SPECIFIC RELIEF ACT 1963

THE SPECIFIC RELIEF ACT, 1963

ACT No. 47 OF 1963

13th December, 1963

An Act to define and amend the law relatingto certain kinds of specific relief

BE it enacted by Parliament in theFourteenth Year of the Republicof India as follow: –

PART I

PRELIMINARY

1.Short title, extent and commencement: (1) This Act may be called theSpecific 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 1as the Central Government may, by notification in the Official Gazette,appoint.

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1. 1-3-1964 – Vide Notification No. S. O. 189, dated 13-1-1964, Gazette of India Part II Section 3(ii), p.214.

2.Definitions: In this Act, unless the context otherwise requires, –

(a) "obligation"includes every duty enforceable by law;

(b) "Settlement" 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 interestsmovable or immovable property is disposed of or is agreed be disposed of;

(c) "trust"has the same meaning as in section 3 of the Indian Trusts Act, 1882, (2 of1882) and includes an obligation in the nature of a trust within the meaning ofChapter IX of that Act;

(d) "trustee"includes every person holding property in trust;

(e) all otherwords and expression used herein but not defined, and defined in the IndianContract Act 1872, (9 of 1872) have the meanings respectively assigned to themin that Act.

3.Savings: Except as otherwise provided herein, nothing in this Act shall bedeemed –

(a) to deprive anyperson of any right to relief, other than specific performance, which he mayhave under any contract; or

(b) to affect theoperation of the Indian Registration Act, 1908, (16 of 1908) on documents.

4.Specific relief to be granted only for enforcing individual civil rights andnot for enforcing penal laws: Specific relief can be granted only of thepurpose of enforcing individual civil rights and not for the mere purpose ofenforcing a penal law.

PART II

SPECIFIC RELIEF

CHAPTER I

RECOVERING POSSESSION OF PROPERTY

5.Recovery of specific immovable property: A person entitled to the possessionof specific immovable property may it in the manner provided by the Code ofCivil Procedure, 1908 (5 of 1908).

6.Suit by person dispossessed of immovable property: (1) If any person isdispossessed without his consent of immovable property otherwise than in duecourse of law, he or any person claiming through him may, by suit, recoverpossession thereof, notwithstanding any other title that may be set up in suchsuit.

(2) No suit under this section shall bebrought –

(a) after theexpiry of six month from the date of dispossession; or

(b) against theGovernment.

(3) No appeal shall lie from any order ordecree passed in any suit instituted under his section, nor shall any review ofany such order or decree be allowed.

(4) Nothing in this section shall bar anyperson from suing to establish his title to such property and to recoverpossession thereof.

7.Recovery of specific movable property: A person entitled to the Possessionof specific movable property may recover it in the manner provided by the Codeof Civil Procedure, 1908 (5 of 1908).

Explanation 1: A trustee may sue under thissection for the possession of movable property to the beneficial interest inwhich the person for whom he is trustee is entitled.

Explanation 2: A special or temporary rightto the present possession of movable property is sufficient to support a suitunder this section.

8.Liability of person in possession, not asowner, to deliver to persons entitled to immediate possession: Any personhaving the possession or control of a particular session of movable property issufficient to support a suit under this compelled specifically to deliver it tothe person entitled to its immediate possession, in any of the following cases:-

(a) when the thingclaimed is held by the defendant as the agent or trustee of the plaintiff;

(b) whencompensation in money would not afford the plaintiff adequate relief for theloss of the thing claimed;

(c) when it wouldbe extremely difficult to ascertain the actual damage caused by its loss;

(d) when thepossession in the thing claimed has been wrongfully transferred from theplaintiff.

Explanation: Unless and until the contraryis proved, the court shall, in respect of any article of movable propertyclaimed under clause (b) or clause (c) of this section, presume –

(a) thatcompensation in money would not afford the plaintiff adequate relief for theloss the thing claimed, or, as the case may be;

(b) that it wouldbe extremely difficult to ascertain the actual damages caused by its loss.

CHAPTER II

SPECIFIC PERFORMANCE OF CONTRACTS

9.Defences respecting suits for relief based on contract: Except as otherwiseprovided herein, where any relief is claimed under this Chapter in respect of acontract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any lawrelating to contracts.

