வியாழன், 4 ஆகஸ்ட், 2011
SEC 145 OF CPC RIVISION
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM
ANDARUNACHAL PRADESH)
Civil Revision Petition 16 of 2010
SHRI PRADIP KR. BANIK
S/O LT. HARENDRA BANIK
R/O VILL- PASCHIM SUALONI,
MOUZA- LAWIKHOWA,
P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
Petitioner.
Versus
1. MANINDRA MANDAL & ORS.
S/O LT. KAILASH MANDAL.
2. SHRI NIDANI MANDAL,
W/O SHRI MANINDRA MANDAL,
BOTH ARE RESIDENTS OF VILLAGE PASCHIMSUALONI,
MAUZA LAWIKHOWA, P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
3. Shri Prantosh Banik,
S/O Late Suresh Banik,
4. Shri Ranjit Banik,
S/O Late Satish Banik,
5. Shri Subhas Mandal,
6. Shri Sriram Mandal,
Both are sons of Late Moli Namasudra,
RESIDENTS OF VILLAGE PASCHIMSUALONI,
MAUZA LAWIKHOWA, P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
Respondents.
!1. Mr. AK Purkayastha,
2. Mr. BJ Das,
3. Mr. MM Mali, Petitioner's Advocates.
^1. Mr. P Sundhi, Respondent's Advocate.
Coram
BEFORE
HONOURABLE MR JUSTICE I A ANSARI
Date of hearing and judgment:27/01/2010
:J U D G M E N T
O R D E R
O R A L
The petitioner herein instituted, as plaintiff, Title Suit No. 13 (K) of
2008, wherein he sought for a decree of declaration of his rights, title and
interest over the suit land and confirmation of possession thereof. The suit was
resisted by the defendants by filing written statement, wherein, apart from
denying the plaintiff-petitioner s title to the suit land, they also contended to
the effect that they had been in possession of the suit land and have a pucca
house with CI sheet roofing constructed on the eastern wide of the suit land
and, hence, the question of granting a decree, in favour of the plaintiff,
confirming his possession over the suit land, or any part thereof, does not
arise. In their written statement, the defendants also took the plea that there
was a proceeding under Section 145 Cr.P.C. between the parties concerned in
respect of the suit land, wherein it had surfaced that the suit land had been in
possession of the defendants.
2.Following the filing of the written statement, the plaintiff filed an
application, under Order VI Rule 17 CPC, seeking amendment of the plaint by
incorporating, in the plaint, facts to the effect that subsequent to the
institution of the suit, the defendants had entered into the suit land and
constructed pucca house, with CI Sheet roofing, over the same during the puja
vacation, when the civil courts were closed. This application for amendment
was resisted by the defendants by contending, inter alia, that in their written
statement, they had already indicated that they were in possession of the suit
land and this fact was known to the plaintiff and yet he had suppressed the
same and it is unbelievable that a pucca house could have been constructed
over the suit land after the institution of the suit. The defendants, therefore,
sought to get the application for amendment rejected.
3.By the order, dated 02-02-2009, passed in the said suit, as the learned
Munsiff, Kaliabor, has rejected the said application for amendment, the
plaintiff has impugned the same in this revision.
4.Heard Mr. AK Purkayastha, learned counsel for the petitioner, and Mr. P
Sundhi, learned counsel for the opposite parties.
5.While considering this revision, what needs to be noted is that the
plaintiff s application for amendment has been rejected by the learned Court
below by observing, in the impugned order, that it finds hard to digest the
plaintiff s contention that the defendants had encroached upon the eastern
side of the suit land and constructed a pucca house for CI sheet roofing during
the puja vacation. The observations, so made by the learned trial Court, show
that the learned trial Court has rejected the plaintiff s application for
amendment on the ground that the facts, sought to be incorporated in the
plaint by way of amendment, were untrue or false or, at least, highly
improbable or almost unlikely.
