Introduction to the Specific Relief Act

By | January 8, 2020
Introduction to the Specific Relief Act

Introduction to the Specific Relief Act is a must before jumping into a range of reliefs as are being provided under the law. Having a legacy of distinction, earlier through the 1877 Act and then through the 1963 Act, the legislature endeavoured to grant the equitable jurisdiction and widen the justice imparting powers of the courts.

Introduction

The institution of justice is being approached by an aggrieved litigant for the purposes of getting relief. In the contractual relationship, where one person detracts from the promise earlier made, the other person deserves a remedy from the law. This is what the Specific Relief Act tends to achieve.

From this codified legislation, flow some of the most common remedies that today in a court of law are found to be given in a variety of such cases of breaches. Examples include that of the specific performance of contracts, recovery of possession of property etc.

This shows how this act covers the remedial aspects of the law and comes into picture only when a legal right is violated, thus a branch of the procedural law.

In the coming article, the introductory aspects of this legislation would be examined. With forty-four appended sections along with the two major concepts of specific relief and preventive relief imbedded in the statute, we will have a cursory look across the legal provisions.

Meaning

Long back the Calcutta High Court clarified on the meaning of this oft-repeated phrase of specific relief, whereby it was categorically held that it is meant as a form of judicial redress which hence belongs to the law of procedure.[1]

In a body of written law, it is arranged according to the natural affinities of its subject matter and it is supposed to find its place as a distinct part of the Code of Civil Procedure Code or other division. If the historical accidents are not considered in the interpretation of the law, there would be no reason left for a separate procedural law other than the Civil Procedure Code and the Transfer of Property Act. [2]

This procedural law can also be termed to providing a legal mechanism for the parties to avail the benefit of equitable reliefs that were so developed over the years throughout the chequered history of Chancery courts.

History

Before coming to how the legislation in India took its final shape in 1963, it is important to understand its roots in the common law and equity. Pollock and Mulla in their commentary[3] throw light on this aspect. It is explained how from the default King’s justice the course moved on to the Chancellor fulfilling the king’s role in giving adequate remedies to the parties when the money compensation would fall inadequate.

Common-Law vs. Equity

On one hand, the common law could only provide for payment for the breaches of the contract, the equity courts stepped in to restrain and coerce the faulting party to actually perform what he or she had earlier promised to perform.

The confusion was that the law courts could not give specific relief due to their well defined ordinary civil jurisdiction whereas the equity courts could not order for damages given their equitable jurisdiction.[4]

1877 Act

In India, during the colonial times, the Specific Relief Act, 1877 was being enacted. The New York Civil Code, 1862 was taken as the model to be adapted. The main provisions do follow the equity principles which are so evolved by the Courts of England.[5]

This legislation borrowed from both the weaknesses as well as the strengths from the Courts of Equity.[6]  One of the biggest examples includes the remedy of specific performance whereby the confusion of deficient remedy giving power for both common law and equity courts was resolved. By this remedy, now even the law courts could grant under the law a relief which was equitable in nature.

This act was amended a number of times. After its enactment, Act 4 of 1882 amended it, later a series of amendments followed, as, Acts 12 of 1891, 9 of 1899, 21 of 1929, 10 of 1940 and 3 of 1951. Adaptation Orders came up to adapt the said legislation, namely, A.O. 1937, A.O. 1948 and A.O. 1950.

1963 Act

It was the strenuous efforts made by the Law Commission of India headed by the eminent jurist, M.C. Setalvad, which led to the drafting of Report on the Specific Relief Act, 1877. It recommended a drastic change in the legislation to be made so as to put to rest the defects in the drafting of the act. The report was submitted in July 1958.

The biggest effect of this report was that Sh. A.K. Sen, the then Law Minister acted upon the suggestions and led the enactment of the Act in 1963. The best thing is that the recommendation to remove all the illustrations was being acted upon given the fact that the illustrations in the old act had failed to clarify the provisions of that Act.

Nature of Legislation

The long title of this act is very illustrative in terms of letting us know what would be the aim of the legislation which it projects to achieve. The crisp wordings are- “An Act to define and amend the law relating to certain kinds of Specific Reliefs.” This long title explains the nature of this legislation and its scope.

