Introduction

Specific Relief Act was enacted in 1877. The Act was originally drafted upon the lines of the Draft, New
York Civil Code, 1862, and its main provisions embodied the doctrines evolved by the English Equity
Courts. The Specific Relief Act, 1963 is the outcome of the acceptance by the Central Government on the
recommendations made by the Law Commission of India. A bill to repeal the Act of 1877 was introduced
in LokSabha and was passed by the both the houses of Parliament and on 13th December, 1963 the
President assented to the same.

The Specific Relief Act provides for specific reliefs. Specific relief means relief of certain species, i.e. an
exact or particular, a named, fixed or determined relief. The term is generally understood and providing
relief of a specific kind rather than a general relief or damages or compensation. It is a remedy which
aims at the exact fulfillment of an obligation or specific performance of the contract. For instance if
somebody unlawfully dispossesses me of my property, the general relief may be requiring the defendant
to pay me compensation equivalent to the loss suffered by me due to dispossession. Specific relief may
enable me to have the possession of the same property over again by requiring the defendant to restore
possession of my property. Specific performance is generally granted when there exist no standard for
ascertaining actual damages, for instance the object of the sale is picture by the dead painter, or where
compensation in money will not provide adequate relief to the plaintiff.

The Specific Relief Act, 1963 extends to the whole of India, except the State of Jammu and Kashmir. The
Specific Relief Act deals only with certain kinds of equitable reliefs and these are now:

i) Recovery of possession of property

ii) Specific Performance of contracts

iii) Rectification of Instruments

iv) Rescission of Contracts

v) Cancellation of instruments

vi) Declaratory decrees

vii) Injunctions
The other forms of Specific relief mentioned in the Code of Civil Procedure and in statutes such as
Transfer of Property Act, Trust Act, and Partnership Act are different in origin and nature and are not
included in this Act. The cases of Contract are governed by the statutory provisions contained in the
Indian Contract Act, 1872 and the provisions of the Specific Relief Act do not apply to such
cases.
 OBJECT AND SCOPE OF ACT

The object of the Act may best be stated in the words of Statement of Object and Reasons which runs as
under:-

This Bill seeks to implement the recommendation of the Law Commission contained in its Ninth Report
on the Specific Relief Act, 1877, except in regard to Section 42 which is being retained as it now stands.
An earlier Bill on the subject introduced in the LokSabha on the 23rd December, 1960, lapsed on its
dissolution. The notes on clauses extracted from the Report of the Law Commission, explain the changes
made in the existing Act.

The object of the Specific Relief Act is confined to that class of remedies which a suitor seeks to obtain
and a Court of justice seeks to give him the very relief to which he is entitled. The Law of Specific Relief
seeks to implement the idea of Bentham who said: The law ought to assure me everything which is mine,
without forcing me to accept equivalents, although I have no particular objection to them.

The Specific Relief Act, 1962 embodies what is essence is adjective law and the substantial law
must be looked for elsewhere. The Law of Specific Relief is in its essence, a part of the law of procedure,
for Specific Relief is a form of judicial redress. This Act provides law with respect to various reliefs
which can be granted under its provisions. It does not deal with the remaining remedies, which are
connected with compensatory relief except incidentally and to the limited extent to which it is either
supplementary for alternative to Specific Relief. The expression Specific Relief means a relief in specie.
It is a remedy which aims at the exact fulfillment of an obligation. The expression Specific Relief is
used in contract to compensatory relief. In executor contracts, a suit may be brought to compel the
performance of the contract by the person in default. Such relief may be either positive or negative. It is
positive when a claim to the performance of it and negative when it is desired to prevent the doing of
thing enjoined or under taken as not to be done.

The Specific Relief Act explains and enunciates the various reliefs which can be granted under its
provisions, provides the law with respect to them. It provides for the exact fulfillment of the obligation or
the specific performance of contract. It is directed to the obtaining of the very thing which a person is
deprived of and ought to be entitled to ask for. It is remedy which a person is deprived of and ought to be
entitled to ask for. It is a remedy by which party to a contract is compelled do or omits the very acts
which he has undertaken to do or omit. The remedies which has been administered by Civil Courts of
Justice against any wrong or injury fall broadly into two classes; (i) those by which the suitor obtains the
very thing to which he is entitled, and (ii) those by which he obtains not that very thing, but compensation
for the loss of it. The former is the specific relief. Thus specific relief is a remedy which aims at the exact
fulfillment of an obligation. It is remedial when the court directs the specific performance of contract and
protective when the court makes a declaration or grants an injunction.

