3.

Interpretation-clause: In this Act, unless there be something repugnant in

the subject or context, “obligation" includes every duty enforceable by law:
"trust" includes every species of express, implied, or constructive fiduciary
ownership:
"trustee" includes every person holding, expressly, by implication, or
constructively, a fiduciary character.
4. Savings: Except where it is herein otherwise expressly enacted, nothing in
this Act shall be deemed-
(a) to give any right to relief in respect of any agreement which is not a
contract;
(b) to deprive any person of any right to relief, other than specific
performance, which he may have under any contract; or
(c) to affect the operation of the Registration Act, 1908] on documents.
5. Specific relief how given: Specific relief is given
(a) by taking possession of certain property and delivering it to a claimant;
(b) by ordering a party to do the very act which he is under an obligation to
do;
(c) by preventing a party from doing that which he is under an obligation not
to do;
(d) by determining and declaring the rights of parties otherwise than by an
award of compensation; or
(e) by appointing a receiver.
6. Preventive relief: Specific relief granted under clause (c) of section 5 is
called preventive relief.
7. Relief not granted to enforce penal law: Specific relief cannot be granted
for the mere purpose of enforcing a penal law.
8. Recovery of specific immoveable property: A person entitled to the
possession of specific immoveable property may recover it in the manner
prescribed by the Code of Civil Procedure.
9. Suit by person dispossessed of immoveable property: If any person is
dispossessed without his consent of immoveable 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.
Nothing in this section shall bar any person from suing to establish his title to
such property and to recover possession thereof.
No suit under this section shall be brought against the Government.
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.
10. Recovery of specific moveable property: A person entitled to the
possession of specific moveable property may recover the same in the manner
prescribed by the Code of Civil Procedure.
Explanation 1 - A trustee may sue under this section for the possession of
property to the beneficial interest in which the person for whom he is trustee is
entitled.
Explanation 2 - A special or temporary right to the present possession of
property is sufficient to support a suit under this section.
11. Liability of person in possession, not as owner to deliver to person
entitled to immediate possession: Any person having the possession or
control of a particular article of moveable 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 claimant;
(b) when compensation in money would not afford the claimant 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 claimant.
12. Cases in which specific performance 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 the act agreed to be done is in the performance, wholly or partly, of a
trust;
(b) when there exists no standard for ascertaining the actual damage caused by
non-performance of the act agreed to be done;
(c) when the act agreed to be done is such that pecuniary compensation for its
non-performance would not afford adequate relief; or
(d) when it is probable that pecuniary compensation cannot be got for the non-
performance of the act agreed to be done.
Explanation - Unless and until the contrary is proved, the Court shall presume
that the breach of a contract to transfer immoveable property cannot be
adequately relieved by compensation in money, and that the breach of a
contract to transfer moveable property can be thus relieved.
13. Contract of which the subject has partially ceased to exist:
Notwithstanding anything contained in section 56 of the Contract Act, a
contract is not wholly impossible of performance because a portion of its
subject-matter, existing at its date, has ceased to exist at the time of the
performance.
14. Specific performance of part of contract where part unperformed is
small: 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.
15. Specific performance of part of contract where part unperformed is
large: 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 forms a considerable portion
of the whole, or does not admit compensation in money, 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, provided that the plaintiff relinquishes
all claim to further performance, and all right to compensation either for the
deficiency, or for the loss or damage sustained by him through the default of
the defendant.
16. Specific performance of independent part of contract: 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.
17. Bar in other cases of specific performance of part of contract: The
Court shall not direct the specific performance of a part of a contract except in
cases coming under one or other of the three last preceding sections.
18. Purchaser's rights against vendor with imperfect title: Where a person
contracts to sell or let certain property, having only an imperfect title thereto,
the purchaser or lessee (except as otherwise provide by this Chapter) has the
following rights:
(a) if the vendor or lessor has subsequently to the sale or lease 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 to validate the title,
and they are bound to convey at the vendor's or lessor's request, the purchaser
or lessee may compel him to procure such concurrence;
(c) where the vendor professes to sell unincumbered 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 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 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 of the
vendor or lessor in the property agreed to be sold or let.
19. Power to award compensation in certain cases: Any person suing for the
specific performance of a contract may also ask for compensation for its
breach, either in addition to, or in substitution for, such performance.
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 plaintiff is entitled to compensation for that breach,
it shall award him compensation accordingly.
If in any such suit the Court decides that specific performance ought to be
granted, but that it 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. Compensation
awarded under this section may be assessed in such manner as the Court may
direct.
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.
20. Liquidation of damages not a bar to specific performance: A contract,
otherwise proper to be specifically enforced, may be thus 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.
21. Contracts not specifically enforceable: The following contracts cannot
be specifically enforced:–
(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 the terms of which the Court cannot find with reasonable
certainty;
(d) a contract which is in its nature revocable;
(e) a contract made by trustees either in excess of their powers or in breach of
their trust;
(f) a contract made by or on behalf of a corporation or public company created
for special purposes, or by the promoters of such company, which is in excess
of its powers;
(g) a contract the performance of which involves the performance of a
continuous duty extending over a longer period than three years from its date;
(h) a contract of which a material part of the subject- matter, supposed by both
parties to exist, has, before it has been made, ceased to exist.