Though on one hand, the grant of equitable reliefs would expand the jurisdiction of the courts, the long title shows how this act is not exhaustive so as to envelope within its ambit all kinds of specific reliefs. Hon’ble Supreme Court has noted this point elaborately in the case of Ashok Kumar Srivastav v. National Insurance Co. Ltd.[7]

The point made is that though the legislation covers various types of specific reliefs and one type of specific relief in a variety of situations, the Act does not cover all the specific reliefs conceivable.[8] The legislation is not exhaustive enough to cover the whole of the law on the subject.[9] On the matter, as it defines, it might seem to be exhaustive but it does not purport to lay down the law relating to specific relief in all its ramifications.[10]

The concept of specific relief as mentioned above emanated from the English Courts. Indian courts have also recognised that the Specific Relief Act is based on the English Law and its provisions have to be interpreted in light of the principles followed by the English Courts only. But a provision of the Act would prevail in case of conflict between the two.[11]

This is the reason that the principles applicable in the English law are not blindly applied to Indian law. One example is that of the doctrine of mutuality that was followed as a defence to the claim of specific performances. This doctrine is not applicable in Indian contexts.[12]

Preliminary Understanding

The Statement of Objects and Reasons of the Bill (which later became the Specific Relief Act) tends to throw a tremendous light on the purposes which the legislation endeavours to achieve. It follows that the Bill seeks to implement the recommendations of the Law Commission contained in its Ninth Report on the Specific Relief Act, 1877.[13]

When in the fourteenth year of the Republic of India, the act was enacted; the preliminary aspects we should know are clarified in its Part I. The title of the act is being reiterated a number of times hereinabove.

The extent is to the whole of India except the State of Jammu and Kashmir. This wide extent shows that it extends to even the scheduled districts. The logic can be that of the Transfer of Property Act which is also applicable in the Schedules districts.

When before 1963, the repealed Act, the Act of 1877 was in place, the Indian courts used to grant the relief on the grounds of equity, justice and good conscience. It is because the relief of specific relief was not created by courts rather it was in existence independently.[14]  

The commencement of this act was left at the hands of the Central Government to notify such date by notification in the Official Gazette. Hence, the Act came into force as on March 1, 1964.[15]

Definitions

The Act provides for four substantive definitions in its Section 2 and in its fifth clause[16], the section leaves the undefined terms to draw their meaning from the Indian Contract Act.[17]

Obligation[18]

It is given an inclusive definition to mean every duty enforceable by law.[19] It is not a mere moral, religious or social duty[20] rather a duty corresponding with a legal right.[21] This is a very wide definition and would include any enforceable duty under any statute for the time being in force.[22]

Settlement[23]

The destination or devolution of successive interests would be disposed of through this instrument except for a will or codicil. The courts consider the number of factors to determine whether a document is a will or a settlement, like, name used to describe the document, registration, reservation of life- estate, reservation of the power of revocation, use of present or future tense.[24]

Trust[25] and Trustee[26]

Trust is as defined in the Indian trust act which is trust defines it as an obligation annexed to the ownership of a property. There is the confidence of the owner reposed in another for the benefit of another.[27] Trustee is supposed to mean every person who holds the property in a trust.[28]

Essentially a fiduciary relationship is required to be established. Even a promoter of a company who purchases immovable property for the company stands in a fiduciary relationship and hence becomes a trustee.[29]

Savings

The right and interest except for specific performance, under any contract and the operation of the Indian Registration Act, is left unaffected by the virtue of Section 3 of the Act.[30]

The Calcutta High court has opined that the right talked about over here is an accrued right and not a mere exception. [31] Due to this section, an unregistered sale deed can be admitted in a suit of specific performance as evidence of the contract.[32]

Individual Civil Rights

Section 4 makes it clear that the grant of the relief is only for the enforcement of individual civil rights and not for penal laws.[33] Hence, the presence of penal nature in the matter would have to be established.

If a magistrate is directed to furnish copies of the proceedings in a case before him so as to grant specific relief, was not considered enforcement of penal law.[34]

Network of Reliefs

The outline of this act is numbered with a variety of reliefs. They are as follows-

1. Recovery of Possession of Property

Sections 5 to 8 give the civil courts the power to grant this remedy so as to avoid the possibility of creation of serious violent conflicts.[35]

2. Specific Performance of Contracts

Sections 9 to 25 provide for this remedy. A contract has a huge role as a facilitator in today’s booming social and economic transactions. Simply dismantling them would not serve the purpose rather it would be only when the party is made to perform what he or she promised to perform.

3. Rectification of Instruments

Section 26 provides for this remedy. A mistakenly executed document can be rectified under the law.

4. Rescission of Contracts

Sections 27 to 30 govern this type of the remedy whereby the operation of the contract could be voidable, example at the behest of no consent.

5. Cancellation of Instruments

Section 31 to 33 takes care of the instruments that are subsequently discovered to be void or becomes void; hence the parties have a remedy to cancel the instrument.

6. Declaratory Relief

Sections 34 to 35 govern this relief of Declaratory Decree. This is against the person who restrains the owner from enjoying the interest in his title on a general basis.

