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Large number of remedial aspects of law have been taken care of by the Specific
Relief Act of 1963. This act is a replacement of the earlier Act of 1877. A mere
declaration of rights and duties is not sufficient to give protection to life and
property. Enumeration of rights and duties must be supplemented by legal devices
which can help the individual to enforce his rights. Every person who is injured in
the social process must have a social redress. Only then it will be possible to say
that human societies have been so organized as to assure that wherever there is a
wrong there must be a remedy. This is the mission of this Act.
Generally , remedies are also provided by the branch of substantive law which
defines rights and duties for its own purposes. The law of contract provides the
remedy for breach of contract. The law of torts similarly provides for recovery of
damages in several cases of tortuous wrongs.
Substantive laws however can never affords to be exhaustive in terms of their
remedies and reliefs. Such act does not confer any rights in itself. It only provides a
specific relief so as to remedy the violation of a legal rights. Act not Exhaustive
Though the Act widens the sphere of the civil court, its preamble shows that the act
is not exhaustive of all kinds of specific reliefs. The Act is not restricted to specific
performance of contracts as the statute governs powers of the court in granting
specific reliefs in a variety of fields. Even so the Act does not cover all specific
reliefs conceivable.
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Remedies provided in specific relief Act 1963
Recovery of Possession of Property
Specific performance of contracts
Rectification and cancellation of Instruments and Rescission of Contract
Preventive relief (injunction)
Declaratory relief
Following are the relief allowed by the Act falls under the following outlines-
Recovery of Possession of Property
Sections 5 to 7 of the Act contained provisions regarding recovery of possession of
property. It include both immovable property (Section 5) and movable property
(Section 7). Any person having right of possession of the property can recover it by
the application of provisions of Code of Civil Procedure. Section 6 prevents a
person from possessing immovable property of another without his consent
otherwise than by due process of law, without considering the question of title. A
suit for recovery of such property under S.6 cannot be filed against the
Government.
Section 5: I. When a cloud is raised over a persons title and he does not have a
possession, a Suit for declaration and possession, with or without a consequential
injunction is the remedy;
I. Where a persons title is not in dispute but he is out of possession, he has to
sue for possession and consequential injunction;
II. Where there is merely an interference with a persons lawful possession or
where there is a threat of dispossession, it is sufficient to sue for an
injunction simpliciter.1
In a Suit under this Section, the title of both the parties can be gone into and
considered by the court; but the possession claimed by the party should be juridical,
which is recognized by law as such. For example, a Servant or an agent may have
possession of property against strangers, but not against his mater or principal, for
he holds on behalf of the latter.2
Previous possession where it is juridical affords evidence of title and where the
1AnathulaSudhakarvPBuchyReddy,AIR2008SC2033.
2SobhavRamPhal,AIR1957.
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defendant is a trespasser and the Plaintiff is in continuous and peaceful possession,
he is entitled to retain such possession.
Where there is prima facie and clear proof of dispossession the Court can order
restoration at interlocutory stage of the Suit but it should be done on rarest case.3
Possession means the physical possibility of a person dealing with a property as he
likes and not mere physical possession.4; In other words, not merely physical
contact, but also a possibility of the person dealing with a thing exclusively
constitutes possession. It is not necessary that the person possessing should have
actual physical contact.
3JivanbhaivBhavanji,AIR1995Guj92.
4BahadurChandvNainaMal25IC35
5BabuKhanvNazimKhan,AIR2001SC1740(1744).
6SaraswativBrindaban,AIR1972
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grantee, the grantee cannot claim to proceed under this Section and recover his
previous possession. As against third parties, grantees possession is good, but as
against the grantor it is precarious and does not give a legal right so long as the
exercise of the right of resumption remains a valid right.
But a wrong doer by committing an act of trespass cannot maintain a possessory
action, if he is in the meantime turned out. 7 The reason is that the wrong doer never
acquires juridical or juristic possession.
Where Suit is brought by dispossessed Plaintiff not against the person who
dispossessed him but against who was made to occupy the property, the Suit is
maintainable.
Where previous possession of person claiming relief is in dispute, the injunction
should not be granted and court should attribute possession to person with better
title.8
7DamayanthivTheyyan,AIR1979.
8TajulIslamvSMSheikh,AIR1995.
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one of the important aspect of civil right is the fulfillment of the expectations
created by a contract voluntarily made by the parties. Contract is not just an isolated
transaction. It is often link in a chain of several contracts. A failure at one place can
cause a serious dislocation of economic social life. the contract must be enforced.
The only way the law of contract can enforce a contract is by awarding
compensation to the injured person. This is an equitable relief granted by the court
to perform the contract when there is a breach of the same. Courts jurisdiction to
grant specific performance is only discretionary and Section 14 of the Act
enumerated certain circumstances under which the suit for specific performance
will be rejected. This important function is undertaken by the Second Chapter of
this Act.
9KishanChandvSitaRam,AIR2005.
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imperfect title:
Section 16: Personal bars to relief: The conduct of the party applying for relief
is always an important element for consideration.
Section 17: Contracts to Sell or let property by one who has no title not
specifically enforceable
Where the Seller to his knowledge, has not got what he contracted to sell, he has no
equity to enforce against the purchaser.
Section 19: Relief against parties and persons claiming under them by
subsequent title.
This section provides the categories of persons against whom specific performance
of a contract may be enforced.
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awarded on the basis that the contract is dead.