21A. Unregistered contract for sale not specifically enforceable:
Notwithstanding anything to the contrary contained in this Act or any other
law for the time being in force, no contract for sale of any immovable property
can be specifically enforced unless–
(a) the contract is in writing and registered under the Registration Act 1908,
whether or not the transferee has taken possession of the property or any part
thereof; and
(b) the balance amount of consideration of the contract is deposited in the
court at the time of filing the suit for specific performance of the contract.
22. Discretion as to decreeing specific performance: 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 arbitrary but sound and reasonable, guided by judicial principles
and capable of correction by a Court of appeal.
The following are cases in which the Court may properly exercise a discretion
not to decree specific performance:
I. Where the circumstances under which the contract is made are such as to
give the plaintiff an unfair advantage over the defendant, though there may be
no fraud or misrepresentation on the plaintiff's part.
II. 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.
III. Where the plaintiff has done substantial acts or suffered losses in
consequence of a contract capable of specific performance.
23. 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 or
his principal shall not be entitled to specific performance of the contract,
unless where his part thereof has already been performed;
(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 public company has entered into a contract and subsequently
becomes amalgamated with another public company, the new company which
arises out of the amalgamation;
(h) when the promoters of a public 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.
24. Personal bars to the relief: Specific performance of a contract cannot be
enforced in favour of a person
(a) who could not recover compensation for its breach;
(b) who has become incapable of performing, or violates, any essential term of
the contract that on his part remains to be performed;
(c) who has already chosen his remedy and obtained satisfaction for the
alleged breach of contract; or
(d) who, previously to the contract, had notice that a settlement of the subject
matter thereof (though not founded on any valuable consideration) had been
made and was then in force.
25. Contracts to sell property by one who has no title, or who is a
voluntary settler: A contracts for the sale or letting of property, whether
moveable or immoveable, 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 same;
(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;
(c) who, previous to entering into the contract, has made a settlement (though
not founded on any valuable consideration) of the subject-matter of the
contract.
26. 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 cannot obtain the performance sought, except with the
variation so set up, in the following cases (namely):
(a) where by fraud or mistake of fact the contract of which performance is
sought is in terms different from that which the defendant supposed it to be
when he entered into it;
(b) where by fraud, mistake of fact, or surprise the defendant entered into the
contract under a reasonable misapprehension as to its effect as between
himself and the plaintiff;
(c) where the defendant, knowing the terms of the contract and understanding
its effect, has entered into it relying upon some misrepresentation by the
plaintiff, or upon some stipulation on the plaintiff's part, which adds to the
contract, but which he refuses to fulfil;
(d) where the object of the parties was to produce a certain legal result, which
the contract as framed is not calculated to produce;
(e) where the parties have, subsequently to the execution of the contract,
contracted to vary it.
27. 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 public company has entered into a contract and subsequently
becomes amalgamated with another public company, the new company which
arises out of the amalgamation;
(e) when the promoters of a public company have, before its incorporation,
entered into a contract, the company: provided that the company has ratified
and adopted the contract and the contract is warranted by the terms of the
incorporation.
27A. Specific performance in case of part performance of contract to
lease: Subject to the provisions of this Chapter, where a contract to lease
immoveable property is made in writing signed by the parties thereto or on
their behalf, either party may, notwithstanding that the contract, though
required to be registered, has not been registered, sue the other for specific
performance of the contract if,
(a) where specific performance is claimed by the lessor, he has delivered
possession of the property to the lessee in part performance of the contract;
and
(b) where specific performance is claimed by the lessee, he has, in part
performance of the contract, taken possession of the property, or, being
already in possession, continues in possession in part performance of the
contract, and has done some act in furtherance of the contract:
Provided that nothing in this section shall affect the rights of a transferee for
consideration who has no notice of the contract or of the part performance
thereof.
This section applies to contracts to lease executed after the first day of April,
1930.
28. What parties cannot be compelled to perform: Specific performance of
a contract cannot be enforced against a party thereto in any of the following
cases:
(a) if the consideration to be received by him is so grossly inadequate, with
reference to the state of things existing at the date of the contract, as to be
either by itself or coupled with other circumstances evidence of fraud or of
undue advantage taken by the plaintiff;
(b) if his assent was obtained by the misrepresentation (whether wilful or
innocent), concealment, circumvention or unfair practices, of any party to
whom performance would become due under the contract, or by a promise of
such party which has not been substantially fulfilled;
(c) if his assent was given under the influence of mistake of fact,
misapprehension or surprise: Provided that, when the contract provides for
compensation in case of mistake, compensation may be made for a mistake
within the scope of such provision, and the contract may be specifically
enforced in other respects if proper to be so enforced.
