section 56-D of specific Relief Act 1877

 SPECIFIC RELIEF ACT, 1877 [SECTION 55 - 57]

Citation: 1955 PLR (Lah.) 242, (1968) 20 DLR 501, (1955) 7 DLR 606, (1970) 22 DLR (SC) 41, (1980) 32 DLR (AD) 223, (1973)25 DLR 69, (1976) 28 DLR 415, (1982) 34 DLR (AD) 42

Subject: Specific Relief

Delivery Date: 1970-01-01

 

 

Specific Relief Act

(I of 1877)

 

S. 55—Section 55 of the Act enables the issue of an injunction “to prevent the breach of an obligation” and to compel performance of acts which are necessary to prevent such breach. 1955 PLR (Lah.) 242.

 

—The wall in question was built from days before the filing of the Suit. It is right and proper that the order of its demolition, if at all, by way of mandatory injunction should ordinarily be passed on the conclusion of the stilt.

Abdul Barik Vs.  Serajul Islam (1968) 20 DLR 501.

 

Mandatory injunction—The Court can grant u/s. 151 apart from provisions of Order 39.

Court’s power to issue temporary injunction of mandatory nature—

The view that as the matter of temporary injunction has been dealt with by the Code of Civil Procedure under Order 39, there is no scope for the Court to exercise its inherent jurisdiction cannot be accepted as sound.

Order 39 does not exhaustively deal with the granting of temporary injunction and so apart from the provisions of Order 39 the Court can grant temporary injunction in the exercise of its inherent jurisdiction.

The tenant had filed an application for temporary injunction restraining the landlord from proceeding with the new construction on the suit premises. The landlord contested that application. Just before delivery of the Judgment in the injunction matter the landlord with indecent haste constructed a wall in order to defeat the order of the Court by doing the act which the temporary injunction intended to restrain.

Held: In a case of this description the Court would if necessary proceed not only to grant a temporary injunction restraining further erection of the building, but also to direct that the building already erected be taken down.

An injunction restraining a person from causing an injury may from the very circumstances of the case be of mandatory nature.

It is no answer to such injunction that in effect the defendant is compelled to perform certain acts which ordinarily would be subject of a mandatory injunction. And if for some reason the Court finds it necessary to issue a temporary mandatory injunction it cannot be said that such an injunction is beyond its inherent power.

On an interlocutory application the Court has inherent jurisdiction to order demolition of a wall which was erected in defiance of the authority of the Court.

The National Bank of India Ltd. Vs. Yakub Mia of Yakub Stores (1955) 7 DLR 606.

 

S. 56(b)—Section 56(b) of the Specific Relief Act recognizes the power to stay judicial proceedings by injunction though it restricts the power so far as permanent injunction is concerned to courts subordinate to the court issuing the injunction. (1955) PLR (Lah) 242.

S. 56(d)—section 56(d) of the Act does not lay down that an injunction cannot be granted to interfere with the public duties of any department of Provincial Government, but one could hardly imagine a tortuous act of an officer of Government to be a “public duty”. (1955) PLR (Lah) 242.

 

—Even if section 56 does not limit court’s inherent power to grant temporary injunction against Government department, Court must not do so unless compelling reasons demand that course.

Shahzada Muhammad Umar Beg Vs. Sultan Mahmood Khan (1970) 22 DLR (SC) 41.

 

S. 56(d)(f)—Injunction cannot be granted when it will interfere with the carrying on of public duties.

Section 56, clauses (d) and (f) provide that no injunction can be granted to interfere with the public duties of any Department of the Government or for that matter to prevent the breach of a contract the performance of which would not be specifically enforced.

Contract, when can be validly revoked—The respondent’s tenders were not accepted. In others words, proposal made by them for supplying the labour and transport was not accepted. Therefore, no jural relationship was crcated.

M/s. Hossain Ahmed Vs. M/s. HD Hossain & Brothers (1980) 32 DLR (AD) 223.