6.It may be pointed out that while considering an application seeking
amendment of pleadings, the Court is not to decide the veracity or correctness
of a factual assertion, which a party seeks to incorporate in his pleadings, for,
determination of such a question, if the amendment is allowed, would be at
the stage of trial. What is required to be determined by a trial Court, at the
stage of considering an application for amendment seeking to incorporate
certain facts in the plaint or written statement, is as to whether the
amendment, which is sought to be made, is necessary for determination of real
controversy in the suit and whether the amendment, if allowed, would amount
to allowing the plaintiff to change the nature or character of the suit or would
give rise to new cause of action, which is unconnected with the cause of action
in issue in the suit.
7.It may also be pointed out that while considering an application for
amendment, the Court has to proceed on assumption that the facts, sought to
be incorporated in the plaint or written statement, are true and, then,
determine whether the statements, made in the amendment application, can
help the Court in resolving the real controversy in issue in the suit, subject, of
course, to the condition that no amendment can be allowed to be made by the
plaintiff, which would amount to changing the nature and character of the suit
or would help to introduce into a suit a new cause of action, wholly
unconnected with the cause of action based on which the suit was instituted.
Whether, as a matter of fact, the statement, sought to be incorporated by way
of amendment, is or is not true, is a question, which can be decided, as
already indicated above, at the trial and not in an application for amendment.
8.I may, at this stage, refer to the case of Rajesh Kumar Aggarwal and
Ors.vs- K.K. Modi and Ors, reported in (2006) 4 SCC 385, wherein the Apex
Court observed and held as under:
11. Order VI Rule 17 consist of two parts whereas the first part
is discretionary (may) and leaves it to the Court to order amendment of
pleading. The second part is imperative (shall) and enjoins the Court to
allow all amendments which are necessary for the purpose of
determining the real question in controversy between the parties.
12. In our view, since the cause of action arose during the
pendency of the suit, proposed amendment ought to have been granted
because the basic structure of the suit has not changed and that there
was merely change in the nature of relief claimed. We fail to
understand if it is permissible for the appellants to file an independent
suit, why the same relief which could be prayed for in the new suit
cannot be permitted to be incorporated in the pending suit. As
discussed above, the real controversy test is the basic or cardinal test
and it is the primary duty of the Court to decide whether such an
amendment is necessary to decide the real dispute between the parties.
If it is, the amendment will be allowed; if it is not, the amendment will
be refused. On the contrary, the learned Judges of the High Court
without deciding whether such an amendment is necessary has
expressed certain opinion and entered into a discussion on merits of the
amendment. In cases like this, the Court should also take notice of
subsequent events in order to shorten the litigation, to preserve and
safeguard rights of both parties and to sub-serve the ends of justice. It
is settled by catena of decisions of this Court that the rule of
amendment is essentially a rule of justice, equity and good conscience
and power of amendment should be exercised in the large interest of
doing full and complete justice to the parties before the Court.
13. While considering whether an application for amendment
should or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. Likewise, it should
not record a finding on the merits of the amendment and the merits of
the amendment should to be incorporated by way of amendment are
not to be adjudged at the stage of allowing the prayer for amendment.
This cardinal principle has not been followed by the High Court in the
instant case.
9.Considered in the above backdrop of the position of law, it becomes
clear that the plaintiff s case, at the time of institution of the suit, was that he
not only had title to the suit land, but also possession thereof. In the face of
the pleadings in the written statement, the plaintiff seeks, in effect, to
incorporate, in his plaint, that subsequent to the institution of the suit, he had
been ousted from a portion of the suit land and he is, therefore, required to
incorporate his allegations as regards his ouster from the suit land and
consequential relief of recovery of possession from that part of the suit land
from where he claims to have been ousted or dispossessed. Ordinarily, a Court
shall allow pleadings to be amended in the light of the subsequent events, for,
it is the duty of the Court to ensure, as far as practicable, that litigations are
shortened and multiplicity of proceedings and suits are avoided. The facts,
which the petitioner sought to incorporate in the plaint, reflected, according
to the petitioner, events, which were subsequent to the institution of the suit.
Whether, as a matter of fact, allegations as regard such subsequent events,
were or were not true, is a question, which would be decided at the trial and
could not have been decided at the stage of considering the application for
amendment. This apart, in the face of the facts, which the petitioner seeks to
incorporate, in his plaint, would not change the basic structure of the suit and
there would only be a change in the nature of relief, which the petitioner, as
plaintiff had claimed, the changed relief being commensurate with the
subsequent development, as alleged by the petitioner.