29. Bar of suit for breach after dismissal: 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.
30. Application of preceding sections to awards and testamentary
directions to execute settlements: The provisions of this Chapter as to
contracts shall, mutatis mutandis, apply to awards and to directions in a will or
codicil to execute a particular settlement.
31. When instrument may be rectified: When, through fraud or a mutual
mistake of the parties, a contract or other instrument in writing does not truly
express their intention, either party, or his representative in interest, may
institute a suit to have the instrument rectified; and if the Court find it clearly
proved that there has been fraud or mistake in framing the instrument, and
ascertain the real intention of the parties in executing the same, the Court may
in its discretion rectify 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.
32. Presumption as to intent of parties: For the purpose of rectifying a
contract in writing, the Court must be satisfied that all the parties thereto
intended to make an equitable and conscientious agreement.
33. Principles of rectification: In rectifying a written instrument, the Court
may inquire what the instrument was intended to mean, and what were
intended to be its legal consequences, and is not confined to the inquiry what
the language of the instrument was intended to be.
34. Specific enforcement of rectified contract: A contract in writing may be
first rectified and then, if the plaintiff has so prayed in his plaint and the Court
thinks fit, specifically enforced.
35. When rescission may be adjudged: Any person interested in a contract in
writing 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 viodable 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;
(c) where a decree for specific performance of a contract of sale, or of a
contract to take a lease, has been made, and the purchaser or lessee makes
default in payment of the purchase-money or other sums which the Court has
ordered him to pay.
When the purchaser or lessee is in possession of the subject-matter, and the
Court finds that such possession is wrongful, the Court may also order him to
pay to the vendor or lessor the rents and profits, if any, received by him as
such possessor.
In the same case, the Court may, by order in the suit in which the decree has
been made and not complied with, rescind the contract, either so far as regards
the party in default, or altogether as the justice of the case may require.
36. Rescission for mistake: Rescission of a contract in writing cannot be
adjudged for mere mistake, unless the party against whom it is adjudged can
be restored to substantially the same position as if the contract had not been
made.
37. 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.
38. Court may require party rescinding to do equity: On adjudging the
rescission of a contract, the Court may require the party to whom such relief is
granted to make any compensation to the other which justice may require.
39. When cancellation may be ordered: Any person against whom a written
instrument is void or voidable, who has reasonable apprehension that such
instrument, if left outstanding, may cause him serious injury, may sue to have
it adjudged void or viodable; and the Court may, in its discretion, so adjudge it
and order it to be delivered up and cancelled.
If the instrument has been registered under the Registration Act, 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.
40. 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.
41. Power to require party for whom instrument is cancelled to make
compensation: On adjudging the cancellation of an instrument, the Court may
require the party to whom such relief is granted to make any compensation to
the other which justice may require.
42. Discretion of Court as to declaration of status or right Bar to such
declaration: 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:
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.
43. 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.
44. Appointment of receivers discretionary Reference to Code of Civil
Procedure: The appointment of a receiver pending a suit is a matter resting in
the discretion of the Court.
The mode and effect of his appointment, and his rights, powers, duties and
liabilities, are regulated by the Code of Civil Procedure.
52. Preventive relief how granted: Preventive relief is granted at the
discretion of the Court by injunction, temporary or perpetual.
53. Temporary injunctions: Temporary injunctions are such as are to
continue until a specified time, or until the further order of the Court. They
may be granted at any period of a suit, and are regulated by the Code of Civil
Procedure 1908 (V of 1908).
Perpetual injunctions: 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.
54. Perpetual injunctions when granted: Subject to the other provisions
contained in, or referred to by, this Chapter, a perpetual injunction may be
granted to prevent the breach of an obligation existing in favour of the
applicant, whether expressly or by implication.
When such obligation arises from contract, the Court shall be guided by the
rules and provisions contained in Chapter II of this Act.
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 pecuniary compensation would not afford
adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the
invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial
proceedings.
Explanation - For the purpose of this section a trademark is property.
55. 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.
56. Injunction when refused: An injunction cannot be granted
(a) to stay a judicial proceeding pending at the institution of the suit in which
the injunction is sought, unless such restraint is necessary to prevent a
multiplicity of proceedings;
(b) to stay proceedings in a Court not subordinate to that from which the
injunction is sought;
(c) to restraint persons from applying to any legislative body;
(d) to interfere with the public duties of any department of the Government, or
with the sovereign acts of Foreign Government; (e) to stay proceedings in any
criminal matter;(f) to prevent the breach of a contract the performance of
which would not be specifically enforced;
(g) to prevent, on the ground of nuisance, an act of which it is not reasonably
clear that it will be a nuisance;
(h) to prevent a continuing breach in which the applicant has acquiesced;
(i) when equally efficacious relief can certainly be obtained by any other usual
mode of proceeding except in case of breach of trust;
(j) when the conduct of the applicant on his agents has been such as to
disentitle him to the assistance of the Court;
(k) where the applicant has no personal interest in the matter.
57. Injunction to perform negative agreement: Notwithstanding section 56,
clause (f), 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 applicant has not failed
to perform the contract so far as it is binding on him.