PREVENTIVE RELIEF OR INJUNCTIONS

(SECTIONS 3644)

Grant of preventive relief or injunction (Section 36)

According to Section 36 preventive relief is granted at the discretion of the court by injunction
temporary or perpetual.
A preventive relief (injunction) is an order or command of the Court preventing a party from
doing something which he is under a legal duty not to do. For instance, every person is legally bound not
to commit trespass or not to defame a person, and, therefore, the court may issue an injunction preventing
a party from committing a trespass, or defaming someone.

Discretion of the court

The jurisdiction of the court to grant injunctions, whether temporary, or perpetual, is
discretionary. It is the discretion of the court to grant or refuse such relief. The discretion does not mean
that court can act arbitrarily.1 The court is to be guided by the principles of justice, equity and good
conscience. The court has to weigh the amount of mischief done or threatened to be done to the plaintiff
and harm likely to be caused to the defendant by the issue of injunction.
Coparcener could not seek injunction against other coparceners.A coparcener could not seek
an injunction against the other coparceners restraining them from enjoying the joint family properties.
Therefore, in the instant case second defendant was not entitled to seek an injunction restraining the
plaintiffs from enjoying the plaint schedule property.

Temporary and Perpetual injunctions (Section 37)

Temporary Injunctions (Section 37(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.
To obtain temporary injunction the plaintiff has to prove that fhere is a prima facie case in his favour
indicating existence of a legal right asserted by him.3 It has to be shown by him that the balance
convenience is in his favour so that mischief likely to be caused by the act of the defendant is prevented

Order 39, Rule 1, Code of Civil Procedure, 1908 contains the following provision
regarding the grant of temporary injunction "1. Cases in which temporary injunction may be
granted. Where in any suit it is proved by affidavit or otherwise
(a) that any property in dispute in a suit is in danger of being wasted, damaged
or alienated by any party to the suit, or wrongfully sold in execution of a
decree, or
(b)that the defendant threatens, or intends, to remove or dispose of his property
with a view to defrauding his creditors.
(C) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to
the plaintiff in relation to any property in dispute in the suit, the Court may by order grant
a temporary injunction to restrain such act, or make such order for the purpose of staying
and preventing the wasting, damaging, alienation, sale, removal or disposition of the
property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit as die Court thinks fit, until the disposal of
the suit or until further orders."
Perpetual injunction [Sections 37(2) and 38]
A perpetual injunction can only be granted by the decree n\aH at the hearing and upon the
merits of the suit : the defendant i! 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.
Section 37(2) is a general provision stating that a perpetual injunction can only be granted
by a decree made at the hearing and upon merits of the case.
Suit for permanent injunction based on possession.In this case it was held that
ordinarily the Court should not go into the question of title. However, when the parties
led evidence of title and sought a decision on the same day, the parties could not find
fault with the Court contending that the title of the deed is unnecessary.
Plaintiff entitled to interim reliefs of injunction against owner restraining the transfer of
property.Where there was Memorandum of Undertaking between parties to develop
and sell land. It was obligatory on the owner in MOU regarding consent from tenant to
get tenements vacated for starting development of structure. Owner had retained first
installment of payment and demanded second installment of large amount without
fulfilling aforesaid obligation. Held that MOU could not come to an end on ground of
failure of owner to obtain consent letters from tenants. The plaintiff was entitled to
interim reliefs of injunction against owner restraining him from transferring property to
any other person.
Sufficient reason must be given for grating mandatory injunction.In suit for mandatory
injunction sufficient reason must be given for granting interim injunction and mandatory
injunction could be granted only after full trial lest it would amount to deciding the very
suit.
Suit for specific performance and injunctionOrder of injunction restraining defendants
from causing any interference with possession of plaintiffs over suit property proper.
Where three agreements to sell in respect of suit land had u bv defendants m favour of
plaintiff. They had been executed of fend- Huge amount was paid as consideration to
defendant n" defendants were avoiding to execute sale deeds and interference on
plaintiffs possession over land. As plaintiff had prima facie re-informed by
considerations of balance of convenience irreparable loss in their favour, hence, order of
injunction restraint defendants, pending suit, from causing any interference with
possession of plaintiffs over suit property was proper.
Circumstances for granting of perpetual injunction (Section 38)
Section 38 contains the following rules for the grant of perpetual injunction
(1) Subject to the other provisions contained and referred to in Chapter VIII, Specific
Relief Act, 1963, 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 for specific performance of contracts, contained in Chapter II (!/
Sections 9 to 25) of the Act.
(3) When the defendant invades or threatens to invade the plaintiffs 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 e invasion;
(c) where the invasion is such that compensation in money would not afford
adequate relief;
(d) where the injunction is necessary to pre multiplicity of judicial proceedings.
Prohibitory Injunction (Section 38)
A prohibitory injunction prohibits or forbids the doing of some net and is governed by
Section 38. Such injunction may be granted to the plaintiff to prevent the breach of an
obligation existing in his favour. for instance, A, It and C are members of an undivided
Hindu family. A cuts timber growing on the family-property, and threatens to destroy
part of the family-house and to sell some of the family utensils. B and C may sue for an
injunction to restrain A from doing the threatened act.2 Similarly, if A threatens to
illegally construct structure on B's land, B may obtain an injunction against A forbidding
him from illegally constructing the said structure.
According to Section 38 an injunction may be issued to prevent breach of 'obligation'
existing in plaintiff's favour. Obligation may be of any kind, e.g., it may arise out of
 contractual relations, or it may be under law of torts, or under a trust, i.e., it may arise out
of fiduciary relationship between the parties, or it may be even a statutory obligation.
Threatened breach of any kind of legal obligation may invite an injunction to prevent the
same.
Perpetual injunction is an equitable relief and can be granted In appropriate cases.
Suit for permanent injunction not liable to be interfered.
Where plaintiff was not in possession of property as per the report of local Commissioner
and did not seek relief of declaration of title. Held that first appellate Court refusing
injunction on finding that plaintiff was not in possession of property on basis of fact
based on evidence, was not liable to be interfered with.
Mandatory Injunction (Section 39)
According to Section 39, when to prevent a 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 the performance of the requisite acts. Thus, in case a mandatory injunction the
Court requires the performance of the requisite act. When the injunction compels doing
of some act it is mandatory injunction, but when the direction is not to do something,
injunction is prohibitory
Damages in lieu of, or in addition to, injunction (Section 40)
The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction
under Section 39, may claim damages. The claim for damages may be either in addition
to, or in lieu of, injunction. The Court may award such damages, if it thinks fit.2
No relief for damages shall be granted under Section 40 unless the plaintiff has claimed
such relief in his plaint.3 In case the plaintiff has not claimed such damages in his plaint,
the court shall, at any stage of the proceeding, allow the plaintiff to amend the plaint on
such terms, as may be just for including such claim.4
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.5 It means that if the main
suit to obtain injunction is dismissed, the suit to claim damages shall also be
automatically barred.

