THE SPECIFIC RELIEF ACT, 1963
  
 ACT NO. 47 OF 1963
  
 
  
 An Act  to define  and amend  the law  relating to  certain  kinds  of
 specific relief.
 
                                                [13th December, 1963.]
 
      BE it  enacted by  Parliament  in  the  Fourteenth  Year  of  the
 Republic of India as follows:-
 
  
 PART
  
 PRELIMINARY
  
 
                                 PART I
 
                              PRELIMINARY
 
  
 1.
  
 Short title, extent and commencement.
  
 
      1. Short  title, extent  and commencement.- (1) This  Act may  be
 called the Specific Relief Act, 1963.
 
      (2) It  extends to  the whole  of India except the State of Jammu
 and Kashmir.
 
      (3) It  shall come  into force  on such  date 1*  as the  Central
 Government may, by notification in the Official Gazette, appoint.
 
  
 2.
  
 Definitions.
  
 
      2.  Definitions.- In  this  Act,  unless  the  context  otherwise
 requires,-
 
           (a) "obligation" includes every duty enforceable by law;
 
           (b) "settlement"  means an  instrument (other than a will or
                codicil as  defined by the Indian Succession Act,  1925
                (39 of  1925)) whereby the destination or devolution of
                successive interests  in movable  or immovable property
                is disposed of or is agreed to be disposed of;
 
           (c) "trust"  has the  same meaning  as in  section 3  of the
                Indian Trusts  Act, 1882  (2 of 1882), and  includes an
                obligation in  the nature of a trust within the meaning
                of Chapter IX of that Act;
 
           (d) "trustee"  includes every  person  holding  property  in
                trust;
 
           (e) all  other words  and expressions  used herein  but  not
                defined, and  defined in the Indian Contract Act,  1872
                (9 of 1872), have the meanings respectively assigned to
                them in that Act.
 
  
 3.
  
 Savings.
  
 
      3. Savings.- Except as otherwise provided herein, nothing in this
 Act shall be deemed-
 
           (a) to deprive any person of any right to relief, other than
                specific performance,  which  he  may  have  under  any
                contract; or
 
 ---------------------------------------------------------------------
 1    1st March, 1964; vide Notification No. S.O. 189, dated 13-1-1964,
      Gazette of India, Pt. II, Sec. 3 (ii), p. 214.
 
      The Act shall come into force in the State of Sikkim on 1.9.1984
      vide Notifn.  No. S.O.648 (E),  dt. 24.8.84, Gaz. of India, Exty.
      Pt. II, Sec.  3 (ii).
 
 616
 
           (b) to  affect the operation of the Indian Registration Act,
                1908 (16 of 1908), on documents.
 
  
 4.
  
 Specific relief  to be  granted only  for enforcing  individual  civilrights
 and not for enforcing penal laws.
  
 
      4. Specific  relief to  be granted  only for enforcing individual
 civil rights  and not for enforcing penal laws.-Specific relief can be
 granted only  for the purpose of enforcing individual civil rights and
 not for the mere purpose of enforcing a penal law.
 
  
 PART
  
 SPECIFIC RELIEF
  
 
                                PART II
 
                            SPECIFIC RELIEF
 
  
 CHAP
  
 RECOVERING POSSESSION OF PROPERTY
  
 
                               CHAPTER I
 
                   RECOVERING POSSESSION OF PROPERTY
 
  
 5.
  
 Recovery of specific immovable property.
  
 
      5. Recovery  of specific immovable property.-A person entitled to
 the possession  of specific  immovable property  may recover it in the
 manner provided by the Code of Civil Procedure, 1908 (5 of 1908).
 
  
 6.
  
 Suit by person dispossessed of immovable property.
  
 
      6. Suit  by person dispossessed of immovable property.-(1) If any
 person is  dispossessed without  his  consent  of  immovable  property
 otherwise than in due course of law, he or any person claiming through
 him may,  by suit,  recover possession  thereof,  notwithstanding  any
 other title that may be set up in such suit.
 
      (2) No suit under this section shall be brought-
 
           (a) after  the  expiry  of  six  months  from  the  date  of
                dispossession; or
 
           (b) against the Government.
 
      (3) No  appeal shall  lie from  any order or decree passed in any
 suit instituted  under this  section, nor shall any review of any such
 order or decree be allowed.
 
      (4) Nothing  in this  section shall  bar any person from suing to
 establish his  title  to  such  property  and  to  recover  possession
 thereof.
 
  
 7.
  
 Recovery of specific movable property.
  
 
      7. Recovery  of specific  movable property.- A person entitled to
 the possession  of specific  movable property  may recover  it in  the
 manner provided by the Code of Civil Procedure, 1908 (5 of 1908).
 
      Explanation 1.-A  trustee may  sue under  this section  for  the
 possession of movable property to the beneficial interest in which the
 person for whom he is trustee is entitled.
 
 617
 
      Explanation 2.-A  special or  temporary  right  to  the  present
 possession of  movable property  is sufficient to support a suit under
 this section.
 
  
 8.
  
 Liability of person in possession, not as owner, to deliver to personsentitled
 to immediate possession.
  
 
      8. Liability of person in possession, not as owner, to deliver to
 persons 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,  in any  of the
 following cases:-
 
           (a) when  the thing  claimed 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.
 