The common law damages for breach of contract and the damages by way of
specific relief u/s 21 of the Specific Relief Act, 1963 are totally different in nature
and character. In a claim for damages for breach of contract, the Plaintiff comes to
the court with a case that the contract is no longer subsisting. The court has a free
hand in the matter of the assessment of compensation, but the court is to be guided
by the principles specified in Section 73 of the Contract Act, 1872.
Compensation is given for any loss and damages caused by the breach to the
promisee, the losses which naturally arose in the usual course of things from such
breach, or which the parties knew when they made the contract to be likely to result
from the breach of it. A person can only be held responsible for such consequences,
as may be reasonably supposed to be in the contemplation of the parties at the time
of making the contract.10
A Seller of immovable property guarantees his title to the purchaser and when the
purchaser is evicted of the said purchased property, the purchaser is entitled to
recover by way of damages the value of the immovable property at the date of such
eviction, and not merely the purchase money he has paid.11
The obligations of Seller and the buyer of immovable property are set forth in
Section 55 of the Transfer of Property Act, 1888. While proceeding upon the
principle that the purchase money belongs to the vendor and the land to the vendee,
it can be said that the vendor may claim interest on this money and the vendee can
claim rent and profits of the land.
Where nothing appears to occasion the delay, the rule is that if the purchaser who
on the face of the contact is under the necessity of paying on a certain day, sets
apart his money, and gives notice that it is ready, interest stops from that time,
provided it be shown that he made no interest on it.
But a purchaser who takes possession before completion must pay interest on the
unpaid part of the purchase money. The act of taking possession is an implied
agreement to pay interest. For, so absurd an agreement as that a purchaser is to
receive the rents and profits to which he has no legal title, and the vendor is not to
have the interest, as he has no legal title to the money, can never be implied.
Courts can take judicial notice of rise in prices of land, when granting damages in a
10HadleyvBaxendale(1854).
11NagardasvAhmedKhan
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Suit for specific performance of an agreement to sell land.12
Compensation against subsequent purchaser: If the court comes to the conclusion
that the subsequent purchaser has colluded with the Seller defendant, to defeat the
rights of the purchaser, in such cases the court has powers to direct the subsequent
purchaser to pay compensation to the first purchaser.
Section 24: Bar of Suit for compensation for breach after dismissal of Suit for
specific performance:
Where the Suit for specific performance of a contract of sale by the purchaser who
has paid part of the sale price in advance, is dismissed on the ground that he himself
was in the breach, his subsequent Suit for refund of the amount paid is not barred.
Section 25: Application of preceding sections to certain Awards and
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testamentary directions to execute settlements.
Recession of Contracts:
Where consent to an agreement is caused by coercion, fraud or mistake or
misrepresentation, the agreement is a contract voidable at the option of the party
whose consent was so caused. On the other hand where both the parties to an
agreement are under a mistake of fact essential to the agreement, the agreement is
void.
A person who fails to obtain specific performance of a contract, may get it
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rescinded and delivered up to be cancelled.
If the defrauded party chooses to sue, three remedies are open to him, namely
He may rescind the contract absolutely and sue to recover the consideration
parted with upon the fraudulent contract; or
He may bring an action to rescind the contract and in that action have full
relief; or
He may retain what he has received and bring an action to recover the
damages sustained.
An examination of this section shows that the relief of rescission may be asked for
in respect of contracts, whether in writing or not, wherever transfer of property Act
is in force; and in respect of written contracts only on other places, and it may be
asked for in the following classes of cases:
Voidable contracts;
Terminable contracts;
Unlawful contracts;
Void contracts.
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written instruments have become void, courts interpose to prevent injustice or
hardship and will decree a delivery and cancellation of the instrument.
Section 32: what instruments may be partially cancelled: the court is not
bound to annul the whole of the instrument impugned, but may in its
discretion, allow a part of it to stand, if it is evidence of different rights or
different obligations.
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Preventive Relief (Injunction)
There are cases which the nature of the contract does not admit of specific
performance, nor are damages likely to serve any purpose. In such cases the court
may have to restrain the party threatening breach, to the extent to which it is
possible to do so. This type of remedy is known as preventive relief. It is granted by
issuing an order, known as injunction, upon the party concerned directing to him
not to do a particular act or asking him to perform a particular duty, known as
mandatory injunction.
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injunction, if granted, would inflict upon the defendant.
In the exercise of sound discretion, an injunction will not be granted where
There is no evidence, that the defendant has done, or threatens to do, anything,
which would interfere with the enjoyment of any right vested in the Plaintiff;
The invasion of the right, if any, of the Plaintiff, is of a theoretical or trivial
character, which would at most, give the Plaintiff a right to claim nominal damages;
The injunction would inflict far more injury on the defendant than the advantage
which the Plaintiff could derive from it.
Declaratory Relief
Occasionally it may happen that a person is entitled to some status or character or
has a right in some property, but there are persons who are denying him the
enjoyment of his right. He is allowed by Chapter VI of this Act. The court may
issue a general declaration as to his entitlement to such rights.
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Refrences:-
www.hrdiap.gov.in/87fc/study_meterial/law/L-9%20Dr.GK.ppt
https://indiankanoon.org/doc/1671917
https://en.wikipedia.org/wiki/Specific_Relief_Act_1963
commonlaw-sandeep.blogspot.com/.../specific-relief-act-1963-quick-
summary.html
www.lawctopus.com/academike/equitable-remedies/
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