CONTRACTS WHICH CAN BE SPECIFICALLYENFORCED

10.Cases in whichspecific performance of contract enforceable: Except as otherwise provided inthis Chapter, the specific performance of any contract may, in the discretionof the court, be enforced –

(a) when thereexists no standard for ascertaining actual damage caused by the non-performanceof the act agreed to be done; or

(b) when the actagreed to be done in such that compensation in money for its non-performance wouldnot afford adequate relief.

Explanation: Unless and until the contraryis proved, the court shall presume –

(i) that thebreach of a contract to transfer immovable property cannot be adequatelyrelieved by compensation in money; and

(ii) that the breachof a contract to transfer movable property can be so relieved except in thefollowing cases: –

(a) where theproperty is not an ordinary article of commerce, or is of special value orinterest to the plaintiff, or consists of goods which are not easily obtainablein the market;

(b) where theproperty is held by the defendant as the agent or trustee of the plaintiff.

11.Cases in which specific performance ofcontracts connected with trusts enforceable: (1) Except as otherwise providedin this Act, specific performance of a contract may, in the discretion of thecourt, be enforced when the act agreed to be done is in the performance whollyor partly of a trust.

(2)A contract made by a trustee in excess of his powers or in breach of trustcannot be specifically enforced.

12.Specificperformance of part of contract: (1) Except as otherwise hereinafter providedin this section the court shall not direct the specific performance of a partof a contract.

(2) Where a party to a contract is unableto perform the whole of his part of it, but the part which must be leftunperformed be a only a small proportion to the whole in value and admits ofcompensation in money, the court may, at the suit of either party, direct thespecific performance of so much of the contract as can be performed; and awardcompensation in money for the deficiency.

(3) Where a party to a contract is unableto perform the whole of his part of it, and the part which must be leftunperformed either –

(a) forms a considerable part of the whole,though admitting of compensation in money; or

(b) does not admit of compensation inmoney;

he is not entitled to obtain a decree offor 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 thecontract as he can perform, if the other party –

(i) in a case falling under clause (a), 1[pays or has paid] the agreed consideration for the whole of the contractreduced by the consideration for the part which must be left unperformed and ina case falling under clause (b), the consideration for the whole of thecontract without any abatement; and

(ii) in either case, relinquishes allclaims to the performance of the remaining part of the contract and all rightto compensation, either for the deficiency or for the loss or damage sustainedby him through the default of the defendant.

(4) When a part of a contract which, takenby itself, can and ought to be specifically performed, stands on a separate andindependent footing from another part of the same contract which cannot orought not to be specifically performed, the court may direct specificperformance of the former part.

Explanation: For the purposes of thissection, a party to a contract shall be deemed to be unable to perform thewhole of his part of it if a portion of its subject-matter existing at the dateof the contract has ceased to exist at the time of its performance.

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1. Inserted by the Repealing and AmendingAct, 1964 (52 of 1964) Section 3 and Second Schedule.

13.Rights of purchaser or lessee againstperson with no title or imperfect title: (1) Where a person contracts to sellor let certain immovable property having no title or only an imperfect title,the purchaser or lessee (subject to the other provisions of this Chapter), hasthe following rights, namely: –

(a) if the vendor or lessorhas subsequently to the contract acquired any interest in the property, thepurchaser or lessee may compel him to make good the contract out of suchinterest;

(b) where the concurrence of other personis necessary for validating the title, and they are bound to concur at therequest of the vendor or lessor, the purchaser orlessee may compel him to procure such concurrence and when a conveyance byother persons is necessary to validate the title and they are bound to conveyat the request of the vendor or lessor, the purchaseror lessee may compel him to procure such conveyance;

(c) where she vendor professes to sellunencumbered property, but the property is mortgaged for an amount notexceeding the purchases money and the vendor has in fact only a right to redeemit, she purchaser may compel him to redeem the mortgage and to obtain a validdischarge, and, where necessary, also a conveyance form the mortgagee;

(d) where the vendor or lessorsues for specific performance of the contract and the suit is dismissed on theground of his want title or imperfect title, the defendant has right to areturn of his deposit, if any, with interest thereon, to his costs of the suitand to a lien for such deposit, interest and costs on the interest, if any, ofthe vendor or lesser in the property which is the subject-matter or thecontract.

