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SPECIFIC RELIEF ACT
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ARRANGEMENT OF SECTIONS
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PART I
PRELIMINARY
SECTIONS
1. Short title, extent and commencement.
2. Definitions.
3. Savings.
4. Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal
laws.
PART II
SPECIFIC RELIEF
CHAPTER I
RECOVERING POSSESSION OF PROPERTY
5. Recovery of specific immovable property.
6. Suit by person dispossessed of immovable property.
7. Recovery of specific movable property.
8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate
possession.
CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS
9. Defences respecting suits for relief based on contract.
Contracts which can be specifically enforced
10. Cases in which specific performance of contract enforceable.
11. Cases in which specific performance of contracts connected with trusts enforceable.
12. Specific performance of part of contract.
13. Rights of purchaser or lessee against person with no title or imperfect title.
Contracts, which cannot be specifically enforced
14. Contracts not specifically enforceable.
Persons for or against whom contracts may be specifically enforced
15. Who may obtain specific performance.
16. Personal bars to relief.
17. Contract to sell or let property by one who has no title, not specifically enforceable.
18. Non-enforcement except with variation.
19. Relief against parties and persons claiming under them by subsequent title.
Discretion and powers of court
20. Discretion as to decreeing specific performance.
21. Power to award compensation in certain cases.
22. Power to grant relief for possession, partition, refund of earnest money, etc.
23. Liquidation of damages not a bar to specific performance.
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SECTIONS
24. Bar of suit for compensation for breach after dismissal of suit for specific performance.
Enforcement of awards and directions to execute settlements
25. Application of preceding sections to certain awards and testamentary directions to execute
settlements.
CHAPTER III
RECTIFICATION OF INSTRUMENTS
26. When instrument may be rectified.
CHAPTER IV
RESCISSION OF CONTRACTS
27. When rescission may be adjudged or refused.
28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the
specific performance of which has been decreed.
29. Alternative prayer for rescission in suit for specific performance.
30. Court may require parties rescinding to do equity.
CHAPTER V
CANCELLATION OF INSTRUMENTS
31. When cancellation may be ordered.
32. What instruments may be partially cancelled.
33. Power to require benefit to be restored or compensation to be made when instrument is cancelled
or is successfully resisted as being void or voidable.
CHAPTER VI
DECLARATORY DECREES
34. Discretion of court as to declaration of status or right.
35. Effect of declaration.
PART III
PREVENTIVE RELIEF
CHAPTER VII
INJUNCTIONS GENERALLY
36. Preventive relief how granted.
37. Temporary and perpetual injunctions.
CHAPTER VIII
PERPETUAL INJUNCTIONS
38. Perpetual injunction when granted.
39. Mandatory injunctions.
40. Damages in lieu of, or in addition to, injunction.
41. Injunction when refused.
42. Injunction to perform negative agreement.
43. [Repealed.]
44. [Repealed.]
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THE SPECIFIC RELIEF ACT, 1963
ACT NO. 47 OF 1963
[13th December, 1963.]
An Act to define and amend the law relating to certain kinds of specific relief.
BE it enacted by Parliament in the Fourteenth Year of the Republic of India as follow:—
PART I
PRELIMINARY
1. Short title, extent and commencement.—(1) This Act may be called the Specific Relief
Act, 1963.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date1
as the Central Government may, by notification in the
Official Gazette, appoint.
2. Definitions.—In this Act, unless the context otherwise requires,—
(a) “obligation” includes every duty enforceable by law;
(b) “settlement” means an instrument (other than a will or codicil as defined by the Indian
Succession Act, 1925 (39 of 1925), whereby the destination or devolution of successive interests in
movable or immovable property is disposed of or is agreed to be disposed of;
(c) “trust” has the same meaning as in section 3 of the Indian Trusts Act, 1882 (2 of 1882), and
includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act;
(d) “trustee” includes every person holding property in trust;
(e) all other words and expressions used herein but not defined, and defined in the Indian
Contract Act, 1872 (9 of 1872), have the meanings respectively assigned to them in that Act.
3. Savings.—Except as otherwise provided herein, nothing in this Act shall be deemed—
(a) to deprive any person of any right to relief, other than specific performance, which he may
have under any contract; or
(b) to affect the operation of the Indian Registration Act, 1908 (16 of 1908), on documents.
4. Specific relief to be granted only for enforcing individual civil rights and not for enforcing
penal laws.—Specific relief can be granted only for the purpose of enforcing individual civil rights and
not for the mere purpose of enforcing a penal law.
PART II
SPECIFIC RELIEF
CHAPTER I
RECOVERING POSSESSION OF PROPERTY
5. Recovery of specific immovable property.—A person entitled to the possession of
specific immovable property may recover it in the manner provided by the Code of Civil
Procedure, 1908 (5 of 1908).
6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without
his consent of immovable property otherwise than in due course of law, he or any person claiming
1. 1st March, 1964, vide notification No. S.O. 189, dated 13th January, 1964, see Gazette of India, Extraordinary, Part II,
sec. 3(ii).
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through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in
such suit.
(2) No suit under this section shall be brought—
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor
shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to
recover possession thereof.
7. Recovery of specific movable property.—A person entitled to the possession of specific movable
property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).
Explanation 1.—A trustee may sue under this section for the possession of movable property to the
beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2.—A special or temporary right to the present possession of movable property is
sufficient to support a suit under this section.
