Section 6(4) talks about this]. But yes, being
vigilant and not letting any trespasser is always better – ‘prevention is better than
cure’.
Now Section 27 of the Limitation Act, 1963 provides that a trespasser siting in
other’s property for a continuous period of 12 years – will get the title. This is not
ipso facto – the trespasser has to prove that he was in possession for continuous 12
years without a break and the possession was open and adverse to the actual
owner.

For Section 7 & 8 – provisions of Order XX Rule 10 and Order XXI Rule 31 CPC
are attracted.
Section 7 is on the same lines as Section 5 and is self-explanatory.
Section 8 simply states that any person entitled to immediate possession of any
movable property may recover the same in given four conditions from (a) to (d).
And further Explanation states that the Court shall presume in favour of clause (b)
and (c).

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SPECIFIC PERFORMANCE – CHAPTER II – SECTION 9 TO 24 AND
SECTION 38(2)
Section 9 SRA links the Act with Contract Act, 1872 and says that all the defences
available in Contract Act can be availed in a suit under Chapter II of the SRA.
To simplify things – it is better to break the series and study Section 10, 14, 16,
(13&17) and 20 together – they more or less tells when and when not the specific
performance can be granted. Then study 15(who can be plaintiff) and 19(who can
be defendant). Section 11 (Trust) & 12 (Part-Performance) and Section 18 are case
specific. And then as miscellaneous we have Section 21, 22, 23 and 24.
SECTION 10
If the Plaintiff wants specific performance of any contract relating to immovable
property, then he has to prove either (a) or (b), but the Explanation (i) to the
Section directs the Court to presume (word used is shall) that clause (b) exists.
Hence the burden of proof is on the Defendant to prove that in their particular case
of specific performance of contract relating to immovable property the
compensation would be adequate relief.
If the Plaintiff wants specific performance of any contract relating to movable
property, then he has to prove either (a) to (b), and Explanation (ii) directs the
Court to presume that the plaintiff can be so relieved (by payment of
compensation). Therefore, the burden on the Plaintiff to prove (a) and (b) is even
more strict.
But by way of exception (a) and (b) in explanation (ii), the Court cannot presume
that compensation will be adequate relief if the movable property “is not an
ordinary article of commerce, or is of special value or interest to the plaintiff, or
consists of goods which are not easily obtained in the market”. The same
exception is created if the property is held by the defendant in trust. This means
that if plaintiff is seeking specific performance for movable property which falls
under exception (a) and (b) of Explanation (ii) – there is no presumption to be
made by the Court.
SECTION 14
Section 14 at times requires a number of reading and is itself self-explanatory. The
object and policy of the Act i.e. doing equity and justice is the key while making
decision under SRA. So Section 14 is not exhaustive and mandatory, the Court can
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in each case decide depending on the facts and circumstances. Section 14(2) saves
the Arbitration Act, it only bars filing a suit for specific performance of arbitration
agreement/ clause. A similar remedy was available in Arbitration Act, 1940 and
now Arbitration and Conciliation Act, 1996. Subsection (3) is case specific.
Section 16 relates to personal bar created on the Plaintiff and it is easy to break
down the section in parts and identify each condition stated therein.
Section 16(c) deals with a situation when the Plaintiff fails to aver and prove that
he has performed or has been ready and willing to perform his part of the contract.
This performance or readiness or willingness is required as and when agreed in the
contract. At times upon filing of the suit for specific performance involving
payment of money, the plaintiff only needs to prove that he was ready and willing
to make the payment, he is not required to actually deposit the sum upon filing the
suit, but only has to show (may be showing his bank statement with enough cash,
etc.) that he was ready and willing to perform his part. The Court at times may
even direct the plaintiff to deposit the sum (not mandatory, but the Court may in
circumstances of the case), and if the plaintiff fails to deposit the sum even when
so specifically directed, that is proof that the plaintiff was not ready and willing to
perform his part. This can be a ground to refusal by Court for the relief sought.
The explanation to Section 16 relates to the above.
Section 20 manifests what is underlining the object and policy of the Act. Specific
Reliefs are very case specific and depends on facts and circumstances of each
case. The conditions in Section 20 are only directory and not exhaustive, they
serve more like illustration as to when can the relief be granted or refused.
Section 13 and 17 are related to defect in title. There may be a situation when the
plaintiff is not the owner or unable to prove his absolute title to the property
(immovable or movable), but want to seek specific performance to enforce a sale
or lease. Then in that case, section 17 bars the plaintiff. To illustrate, A claims to
be owner of property P, and contracts to sell it to B. Later, B defaults and A i.e.
vendor files a suit to enforce the contract. However, if A in the trial fails to prove
that he has absolute title, the Court may refuse and dismiss his suit. Section 13
talks about the opposite situation. In the above example, suppose A defaults and B
wants to file suit for specific performance, here the suit will be granted if any of
the clause (a) to (d) is fulfilled i.e. subsequently A gets a perfect title capable of
transfer.