(2) The provisions of sub-section (1) shallalso apply, as far as may be, to contracts for the sale or hire of movableproperty.

CONTRACTS WHICH CANNOT BE SPECIFICALLYENFORCED

14.Contract not specifically enforceable:(1) The following contracts cannot be specifically enforced, namely: –

(a) a contract for the non-performance ofwhich compensation in money is an adequate relief;

(b) a contract which runs into such minuteor numerous details or which is so dependent on the personal qualifications orvolition of the parties, or otherwise from its nature is such, that the courtcannot enforce specific performance of its material terms;

(c) a contract which is in its naturedeterminable;

(d) a contract the performance of whichinvolves the performance of a continuous duty which the court cannot supervise.

(2) Save as provided by the ArbitrationAct, 1940, (10 of 1940) no contract to refer present of future differences toarbitration shall be specifically enforced; but it any person who has made sucha contract (other than an arbitration agreement to which the provisions of thesaid Act apply) and has refused to perform it, sues in respect of any subjectwhich he has contracted to refer, the existence of such contract shall bar thesuit.

(3) Notwithstanding anything contained inclause (a) or clause (c) or clause (d) of sub-section (1), the court mayenforce specific performance in the following cases: –

(a) where the suit is for the enforcementof a contract, –

(i) to execute a mortgage or furnish anyother security for securing the repayment of any loan which the borrower is notwilling to repay at once:

Provided that where only a part of the loanhas been advanced the lender is willing to advance the remaining part of theloan in terms of the contract; or

(ii) to take up and pay for any debenturesof a company;

(b) where the suit is for, –

(i) the execution of a formal deed ofpartnership, the parties having commenced to carry on the business of thepartnership; or

(ii) the purchase of a share of a partnerin a firm;

(c) where the suit is for the enforcementof a contract for the construction of any building or the execution of anyother work on land:

Provided that the following conditions arefulfilled, namely –

(i) the building or other work is describedin the contract in terms sufficiently precise to enable the court to determinethe exact nature of the building or work;

(ii) the plaintiff has a substantialinterest in the performance of the contract and the interest is of such anature that compensation in money for non-performance of the contract is notadequate relief; and

(iii) the defendant has, in pursuance ofthe contract, obtained possession of the whole or any part of the land on whichthe building is to be constructed or other work is to be executed.

PERSON FOR OR AGAINST WHOM CONTRACTS MAY BESPECIFICALLY ENFORCED

15.Who may obtain specific performance:Except as otherwise provided by this Chapter, the specific performance of acontract may be obtained by –

(a) any party thereto;

(b) the representative in interest or theprincipal, of any party thereto:

Provided that where the learning, skillsolvency or any personal quality of such party is a material ingredient in thecontract, or where the contract provides that his interest shall not beassigned, his representative in interest or his principal shall not be entitledto specific performance his part of the contract, or the performance thereof byhis representative in interest, or his principal, has been accepted by theother party;

(c) where the contract is a settlement onmarriage, or a compromise of doubtful rights between members of the samefamily, any person beneficially entitled thereunder;

(d) where the contract has been enteredinto by a tenant for life in due exercise of a power, the remainder man;

(e) a reversionerin possession, where the agreement is a covenant entered into with hispredecessor in title and the reversioner is entitledto the benefit of such covenant;

(f) a reversionerin remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and willsustain material injury by reason of its breach;

(g) when a company has entered into acontract and subsequently becomes amalgamated with another company, the newcompany 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 thecompany, and such contract is warranted by the terms of the incorporation, thecompany:

Provided that the company has accepted thecontract and has communicated such acceptance to the other party to thecontract.

16.Personal bars to relief: Specificperformance of a contract cannot be enforced in favourof a person –

(a) who would not be entitled to recovercompensation 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 beperformed, or as in fraud of the contract, or willfully 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 hasperformed or has always been ready and willing to perform the essential termsof the contract which are to be performed by him, other than terms theperformance of which has been prevented or waived by the defendant.

Explanation: For the purposes of clause(c), –

(i) where a contract involves the paymentof money, it is not essential for the plaintiff to actually tender to thedefendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performanceof, or readiness and willingness to perform, the contract according to its trueconstruction.