8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate
possession.—Any person having the possession or control of a particular article of movable property, of
which he is not the owner, may be compelled specifically to deliver it to the person entitled to its
immediate possession, in any of the following cases:—
(a) when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;
(b) when compensation in money would not afford the plaintiff adequate relief for the loss of the
thing claimed;
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) when the possession of the thing claimed has been wrongfully transferred from the plaintiff.
Explanation.—Unless and until the contrary is proved, the court shall, in respect of any article of
movable property claimed under clause (b) or clause (c) of this section, presume—
(a) that compensation in money would not afford the plaintiff adequate relief for the loss of the
thing claimed, or, as the case may be;
(b) that it would be extremely difficult to ascertain the actual damage caused by its loss.
CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS
9. Defences respecting suits for relief based on contract.—Except as otherwise provided herein
where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief
is claimed may plead by way of defence any ground which is available to him under any law relating to
contracts.
Contracts which can be specifically enforced
10. Cases in which specific performance of contract enforceable.—Except as otherwise provided
in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced—
(a) when there exists no standard for ascertaining the actual damage caused by the
non-performance of the act agreed to be done; or
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(b) when the act agreed to be done in such that compensation in money for its non-performance
would not afford adequate relief.
Explanation.—Unless and until the contrary is proved, the court shall presume—
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by
compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the
following cases:—
(a) where the property is not an ordinary article of commerce, or is of special value or interest
to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.
11. Cases in which specific performance of contracts connected with trusts
enforceable.—(1) Except as otherwise provided in this Act, specific performance of a contract may, in
the discretion of the court, be enforced when the act agreed to be done is in the performance wholly or
partly of a trust.
(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically
enforced.
12. Specific performance of part of contract.—(1) Except as otherwise hereinafter provided in this
section, the court shall not direct the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must
be left unperformed be a only a small proportion to the whole in value and admits of compensation in
money, the court may, at the suit of either party, direct the specific performance of so much of the
contract as can be performed, and award compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which
must be left unperformed either—
(a) forms a considerable part of the whole, though admitting of compensation in money; or
(b) does not admit of 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, if the other party—
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of
the contract reduced by the consideration for the part which must be left unperformed and in a case
falling under clause (b)
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[pays or has paid] the consideration for the whole of the contract without any
abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract
and all right to compensation, either for the deficiency or for the loss or damage sustained by him
through the default of the defendant.
(4) When a part of a contract which, taken by itself, can and ought to be specifically performed,
stands on a separate and independent footing from another part of the same contract which cannot or
ought not to be specifically performed the court may direct specific performance of the former part.
Explanation.—For the purposes of this section, a party to a contract shall be deemed to be unable to
perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has
ceased to exist at the time of its performance.
1. Ins. by Act 52 of 1964, s. 3 and the Second Schedule (w.e.f. 29-12-1964).
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13. Rights of purchaser or lessee against person with no title or imperfect title.—(1) Where a
person contracts to sell or let certain immovable property having no title or only an imperfect title, the
purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:—
(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property,
the purchaser or lessee may compel him to make good the contract out of such interest;
(b) where the concurrence of other person is necessary for validating the title, and they are bound
to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure
such concurrence, and when a conveyance by other persons is necessary to validate the title and they
are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to
procure such conveyance;
(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for
an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the
purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where
necessary, also a conveyance from the mortgagee;
(d) where the vendor or lessor sues for specific performance of the contract and the suit is
dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of
his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest
and costs on the interest, if any, of the vendor or lesser in the property which is the subject-matter of
the contract.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire
of movable property.
Contracts, which cannot be specifically enforced
14. Contracts not specifically enforceable.—(1) The following contracts cannot be specifically
enforced, namely:—
(a) a contract for the non-performance of which compensation in money is an adequate relief;
(b) a contract which runs into such minute or numerous details or which is so dependent on the
personal qualification or volition of the parties, or otherwise from its nature is such, that the court
cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable;
(d) a contract the performance of which involves the performance of a continuous duty which the
court cannot supervise.
(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future
differences to arbitration shall be specifically enforced; but if any person who has made such a contract
(other than an arbitration agreement to which the provisions of the said act apply) and has refused to
perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract
shall bar the suit.
(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the
court may enforce specific performance in the following cases:—
(a) where the suit is for the enforcement of a contract,—
(i) to execute a mortgage or furnish any other security for securing the repayment of any loan
which the borrower is not willing to repay at once:
Provided that where only a part of the loan has been advanced the lender is willing to advance
the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
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(b) where the suit is for,—
(i) the execution of a formal deed of partnership, the parties having commenced to carry on
the business of the partnership; or
(ii) the purchase of a share of a partner in a firm;
(c) where the suit is for the enforcement of a contract for the construction of any building or the
execution of any other work on land:
Provided that the following conditions are fulfilled, namely:—
(i) the building or other work is described in the contract in terms sufficiently precise to
enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is
of such a nature that compensation in money for non-performance of the contract is not an
adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any
part of the land on which the building is to be constructed or other work is to be executed.