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Section 15 and 19 are a list and important for the preliminary examination.
Section 11 provides for two situations – firstly, a person agrees to be a trustee –
this can be specifically enforced – wholly or in part; and secondly, a trustee
contracts doing an act, which is in excess of his powers or in breach of the terms
of the trust – this cannot be specifically enforced. However, Section 11 itself is
subject to the other provisions, like specific performance seeking a person to
perform his functions as a trustee can even fall under Section 14(1)(b) i.e. personal
volition. Therefore, the discretion is with the Court to do equity and justice.
Section 12 is part performance. The general rule is subsection (1). But in specific
situations provided in (2), (3) and (4) part performance may be granted.
Subsection (2) is self-explanatory.
Subsection (3) in very brief provides as – the plaintiff seeking part performance
leaving considerable portion unperformed, then the plaintiff has to pay the whole
consideration (or only for the part which he wants to be performed), but he has to
relinquish performance of the remaining part and even the right to seek
compensation of that unperformed part. In the above case, the specific
performance of part may be granted. Again all depends on the facts and
circumstances of the case and greater discretion lies with the Court.
Finally, Section 21 to 24 are self-explanatory.

RECTIFICATION, RESCISSION & CANCELLATION – SECTION 26-33

RECTIFICATION – SECTION 26
Circumstances to prove – there was fraud or mutual mistake in contract or
instrument and the contract or instrument fails to record the real intention of the
parties. Any party under (a) to (c) can get the document rectified, but – it will not
apply on Article of Association of a Company [subsection 1] and cannot prejudice
the rights of third party acquired thereafter [subsection 2].
Subsection (3) states that first prayer can be rectification and then specific
performance. Subsection (4) at last provides that prayer for rectification needs to
be specifically pleaded and for that Order VI Rule 17 of the CPC can be
interpreted liberally by the Court (only directory – it has to be construed in light of
equity and justice of each case).
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RECISSION – SECTION 27 – 30
Section 27 Subsection (1) clause (a) and (b) provides two circumstances which
needs to be proved by the Plaintiff before the Court can rescind the contract.
Subsection (2) clause (a) to (d) on the other hand provides circumstances under
which the Court may refuse rescission. Again the word ‘may’ suggests there is
more discretion with the Court to decide in light of equity and justice on the facts
and circumstances of each case.
Section 29 allows the plaintiff to seek specific performance and if not granted the
alternative relief for specific performance can be pleaded.
Section 30 empowers the Court to do equity in light of restoring any benefit which
has already been accrued to any party.

CANCELLATION – SECTION 31-33

Section 31 provides that the Plaintiff has to prove – that the written instrument is
void or voidable and if the instrument is left outstanding the Plaintiff may be
exposed to serious injury. Subsection (2) only instructs if any registered
instrument is cancelled, the same has to be informed to the Registrar.
Section 32 talks about part cancellation and Section 33 is on restoration and doing
equity, it all depends on facts and circumstances of each case.

DECLARATION – SECTION 34-35

Section 35 at the very onset states that the declaration made under Chapter VI
serves a ‘judgment in personam’ i.e. that only the Plaintiff and Defendant are
bound by the judgment which also includes persons claiming through them and
trustees of the party. Further, in Section 34 the Court is given discretion – firstly
the burden of proof has to be discharged by the Plaintiff i.e. it has to be satisfied
that the plaintiff seeking declaration is entitled to such a title and then the Court
has discretion to grant the relief make the declaration as suggested by the phrase
‘the Court may in its discretion make therein a declaration ……’