17.Contract to sell or let property by onewho has no title, not specifically enforceable: (1) A contract to sell or letany immovable property cannot be specifically enforced in favourof a vendor or lessor –

(a) who, knowing himself not to have anytitle to the property, has contracted to sell or let the property;

(b) who, though he entered into thecontract believing that he had a good title to the property, cannot at the timefixed 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) shallalso apply, as far as may be, to contracts for the sale or hire of movableproperty.

18.Non-enforcement except with variation:Where a plaintiff seeks specify performance of a contract in writing, to whichthe defendant sets up a variation, the plaintiff cannot obtain the performancesough, except with the variation so set up, in the following case, namely: –

(a) where by fraud, mistake of fact or mis-representation, the written contact of whichperformance is sought is in its terms or effect different from what the partiesagreed to, or does not contain all the terms agreed to between the parties onthe basis of which the defendant entered into the contact;

(b) where the object of the parties was toproduce a certain legal result which the contract as framed is not calculatedto produce;

(c) where the parties have, subsequently tothe execution of the contract, varied its terms.

19.Relief against parties and personsclaiming under them by subsequent title: Except as otherwise provided by thisChapter, specific performance of a contract may be enforced against –

(a) either party thereto;

(b) any other person claiming under him bya title arising subsequently to the contract, except a transferee for value whohas paid his money in good faith and without notice of the original contract;

(c) any person claiming under a titlewhich, though prior to the contract and known to the plaintiff, might have beendisplaced by the defendant;

(d) when a company has entered into acontract and subsequently becomes amalgamated with another company, the newcompany 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 thecompany and such contract is warranted by the terms of the incorporation, thecompany:

Provided that the company has accepted thecontract and communicated such acceptance to the other party to the contract.

DISCRETION AND POWERS OF COURT

20.Discretion as to decreeing specificperformance: (1) The jurisdiction to decree specific performance isdiscretionary, and the court is not bound to grant such relief merely becauseit is lawful to do so; but the discretion of the court is not arbitrary butsound and reasonable, guide by judicial principles and capable of correction bya court of appeal.

(2) The following are cases in which thecourt may properly exercise discretion not to decree specific performance –

(a) where the terms of the contract or theconduct of the parties at the time of entering into the contract or the othercircumstances under which the contract was entered into are such that thecontract, though not voidable, gives the plaintiff an unfair advantage over thedefendant; or

(b) where the performance of the contractwould involve some hardship on the defendant which he did not foresee, whereasits non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into thecontract under circumstances which though not rendering the contract voidable,makes it inequitable to enforce specific performance.

Explanation 1: Mere inadequacy ofconsideration, or the mere fact that the contract is onerous to the defendantor improvident in its nature, shall not be deemed to constitute an unfairadvantage within the meaning of clause (a) or hardship within the meaning ofclause (b).

Explanation 2: The question whether theperformance of a contract would involve hardship on the defendant within themeaning of clause (b) shall, except in cases where the hardship has resulted fromany act of the plaintiff subsequent to the contract, be determined withreference to the circumstances existing at the time of the contract.

(3) The court may properly exercisediscretion to decree specific performance in any case where the plaintiff hasdone substantial acts or suffered losses in consequence of a contract capableof specific performance.

(4) The court shall not refuse to any partyspecific performance of a contract merely on the ground that the contract isnot enforceable at the instance of the other party.

21.Power to award compensation in certaincases: (1) In a suit for specific performance of a contract, the plaintiff mayalso claim compensation for its breach, either in addition to, or insubstitution of, such performance.

(2) If, in any such suit, the court decidesthat specific performance ought not to be granted, but that there is a contractbetween the parties which has been broken by the defendant, and that theplaintiff is entitled to compensation for that breach, it shall award him suchcompensation accordingly.

(3) If, in any such suit, the court decidesthat specific performance ought to be granted, but that it is not sufficient tosatisfy the justice of the case, and that some compensation for breach of thecontract should also be made to the plaintiff, it shall award him suchcompensation accordingly.

(4) In determining the amount of anycompensation awarded under this section, the court shall be guided by theprinciples specified in section 73 of the Indian Contract Act, 1872.

(5) No compensation shall be awarded underthis section unless the plaintiff has claimed such compensation in his plaint:

Provided that where the plaintiff has notclaimed any such compensation in the plaint, the court shall, at any stage of theproceeding, allow him to amend the plaint on such terms as may be just, forincluding a claim for such compensation.