Persons for or against whom contracts may be specifically enforced
15. Who may obtain specific performance.—Except as otherwise provided by this Chapter, the
specific performance of a contract may be obtained by—
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto:
Provided that where the learning, skill, solvency or any personal quality of such party is a
material ingredient in the contract, or where the contract provides that his interest shall not be
assigned, his representative in interest or his principal shall not be entitled to specific performance of
the contract, unless such party has already performed his part of the contract, or the performance
thereof by his representative in interest, or his principal, has been accepted by the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between
members of the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power, the
remainder man;
(e) a reversioner in possession, where the agreement is a covenant entered into with his
predecessor in title and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is
entitled to the benefit thereof and will sustain material injury by reason of its breach;
(g) when a company has entered into a contract and subsequently becomes amalgamated with
another company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract for
the purposes of the company, and such contract is warranted by the terms of the incorporation, the
company:
Provided that the company has accepted the contract and has communicated such acceptance to
the other party to the contract.
16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a
person—
(a) who would not be entitled to recover compensation for its breach; or
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(b) who has become incapable of performing, or violates any essential term of, the contract that
on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with,
or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him, other than terms of the
performance of which has been prevented or waived by the defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in court any money except when so directed by the
court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the
contract according to its true construction.
17. Contract to sell or let property by one who has no title, not specifically enforceable.—(1) A
contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or
lessor—
(a) who, knowing himself not to have any title to the property, has contracted to sell or let the
property;
(b) who, though he entered into the contract believing that he had a good title to the property,
cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the
purchaser or lessee a title free from reasonable doubt.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire
of movable property.
18. Non-enforcement except with variation.—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, mistake of fact or mis-representation, the written contract of which
performance is sought is in its terms or effect different from what the parties agreed to, or does not
contain all the terms agreed to between the parties on the basis of which the defendant entered into
the contact;
(b) where the object of the parties was to produce a certain legal result which the contract as
framed is not calculated to produce;
(c) where the parties have, subsequently to the execution of the contract, varied its terms.
19. Relief against parties and persons claiming under them by subsequent title.—Except as
otherwise provided by this Chapter, specific performance of a contract may be enforced against—
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a
transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the
plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently becomes amalgamated with
another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation, entered into a contract for
the purpose of the company and such contract is warranted by the terms of the incorporation, the
company:
Provided that the company has accepted the contract and communicated such acceptance to the other
party to the contract.
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Discretion and powers of court
20. Discretion as to decreeing specific performance.—(1) The jurisdiction to decree specific
performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to
do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial
principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific
performance:—
(a) where the terms of the contract or the conduct of the parties at the time of entering into the
contract or the other circumstances under which the contract was entered into are such that the
contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which
he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering
the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the
defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the
meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.—The question whether the performance of a contract would involve hardship on the
defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any
act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing
at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the
plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific
performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground
that the contract is not enforceable at the instance of the other party.
21. Power to award compensation in certain cases.—(1) In a suit for specific performance of a
contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution
of, such performance.
(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that
there is a contract between the parties which has been broken by the defendant, and that the plaintiff is
entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) If, in any such suit, the court decides that specific performance ought to be granted, but that 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.
(4) In determining the amount of any compensation awarded under this section, the court shall be
guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such
compensation in his plaint:
Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall,
at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including
a claim for such compensation.
Explanation.—The circumstances that the contract has become incapable of specific performance
does not preclude the court from exercising the jurisdiction conferred by this section.
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22. Power to grant relief for possession, partition, refund of earnest money, etc.—(1)
Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any
person suing for the specific performance of a contract for the transfer of immovable property may, in an
appropriate case, ask for—
(a) possession, or partition and separate possession, of the property in addition to such
performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or
deposit paid or 1
[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it
has been specifically claimed:
Provident that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any
stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim
for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice
to its powers to award compensation under section 21.
23. Liquidation of damages not a bar to specific performance.—(1) A contract, otherwise proper
to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in
case of its breach and the party in default is willing to pay the same, if the court, having regard to the
terms of the contract and other attending circumstances, is satisfied that the sum was named only for the
purpose of securing performance of the contract and not for the purpose of giving to the party in default
an option of paying money in lieu of specific performance.
(2) When enforcing specific performance under this section, the court shall not also decree payment
of the sum so named in the contract.
24. Bar of suit for compensation for breach after dismissal of suit for specific
performance.—The dismissal of a suit for specific performance of a contract or part thereof shall bar the
plaintiff’s right to sue for compensation for the breach of such contract or part, as the case may be, but
shall not bar his right to sue for any other relief to which he may be entitled, by reason of such breach.
Enforcement of awards and directions to execute settlements
25. Application of preceding sections, to certain awards and testamentary directions to execute
settlements.—The provisions of this Chapter as to contracts shall apply to awards to which the
Arbitration Act, 1940 (10 of 1940), does not apply and to directions in a will or codicil to execute a
particular settlement.
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 other instrument in writing [not being the articles of association of a company to which the
Companies Act, 1956 (1 of 1956), applies] does not express their real intention, then—
(a) either party or his representative in interest may institute a suit to have the instrument
rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim
in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other
defence open to him, ask for rectification of the instrument.
1. Subs. by Act 52 of 1964, s. 3 and the Second Schedule, for “made to” (w.e.f. 29-12-1964).
11
(2) If, in any suit in which a contract or other instrument is sought to be rectified under
sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real
intention of the parties, the court may in its discretion, direct rectification of the instrument so as to
express that intention, so far as this can be done without prejudice to rights acquired by third persons in
good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so
prayed in his pleading and the court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section
unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the court shall, at any
stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such
claim.
