SHORT NOTES ON SPECIFIC RELIEF ACT PART 2

Chapter 3 Rectification of instruments

S 26. When instrument may be rectified:-

Sub S 1. When through fraud or mutual mistake of parties,a contract or other instrument in writing does not express real intention of parties, then-

a) either party or his representative in interest may institute a suit to have instrument rectified.

Sub S 2. Court may direct rectification of instrument so as to express that intention,so far as this can be done without prejudice to rights acquired by third person in good faith and for value.

Sub S 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.

Sub S 4. No relief is to be granted unless prayed. If not prayed court can allow amendment to incorporate said prayer.

Chapter 5 Cancellation of instrument

S 31. When cancellation may be ordered :-

Sub S 1. Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument if left out 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.

Sub S 2. If the instrument has been registered under The Indian registration Act, 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.

S 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.

S 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:-

Sub S 1. On adjudging the cancellation of an instrument, the court may require the party to whom such relief is granted ,to restore any benefit which he may have received from the other party and to make any compensation to him which justice may require.

Chapter 6 Declaratory decrees

S 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.

Declaratory decrees can be passed by court as per provisions of CPC,that is S 9 or O 7 R 7 of CPC. Ramnarayan v firm mangeram Radhyeshyam AIR 1979 MP 61 DB.

S 35. Effect of declaration:- A declaration made under this chapter is binding only on parties to suit ,persons claiming through them respectively.

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Chapter 7 Injunction generally

S 36. Preventive relief how granted- Preventive relief is granted at the discretion of court by injunction, temporary or perpetual.

S 37. Temporary and perpetual injunction:-

1)Temporary injunction are regulated by CPC.

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 commission of an act which would be contrary to rights of the plaintiff.

Chapter 8 perpetual injunctions

S 38 Perpetual injunction when granted:-

1) Perpetual injunction is granted to plaintiff to prevent 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 2.

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;

S 39. Mandatory injunction:- When to prevent the breach of an obligation, it is necessary to compel 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.

S 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 to be granted unless claimed in plaint. Plaintiff can amend the plaint to incorporate such relief.

3) Dismissal of suit to prevent breach of an obligation existing in favour of plaintiff shall bar his right to sue for damages for such breach.

S 41. Injunction when refused:- An injunction can not be granted-

a) to restrain any person from instituting or prosecuting judicial proceeding unless such restraint is necessary to prevent multiplicity of proceedings;

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 is 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;

I) When the conduct of plaintiff or his agents has been such as to disentitle him to the assistance of court;

j) When the plaintiff has no personal interest in the matter;

S 42.Inunction to perform negative agreement:-

Where a contract comprises of an affirmative agreement to do a certain act,coupled with a negative agreement,not to do a certain act,if court is unable to compel specific performance of affirmative agreement shall not preclude it from granting an injunction to perform negative agreement;

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