Explanation: The circumstances that thecontract has become incapable of specific performance does not preclude thecourt from exercising the jurisdiction conferred by this section.

22.Power to grant relief for possession,partition, refund of earnest money, etc: (1) Notwithstanding anything to thecontrary contained in the Code of Civil Procedure, 1908, (5 of 1908) any personsuing for the specific performance of a contract for the transfer of immovableproperty may, in an appropriate case, ask for –

(a) possession, or partition and separatepossession, of the property, in addition to such performance; or

(b) any other relief to which he may beentitled, including the refund of any earnest money or deposit paid or 2 [madeby] 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 beenspecifically claimed:

Provident that where the plaintiff has notclaimed any such relief in the plaint, the court shall, at any stage of theproceeding, allow him to amend the plaint on such terms as may be just forincluding a claim for such relief.

(3) The power of the court to grant reliefunder clause (b) of sub-section (1) shall be without prejudice to its powers toaward compensation under section 21.

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1. Substituted for the words "madeto" by the Repealing and Amending Act, 1964 (52 of 1964) Section 3 andSecond Schedule.

23.Liquidation of damages not a bar tospecific performance: (1) A contract, otherwise proper to be specificallyenforced, may be so enforced, though a sum be named in it as the amount to bepaid in case of its breach and the party in default is willing to pay the sum,if the court, having regard to the terms of the contract and other attendingcircumstances,, is satisfied that the sum was named only for the purpose ofsecuring performance of the contract and not for the purpose of giving to theparty in default an option of paying money in lieu of specific performance.

(2) When enforcing specific performanceunder this section, the court shall not also decree payment of the sum so namedin the contract.

24.Bar of suit for compensation for breachafter dismissal of suit for specific performance: The dismissal of a suit forspecific performance of a contract or part thereof shall bar the plaintiff’sright to sue for compensation for the breach of such contract or part, as thecase may be, but shall not bar his right to sue for any other relief to whichhe may be entitled, by reason of such breach.

ENFORCEMENT OF AWARDS AND DIRECTIONS TOEXECUTE SETTLEMENTS

25.Application of preceding sections to certainawards and testamentary directions to execute settlements: The provisions ofthis Chapter as to contracts shall apply to awards to which the ArbitrationAct, 1940, (10 of 1940) does not apply and to directions in a will or codicilto execute a particular settlement.

CHAPTER III

RECTIFICATION OF INSTRUMENTS

26.When instrument may be rectified: (1)When, through fraud or a mutual mistake of the parties, a contract or otherinstrument in writing (not being the articles of association of company to whichthe Companies Act, 1956, (1 of 1956) applies) does not express their realintention, then –

(a) either party or his representative ininterest may institute a suit to have the instrument rectified; or

(b) the plaintiff may, in any suit in whichany right arising under the instrument is in issue, claim in his pleading thatthe instrument be rectified; or

(c) a defendant in any such suit as isreferred to in clause (b), may, in addition to any other defenceopen to him, ask for rectification of the instrument.

(2) If, in any suit in which a contract orother instrument is sough to be rectified under sub-section (1), the courtfinds that the instrument, through fraud or mistake, does not express the realintention of the parties, the court may, in its discretion, directrectification of the instrument so as to express that intention, so far as thiscan be done without prejudice to rights acquired by third persons in good faithand for value.

(3) A contract in writing may first berectified, and then if the party claiming rectification has so prayed in hispleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of aninstrument shall be granted to any party under this section unless it has beenspecifically claimed:

Provided that where a party has not claimedany such relief in his pleading, the court shall, at any stage of theproceeding, allow him to amend the pleading on such terms as may be just forincluding such claim.

CHAPTER IV

RESCISSION OF CONTRACTS

27.When rescission may be adjudged orrefused: (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 orterminable by the plaintiff;

(b) where the contract is unlawful forcauses not apparent on its face and the defendant is more to blame than theplaintiff.

(2) Notwithstanding anything contained insub-section (1), the court may refuse to rescind the contract –

(a) where the plaintiff has expressly orimpliedly ratified the contract; or

(b) where, owing to the change ofcircumstances which has taken place since the making of the contract (not beingdue to any act of the defendant himself), the parties cannot be substantiallyrestored to the position in which they stood when the contract was made; or

(c) where third parties have, during thesubsistence of the contract, acquired rights in good faith without notice andfor value; or

(d) where only a part of the contract issought to be rescinded and such part is not severable from the rest of thecontract.