CHAPTER IV
RESCISSION OF CONTRACTS
27. When rescission may be adjudged or refused.—(1) Any person interested in a contract may sue
to have it rescinded, and such rescission may be adjudged by the court in any of the following cases,
namely:—
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face and the defendant is more to
blame than the plaintiff.
(2) Notwithstanding anything contained in sub-section (1), the court may refuse to rescind the
contract—
(a) where the plaintiff has expressly or impliedly ratified the contract; or
(b) where, owing to the change of circumstances which has taken place since the making of the
contract (not being due to any act of the defendant himself), the parties cannot be substantially
restored to the position in which they stood when the contract was made; or
(c) where third parties have, during the subsistence of the contract, acquired rights in good faith
without notice and for value; or
(d) where only a part of the contract is sought to be rescinded and such part is not severable from
the rest of the contract.
Explanation.—In this section “contract” in relation to the territories to which the Transfer of Property
Act, 1882 (4 of 1882), does not extend, means a contract in writing.
28. Rescission in certain circumstances of contracts for the sale or lease of immovable property,
the specific performance of which has been decreed.—(1) Where in any suit a decree for specific
performance of a contract for the sale or lease of immovable property has been made and the purchaser or
lessee does not, within the period allowed by the decree or such further period as the court may allow, pay
the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply
in the same suit in which the decree is made, to have the contract rescinded and on such application the
court may, by order, rescind the contract either so far as regards the party in default or altogether, as the
justice of the case may require.
(2) Where a contract is rescinded under sub-section (1), the court—
(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the
contract, to restore such possession to the vendor or lessor; and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in
respect of the property from the date on which possession was so obtained by the purchaser or lessee
until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the
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refund of any sum paid by the vendee or the lessee as earnest money or deposit in connection with the
contract.
(3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under
the decree within the period referred to in sub-section (1), the court may, on application made in the same
suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate
cases all or any of the following reliefs, namely:—
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the
execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the
instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the court.
29. Alternative prayer for rescission in suit for specific performance.—A plaintiff instituting a
suit for the specific performance of a contract in writing may pray in the alternative that, if the contract
cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it
refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly.
30. Court may require parties rescinding to do equity.—On adjudging the rescission of a contract,
the court may require the party to whom such relief is granted to restore, so far as may be, any benefit
which he may have received from the other party and to make any compensation to him which justice
may 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 has reasonable apprehension that such instrument, if left outstanding may cause him
serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so
adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the
court shall also send a copy of its decree to the officer in whose office the instrument has been so
registered; and such officer shall note on the copy of the instrument contained in his books the fact of its
cancellation.
32. What instruments may be partially cancelled.—Where an instrument is evidence of different
rights or different obligations, the court may, in a proper case, cancel it in part and allow it to stand for the
residue.
33. Power to require benefit to be restored or compensation to be made when instrument is
cancelled or is successfully resisted as being void or voidable.—(1) On adjudging the cancellation of
an instrument, the court may require the party to whom such relief is granted, to restore, so far as may be
any benefit which he may have received from the other party and to make any compensation to him which
justice may require.
(2) Where a defendant successfully resists any suit on the ground—
(a) that the instrument sought to be enforced against him in the suit is voidable, the court may if
the defendant has received any benefit under the instrument from the other party, require him to
restore, so far as may be, such benefit to that party or to make compensation for it;
(b) that the agreement sought to be enforced against him in the suit is void by reason of his not
having been competent to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872), the
court may, if the defendant has received any benefit under the agreement from the other party, require
him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has
benefited thereby.
13
CHAPTER VI
DECLARATORY DECREES
34. Discretion of court as to declaration of status or right.—Any person entitled to any legal
character, or to any right as to any property, may institute a suit against any person denying, or interested
to deny, his title to such character or right, and the court may in its discretion make therein a declaration
that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so.
Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of some
one who is not in existence, and for whom, if in existence, he would be a trustee.
35. Effect of declaration.—A declaration made under this Chapter is binding only on the parties to
the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the
persons for whom, if in existence at the date of the declaration, such parties would be trustees.
PART 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 specific time, or until the further order of the court, and they may be granted at any stage of a suit,
and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits
of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the
commission of an act, which would be contrary to the rights of the plaintiff.
CHAPTER VIII
PERPETUAL INJUNCTIONS
38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or
referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of
an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and
provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of,
property, the court may grant a perpetual injunction in the following cases, namely:—
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
39. Mandatory injunctions.—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.
14
40. Damages in lieu of, or in addition to, injunction.—(1) The plaintiff in a suit for perpetual
injunction under section 38, or mandatory injunction under section 39, may claim damages either in
addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.
(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such
relief in his plaint:
Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of
the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such
claim.
(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff
shall bar his right to sue for damages for such breach.
41. Injunction when refused.—An injunction cannot be granted—
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the
suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of
proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate
to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically
enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a
nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to be the
assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
42. Injunction to perform negative agreement.—Notwithstanding anything contained in clause (e)
of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a
negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to
compel specific performance of the affirmative agreement shall not preclude it from granting an
injunction to perform the negative agreement:
Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.
1
* * * * *
1. Sections 43 and 44 rep. by the Repealing and Amending Act, 1974 (56 of 1974), s. 3 and the Second Schedule
(w.e.f. 20-12-1974).