      Explanation.-Unless and  until the contrary is proved, the court
 shall, in  respect of  any article  of movable  property claimed under
 clause (b) or clause (c) of this section, presume-
 
           (a)  that   compensation  in  money  would  not  afford  the
                plaintiff adequate  relief for  the loss  of the  thing
                claimed, or, as the case may be;
 
           (b) that  it would  be extremely  difficult to ascertain the
                actual damage caused by its loss.
 
  
 CHAP
  
 SPECIFIC PERFORMANCE OF CONTRACTS
  
 
                               CHAPTER II
 
                   SPECIFIC PERFORMANCE OF CONTRACTS
 
  
 9.
  
 Defences respecting suits for relief based on contract.
  
 
      9. Defences respecting suits for relief based on contract.-Except
 as otherwise  provided herein,  where any relief is claimed under this
 Chapter in  respect of  a contract, the person against whom the relief
 is claimed  may plead  by way of defence any ground which is available
 to him under any law relating to contracts.
 
              CONTRACTS WHICH CAN BE SPECIFICALLY ENFORCED
 
  
 10.
  
 Cases in which specific performance of contract enforceable.
  
 
 10.   Cases  in which specific performance of  contract  enforceable.-
 Except as otherwise provided in this Chapter, the specific performance
 of any contract may, in the discretion of the court, be enforced-
 
           (a) when  there exists  no  standard  for  ascertaining  the
                actual damage  caused by the non-performance of the act
                agreed to be done; or
 
 618
 
           (b) when the act agreed to be done is such that compensation
                in money  for  its  non-performance  would  not  afford
                adequate relief.
 
      Explanation.-Unless and  until the contrary is proved, the court
 shall presume-
 
           (i) that  the breach  of a  contract to  transfer  immovable
                property cannot  be adequately relieved by compensation
                in money; and
 
           (ii) that  the breach  of a  contract  to  transfer  movable
                property can  be so  relieved except  in the  following
                cases:-
 
                     (a) where  the 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
                obtainable in the market;
 
                     (b) where the property is held by the defendant as
                the agent or trustee of the plaintiff.
 
  
 11.
  
 Cases in which specific performance of contracts connected with
 trustsenforceable.
  
 
      11. Cases  in which  specific performance  of contracts connected
 with trusts enforceable.-(1) Except as otherwise provided in this Act,
 specific performance  of a  contract may,  in the  discretion  of  the
 court, be  enforced  when  the  act  agreed  to  be  done  is  in  the
 performance wholly or partly of a trust.
 
      (2) A  contract made  by a  trustee in excess of his powers or in
 breach of trust cannot be specifically enforced.
 
  
 12.
  
 Specific performance of part of contract.
  
 
      12. Specific  performance of  part of  contract.- (1)  Except  as
 otherwise hereinafter  provided in  this section,  the court shall not
 direct the specific performance of a part of a contract.
 
      (2) Where a party to a contract is unable to perform the whole of
 his part of it, but the part which must be left unperformed bears only
 a small proportion to the whole in value and admits of compensation in
 money, the court may, at the suit of either party, direct the specific
 performance of  so much of the contract as can be performed, and award
 compensation in money for the deficiency.
 
      (3) Where a party to a contract is unable to perform the whole of
 his part of it, and the part which must be left unperformed either-
 
           (a) forms  a considerable part of the whole, though admiting
                of compensation in money; or
 
           (b) does not admit of compensation in money;
 
 619
 
 he is  not entitled  to obtain  a decree for specific performance; but
 the court  may, at  the suit  of the  other party, direct the party in
 default to perform specifically so much of his part of the contract as
 he can perform, if the other party-
 
           (i) in a case falling under clause (a), pays or has paid the
                agreed consideration  for the  whole  of  the  contract
                reduced by the consideration for the part which must be
                left unperformed  and in  a case  falling under  clause
                (b), 1*[pays  or has  paid] the  consideration for  the
                whole of the contract without any abatement; and
 
           (ii)  in   either  case,  relinquishes  all  claims  to  the
                performance of  the remaining  part of the contract and
                all right to compensation, either for the deficiency or
                for the  loss or  damage sustained  by him  through the
                default of the defendant.
 
      (4) When  a part  of a  contract which,  taken by itself, can and
 ought  to   be  specifically  performed,  stands  on  a  separate  and
 independent footing  from another  part of  the  same  contract  which
 cannot or ought not to be specifically performed, the court may direct
 specific performance of the former part.
 
      Explanation.-For the  purposes of  this section,  a party  to  a
 contract shall be deemed to be unable to perform the whole of his part
 of it  if a  portion of its subject-matter existing at the date of the
 contract has ceased to exist at the time of its performance.
 
  
 13.
  
 Rights of  purchaser  or  lessee  against  person  with  no  title  orimperfect
 title.
  
 
      13. Rights  of purchaser  or lessee against person with no  title
 or imperfect  title. (1)  Where a  person contracts  to  sell  or  let
 certain immovable property having no title or only an imperfect title,
 the purchaser  or lessee  (subject to  the other  provisions  of  this
 Chapter), has the following rights, namely:-
 
           (a) if the vendor or lessor has subsequently to the contract
                acquired any interest in the property, the purchaser or
                lessee may  compel him to make good the contract out of
                such interest;
 
           (b) where  the concurrence of other persons is necessary for
                validating the  title, and  they are bound to concur at
                the request  of the  vendor or lessor, the purchaser or
                lessee may  compel him  to  procure  such  concurrence,
                and   when   a   conveyance   by    other   persons  is
                necessary   to   validate    the    title    and   they
                are   bound   to    convey    at    the    request   of
 ---------------------------------------------------------------------
 1    Ins. by Act 52 of 1964, s. 3 and Sch. II.
 