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Section 34 has the following key words – Any person entitled to any legal
character or to any right to any property …… may against any person – denying or
interested to deny his title to such character or right …… the plaintiff need not in
such suit ask for any further relief …… Proviso – no Court shall …… further
relief ……
Entitled – means the title is already existing and not any title which will be
accrued in future. This entitled is in respect of date of filing of the suit. The
plaintiff must be entitled to the declaratory relief as on the date of filing the suit.
legal character or to any right to any property – it includes two types of rights -
personal rights and right as to property. Section 9 of the Code of Civil Procedure is
to be attracted here, which states the Civil Court can try ‘any suit of civil nature’,
therefore, any personal right which is of civil nature will falls under Section 34
SRA. For example, Right to Speech, Right to Privacy, etc. but Right to be a
member of a social group without any official post is not a suit of civil nature and
hence no declaration can be sought. Right to property will include both movable
and immovable right.
Another noteworthy point here is- can declaration be positive as well as negative.
Section 34 uses the phrase ‘any person entitled…’ which is a positive declaration
as to entitlement. However, there may be a case wherein a negative declaration
may be sought. For illustration, take the example of Rohit v. N.D. Tiwari. R
sought a positive declaration that he is son of N, which was a positive declaration
and in real N finally accepted his paternity. However, there may be case where
some N seeks a negative declaration that R is not his son. The Section does not
speak about the same, however, a negative declaration if coupled with a positive
declaration will be permissible. Like in the above example, the negative
declaration that R is not the son of N also includes the positive declaration that N
has no son named R.
Denying or interested to deny – denying is in present continuous tense, which
connotes that the defendant is denying the title or character to the plaintiff. And
interest to deny includes any circumstances which may arise in future wherein
there will be hostility in the interests of the plaintiff and the defendant. The burden
to prove this issue is on the plaintiff to satisfy the Court that facts and
circumstances of his case calls for the grant of this discretionary remedy. If the
Court is not satisfied that the defendant is not denying or there is no immediate

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reason that the defendant will be interested in denying the title or character to the
plaintiff, the Court can refuse to grant the remedy.
Further relief – the main provision says that the plaintiff is not duty bound to claim
any other relief alongwith the declaratory suit. However, the proviso cautions the
Court to not grant any relief unless further relief is also prayed. One practical
illustration to this is suit of declaration and possession, there is a very nominal
Court fee in Declaratory suit, however for seeking possession the Court fee can go
as high as 1.1% of the suit value. So at times only declaration is claimed and
possession is deliberately not sought. However, a declaration without possession
will bear no fruit. Therefore, proviso takes these cases into picture and it also
avoids multiplicity of proceedings because even though declaration and possession
are based on two different cause of action, they can be claimed together as allowed
in Order II Rule 3 of the CPC, 1908.

INJUNCTION – SECTION 36-42

Temporary – Section 36, 37(1) SRA & Section 94(c), 151 and Order XXXIX of
CPC, 1908
Section 37 states that temporary injunction are to continue until specific time or
until further order. Order 43 Rule 1 makes the Order on temporary injunction as
appealable Order. So whether it is granted or refused, it is appealable. Further,
while drafting lawyers always write Section 151 CPC in the caption of the suit, to
invoke inherent power of the Court. For example, in an injunction suit instituted
by a Sports Channel against some named website for illegally telecasting (piracy)
of a live cricket matches. However, apart from some named website, the match
was also telecasted by many proxy websites. The plaintiff/ sports channel
instituted injunction suit against some named defendant websites and sought an
injunction in rem against any site involved in this piracy. The discretionary power
of the Court was sought to issue injunction against the named defendant and
against other unnamed. The Court reasoned that since broadcasting rights are
acquired by investing huge sum of money and any piracy will cause irreparable
losses, it granted the injunction against the defendants and finding no reason to not
exercise its discretionary power under section 151 granted the relief as claimed.

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 SPECIFIC RELIEF ACT
The three basic requirements of granting a temporary injunction always have to be
met, namely – (a) prima facie case in favour of the plaintiff; (b) balance of
convenience lies in favour of the plaintiff; and (c) irreparable losses which cannot
be compensated by money will be suffered by the plaintiff if injunction is not
granted.
Perpetual/ Permanent – Section 36, 37(2), 38 SRA
Section 37 states that perpetual injunction can only be granted after hearing the
case on merits and rightly so, because by granting perpetual injunction, the
defendant is perpetually enjoined from asserting a right. The provision of Section
38 is self-explanatory and Sub-section (3) is not exhaustive rather is provided only
to illustrate.
Mandatory Injunction – Section 39 is peculiar as it talks about an injunction which
casts a positive duty upon the defendant to perform. Perpetual injunction is granted
to perpetually enjoin the defendant from asserting his right, however, in mandatory
injunction the Court is empowered to Order the Defendant to do some positive act
in the interest of justice and in the facts and circumstances of the case.