SPECIFIC RELIEF ACT
_______
ARRANGEMENT OF SECTIONS
________
PART I
PRELIMINARY
SECTIONS
1. Short title, extent and commencement.
2. Definitions.
3. Savings.
4. Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal
laws.
PART II
SPECIFIC RELIEF
CHAPTER I
RECOVERING POSSESSION OF PROPERTY
5. Recovery of specific immovable property.
6. Suit by person dispossessed of immovable property.
7. Recovery of specific movable property.
8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate
possession.
CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS
9. Defences respecting suits for relief based on contract.
Contracts which can be specifically enforced
10. Cases in which specific performance of contract enforceable.
11. Cases in which specific performance of contracts connected with trusts enforceable.
12. Specific performance of part of contract.
13. Rights of purchaser or lessee against person with no title or imperfect title.
Contracts, which cannot be specifically enforced
14. Contracts not specifically enforceable.
Persons for or against whom contracts may be specifically enforced
15. Who may obtain specific performance.
16. Personal bars to relief.
17. Contract to sell or let property by one who has no title, not specifically enforceable.
18. Non-enforcement except with variation.
19. Relief against parties and persons claiming under them by subsequent title.
Discretion and powers of court
20. Discretion as to decreeing specific performance.
21. Power to award compensation in certain cases.
22. Power to grant relief for possession, partition, refund of earnest money, etc.
23. Liquidation of damages not a bar to specific performance.
2
SECTIONS
24. Bar of suit for compensation for breach after dismissal of suit for specific performance.
Enforcement of awards and directions to execute settlements
25. Application of preceding sections to certain awards and testamentary directions to execute
settlements.
CHAPTER III
RECTIFICATION OF INSTRUMENTS
26. When instrument may be rectified.
CHAPTER IV
RESCISSION OF CONTRACTS
27. When rescission may be adjudged or refused.
28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the
specific performance of which has been decreed.
29. Alternative prayer for rescission in suit for specific performance.
30. Court may require parties rescinding to do equity.
CHAPTER V
CANCELLATION OF INSTRUMENTS
31. When cancellation may be ordered.
32. What instruments may be partially cancelled.
33. Power to require benefit to be restored or compensation to be made when instrument is cancelled
or is successfully resisted as being void or voidable.
CHAPTER VI
DECLARATORY DECREES
34. Discretion of court as to declaration of status or right.
35. Effect of declaration.
PART III
PREVENTIVE RELIEF
CHAPTER VII
INJUNCTIONS GENERALLY
36. Preventive relief how granted.
37. Temporary and perpetual injunctions.
CHAPTER VIII
PERPETUAL INJUNCTIONS
38. Perpetual injunction when granted.
39. Mandatory injunctions.
40. Damages in lieu of, or in addition to, injunction.
41. Injunction when refused.
42. Injunction to perform negative agreement.
43. [Repealed.]
44. [Repealed.]
3
THE SPECIFIC RELIEF ACT, 1963
ACT NO. 47 OF 1963
[13th December, 1963.]
An Act to define and amend the law relating to certain kinds of specific relief.
BE it enacted by Parliament in the Fourteenth Year of the Republic of India as follow:—
PART I
PRELIMINARY
1. Short title, extent and commencement.—(1) This Act may be called the Specific Relief
Act, 1963.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date1
as the Central Government may, by notification in the
Official Gazette, appoint.
2. Definitions.—In this Act, unless the context otherwise requires,—
(a) “obligation” includes every duty enforceable by law;
(b) “settlement” means an instrument (other than a will or codicil as defined by the Indian
Succession Act, 1925 (39 of 1925), whereby the destination or devolution of successive interests in
movable or immovable property is disposed of or is agreed to be disposed of;
(c) “trust” has the same meaning as in section 3 of the Indian Trusts Act, 1882 (2 of 1882), and
includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act;
(d) “trustee” includes every person holding property in trust;
(e) all other words and expressions used herein but not defined, and defined in the Indian
Contract Act, 1872 (9 of 1872), have the meanings respectively assigned to them in that Act.
3. Savings.—Except as otherwise provided herein, nothing in this Act shall be deemed—
(a) to deprive any person of any right to relief, other than specific performance, which he may
have under any contract; or
(b) to affect the operation of the Indian Registration Act, 1908 (16 of 1908), on documents.
4. Specific relief to be granted only for enforcing individual civil rights and not for enforcing
penal laws.—Specific relief can be granted only for the purpose of enforcing individual civil rights and
not for the mere purpose of enforcing a penal law.
PART II
SPECIFIC RELIEF
CHAPTER I
RECOVERING POSSESSION OF PROPERTY
5. Recovery of specific immovable property.—A person entitled to the possession of
specific immovable property may recover it in the manner provided by the Code of Civil
Procedure, 1908 (5 of 1908).
6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without
his consent of immovable property otherwise than in due course of law, he or any person claiming
1. 1st March, 1964, vide notification No. S.O. 189, dated 13th January, 1964, see Gazette of India, Extraordinary, Part II,
sec. 3(ii).
4
through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in
such suit.
(2) No suit under this section shall be brought—
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor
shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to
recover possession thereof.
7. Recovery of specific movable property.—A person entitled to the possession of specific movable
property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).
Explanation 1.—A trustee may sue under this section for the possession of movable property to the
beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2.—A special or temporary right to the present possession of movable property is
sufficient to support a suit under this section.