10.In the facts and attending circumstances of the present case, the facts,
sought to be incorporated, by way of amendment, were, in the considered view
of this Court, necessary to be incorporated in the plaint for the purpose of
resolving the real controversy in the suit inasmuch as the decree passed in the
suit would be futile if the statements sought to be incorporated by the plaintiff
were true, but not allowed to be brought on record. Whether the plaintiff was
really in possession of the suit land or not at the time of institution of the suit
will remain a question for determination at the trial; but in the face of the
pleadings, which the petitioner seeks to make in his plaint, it cannot be said
that allowing the amendments, sought to be made in the plaint, would amount
to introducing a new cause of action in the suit.
11.Because of what have been discussed and pointed out above, this Court
finds that the impugned order, disallowing the amendment, suffers from
serious infirmity of law.
12.In the result and for the foregoing reasons, the impugned order, dated
02-02-2009, is hereby set aside and the learned trial Court is hereby directed to
pass appropriate order if the plaintiff-petitioner files amended plaint within
the statutorily prescribed period of time.
13.With the above observations and directions, this revision shall stand
disposed of.
14.No order as to costs.
JUDGE
ORD 41 R/W ORD 1 RULE 10
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 100 of 2010
Petitioner :- Ram Prasad Mishra
Respondent :- Virendra Kuamr & Ors.
Petitioner Counsel :- Y.S. Bohra
Hon'ble Krishna Murari,J.
Heard learned counsel for the petitioner.
Challenge has been made to the order dated 2.12.2009 passed by the lower appellate court rejecting the application under Order 41 Rule 20 C.P.C.
Facts are that O.S. No. 481 of 1987 filed by the respondent no. 1 was decreed ex-parte, which was also executed in execution case no. 4 of 1989 and accordingly a sale deed was executed. In the year 1991. The heirs of the defendant of the said suit filed another O.S. No. 37 of 1991 for declaration of the judgement and decree dated 17.9.1988 as null and void as it was passed against dead person. The suit was decreed by the trial court vide judgement and decree dated 8.1.1999. Respondent no. 1 went up in appeal. During the pendency of the appeal, Ram Pal also died and was substituted by the present respondents no. 2 to 5. The petitioner claims to have purchased the property by means of registered sale deed from the respondents no. 2 to 5. During the pendency of the appeal, vide judgement and order dated 9.10.2002 the appeal was allowed and the judgement dated 8.1.1999 was set aside. Thereafter, the petitioner moved an application under Order 41 Rule 20 read with Order I Rule 10 C.P.C.
It is contended by learned counsel for the petitioner that the court below has wrongly dismissed the application inasmuch as the petitioner after having purchased the property was an interested and necessary party to be impleaded.
I have considered the argument advanced by learned counsel for the petitioner and perused the record.
Lower appellate court has recorded a categorical finding that the appeal has been decided on merits after hearing the parties and not in collusion as has been alleged. Further, once the appeal was decided on merits there is hardly any necessity to entertain the application under Order I Rule 10 for impleadment inasmuch as the proceedings of appeal itself came to an end. In so far as the Order 41 Rule 20 is concerned, it is applicable in cases where a person who was a party to the suit from whose decree the appeal is preferred and has not been made party in the appeal and is interested in the appeal, the court can direct such a person to be impleaded.
In the present case, admittedly the petitioner was not a party in the suit and as such the Order 41 Rule 20 are not attracted.
In view of above facts and discussions, no illegality has been committed by the court below in rejecting the application.
The writ petition accordingly fails and stands dismissed.
Order Date :- 22.3.2010
nd
?Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 100 of 2010
Petitioner :- Ram Prasad Mishra
Respondent :- Virendra Kuamr & Ors.
Petitioner Counsel :- Y.S. Bohra
Hon'ble Krishna Murari,J.
Heard learned counsel for the petitioner.
Challenge has been made to the order dated 2.12.2009 passed by the lower appellate court rejecting the application under Order 41 Rule 20 C.P.C.