 620
 
                the vendor  or lessor,  the  purchaser  or  lessee  may
                compel him to procure such conveyance;
 
           (c)  where   the  vendor   professes  to  sell  unencumbered
                property, but  the property  is mortgaged for an amount
                not exceeding  the purchase money and the vendor has in
                fact only  a right  to redeem  it,  the  purchaser  may
                compel him to redeem the mortgage and to obtain a valid
                discharge, and, where necessary, also a conveyance from
                the mortgagee;
 
           (d) where the vendor or lessor sues for specific performance
                of the contract and the suit is dismissed on the ground
                of his  want of title or imperfect title, the defendant
                has a  right to  a return  of his deposit, if any, with
                interest thereon,  to his  costs of  the suit, and to a
                lien for  such  deposit,  interest  and  costs  on  the
                interest, if  any, of  the  vendor  or  lessor  in  the
                property which is the subject-matter of the contract.
 
      (2) The provisions of sub-section (1) shall also apply, as far as
 may be, to contracts for the sale or hire of movable property.
 
            CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED
 
  
 14.
  
 Contracts not specifically enforceable.
  
 
      14. Contracts  not specifically  enforceable.-(1)  The  following
 contracts cannot be specifically enforced, namely:--
 
           (a) a contract for the non-performance of which compensation
                in money is an adequate relief;
 
           (b) a  contract which  runs into  such  minute  or  numerous
                details or  which  is  so  dependent  on  the  personal
                qualifications or volition of the parties, or otherwise
                from its  nature is such, that the court cannot enforce
                specific performance of its material terms;
 
           (c) a contract which is in its nature determinable;
 
           (d)  a  contract  the  performance  of  which  involves  the
                performance of a continuous duty which the court cannot
                supervise.
 
      (2) Save  as provided by the Arbitration Act, 1940  (10 of 1940),
 no contract  to refer  present or  future differences  to  arbitration
 shall be specifically
 
 621
 
 enforced; but  if any  person who has made such a contract (other than
 an arbitration  agreement to  which the  provisions of  the  said  Act
 apply) and  has refused  to perform it, sues in respect of any subject
 which he has contracted to refer, the existence of such contract shall
 bar the suit.
 
      (3) Notwithstanding  anything contained  in clause  (a) or clause
 (c) or  clause (d)  of sub-section (1), the court may enforce specific
 performance in the following cases:-
 
           (a) where the suit is for the enforcement of a contract,-
 
                     (i) to  execute a  mortgage or  furnish any  other
                security for security for securing the repayment of any
                loan which  the borrower  is not  willing to  repay  at
                once:
 
                     Provided that  where only  a part  of the loan has
                been advanced  the lender  is willing  to  advance  the
                remaining part of the loan in terms of the contract; or
 
                     (ii) to  take up  and pay  for any debentures of a
                company;
 
           (b) where the suit is for,-
 
                     (i) the execution of a formal deed of partnership,
                the parties  having commenced  to carry on the business
                of the partnership; or
 
                     (ii) the  purchase of  a share  of a  partner in a
                firm,
 
           (c) where  the suit is for the enforcement of a contract for
                the construction  of any  building or  the execution of
                any other work on land:
 
      Provided that the following conditions are fulfilled, namely:-
 
           (i) the  building or other work is described in the contract
                in terms  sufficiently precise  to enable  the court to
                determine the exact nature of the building or work;
 
           (ii)  the  plaintiff  has  a  substantial  interest  in  the
                performance of the contract and the interest is of such
                a nature that compensation in money for non-performance
                of the contract is not an adequate relief; and
 
           (iii) the  defendant has,  in  pursuance  of  the  contract,
                obtained possession  of the  whole or  any part  of the
                land on  which the  building is  to be  constructed  or
                other work is to be executed.
 
 622
 
       PERSONS FOR OR AGAINST WHOM CONTRACTS MAY BE SPECIFICALLY
                                ENFORCED
 
  
 15.
  
 Who may obtain specific performance.
  
 
      15. Who  may obtain  specific performance.- Except  as  otherwise
 provided by  this Chapter,  the specific performance of a contract may
 be obtained by-
 
           (a) any party thereto;
 
           (b) the  representative in interest or the principal, of any
                party thereto:
 
           Provided that  where the  learning, skill,  solvency or  any
                personal quality of such party is a material ingredient
                in the  contract, or  where the  contract provides that
                his interest  shall not be assigned, his representative
                in interest  of 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;
 
           (c) 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;
 
           (d) where the contract has been entered into by a tenant for
                life in due exercise of a power, the remainderman;
 
           (e) 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;
 
           (f) 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;
 
           (g)  when   a  company  has  entered  into  a  contract  and
                subsequently becomes  amalgamated with another company,
                the new company which arises out of the amalgamation;
 
           (h) 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:
 
           Provided that  the company has accepted the contract and has
                communicated such  acceptance to the other party to the
                contract.
 
 623
 
  
 16.
  
 Personal bars to relief.
  