8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate
possession.—Any person having the possession or control of a particular article of movable property, of
which he is not the owner, may be compelled specifically to deliver it to the person entitled to its
immediate possession, in any of the following cases:—
(a) when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;
(b) when compensation in money would not afford the plaintiff adequate relief for the loss of the
thing claimed;
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) when the possession of the thing claimed has been wrongfully transferred from the plaintiff.
Explanation.—Unless and until the contrary is proved, the court shall, in respect of any article of
movable property claimed under clause (b) or clause (c) of this section, presume—
(a) that compensation in money would not afford the plaintiff adequate relief for the loss of the
thing claimed, or, as the case may be;
(b) that it would be extremely difficult to ascertain the actual damage caused by its loss.
CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS
9. Defences respecting suits for relief based on contract.—Except as otherwise provided herein
where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief
is claimed may plead by way of defence any ground which is available to him under any law relating to
contracts.
Contracts which can be specifically enforced
10. Cases in which specific performance of contract enforceable.—Except as otherwise provided
in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced—
(a) when there exists no standard for ascertaining the actual damage caused by the
non-performance of the act agreed to be done; or
5
(b) when the act agreed to be done in such that compensation in money for its non-performance
would not afford adequate relief.
Explanation.—Unless and until the contrary is proved, the court shall presume—
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by
compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the
following cases:—
(a) where the property is not an ordinary article of commerce, or is of special value or interest
to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.
11. Cases in which specific performance of contracts connected with trusts
enforceable.—(1) Except as otherwise provided in this Act, specific performance of a contract may, in
the discretion of the court, be enforced when the act agreed to be done is in the performance wholly or
partly of a trust.
(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically
enforced.
12. Specific performance of part of contract.—(1) Except as otherwise hereinafter provided in this
section, the court shall not direct the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must
be left unperformed be a only a small proportion to the whole in value and admits of compensation in
money, the court may, at the suit of either party, direct the specific performance of so much of the
contract as can be performed, and award compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which
must be left unperformed either—
(a) forms a considerable part of the whole, though admitting of compensation in money; or
(b) does not admit of 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, if the other party—
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of
the contract reduced by the consideration for the part which must be left unperformed and in a case
falling under clause (b)
1
[pays or has paid] the consideration for the whole of the contract without any
abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract
and all right to compensation, either for the deficiency or for the loss or damage sustained by him
through the default of the defendant.
(4) When a part of a contract which, taken by itself, can and ought to be specifically performed,
stands on a separate and independent footing from another part of the same contract which cannot or
ought not to be specifically performed the court may direct specific performance of the former part.
Explanation.—For the purposes of this section, a party to a contract shall be deemed to be unable to
perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has
ceased to exist at the time of its performance.
1. Ins. by Act 52 of 1964, s. 3 and the Second Schedule (w.e.f. 29-12-1964).
6
13. Rights of purchaser or lessee against person with no title or imperfect title.—(1) Where a
person contracts to sell or let certain immovable property having no title or only an imperfect title, the
purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:—
(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property,
the purchaser or lessee may compel him to make good the contract out of such interest;
(b) where the concurrence of other person is necessary for validating the title, and they are bound
to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure
such concurrence, and when a conveyance by other persons is necessary to validate the title and they
are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to
procure such conveyance;
(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for
an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the
purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where
necessary, also a conveyance from the mortgagee;
(d) where the vendor or lessor sues for specific performance of the contract and the suit is
dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of
his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest
and costs on the interest, if any, of the vendor or lesser in the property which is the subject-matter of
the contract.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire
of movable property.
Contracts, which cannot be specifically enforced
14. Contracts not specifically enforceable.—(1) The following contracts cannot be specifically
enforced, namely:—
(a) a contract for the non-performance of which compensation in money is an adequate relief;
(b) a contract which runs into such minute or numerous details or which is so dependent on the
personal qualification or volition of the parties, or otherwise from its nature is such, that the court
cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable;
(d) a contract the performance of which involves the performance of a continuous duty which the
court cannot supervise.
(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future
differences to arbitration shall be specifically enforced; but if any person who has made such a contract
(other than an arbitration agreement to which the provisions of the said act apply) and has refused to
perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract
shall bar the suit.
(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the
court may enforce specific performance in the following cases:—
(a) where the suit is for the enforcement of a contract,—
(i) to execute a mortgage or furnish any other security for securing the repayment of any loan
which the borrower is not willing to repay at once:
Provided that where only a part of the loan has been advanced the lender is willing to advance
the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
7
(b) where the suit is for,—
(i) the execution of a formal deed of partnership, the parties having commenced to carry on
the business of the partnership; or
(ii) the purchase of a share of a partner in a firm;
(c) where the suit is for the enforcement of a contract for the construction of any building or the
execution of any other work on land:
Provided that the following conditions are fulfilled, namely:—
(i) the building or other work is described in the contract in terms sufficiently precise to
enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is
of such a nature that compensation in money for non-performance of the contract is not an
adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any
part of the land on which the building is to be constructed or other work is to be executed.