7. Preventive Relief

Injunctions generally (Sections 36- 37) along with perpetual injunctions (Sections 38- 42) are the preventive relief provided for in Part 3 of the statute. As by name suggests, a particular kind of activity is being restrained on part of the offender.

Hon’ble Supreme Court in the landmark case of Adhunik Steels Ltd. v. Orissa Manganese Minerals (P) Ltd.[36] has summarized all the above-mentioned reliefs together and also explained their nature and scope.

Conclusion

Though the act is not exhaustive, the remedies it covers are important and have far-reaching consequences. The courts’ jurisdiction is being emboldened in imparting their virtue of justice delivery in a more efficient manner so that the litigant can not only say that Justice is done rather Justice is seen to be done.


[1] Moulvi Ali Hossain Mian v. Rajkumar Haldar, AIR 1943 Cal 417.

[2] Sir Frederick Pollock et. al., Pollock & Mulla, The Indian Contract and Specific Relief Acts 735 (Lexis Nexis 1957).

[3] Sir Frederick Pollock et. al., Pollock & Mulla, The Indian Contract and Specific Relief Acts 1833 (Lexis Nexis 2013).

[4] Id. at 1834.

[5] Ninth Report on the Specific Relief Act, 1877 1 (Law Commission of India, Ministry of Law, Government of India 1958).

[6] Sir Frederick Pollock et. al., Pollock & Mulla, The Indian Contract and Specific Relief Acts 1834 (Lexis Nexis 2013).

[7] Ashok Kumar Srivastav v. National Insurance Co. Ltd., AIR 1998 SC 2046.

[8] Id.

[9] Kishore Chand Shiva Charan Lal v. Badaun Electric Supply Co., AIR 1944 All 66.

[10] Hungerford Investment Trust Ltd. v. Haridas Mundhra, AIR 1972 SC 1826.

[11] Akshayalingam Pillai v. Avayambala Ammal, AIR 1933 Mad 386; Rahmath Unissa Begum v. Shimoga Co-op Bank Ltd., AIR 1951 Mys 59; Ardeshir H Mama v. Flora Sassonm AIR 1928 PC 208.

[12] Chetoomal Bulchand v. Shankardas Girdharilal, AIR 1929 Sind 83.

[13] Gazette of India, Extra., Part II, S. 2, June 15, 1962.

[14] Janardan Mahato v. Bhairab Chandra Mondal, AIR 1916 Cal 259; Lal Shaha v. Kado Mahto, AIR 1921 Pat 1.

[15] Durga Prasad Pradhan v. Palden Lama, AIR 1981 Sikkim 41.

[16] Specific Relief Act, 1963, § 2 (e), No. 47, Acts of Parliament, 1963 (India).

[17] Indian Contract Act, 1872, § 2, No. 9, Acts of Imperial Legislature, 1872 (India).

[18] Specific Relief Act, 1963, § 2 (a), No. 47, Acts of Parliament, 1963 (India).

[19] Id.

[20] Bhudeb Mookerjee v. Kalachand Mallik, AIR 1921 Cal 129.

[21] Ram Kissen Joydoyal v. Pooran Mull, AIR 1920 Cal 239.

[22] Kishore Chand Shiva Charan Lal v. Budaun Electric Supply Co., AIR 1944 All 66.

[23] Specific Relief Act, 1963, § 2 (b), No. 47, Acts of Parliament, 1963 (India).

[24] Mallappa v. Venkatappa, 1958 Andh LT 570.

[25] Specific Relief Act, 1963, § 2 (c), No. 47, Acts of Parliament, 1963 (India).

[26] Id. at § 2 (d).

[27] Indian Trusts Act, 1882, § 3, No. 2, Acts of Imperial Legislature, 1882 (India).

[28] Specific Relief Act, 1963, § 2 (d), No. 47, Acts of Parliament, 1963 (India).

[29] Weaver Mills Ltd., Rajapalayam v. Balkis Ammal, AIR 1969 Mad 281.

[30] Specific Relief Act, 1963, § 3, No. 47, Acts of Parliament, 1963 (India).

[31] Hungerford Investment Trust Ltd.v. Haridas Mundhra, AIR 1971 Cal 182.

[32] S Kaladevi v. VR Somasundaram, AIR 2010 SC 1654.

[33] Specific Relief Act, 1963, § 4, No. 47, Acts of Parliament, 1963 (India).

[34] Bank of Bengal v. Dinonath Roy, (1882) ILR 8 Cal 166.

[35] Avtar Singh, Contract and Specific Relief 817 (Eastern Book Company 2013).

[36] Adhunik Steels Ltd. v. Orissa Manganese Minerals (P) Ltd., (2007) 7 SCC 125.

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