Facts are that O.S. No. 481 of 1987 filed by the respondent no. 1 was decreed ex-parte, which was also executed in execution case no. 4 of 1989 and accordingly a sale deed was executed. In the year 1991. The heirs of the defendant of the said suit filed another O.S. No. 37 of 1991 for declaration of the judgement and decree dated 17.9.1988 as null and void as it was passed against dead person. The suit was decreed by the trial court vide judgement and decree dated 8.1.1999. Respondent no. 1 went up in appeal. During the pendency of the appeal, Ram Pal also died and was substituted by the present respondents no. 2 to 5. The petitioner claims to have purchased the property by means of registered sale deed from the respondents no. 2 to 5. During the pendency of the appeal, vide judgement and order dated 9.10.2002 the appeal was allowed and the judgement dated 8.1.1999 was set aside. Thereafter, the petitioner moved an application under Order 41 Rule 20 read with Order I Rule 10 C.P.C.
It is contended by learned counsel for the petitioner that the court below has wrongly dismissed the application inasmuch as the petitioner after having purchased the property was an interested and necessary party to be impleaded.
I have considered the argument advanced by learned counsel for the petitioner and perused the record.
Lower appellate court has recorded a categorical finding that the appeal has been decided on merits after hearing the parties and not in collusion as has been alleged. Further, once the appeal was decided on merits there is hardly any necessity to entertain the application under Order I Rule 10 for impleadment inasmuch as the proceedings of appeal itself came to an end. In so far as the Order 41 Rule 20 is concerned, it is applicable in cases where a person who was a party to the suit from whose decree the appeal is preferred and has not been made party in the appeal and is interested in the appeal, the court can direct such a person to be impleaded.
In the present case, admittedly the petitioner was not a party in the suit and as such the Order 41 Rule 20 are not attracted.
In view of above facts and discussions, no illegality has been committed by the court below in rejecting the application.
The writ petition accordingly fails and stands dismissed.
Order Date :- 22.3.2010
nd
ORD 6 RULE 17
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM
ANDARUNACHAL PRADESH)
Civil Revision Petition 16 of 2010
SHRI PRADIP KR. BANIK
S/O LT. HARENDRA BANIK
R/O VILL- PASCHIM SUALONI,
MOUZA- LAWIKHOWA,
P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
Petitioner.
Versus
1. MANINDRA MANDAL & ORS.
S/O LT. KAILASH MANDAL.
2. SHRI NIDANI MANDAL,
W/O SHRI MANINDRA MANDAL,
BOTH ARE RESIDENTS OF VILLAGE PASCHIMSUALONI,
MAUZA LAWIKHOWA, P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
3. Shri Prantosh Banik,
S/O Late Suresh Banik,
4. Shri Ranjit Banik,
S/O Late Satish Banik,
5. Shri Subhas Mandal,
6. Shri Sriram Mandal,
Both are sons of Late Moli Namasudra,
RESIDENTS OF VILLAGE PASCHIMSUALONI,
MAUZA LAWIKHOWA, P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
Respondents.
!1. Mr. AK Purkayastha,
2. Mr. BJ Das,
3. Mr. MM Mali, Petitioner's Advocates.
^1. Mr. P Sundhi, Respondent's Advocate.
Coram
BEFORE
HONOURABLE MR JUSTICE I A ANSARI
Date of hearing and judgment:27/01/2010
:J U D G M E N T
O R D E R
O R A L
The petitioner herein instituted, as plaintiff, Title Suit No. 13 (K) of
2008, wherein he sought for a decree of declaration of his rights, title and
interest over the suit land and confirmation of possession thereof. The suit was
resisted by the defendants by filing written statement, wherein, apart from
denying the plaintiff-petitioner s title to the suit land, they also contended to
the effect that they had been in possession of the suit land and have a pucca
house with CI sheet roofing constructed on the eastern wide of the suit land
and, hence, the question of granting a decree, in favour of the plaintiff,
confirming his possession over the suit land, or any part thereof, does not
arise. In their written statement, the defendants also took the plea that there
was a proceeding under Section 145 Cr.P.C. between the parties concerned in
respect of the suit land, wherein it had surfaced that the suit land had been in
possession of the defendants.