 

—Tender offering lowest quotation does not acquire a legal right that of being accepted in preference to others on the ground of its being the lowest quotation.

M/s. Hossain Ahmed Vs. M/s. HD Hossain & Brothers (1980) 32 DLR (AD) 223.

 

S. 56(i)—Provisions explained— Provisions of section 6 are referable only to perpetual injunction as laid down under section 54.

Mere availability of equally efficacious relief would not go against the case of irreparable injury while deciding the question of granting temporary injunction.

The contention that section 85(I)(c) and (2) of the East Bengal Non-Agricultural Tenancy Act, 1949 and section 56(d) and (i) of Specific Relief Act will stand as bar to granting temporary injunction is not sustainable.

Sk. Nur Mohammad Vs. The Province of East Pakistan, (1973)25 DLR 69.

 

S.57—Implied negative covenant when cannot be imputed.

When the positive part of the agreement cannot be enforced by an injunction, the same object cannot be achieved by imputing an implied negative covenant in the agreement and enforce it under the provision of section 57 of the Act.

Modern Talkies Vs. Chowrangee Cinema Hall (1976) 28 DLR 415.

 

Chapter II

Specific performance of contract in respect of movable property—principles to be followed.

In a suit for specific performance of a contract of movable property which can only be instituted under section 58 of the Sale of Goods Act the Court is to be guided by the principles laid down in Chapter II of the Specific Relief Act.

Mr. Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation (1982) 34 DLR (AD) 42.

 

Research Article on Specific Relief Act Pak

 Specific Relief Act, 1877

SPECIFIC RELIEF ACT I OF 1877

Section 8

-    Partition---Possession, recovery of---Proof---Land in question was jointly owned by both the parties and plaintiffs sought recovery of possession on the basis of partition of land between them---Judgment and decree passed by Trial Court was set aside by Lower Appellate Court and the suit was decreed in favour of plaintiffs---Validity---Plaintiffs during evidence neither exhibited the order of partition nor copy of Roznamcha Waqiati showing delivery of possession to their predecessor-in-interest nor “Tatimma” made in favour of plaintiffs as a result of partition was produced---Plaintiffs relied more on “Naqsha Jeem” but such docu8ment was not signed by revenue officer or any other competent authority---Entries on the mutation were also not countersigned by competent authority---Mere entry in Register of Mutations did not have any sanctity in the eye of law---Plaintiffs failed to prove that suit-land was partitioned and possession of land was handed over to predecessor-in-interest of Plaintiffs---Judgment and decree passed by Lower Appellate court was set aside and that of the Trial Court was restored---Revision was allowed in circumstances.    

Shahnaz Akhtar and others    Versus    Riaz Hussain and others.
2012 C L C 366

Section 9

-    Suit for possession---Prerequisites stated.
    While deciding the suit under section 9 of the Specific Relief Act, 1877, the following prerequisites must be followed for arriving at lawful conclusion:

(i)    That the person suing must have been dispossessed;
(ii)    That such dispossession must be of immovable property;
(iii)    That such dispossession should be without consent and should be otherwise than in due course of law and
(iv)    That the suit is to be brought within the period of six months from the date of dispossession.
Zahir Hussain and 4 others    Versus      Bashir Muhammad and 5 others.
2012 C L C 377

SECTION 12 AND Sec 10, 11, 14, 15, 16, of Contract Act.

-No partial specific performance of conteact unless share of vendee, preoportion of price paid was mentioned in agreement in question.
1995 CLC 1751 LAH

SECTION 12(c) ,21(a) -19,22.

-Agreement providing adequate compensation in terms of money in case of non performance-specific performance shall not be granted.
PLD 1958 P.C 150
AIR 1929 P.C 190
1989 ALD 501
1989 CLC 916

specific relief act (India) by Annad & Ayyer 9th edition at page 660-661.