Persons for or against whom contracts may be specifically enforced
15. Who may obtain specific performance.—Except as otherwise provided by this Chapter, the
specific performance of a contract may be obtained by—
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto:
Provided that where the learning, skill, solvency or any personal quality of such party is a
material ingredient in the contract, or where the contract provides that his interest shall not be
assigned, his representative in interest or his principal shall not be entitled to specific performance of
the contract, unless such party has already performed his part of the contract, or the performance
thereof by his representative in interest, or his principal, has been accepted by the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between
members of the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power, the
remainder man;
(e) a reversioner in possession, where the agreement is a covenant entered into with his
predecessor in title and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is
entitled to the benefit thereof and will sustain material injury by reason of its breach;
(g) when a company has entered into a contract and subsequently becomes amalgamated with
another company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract for
the purposes of the company, and such contract is warranted by the terms of the incorporation, the
company:
Provided that the company has accepted the contract and has communicated such acceptance to
the other party to the contract.
16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a
person—
(a) who would not be entitled to recover compensation for its breach; or
8
(b) who has become incapable of performing, or violates any essential term of, the contract that
on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with,
or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him, other than terms of the
performance of which has been prevented or waived by the defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in court any money except when so directed by the
court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the
contract according to its true construction.
17. Contract to sell or let property by one who has no title, not specifically enforceable.—(1) A
contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or
lessor—
(a) who, knowing himself not to have any title to the property, has contracted to sell or let the
property;
(b) who, though he entered into the contract believing that he had a good title to the property,
cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the
purchaser or lessee a title free from reasonable doubt.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire
of movable property.
18. Non-enforcement except with variation.—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, mistake of fact or mis-representation, the written contract of which
performance is sought is in its terms or effect different from what the parties agreed to, or does not
contain all the terms agreed to between the parties on the basis of which the defendant entered into
the contact;
(b) where the object of the parties was to produce a certain legal result which the contract as
framed is not calculated to produce;
(c) where the parties have, subsequently to the execution of the contract, varied its terms.
19. Relief against parties and persons claiming under them by subsequent title.—Except as
otherwise provided by this Chapter, specific performance of a contract may be enforced against—
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a
transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the
plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently becomes amalgamated with
another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation, entered into a contract for
the purpose of the company and such contract is warranted by the terms of the incorporation, the
company:
Provided that the company has accepted the contract and communicated such acceptance to the other
party to the contract.
9
Discretion and powers of court
20. Discretion as to decreeing specific performance.—(1) The jurisdiction to decree specific
performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to
do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial
principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific
performance:—
(a) where the terms of the contract or the conduct of the parties at the time of entering into the
contract or the other circumstances under which the contract was entered into are such that the
contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which
he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering
the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the
defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the
meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.—The question whether the performance of a contract would involve hardship on the
defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any
act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing
at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the
plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific
performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground
that the contract is not enforceable at the instance of the other party.
21. Power to award compensation in certain cases.—(1) In a suit for specific performance of a
contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution
of, such performance.
(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that
there is a contract between the parties which has been broken by the defendant, and that the plaintiff is
entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) If, in any such suit, the court decides that specific performance ought to be granted, but that 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.
(4) In determining the amount of any compensation awarded under this section, the court shall be
guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such
compensation in his plaint:
Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall,
at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including
a claim for such compensation.
Explanation.—The circumstances that the contract has become incapable of specific performance
does not preclude the court from exercising the jurisdiction conferred by this section.
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22. Power to grant relief for possession, partition, refund of earnest money, etc.—(1)
Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any
person suing for the specific performance of a contract for the transfer of immovable property may, in an
appropriate case, ask for—
(a) possession, or partition and separate possession, of the property in addition to such
performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or
deposit paid or 1
[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it
has been specifically claimed:
Provident that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any
stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim
for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice
to its powers to award compensation under section 21.
23. Liquidation of damages not a bar to specific performance.—(1) A contract, otherwise proper
to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in
case of its breach and the party in default is willing to pay the same, if the court, having regard to the
terms of the contract and other attending circumstances, is satisfied that the sum was named only for the
purpose of securing performance of the contract and not for the purpose of giving to the party in default
an option of paying money in lieu of specific performance.
(2) When enforcing specific performance under this section, the court shall not also decree payment
of the sum so named in the contract.
24. Bar of suit for compensation for breach after dismissal of suit for specific
performance.—The dismissal of a suit for specific performance of a contract or part thereof shall bar the
plaintiff’s right to sue for compensation for the breach of such contract or part, as the case may be, but
shall not bar his right to sue for any other relief to which he may be entitled, by reason of such breach.
Enforcement of awards and directions to execute settlements
25. Application of preceding sections, to certain awards and testamentary directions to execute
settlements.—The provisions of this Chapter as to contracts shall apply to awards to which the
Arbitration Act, 1940 (10 of 1940), does not apply and to directions in a will or codicil to execute a
particular settlement.
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 other instrument in writing [not being the articles of association of a company to which the
Companies Act, 1956 (1 of 1956), applies] does not express their real intention, then—
(a) either party or his representative in interest may institute a suit to have the instrument
rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim
in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other
defence open to him, ask for rectification of the instrument.
1. Subs. by Act 52 of 1964, s. 3 and the Second Schedule, for “made to” (w.e.f. 29-12-1964).
11
(2) If, in any suit in which a contract or other instrument is sought to be rectified under
sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real
intention of the parties, the court may in its discretion, direct rectification of the instrument so as to
express that intention, so far as this can be done without prejudice to rights acquired by third persons in
good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so
prayed in his pleading and the court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section
unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the court shall, at any
stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such
claim.