 
      16. Personal  bars to  relief.-Specific performance of a contract
 cannot be enforced in favour of a person-
 
           (a) who  would not  be entitled  to recover compensation for
                its breach; or
 
           (b) who  has become incapable of performing, or violates any
                essential term  of,  the  contract  that  on  his  part
                remains to  be performed,  or  acts  in  fraud  of  the
                contract, or  wilfully acts  at variance  with,  or  in
                subversion of,  the relation intended to be established
                by the contract; or
 
           (c) who fails to aver and prove that he has performed or has
                always been  ready and willing to perform the essential
                terms of the contract which are to be performed by him,
                other than  terms the  performance of  which  has  been
                prevented or waived by the defendant.
 
      Explanation.-For the purposes of clause (c),-
 
           (i) where  a contract  involves the  payment of money, it is
                not essential  for the  plaintiff to actually tender to
                the defendant  or to  deposit in court any money except
                when so directed by the court;
 
           (ii) the  plaintiff must  aver performance  of, or readiness
                and willingness  to perform,  the contract according to
                its true construction.
 
  
 17.
  
 Contract to  sell or  let property  by  one  who  has  no  title,
 notspecifically enforceable.
  
 
      17. Contract to sell or let property by one who has no title, not
 specifically enforceable.- (1) A contract to sell or let any immovable
 property cannot  be specifically  enforced in  favour of  a vendor  or
 lessor-
 
           (a) who,  knowing himself  not to  have  any  title  to  the
                property, has contracted to sell or let the property;
 
           (b) who,  though he entered into the contract believing that
                he had a good title to the property, cannot at the time
                fixed by the parties or by the court for the completion
                of the  sale or letting, give the purchaser or lessee a
                title free from reasonable doubt.
 
      (2) The provisions of sub-section (1) shall also apply, as far as
 may be, to contracts for the sale or hire of movable property.
 
  
 18.
  
 Non-enforcement except with variation.
  
 
      18. Non-enforcement  except with  variation.- Where  a  plaintiff
 seeks specific  performance of  a contract  in writing,  to which  the
 defendant sets up a variation, the plaintiff
 
 624
 
 cannot obtain the performance sought, except with the variation so set
 up, in the following cases, namely:-
 
           (a) where  by fraud,  mistake of fact or mis-representation,
                the written  contract of which performance is sought is
                in its  terms or effect different from what the parties
                agreed to,  or does not contain all the terms agreed to
                between the parties on the basis of which the defendant
                entered into the contract;
 
           (b) where the object of the parties was to produce a certain
                legal result  which  the  contract  as  framed  is  not
                calculated to produce;
 
           (c) where the parties have, subsequently to the execution of
                the contract, varied its terms.
 
  
 19.
  
 Relief against  parties and  persons claiming under them by subsequenttitle.
  
 
      19. Relief  against parties  and persons  claiming under  them by
 subsequent title.- Except  as  otherwise  provided  by  this  Chapter,
 specific performance of a contract may be enforced against-
 
           (a) either party thereto;
 
           (b) any  other person  claiming under him by a title arising
                subsequently to  the contract,  except a transferee for
                value who  has paid his money in good faith and without
                notice of the original contract;
 
           (c) any person claiming under a title which, though prior to
                the contract  and known  to the  plaintiff, might  have
                been displaced by the defendant;
 
           (d)  when   a  company  has  entered  into  a  contract  and
                subsequently becomes  amalgamated with another company,
                the new company which arises out of the amalgamation;
 
           (e) when  the  promoters  of  a  company  have,  before  its
                incorporation, entered  into a contract for the purpose
                of the  company and  such contract  is warranted by the
                terms of the incorporation, the company:
 
           Provided that  the company  has accepted  the  contract  and
                communicated such  acceptance to the other party to the
                contract.
 
                     DISCRETION AND POWERS OF COURT
 
  
 20.
  
 Discretion as to decreeing specific performance.
  
 
      20. Discretion  as to  decreeing specific  performance.- (1)  The
 jurisdiction to  decree specific performance is discretionary, and the
 court is not bound to grant such relief merely because it is lawful to
 do so; but the discretion of the court is not
 
 625
 
 arbitary but  sound and  reasonable, guided by judicial principles and
 capable of correction by a court of appeal.
 
      (2) The  following are  cases in  which the  court  may  properly
 exercise discretion not to decree specific performance-
 
           (a) where  the terms  of the  contract or the conduct of the
                parties at  the time  of entering  into the contract or
                the other  circumstances under  which the  contract was
                entered into  are such  that the  contract, though  not
                voidable, gives  the plaintiff an unfair advantage over
                the defendant; or
 
           (b) where the performance of the contract would involve some
                hardship on  the defendant  which he  did not  foresee,
                whereas  its  non-performance  would  involve  no  such
                hardship on the plaintiff;
 
           (c) where  the defendant  entered into  the  contract  under
                circumstances which  though not  rendering the contract
                voidable, makes  it  inequitable  to  enforce  specific
                performance.
 
      Explanation 1.-Mere  inadequacy of  consideration, or  the  mere
 fact that  the contract  is onerous to the defendant or improvident in
 its nature,  shall not  be deemed  to constitute  an unfair  advantage
 within the  meaning of  clause (a)  or hardship  within the meaning of
 clause (b).
 
      Explanation  2.-The   question  whether  the  performance  of  a
 contract would involve hardship on the defendant within the meaning of
 clause (b) shall, except in cases where the hardship has resulted from
 any act  of the  plaintiff subsequent  to the  contract, be determined
 with reference  to the  circumstances existing  at  the  time  of  the
 contract.
 