Three situations

1 penalty clause as a bond –for performance.
2 liquidated damager as compensation.
3 sums named is good substitution.

AGAINTS
Existence of penalty clause –no bar to specific performance.

PLD 1952 PESH 32
1989 ALD 445
1990 ALD 776
1090 MLD 712
PLD 1991 S.C. 905
1991 CLC note 255 at p.198

SECTION 12 & 22
-Inadequacy of price no ground to refuse specific performance.
PLD 1994 SC 326
REL PLD 1981 KAR 170

SECTION 15
-Vendor contracting on his behalf and on behalf of  some body else and the contact unenforceable in law to the extent of such some body’s share. Sec 15 held attracted and plaintiff could not cucceed unless he relinquished all claim to further performance and all right to compensation.

AIR 1925 LAH 465
AIR 1926 LAH 136 (DB) (MINER’S SHARES RELINQUISHED)
AIR 1930 LAH 34
AIR 1930 CAL 457
AIR 1932 P.C. 43
AIR 1943 Nagpur 313
1979 CLC 499
AIR 1037 MAD 596

SECTION 12
-Transaction proved to be for benefit of vendors including minors whose interest was safeguard and taken into consideration in sale transaction- suit rightly decreed by three courts.
1995 SCMR 982

-inadequacy of price no grant for refusing specific performance.
1995 CLC 1705

Sc.12, 27(b), 42, 54 of Specific Relief Act.
Sec. 41, proviso – Transfer of Property Act.

-    Equitable doctrine of proviso to S. 41 which protected a subsequent transferee, it is upon subsequent transferor to establish that he had acted in good faith and had taken reasonable care such as checking with the Sub-Registrar etc. before entering into transaction and that he had given valuable consideration for such transfer. Such equitable doctrine was a deduction from the law of estoppel which must be pleaded clearly with specific facts. Burden of proof is always on the person who pleaded such protection.
Mst. Rubina Badar        Vs.    M/S Long Life Builders.
2012 SCMR 84
Rel: 2002 SCMR 2003

SECTION 29(b)
-subsequent purchase during pendency of suit steps into the shoed of alienor (original defendant) –agreement of sale in favour of plaintiff executed by ailerons could be specifically enforced as against subsequent purchase in terms of sec 29(b).
PLD 1995 LAH 255
 

SECTION 34 & 42 OF SPECIFIC RELIEF ACT(ARBITRATION ACT 1940)

-    Admittedly there being an arbitration agreement, defendant could not invoke Section-34 without resorting to arbitration procedure – Arbitration clause was an independent agreement between the parties which could be invoked, if a dispute or difference had arisen between the parties, therefore, termination of agreement would not supersede it…
Irrespective of non0existence of agreement, the arbitration clause survived and arbitrator had the power to resolve the dispute.
Mobilink  v.  Niamatullah Achakzai
2012 CLC 12 (Bloc) (DB)

SECTION 42+39
-Void transaction would create no legal effect.
PLD 1995 LAH 313

Sect. 42

-    Suit for declaration. One can file suit in respect of his own title to such legal character or right to property. Sect. 42 does not apply to a case where plaintiffs do not allege their entitlement to any legal character or right or its denial by defendants. But where right to his own legal character or property is not involved, such suit is not maintainable.
    Plaintiff did not approach the Court for declaration of his own right but challenged the defendants pretention. Suit was barred by Sect. 42.

Ilyas Ahmad        Vs.    Muhammad Munir.
PLD 2012 Sindh 92

Sect. 42

-    Thumb impression on Sale Deed having been admitted, suit for declaration was not competent. However, suit for cancellation of sale deed was required to be filed.
Abul Rehman     Vs.    Mst. Karam Mai.
2012 CLC 238 Lah.

STAMP ACT

SECTION 35
-Instrument not properly stamped not invalid but subject to disabilities –can be admitted in evidence on payment of deficit.
PLD 1989 KAR 371

 

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