Explanation: In this section"contract", in relation to the territories to which the Transfer ofProperty Act, 1882, (4 of 1882) does not extend, means a contract in writing.

28.Rescission in certain circumstances ofcontracts for the sale or lease of immovable property, the specific performanceof which has been decreed: (1) Where in any suit a decree for specificperformance of a contract for the sale or lease of immovable property has beenmade and the purchaser or lessee does not, within the period allowed by thedecree or such further period as the court may allow, pay the purchase money orother sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree ismade, to have the contract rescinded and on such application the court may, byorder, rescind the contract either so far as regards the party in default oraltogether, as the justice of the case may require.

(2) Where a contract is rescinded undersub-section (1), the court –

(a) shall direct the purchaser or thelessee, if he has obtained possession of the property under the contract, torestore 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 inrespect of the property from the date on which possession was so obtained bythe purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, therefund of any sum paid by the vendee or lessee as earnest money or deposit inconnection with the contract.

(3) If the purchase or lessee pays thepurchase money or other sum which he is ordered to pay under the decree withinthe period referred to in sub-section (1), the court may, on application madein the same suit, award the purchaser or lessee such further relief as he maybe entitled to, including in appropriate cases all or any of the followingreliefs, namely: –

(a) the execution of a proper conveyance orlease by the vendor or lessor;

(b) the delivery of possession, orpartition and separate possession, of the property on the execution of suchconveyance or lease.

(4) No separate suit in respect of anyrelief which may be claimed under this section shall lie at the instance of avendor, purchaser, lessor or lessee, as the case maybe.

(5) The costs of any proceedings under thissection shall be in the discretion of the court.

29.Alternative prayer for rescission insuit for specific performance: A plaintiff instituting a suit for the specificperformance of a contract in writing may pray in the alternative that, if thecontract cannot be specifically enforced, it may be rescinded and delivered upto be cancelled; and the court, if it refuses to enforce the contractspecifically, may direct it to be rescinded and delivered up accordingly.

30.Court may require parties rescinding todo equity: On adjudging the rescission of a contract, the court may require theparty to whom such relief is granted to restore, so far as may be, any benefitwhich he may have received from the other party and to make any compensation tohim which justice may be require.

CHAPTER V

CANCELLATION OF INSTRUMENTS

31.When cancellation may be ordered: (1)Any person against whom a written instrument is void or voidable, and who hasreasonable apprehension that such instrument, if left outstanding may cause himserious 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 an dcancelled.

(2) If the instrument has been registeredunder the Indian Registration Act, 1908, (16 of 1908) the court shall also senda copy of its decree to the officer in whose office the instrument has been soregistered; and such officer shall note on the copy of the instrument containedin his books the fact of its cancellation.

32.What instruments may be partiallycancelled: Where an instrument is evidence of different rights or differentobligations, the court may, in a proper case, cancel it in part and allow it tostand for the residue.

33.Power to require benefit to be restoredor compensation to be made when instrument is cancelled or is successfullyresisted as being void or voidable: (1) On adjudging the cancellation of aninstrument, the court may require the party to whom such relief is granted, torestore, so far as may be any benefit which he may have received from the otherparty and to make any compensation to him which justice may require.

(2) Where a accident successfully resistsany suit on the ground –

(a) that the instrument sough to beenforced against him in the suit is voidable, the court may if the defendanthas received any benefit under the instrument from the other party, require himto restore, so far as may be, such benefit to that party or to makecompensation for it;

(b) that the agreement sought to beenforced against him in the suit is void by reason of his not having beencompetent to contract under section 11 of the Indian Contract Act, 1872, (9 of1872) the court may, if the defendant has received any benefit under theagreement from the other party, require him to restore, so far as may be, suchbenefit to that party, to the extent to which he or his estate has benefitedthereby.