      (3) The court may properly exercise discretion to decree specific
 performance in  any case where the plaintiff has done substantial acts
 or suffered  losses in  consequence of  a contract capable of specific
 performance.
 
      (4) The  court shall not refuse to any party specific performance
 of  a  contract  merely  on  the  ground  that  the  contract  is  not
 enforceable at the instance of the other party.
 
  
 21.
  
 Power to award compensation in certain cases.
  
 
      21. Power  to award  compensation in certain cases.-(1) In a suit
 for specific  performance of  a contract, the plaintiff may also claim
 compensation for its breach, either in addition to, or in substitution
 of, such performance.
 
 626
 
      (2) If,  in any  such  suit,  the  court  decides  that  specific
 performance ought  not to  be granted,  but that  there is  a contract
 between the  parties which  has been broken by the defendant, and that
 the plaintiff  is entitled  to compensation  for that breach, it shall
 award him such compensation accordingly.
 
      (3) If,  in any  such  suit,  the  court  decides  that  specific
 performance ought  to be  granted, but  that  is  not  sufficient to
 satisfy the justice of the case, and that some compensation for breach
 of the  contract should  also be made to the plaintiff, it shall award
 him such compensation accordingly.
 
      (4) In  determining the  amount of any compensation awarded under
 this section, the court shall be guided by the principles specified in
 section 73 of the Indian Contract Act, 1872 (9 of 1872).
 
      (5) No  compensation shall  be awarded  under this section unless
 the plaintiff has claimed such compensation in his plaint:
 
      Provided that  where the  plaintiff  has  not  claimed  any  such
 compensation in  the plaint,  the court  shall, at  any stage  of  the
 proceeding, allow  him to  amend the  plaint on  such terms  as may be
 just, for including a claim for such compensation.
 
      Explanation.-The  circumstance  that  the  contract  has  become
 incapable of  specific performance  does not  preclude the  court from
 exercising the jurisdiction conferred by this section.
 
  
 22.
  
 Power to  grant relief  for possession,  partition, refund  of earnestmoney,
 etc.
  
 
      22. Power  to grant  relief for  possession, partition, refund of
 earnest money,  etc.-(1)  Notwithstanding  anything  to  the  contrary
 contained in  the Code   of  Civil  Procedure, 1908  (5 of  1908), any
 person suing  for the  specific performance  of  a  contract  for  the
 transfer of immovable property may, in an appropriate case, ask for-
 
           (a) possession, or partition and separate possession, of the
                property, in addition to such performance; or
 
           (b) any  other relief to which he may be entitled, including
                the refund  of any  earnest money  or deposit  paid  or
                1*[made  by]  him,  in  case  his  claim  for  specific
                performance is refused.
 
      (2) No  relief under  clause (a) or clause (b) of sub-section (1)
 shall be granted by the court unless it has been specifically claimed:
 
      Provided that where the plaintiff has not claimed any such relief
 in the plaint, the court shall, at any stage of the proceeding, allow
 ---------------------------------------------------------------------
 1    Subs. by Act 52 of 1964, s. 3 and Sch. II, for "made to".
 
 627
 
 him to  amend the  plaint on such terms as may be just for including a
 claim for such relief.
 
      (3) The  power of  the court  to grant relief under clause (b) of
 sub-section (1)  shall be  without prejudice  to its  powers to  award
 compensation under section 21.
 
  
 23.
  
 Liquidation of damages not a bar to specific performance.
  
 
      23. Liquidation of damages not a bar to specific performance.-(1)
 A contract,  otherwise proper  to be  specifically enforced, may be so
 enforced, though a sum be named in it as the amount to be paid in case
 of its  breach and the party in default is willing to pay the same, if
 the court,  having regard  to the  terms of  the  contract  and  other
 attending circumstances,  is satisfied that the sum was named only for
 the purpose  of securing  performance of  the contract and not for the
 purpose of giving to the party in default an option of paying money in
 lieu of specific performance.
 
      (2) When  enforcing specific  performance under this section, the
 court shall  not also  decree payment  of the  sum  so  named  in  the
 contract.
 
  
 24.
  
 Bar of  suit for  compensation for  breach after dismissal of suit forspecific
 performance.
  
 
      24. Bar  of suit  for compensation  for breach after dismissal of
 suit for  specific performance.- The dismissal  of a suit for specific
 performance of  a contract  or part  thereof shall bar the plaintiff's
 right to sue for compensation for the breach of such contract or part,
 as the  case may  be, but shall not bar his right to sue for any other
 relief to which he may be entitled, by reason of such breach.
 
 
      ENFORCEMENT OF AWARDS AND DIRECTIONS TO EXECUTE SETTLEMENTS
 
  
 25.
  
 Application of  preceding sections  to certain awards and
 testamentarydirections to execute settlements.
  
 
      25. Application  of preceding  sections  to  certain  awards  and
 testamentary directions to execute settlements.-The provisions of this
 Chapter as to contracts shall apply to awards to which the Arbitration
 Act, 1940 (10 of 1940), does  not apply and to directions in a will or
 codicil to execute a particular settlement.
 
  
 CHAP
  
 RECTIFICATION OF INSTRUMENTS
  
 
                              CHAPTER III
 
                      RECTIFICATION OF INSTRUMENTS
 
  
 26.
  