When injunction can be refused (Section 41)

It has been noted above that Section 38 mentions the circumstances when an
injunction can be granted. Section 41 supplement section 38 and states the circumstances
when an injunction cannot be granted, and is to be refused.

(a) a perpetual injunction cannot be granted to stay judicial proceeding which is

pending in other courts

(b) (2) Stay of proceedings in a Court not subordinate.An injunction cannot be

 granted to restrain any person either (i) from instituting, or (ii) from
prosecuting, any proceeding in a court not subordinate to that from which the
injunction is sought.It means that an injunction can only be granted to stay
proceedings in courts which are subordinate to the Court from which the
injunction is sought. Therefore, no injunction can be granted to stay
proceedings before the same court from which the injunction is sought.

(c) Restraining any person from applying to legislative body .An injunction cannot
be granted to restrain any person from applying to any legislative body.5 It is a
matter of public policy that no person should be restrained from applying to
any legislative body, if he so likes.

(d) Stay of proceedings in a criminal matter.An injunction cannot be granted to

restrain any person from either(i) instituting, or (ii) prosecuting any
proceeding in a criminal matter.

(e) No issue of injunction to prevent a breach of contract According to Section

41(e) an injunction cannot be granted to prevent the breach of a contract the
performance of which would not be specifically enforced. It means that if the
contract is of such a nature that the same cannot be specifically enforced, a
court will not grant an injunction to prevent the breach of such a contract.

It has been noted above that a contract of personal service cannot be specifically
enforced, either by the master or the servant Therefore, a person dismissed from service
cannot obtain an injunction alleging that the dismissal is wrongful, and the employer
should be restrained from dismissing him.

Exception to Section 41(2) [Section 42]

In such a case if the court is unable to compel specific performance of the affirmative
agreement, the court may still grant an injunction to perform the negative agreement. It
means if the positive part is not enforceable an injunction cannot be granted as regards,
that part only. The Court is not thereby precluded from granting an injunction to perform
the negative agreement. If the plaintiff wants an injunction in respect of such negative
part, he should have actually performed his part of the contract.