CHAPTER VI

DECLAMATORY DECREES

34.Discretion of court as to declaration ofstatus or right: Any person entitled to any legal character, or to any right asto any property, may institute a suit against any person denying, or interestto deny, his title to such character or right, and the court may in itsdiscretion make therein a declaration that he is so entitled, and the plaintiffneed not in such suit ask for any further relief:

Provided that no court shall make any suchdeclaration where the plaintiff, being able to seek further relief than a meredeclaration 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 onewho is not in existence, and for whom, if in existence, he would be a trustee.

35.Effect of declaration: A declarationmade under this Chapter is binding only on the parties to the suit, personsclaiming 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, suchparties would be trustees.

PART III

PREVENTIVE RELIEF

CHAPTER VII

INJUNCTIONS GENERALLY

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: (1)Temporary injunctions are such as are to continue until a specified time, oruntil the further order of the court, and they may be granted at any stage of asuit, and are regulated by the Code of Civil Procedure, 1908 (5 of 198).

(2) A perpetual injunction can only begranted by the decree made at the hearing and upon the merits of the suit; thedefendant is thereby perpetually enjoined from the assertion of a right, orfrom the commission of an act, which would be contrary to the rights of theplaintiff.

CHAPTER VIII

PERPETUAL INJUNCTIONS

38.Perpetual injunction when granted: (1)Subject to the other provisions contained in or referred to by this Chapter, aperpetual injunction may be granted to the plaintiff to prevent the breach ofan obligation existing in his favour, whetherexpressly or by implication.

(2) When any such obligation arises fromcontract, the court shall be guided by the rules and provisions contained inChapter II.

(3) When the defendant invades or threatensto invade the plaintiff’s right to, or enjoyment of, property, the court maygrant a perpetual injunction in the following cases, namely: –

(a) where the defendant is trustee of theproperty for the plaintiff;

(b) where there exists no standard forascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) where the invasion is such thatcompensation in money would not afford adequate relief;

(d) where the injunction is necessary toprevent a multiplicity of judicial proceedings.

39.Mandatory injunctions: When, to preventthe breach of an obligation, it is necessary to compel the performance ofcertain acts which the court is capable of enforcing, the court may in itsdiscretion grant an injunction to prevent the breach complained of, and also tocompel performance of the requisite acts.

40.Damages in lieu of, or in addition to,injunction: (1) The plaintiff in a suit for perpetual injunction under section38, or mandatory injunction under section 39, may claim damages either inaddition to, or in substitution for, such injunction and the court may, if itthinks fit, award such damages.

(2) No relief for damages shall be grantedunder this section unless the plaintiff has claimed such relief in his plaint:

Provided that where no such damages havebeen 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 forincluding such claim.

(3) The dismissal of a suit to prevent thebreach of an obligation existing in favour of theplaintiff shall bar his right to sue for damages for such breach.

41.Injunction when refused: An injunctioncannot be granted –

(a) to restrain any person from prosecutinga judicial proceeding pending the institution of the suit in which theinjunction is sought, unless such restraint is necessary to prevent amultiplicity of proceedings;

(b) to restrain any person from institutingor prosecuting any proceeding in a court not subordinate to that from which theinjunction is sought;

(c) to restrain any person from applying toany legislative body;

(d) to restrain any person from institutingor prosecuting any proceeding in a criminal matter;

(e) to prevent the breach of a contract theperformance 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 whichthe plaintiff has acquiesced;

(h) when equally efficacious relief cancertainly be obtained by any other usual mode of proceeding except n case ofbreach of trust;

(i) when the conduct of the plaintiff orhis agents has been such as to disentitle him to the assistance of the court;

(j) when the plaintiff has no personalinterest in the matter.

42.Injunctions to perform negativeagreement: Notwithstanding anything contained in clause (e) of section 41,where a contract comprises an affirmative agreement, express or implied, not todo a certain act, coupled with a negative agreement express or implied, not todo a certain act, the circumstance that the court is unable to compel specificperformance of the affirmative agreement shall not preclude it from granting aninjunction to perform the negative agreement:

Provided that the plaintiff has not failedto perform the contract so far as it is binding on him.

43.Amendment of Act 10 of 1940: 1 [*]

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1. Section 43 repealed by the Repealing andAmending Act, 1974 (56 of 1974) Section 2 and First Schedule.

44.Repeal: **[*]

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1. Section 44 repealed by the Repealing andAmending Act, 1974 (56 of 1974) Section 2 and First Schedule.