2.Following the filing of the written statement, the plaintiff filed an
application, under Order VI Rule 17 CPC, seeking amendment of the plaint by
incorporating, in the plaint, facts to the effect that subsequent to the
institution of the suit, the defendants had entered into the suit land and
constructed pucca house, with CI Sheet roofing, over the same during the puja
vacation, when the civil courts were closed. This application for amendment
was resisted by the defendants by contending, inter alia, that in their written
statement, they had already indicated that they were in possession of the suit
land and this fact was known to the plaintiff and yet he had suppressed the
same and it is unbelievable that a pucca house could have been constructed
over the suit land after the institution of the suit. The defendants, therefore,
sought to get the application for amendment rejected.
3.By the order, dated 02-02-2009, passed in the said suit, as the learned
Munsiff, Kaliabor, has rejected the said application for amendment, the
plaintiff has impugned the same in this revision.
4.Heard Mr. AK Purkayastha, learned counsel for the petitioner, and Mr. P
Sundhi, learned counsel for the opposite parties.
5.While considering this revision, what needs to be noted is that the
plaintiff s application for amendment has been rejected by the learned Court
below by observing, in the impugned order, that it finds hard to digest the
plaintiff s contention that the defendants had encroached upon the eastern
side of the suit land and constructed a pucca house for CI sheet roofing during
the puja vacation. The observations, so made by the learned trial Court, show
that the learned trial Court has rejected the plaintiff s application for
amendment on the ground that the facts, sought to be incorporated in the
plaint by way of amendment, were untrue or false or, at least, highly
improbable or almost unlikely.
6.It may be pointed out that while considering an application seeking
amendment of pleadings, the Court is not to decide the veracity or correctness
of a factual assertion, which a party seeks to incorporate in his pleadings, for,
determination of such a question, if the amendment is allowed, would be at
the stage of trial. What is required to be determined by a trial Court, at the
stage of considering an application for amendment seeking to incorporate
certain facts in the plaint or written statement, is as to whether the
amendment, which is sought to be made, is necessary for determination of real
controversy in the suit and whether the amendment, if allowed, would amount
to allowing the plaintiff to change the nature or character of the suit or would
give rise to new cause of action, which is unconnected with the cause of action
in issue in the suit.
7.It may also be pointed out that while considering an application for
amendment, the Court has to proceed on assumption that the facts, sought to
be incorporated in the plaint or written statement, are true and, then,
determine whether the statements, made in the amendment application, can
help the Court in resolving the real controversy in issue in the suit, subject, of
course, to the condition that no amendment can be allowed to be made by the
plaintiff, which would amount to changing the nature and character of the suit
or would help to introduce into a suit a new cause of action, wholly
unconnected with the cause of action based on which the suit was instituted.
Whether, as a matter of fact, the statement, sought to be incorporated by way
of amendment, is or is not true, is a question, which can be decided, as
already indicated above, at the trial and not in an application for amendment.
8.I may, at this stage, refer to the case of Rajesh Kumar Aggarwal and
Ors.vs- K.K. Modi and Ors, reported in (2006) 4 SCC 385, wherein the Apex
Court observed and held as under:
11. Order VI Rule 17 consist of two parts whereas the first part
is discretionary (may) and leaves it to the Court to order amendment of
pleading. The second part is imperative (shall) and enjoins the Court to
allow all amendments which are necessary for the purpose of
determining the real question in controversy between the parties.
12. In our view, since the cause of action arose during the
pendency of the suit, proposed amendment ought to have been granted
because the basic structure of the suit has not changed and that there
was merely change in the nature of relief claimed. We fail to
understand if it is permissible for the appellants to file an independent
suit, why the same relief which could be prayed for in the new suit
cannot be permitted to be incorporated in the pending suit. As
discussed above, the real controversy test is the basic or cardinal test
and it is the primary duty of the Court to decide whether such an
amendment is necessary to decide the real dispute between the parties.