 When instrument may be rectified.
  
 
      26. When  instrument may be rectified.-(1) When, through fraud or
 a mutual  mistake of  the parties,  a contract  or other instrument in
 writing (not being the articles
 
 628
 
 of association  of a  company to  which the Companies Act, 1956  (1 of
 1956), applies) does not express their real intention, then-
 
           (a) either  party or  his  representative  in  interest  may
                institute a suit to have the instrument rectified; or
 
           (b) the  plaintiff may,  in any  suit  in  which  any  right
                arising under  the instrument is in issue, claim in his
                pleading that the instrument be rectified; or
 
           (c) a defendant in any such suit as is referred to in clause
                (b), may, in addition to any other defence open to him,
                ask for rectification of the instrument.
 
      (2) If,  in any  suit in  which a contract or other instrument is
 sought to be rectified under sub-section (1), the court finds that the
 instrument, through  fraud or  mistake,  does  not  express  the  real
 intention of  the parties,  the court  may, in  its discretion, direct
 rectification of  the instrument  so as  to express that intention, so
 far as  this can be done without prejudice to rights acquired by third
 persons in good faith and for value.
 
      (3) A contract in writing may first be rectified, and then if the
 party claiming  rectification has  so prayed  in his  pleading and the
 court thinks fit, may be specifically enforced.
 
      (4) No  relief for  the rectification  of an  instrument shall be
 granted  to   any  party   under  this  section  unless  it  has  been
 specifically claimed:
 
      Provided that  where a  party has  not claimed any such relief in
 his pleading,  the court  shall, at any stage of the proceeding, allow
 him to  amend the  pleading on such terms as may be just for including
 such claim.
 
  
 CHAP
  
 RESCISSION OF CONTRACTS
  
 
                               CHAPTER IV
 
                        RESCISSION OF CONTRACTS
 
  
 27.
  
 When rescission may be adjudged or refused.
  
 
      27. When  rescission may  be adjudged  or refused.-(1) Any person
 interested in  a contract  may sue  to have  it  rescinded,  and  such
 rescission may be adjudged by the court in any of the following cases,
 namely:-
 
           (a) where  the contract  is voidable  or terminable  by  the
                plaintiff;
 
           (b) where  the contract  is unlawful for causes not apparent
                on its face and the defendant is more to blame than the
                plaintiff.
 
 629
 
      (2) Notwithstanding  anything contained  in sub-section  (1), the
 court may refuse to rescind the contract-
 
           (a) where  the plaintiff has expressly or impliedly ratified
                the contract; or
 
           (b) where,  owing to  the change  of circumstances which has
                taken place since the making of the contract (not being
                due to  any act  of the defendant himself), the parties
                cannot be  substantially restored  to the  position  in
                which they stood when the contract was made; or
 
           (c) where  third parties have, during the subsistence of the
                contract, acquired  rights in good faith without notice
                and for value; or
 
           (d) where  only a  part of  the contract  is  sought  to  be
                rescinded and  such part is not severable from the rest
                of the contract.
 
      Explanation.-In  this  section "contract",  in  relation  to  the
 territories to  which the  Transfer of Property Act, 1882 (4 of 1882),
 does not extend, means a contract in writing.
 
  
 28.
  
 Rescission in certain circumstances of contracts for the sale or leaseof
 immovable  property, the  specific performance  of which  has  beendecreed.
  
 
      28. Rescission in certain circumstances of contracts for the sale
 or lease  of immovable property, the specific performance of which has
 been decreed.- (1) Where in any suit a decree for specific performance
 of a  contract for  the sale  or lease  of immovable property has been
 made and  the purchaser  or lessee does not, within the period allowed
 by the  decree or  such further period as the court may allow, pay the
 purchase money  or other  sum which  the court has ordered him to pay,
 the vendor or lessor may apply in the same suit in which the decree is
 made, to have the contract rescinded and on such application the court
 may, by  order, rescind the contract either so far as egards the party
 in default or altogether, as the justice of the case may require.
 
      (2) Where  a contract  is rescinded  under sub-section  (1),  the
 court-
 
           (a) shall  direct the  purchaser or  the lessee,  if he  has
                obtained possession of the property under the contract,
                to restore such possession to the vendor or lessor, and
 
           (b) may  direct payment  to the  vendor or lessor of all the
                rents and  profits which have accrued in respect of the
                property from  the date  on  which  possession  was  so
                obtained by  the purchaser  or lessee until restoration
                of possession  to the  vendor or  lessor, and,  if  the
                justice of  the case so requires, the refund of any sum
                paid by the vendee or
 
 630
 
                lessee as  earnest money  or deposit in connection with
                the contract.
 
      (3) If  the purchaser  or lessee pays the purchase money or other
 sum which  he is  ordered to  pay under  the decree  within the period
 referred to  in sub-section (1), the court may, on application made in
 the same suit, award the purchaser or lessee such further relief as he
 may be  entitled to,  including in appropriate cases all or any of the
 following reliefs, namely:-
 
           (a) the  execution of  a proper  conveyance or  lease by the
                vendor or lessor;
 
           (b) the  delivery of  possession, or  partition and separate
                possession, of  the property  on the  execution of such
                conveyance or lease.
 
      (4) No  separate suit  in respect  of any  relief  which  may  be
 claimed under  this section  shall lie  at the  instance of  a vendor,
 purchaser, lessor or lessee, as the case may be.
 