TEMPORARY MANDATORY INJUNCTION – Although not specifically

provided in Section 39, the Hon’ble Supreme Court in Dorab Cowasji Warden v,
Coomi Sorab Warden [1990] held that in exceptional circumstances it can be
given provided the plaintiff discharges the initial burden required in temporary
injunction and as a fourth requirement, the Court must be cautious because
temporary mandatory injunction is like granting the final relief during the trial.
The simplest example on all the above can be A erecting a wall and when half
erected, B (his neighbour) objects. B should file a suit for perpetual injunction so
that A is enjoined from asserting his right to erect the wall, but that will be decided
on merits at the end of the suit. During trial, the plaintiff should seek temporary
injunction to stop A from completing the wall. The Court may grant both
temporary during trial as well as perpetual on final merits
Here, the plaintiff should also seek mandatory injunction – so that the defendant
should positively act by de-constructing the wall. The same can be claimed by way
of Temporary Mandatory Injunction by the Plaintiff, in which case he will have to
satisfy the Court that the half erected wall is a serious prejudice to his rights.

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 SPECIFIC RELIEF ACT
Section 40 is self-explanatory and Section is not exhaustive, but only inclusive.
CASES
Shashi Properties & Industries Ltd. v. Sunil Akash Sinha 2004 SC
Plaintiff must prove that he had possession – both animus (physical/actual) and
corpus (desire) to prove his settled possession

Krishna Prasad Singh v. Vikash Singh 2007 SC

In a suit u/s 6 the question (Fact in Issue) is settled possession and dispossession
and if the title is decided, it will only be an incidental and collateral and hence res
judicata will not apply.

Nair Service Society Ltd. v. K.C. Alexender 1968 SC

Issue 1 – Suit under Section 5 and 6 can be clubbed together, but the decree will
be different.
Issue 2 – u/S. 6 no suit after six months. But suit for possession based on previous
settled possession can be filed uptil 12 years as per Article 64 of the Schedule to
the Limitation Act, but the defendant can plead his ownership title in such suit.
Issue 3 – Section 6 does not bar a separate suit under Section 5 at any time.

Ram Sunder Bhagat v. Ram Bharose Bhagat 1957 Pat. H.C.

Section 34 - 2nd marriage can be restrained by declaration

Radha Rani Bhargava v. Hanuman Prasad Bhargava 1966 SC

If life estate alienated, then any person who stands the chance of succeeding may
sue for declaration

Verna Reddy Ram Raghav Reddy v. Kondur Seshu Reddy 1964 SC

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 SPECIFIC RELIEF ACT
S.34 is not exhaustive on declaratory suit, even when sec.34 SRA not fulfilled,
such relief can be sought u/S.9 of the CPC r/w OVII R7 CPC, 1908.

Dorab Cowasji Warden v. Coomi Sorab Warden 1990 SC

For temporary mandatory injunction –
1. prima facie case, 2. balance of convenience, 3. irreparable losses, and 4. very
rare and extremely compelling circumstances and virtually decreeing the suit in
favour of the party

Laxman Tatyaba Kankate & Anr. V. Taramati Harishchandra Dhatrak 2010 SC

Section 20 - Court is to take care that process of the Court is not used as an
instrument of oppression and giving advantage to plaintiff as opposed to defendant

Sadashiv Shyama Sawant v. Anita Anant Sawant

It may be desirable that a landlord in a suit under Section 6 of the Act against a
trespasser for immediate possession when, at the date of dispossession, the house
was in occupation of a tenant, impleads the tenant, but his non-impleadment is not
fatal to the maintainability of such suit.
The supreme court held that any person claiming through him includes a landlord
whose tenant has been dispossessed by someone else.

Lumley v Wagner
Facts: Wagner contracted to sing in Lumley's theatre for a fixed period. She also
promised that, during this period, she would not to perform anywhere else. After a
breach by Wagner, Lumley wished to enforce both of these promises through an
order of specific performance.
Held, Actual performance of this promise would not be ordered.
Also held, The court would issue an order (an injunction) to stop Wagner singing
elsewhere.

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