Notes on the Specific Relief Act, 1963

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.

The whole Act is very important for PTs and Mains and each of the provision can be asked in theoretical as well as practical application questions. The Topics to study can be clubbed as (1) ‘Of Possession – Section 5 & 6 (immovable) and Section 7 & 8 (movable); (2) specific performance – Chapter-II, Section 9 to 24; (3) Rectification (Section 26), Rescission (Section 27-30) & Cancellation (Section31-33); (4) Declaration (Section 34-35); (5) Injunction (Section 36-42)

1.     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 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).

2.   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 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.

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.

3.   RECTIFICATION, RESCISSION AND 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).

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 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.

4.   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 ……’

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 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.

5.    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 (This question was asked in DJS July 2016 Mains)

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 MANTORY 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.

Section 40 is self-explanatory and Section is not exhaustive, but only inclusive.

CASES

NAME	YEAR	REMARKS
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 Hidayatullah J.	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	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 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