      (5) The  costs of  any proceedings under this section shall be in
 the discretion of the court.
 
  
 29.
  
 Alternative prayer for rescission in suit for specific performance.
  
 
      29. Alternative  prayer  for  rescission  in  suit  for  specific
 performance.- A   plaintiff  instituting   a  suit  for  the  specific
 performance of a contract in writing may pray in the alternative that,
 if the  contract cannot  be specifically enforced, it may be rescinded
 and delivered  up to  be cancelled;  and the  court, if  it refuses to
 enforce the  contract specifically,  may direct it to be rescinded and
 delivered up accordingly.
 
  
 30.
  
 Court may require parties rescinding to do equity.
  
 
      30. Court  may  require  parties  rescinding  to  do  equity.- On
 adjudging the  rescission of  a contract,  the court  may require  the
 party to whom such relief is granted to restore, so far as may be, any
 benefit which  he may  have received  from the other party and to make
 any compensation to him which justice may require.
 
  
 CHAP
  
 CANCELLATION OF INSTRUMENTS
  
 
                               CHAPTER V
 
                      CANCELLATION OF INSTRUMENTS
 
  
 31.
  
 When cancellation may be ordered.
  
 
      31. When cancellation may be ordered.-(1) Any person against whom
 a written  instrument is  void or  voidable, and  who  has  reasonable
 apprehension that  such instrument,  if left outstanding may cause him
 serious injury,  may sue to have it adjudged void or voidable; and the
 court may,  in its  discretion, so  adjudge it  and  order  it  to  be
 delivered up and cancelled.
 
 631
 
      (2) If  the instrument  has  been  registered  under  the  Indian
 Registration Act, 1908 (16 of 1908), the  court shall also send a copy
 of its  decree to  the officer in whose office the instrument has been
 so registered;  and such  officer  shall  note  on  the  copy  of  the
 instrument contained in his books the fact of its cancellation.
 
  
 32.
  
 What instruments may be partially cancelled.
  
 
      32.  What  instruments  may  be  partially  cancelled.- Where  an
 instrument is  evidence of  different rights or different obligations,
 the court  may, in  a proper  case, cancel  it in part and allow it to
 stand for the residue.
 
  
 33.
  
 Power to  require benefit  to be  restored or  compensation to be madewhen
 instrument  is cancelled or is succesfully resisted as being voidor voidable.
  
 
      33. Power to require benefit to be restored or compensation to be
 made when  instrument is cancelled or is succesfully resisted as being
 void or  voidable.-(1) On adjudging the cancellation of an instrument,
 the court  may require  the party  to whom  such relief is granted, to
 restore, so  far as may be any benefit which he may have received from
 the other  party and to make any compensation to him which justice may
 require.
 
      (2) Where  a defendant  successfully  resists  any  suit  on  the
 ground-
 
           (a) that the instrument sought to be enforced against him in
                the suit  is voidable,  the court  may if the defendant
                has received  any benefit under the instrument from the
                other party,  require him to restore, so far as may be,
                such benefit  to that party or to make compensation for
                it;
 
           (b) that  the agreement sought to be enforced against him in
                the suit  is void  by reason  of his  not  having  been
                competent to  contract under  section 11  of the Indian
                Contract Act,  1872 (9 of 1872), the  court may, if the
                defendant has  received any benefit under the agreement
                from the other party, require him to restore, so far as
                may be,  such benefit  to that  party, to the extent to
                which he or his estate has benefited thereby.
 
  
 CHAP
  
 DECLARATORY DECREES
  
 
                               CHAPTER VI
 
                          DECLARATORY DECREES
 
  
 34.
  
 Discretion of court as to declaration of status or right.
  
 
      34. Discretion of court as to declaration of status or right.-Any
 person entitled  to any  legal character,  or to  any right  as to any
 property,  may  institute  a  suit  against  any  person  denying,  or
 interested to  deny, his  title to  such character  or right,  and the
 court may  in its  discretion make therein a declaration that he is so
 entitled, and  the plaintiff need not in such suit ask for any further
 relief:
 
 632
 
      Provided that  no court shall make any such declaration where the
 plaintiff, being  able to  seek further relief than a mere declaration
 of title, omits to do so.
 
      Explanation.-A  trustee  of property  is a  "person interested to
 deny" a  title adverse  to the  title  of  some  one  who  is  not  in
 existence, and for whom, if in existence, he would be a trustee.
 
  
 35.
  
 Effect of declaration.
  
 
      35. Effect  of declaration.-A declaration made under this Chapter
 is binding  only on  the parties to the suit, persons claiming through
 them respectively,  and, where any of the parties are trustees, on the
 persons for whom, if in existence at the date of the declaration, such
 parties would be trustees.
 
  
 PART
  
 PREVENTIVE RELIEF
  
 
                                PART III
 
                           PREVENTIVE RELIEF
 
  
 CHAP
  
 INJUNCTIONS GENERALLY
  
 
                              CHAPTER VII
 
                         INJUNCTIONS GENERALLY
 
  
 36.
  
 Preventive relief how granted.
  
 
      36. Preventive  relief how  granted.-Preventive relief is granted
 at the discretion of the court by injunction, temporary or perpetual.
 
  
 37.
  
 Temporary and perpetual injunctions.
  