If it is, the amendment will be allowed; if it is not, the amendment will
be refused. On the contrary, the learned Judges of the High Court
without deciding whether such an amendment is necessary has
expressed certain opinion and entered into a discussion on merits of the
amendment. In cases like this, the Court should also take notice of
subsequent events in order to shorten the litigation, to preserve and
safeguard rights of both parties and to sub-serve the ends of justice. It
is settled by catena of decisions of this Court that the rule of
amendment is essentially a rule of justice, equity and good conscience
and power of amendment should be exercised in the large interest of
doing full and complete justice to the parties before the Court.
13. While considering whether an application for amendment
should or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. Likewise, it should
not record a finding on the merits of the amendment and the merits of
the amendment should to be incorporated by way of amendment are
not to be adjudged at the stage of allowing the prayer for amendment.
This cardinal principle has not been followed by the High Court in the
instant case.
9.Considered in the above backdrop of the position of law, it becomes
clear that the plaintiff s case, at the time of institution of the suit, was that he
not only had title to the suit land, but also possession thereof. In the face of
the pleadings in the written statement, the plaintiff seeks, in effect, to
incorporate, in his plaint, that subsequent to the institution of the suit, he had
been ousted from a portion of the suit land and he is, therefore, required to
incorporate his allegations as regards his ouster from the suit land and
consequential relief of recovery of possession from that part of the suit land
from where he claims to have been ousted or dispossessed. Ordinarily, a Court
shall allow pleadings to be amended in the light of the subsequent events, for,
it is the duty of the Court to ensure, as far as practicable, that litigations are
shortened and multiplicity of proceedings and suits are avoided. The facts,
which the petitioner sought to incorporate in the plaint, reflected, according
to the petitioner, events, which were subsequent to the institution of the suit.
Whether, as a matter of fact, allegations as regard such subsequent events,
were or were not true, is a question, which would be decided at the trial and
could not have been decided at the stage of considering the application for
amendment. This apart, in the face of the facts, which the petitioner seeks to
incorporate, in his plaint, would not change the basic structure of the suit and
there would only be a change in the nature of relief, which the petitioner, as
plaintiff had claimed, the changed relief being commensurate with the
subsequent development, as alleged by the petitioner.
10.In the facts and attending circumstances of the present case, the facts,
sought to be incorporated, by way of amendment, were, in the considered view
of this Court, necessary to be incorporated in the plaint for the purpose of
resolving the real controversy in the suit inasmuch as the decree passed in the
suit would be futile if the statements sought to be incorporated by the plaintiff
were true, but not allowed to be brought on record. Whether the plaintiff was
really in possession of the suit land or not at the time of institution of the suit
will remain a question for determination at the trial; but in the face of the
pleadings, which the petitioner seeks to make in his plaint, it cannot be said
that allowing the amendments, sought to be made in the plaint, would amount
to introducing a new cause of action in the suit.
11.Because of what have been discussed and pointed out above, this Court
finds that the impugned order, disallowing the amendment, suffers from
serious infirmity of law.
12.In the result and for the foregoing reasons, the impugned order, dated
02-02-2009, is hereby set aside and the learned trial Court is hereby directed to
pass appropriate order if the plaintiff-petitioner files amended plaint within
the statutorily prescribed period of time.
13.With the above observations and directions, this revision shall stand
disposed of.
14.No order as to costs.
JUDGE
SPECIFIC RELIEF ACT
THE SPECIFIC RELIEF ACT, 1963
ACT NO. 47 OF 1963
An Act to define and amend the law relating to certain kinds of
specific relief.
[13th December, 1963.]
BE it enacted by Parliament in the Fourteenth Year of the
Republic of India as follows:-
PART
PRELIMINARY
PART I
PRELIMINARY
1.
Short title, extent and commencement.
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 date 1* as the Central
Government may, by notification in the Official Gazette, appoint.
2.
Definitions.
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.
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
---------------------------------------------------------------------
1 1st March, 1964; vide Notification No. S.O. 189, dated 13-1-1964,
Gazette of India, Pt. II, Sec. 3 (ii), p. 214.
The Act shall come into force in the State of Sikkim on 1.9.1984
vide Notifn. No. S.O.648 (E), dt. 24.8.84, Gaz. of India, Exty.
Pt. II, Sec. 3 (ii).
616
(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
civilrights
and not for enforcing penal laws.