CHAPTER IV
RESCISSION OF CONTRACTS
27. When rescission may be adjudged or refused.—(1) Any person interested in a contract may sue
to have it rescinded, and such rescission may be adjudged by the court in any of the following cases,
namely:—
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face and the defendant is more to
blame than the plaintiff.
(2) Notwithstanding anything contained in sub-section (1), the court may refuse to rescind the
contract—
(a) where the plaintiff has expressly or impliedly ratified the contract; or
(b) where, owing to the change of circumstances which has taken place since the making of the
contract (not being due to any act of the defendant himself), the parties cannot be substantially
restored to the position in which they stood when the contract was made; or
(c) where third parties have, during the subsistence of the contract, acquired rights in good faith
without notice and for value; or
(d) where only a part of the contract is sought to be rescinded and such part is not severable from
the rest of the contract.
Explanation.—In this section “contract” in relation to the territories to which the Transfer of Property
Act, 1882 (4 of 1882), does not extend, means a contract in writing.
28. Rescission in certain circumstances of contracts for the sale or lease of immovable property,
the specific performance of which has been decreed.—(1) Where in any suit a decree for specific
performance of a contract for the sale or lease of immovable property has been made and the purchaser or
lessee does not, within the period allowed by the decree or such further period as the court may allow, pay
the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply
in the same suit in which the decree is made, to have the contract rescinded and on such application the
court may, by order, rescind the contract either so far as regards the party in default or altogether, as the
justice of the case may require.
(2) Where a contract is rescinded under sub-section (1), the court—
(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the
contract, to restore such possession to the vendor or lessor; and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in
respect of the property from the date on which possession was so obtained by the purchaser or lessee
until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the
12
refund of any sum paid by the vendee or the lessee as earnest money or deposit in connection with the
contract.
(3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under
the decree within the period referred to in sub-section (1), the court may, on application made in the same
suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate
cases all or any of the following reliefs, namely:—
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the
execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the
instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the court.
29. Alternative prayer for rescission in suit for specific performance.—A plaintiff instituting a
suit for the specific performance of a contract in writing may pray in the alternative that, if the contract
cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it
refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly.
30. Court may require parties rescinding to do equity.—On adjudging the rescission of a contract,
the court may require the party to whom such relief is granted to restore, so far as may be, any benefit
which he may have received from the other party and to make any compensation to him which justice
may 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 has reasonable apprehension that such instrument, if left outstanding may cause him
serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so
adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the
court shall also send a copy of its decree to the officer in whose office the instrument has been so
registered; and such officer shall note on the copy of the instrument contained in his books the fact of its
cancellation.
32. What instruments may be partially cancelled.—Where an instrument is evidence of different
rights or different obligations, the court may, in a proper case, cancel it in part and allow it to stand for the
residue.
33. Power to require benefit to be restored or compensation to be made when instrument is
cancelled or is successfully resisted as being void or voidable.—(1) On adjudging the cancellation of
an instrument, the court may require the party to whom such relief is granted, to restore, so far as may be
any benefit which he may have received from the other party and to make any compensation to him which
justice may require.
(2) Where a defendant successfully resists any suit on the ground—
(a) that the instrument sought to be enforced against him in the suit is voidable, the court may if
the defendant has received any benefit under the instrument from the other party, require him to
restore, so far as may be, such benefit to that party or to make compensation for it;
(b) that the agreement sought to be enforced against him in the suit is void by reason of his not
having been competent to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872), the
court may, if the defendant has received any benefit under the agreement from the other party, require
him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has
benefited thereby.
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CHAPTER VI
DECLARATORY DECREES
34. Discretion of court as to declaration of status or right.—Any person entitled to any legal
character, or to any right as to any property, may institute a suit against any person denying, or interested
to deny, his title to such character or right, and the court may in its discretion make therein a declaration
that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so.
Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of some
one who is not in existence, and for whom, if in existence, he would be a trustee.
35. Effect of declaration.—A declaration made under this Chapter is binding only on the parties to
the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the
persons for whom, if in existence at the date of the declaration, such parties would be trustees.
PART 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 specific time, or until the further order of the court, and they may be granted at any stage of a suit,
and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits
of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the
commission of an act, which would be contrary to the rights of the plaintiff.
CHAPTER VIII
PERPETUAL INJUNCTIONS
38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or
referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of
an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and
provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of,
property, the court may grant a perpetual injunction in the following cases, namely:—
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
39. Mandatory injunctions.—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.
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40. Damages in lieu of, or in addition to, injunction.—(1) The plaintiff in a suit for perpetual
injunction under section 38, or mandatory injunction under section 39, may claim damages either in
addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.
(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such
relief in his plaint:
Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of
the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such
claim.
(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff
shall bar his right to sue for damages for such breach.
41. Injunction when refused.—An injunction cannot be granted—
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the
suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of
proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate
to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically
enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a
nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to be the
assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
42. Injunction to perform negative agreement.—Notwithstanding anything contained in clause (e)
of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a
negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to
compel specific performance of the affirmative agreement shall not preclude it from granting an
injunction to perform the negative agreement:
Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.
1
* * * * *
1. Sections 43 and 44 rep. by the Repealing and Amending Act, 1974 (56 of 1974), s. 3 and the Second Schedule
(w.e.f. 20-12-1974).