 
      37.  Temporary   and   perpetual   injunctions.-  (1)   Temporary
 injunctions are  such as  are to  continue until  a specified time, or
 until the  further order  of the court, and they may be granted at any
 stage of  a suit,  and are  regulated by  the Code of Civil Procedure,
 1908 (5 of 1908).
 
      (2) A perpetual injunction can only be granted by the decree made
 at the  hearing and  upon the  merits of  the suit;  the defendant  is
 thereby perpetually  enjoined from  the assertion  of a right, or from
 the commission of an act, which would be contrary to the rights of the
 plaintiff.
 
  
 CHAP
  
 PERPETUAL INJUNCTIONS
  
 
                              CHAPTER VIII
 
                         PERPETUAL INJUNCTIONS
 
  
 38.
  
 Perpetual injunction when granted.
  
 
      38. Perpetual  injunction when  granted.-(1) Subject to the other
 provisions contained  in or  referred to  by this Chapter, a perpetual
 injunction may be granted to the plaintiff to prevent the breach of an
 obligation  existing   in  his   favour,  whether   expressly  or   by
 implication.
 
 633
 
      (2) When  any such  obligation arises  from contract,  the  court
 shall be guided by the rules and provisions contained in Chapter II.
 
      (3) When  the  defendant  invades  or  threatens  to  invade  the
 plaintiff's right to, or enjoyment of, property, the court may grant a
 perpetual injunction in the following cases, namely:-
 
           (a) where  the defendant  is trustee of the property for the
                plaintiff;
 
           (b) where  there exists  no standard  for  ascertaining  the
                actual damage  caused, or  likely to  be caused, by the
                invasion;
 
           (c) where  the invasion  is such  that compensation in money
                would not afford adequate relief;
 
           (d)  where   the  injunction   is  necessary  to  prevent  a
                multiplicity of judicial proceedings.
 
  
 39.
  
 Mandatory injunctions.
  
 
      39. Mandatory  injunctions.-When,  to prevent  the breach  of  an
 obligation, it  is necessary to compel the performance of certain acts
 which the  court is  capable  of  enforcing,  the  court  may  in  its
 discretion grant  an injunction  to prevent  the breach complained of,
 and also to compel performance of the requisite acts.
 
  
 40.
  
 Damages in lieu of, or in addition to, injunction.
  
 
      40. Damages  in lieu  of, or  in addition to, injunction.-(1) The
 plaintiff in  a suit  for perpetual  injunction under  section 38,  or
 mandatory injunction  under section  39, may  claim damages  either in
 addition to,  or in  substitution for,  such injunction  and the court
 may, if it thinks fit, award such damages.
 
      (2) No  relief for  damages shall  be granted  under this section
 unless the plaintiff has claimed such relief in his plaint:
 
      Provided that  where no  such damages  have been  claimed in  the
 plaint, the  court shall,  at any  stage of the proceedings, allow the
 plaintiff to  amend the  plaint on  such terms  as  may  be  just  for
 including such claim.
 
      (3) The  dismissal  of  a  suit  to  prevent  the  breach  of  an
 obligation existing  in favour of the plaintiff shall bar his right to
 sue for damages for such breach.
 
  
 41.
  
 Injunction when refused.
  
 
      41. Injunction when refused.-An injunction cannot be granted-
 
           (a) to  restrain any  person  from  prosecuting  a  judicial
                proceeding pending  at the  institution of  the suit in
                which the
 
 634
 
                injunction  is   sought,  unless   such  restraint   is
                necessary to prevent a multiplicity of proceedings;
 
           (b) to  restrain any  person from instituting or prosecuting
                any proceeding  in a court not subordinate to that from
                which the injunction is sought;
 
           (c) to  restrain any person from applying to any legislative
                body;
 
           (d) to  restrain any  person from instituting or prosecuting
                any proceeding in a criminal matter;
 
           (e) to  prevent the  breach of a contract the performance of
                which would not be specifically enforced;
 
           (f) to  prevent, on  the ground of nuisance, an act of which
                it is not reasonably clear that it will be a nuisance;
 
           (g) to  prevent a  continuing breach  in which the plaintiff
                has acquiesced;
 
           (h)  when   equally  efficacious  relief  can  certainly  be
                obtained by  any other  usual mode of proceeding except
                in case of breach of trust;
 
           (i) when the conduct of the plaintiff or his agents has been
                such as  to disentitle  him to  the assistance  of  the
                court;
 
           (j) when  the plaintiff  has no  personal  interest  in  the
                matter.
 
  
 42.
  
 Injunction to perform negative agreement.
  
 
      42. Injunction  to perform  negative  agreement.- Notwithstanding
 anything contained  in clause  (e) of  section 41,  where  a  contract
 comprises an affirmative agreement to do a certain act, coupled with a
 negative agreement,  express or  implied, not to do a certain act, the
 circumstance that  the court  is unable to compel specific performance
 of the  affirmative agreement  shall not  preclude it from granting an
 injunction to perform the negative agreement:
 
      Provided that  the  plaintiff  has  not  failed  to  perform  the
 contract so far as it is binding on him.
 
  
 43.
  
 [Repealed.]
  
 
      43. [Amendment of Act 10 of 1940.] Rep. by Act 56 of 1974, s. 2
 and Sch. I.
 
  
 44.
  
 [Repealed.]
  
 
      44. [Repeal] Rep. by s. 2 and Sch. I, ibid.