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
SPECIFIC RELIEF
PART II
SPECIFIC RELIEF
CHAP
RECOVERING POSSESSION OF PROPERTY
CHAPTER I
RECOVERING POSSESSION OF PROPERTY
5.
Recovery of specific immovable 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.
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 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.
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.
617
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
personsentitled
to immediate possession.
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.
CHAP
SPECIFIC PERFORMANCE OF CONTRACTS
CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS
9.
Defences respecting suits for relief based on contract.
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.
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
618
(b) when the act agreed to be done is 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
trustsenforceable.
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.
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 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.
(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 admiting
of compensation in money; or
(b) does not admit of compensation in money;
619
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.
13.
Rights of purchaser or lessee against person with no title
orimperfect
title.
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 persons 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
---------------------------------------------------------------------
1 Ins. by Act 52 of 1964, s. 3 and Sch. II.
620
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 lessor 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.
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
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 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
621
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 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;
(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.
622
PERSONS FOR OR AGAINST WHOM CONTRACTS MAY BE SPECIFICALLY
ENFORCED
15.
Who may obtain specific performance.
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 of 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 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 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.
623
16.
Personal bars to relief.
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
(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 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,
notspecifically enforceable.
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.
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
624
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 contract;
(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
subsequenttitle.
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.
DISCRETION AND POWERS OF COURT
20.
Discretion as to decreeing specific performance.
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
625
arbitary 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;
(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.
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.
626
(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 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 circumstance that the contract has become
incapable of specific performance does not preclude the court from
exercising the jurisdiction conferred by this section.
22.
Power to grant relief for possession, partition, refund of
earnestmoney,
etc.
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:
Provided that where the plaintiff has not claimed any such relief
in the plaint, the court shall, at any stage of the proceeding, allow
---------------------------------------------------------------------
1 Subs. by Act 52 of 1964, s. 3 and Sch. II, for "made to".
627
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.
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
forspecific
performance.
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
testamentarydirections 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.
CHAP
RECTIFICATION OF INSTRUMENTS
CHAPTER III
RECTIFICATION OF INSTRUMENTS
26.
When instrument may be rectified.
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
628
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.
(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.
CHAP
RESCISSION OF CONTRACTS
CHAPTER IV
RESCISSION OF CONTRACTS
27.
When rescission may be adjudged or refused.
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.
629
(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
leaseof
immovable property, the specific performance of which has
beendecreed.
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 egards 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 refund of any sum
paid by the vendee or
630
lessee as earnest money or deposit in connection with
the contract.
(3) If the purchaser 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.
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.
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 require.
CHAP
CANCELLATION OF INSTRUMENTS
CHAPTER V
CANCELLATION OF INSTRUMENTS
31.
When cancellation may be ordered.
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.
631
(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.
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
madewhen
instrument is cancelled or is succesfully resisted as being voidor
voidable.
33. Power to require benefit to be restored or compensation to be
made when instrument is cancelled or is succesfully 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.
CHAP
DECLARATORY DECREES
CHAPTER VI
DECLARATORY DECREES
34.
Discretion of court as to declaration of status or right.
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:
632
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.
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
PREVENTIVE RELIEF
PART III
PREVENTIVE RELIEF
CHAP
INJUNCTIONS GENERALLY
CHAPTER VII
INJUNCTIONS GENERALLY
36.
Preventive relief how granted.
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.
37. Temporary and perpetual injunctions.- (1) Temporary
injunctions are such as are to continue until a specified 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.
CHAP
PERPETUAL INJUNCTIONS
CHAPTER VIII
PERPETUAL INJUNCTIONS
38.
Perpetual injunction when granted.
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.
633
(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.
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.
40.
Damages in lieu of, or in addition to, injunction.
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.
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
634
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 the assistance of the
court;
(j) when the plaintiff has no personal interest in the
matter.
42.
Injunction to perform negative agreement.
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.
43.
[Repealed.]
43. [Amendment of Act 10 of 1940.] Rep. by Act 56 of 1974, s. 2
and Sch. I.
44.
[Repealed.]
44. [Repeal] Rep. by s. 2 and Sch. I, ibid.
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