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  "title": "Specific Relief Act, 1877",
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  "text": "Page 1 of 35  \r\n \r\nTHE SPECIFIC RELIEF ACT, 1877  \r\n \r\n \r\nCONTENTS \r\n \r\nPART I  \r\nPreliminary \r\n \r\n1. Short title. Local extent. Commencement. \r\n2. [Repealed.] \r\n3. Interpretation­clause. Words defined in Contract Act. \r\n4. Savings. \r\n5. Specific relief how given. \r\n6. Preventive relief. \r\n7. Relief not granted to enforce penal law. \r\nPART II  \r\nOf Specific Relief \r\nCHAPTER I  \r\nOF RECOVERING POSSESSION OF PROPERTY \r\n(a) Possession of Immoveable Property  \r\n8. Recovery of specific immoveable property. \r\n9. Suit by person dispossessed of immoveable property. \r\n(b) Possession of Moveable Property \r\n10. Recovery of specific moveable property. \r\n11. Liability of person in possession, not as owner, to deliver to person entitled to immediate \r\npossession. \r\n\r\n \r\n \r\n \r\nPage 2 of 35  \r\nCHAPTER II  \r\nOF THE SPECIFIC PERFORMANCE OF CONTRACTS \r\n(a) Contracts which may be specifically enforced  \r\n12. Cases in which specific performance enforceable. \r\n13. Contract of which the subject has partially ceased to exist. \r\n14. Specific performance of part of contract where part unperformed is small. \r\n15. Specific performance of part of contract where part unperformed is large. \r\n16. Specific performance of independent part of contract. \r\n17. Bar in other cases of specific performance of part of contract. \r\n18. Purchaser's rights against vendor with imperfect title. \r\n19. Power to award compensation in certain cases. \r\n20. Liquidation of damages not a bar to specific performance.  \r\n(b) Contracts which cannot be specifically enforced  \r\n21. Contracts not specifically enforceable. \r\n                                    (c) of the Discretion of the court \r\n22. Discretion as to decreeing specific performance. \r\n(d) For whom Contracts may be specifically enforced  \r\n23. Who may obtain specific performance. \r\n(e) For whom Contracts cannot be specifically enforced  \r\n24. Personal bars to the relief. \r\n25. Contracts to sell property by one who has no title, or who is a voluntary settler. \r\n(f) For whom Contracts cannot be specifically enforced, except with a Variation. \r\n26. Non­enforcement except with variation. \r\n(g) Against whom Contracts may be specifically enforced  \r\n27. Relief against parties and persons claiming under them by subsequent title. \r\n27 (A). Specific performance in case of part performance of contract to lease. \r\n(h) Against whom Contracts cannot be specifically enforced  \r\n \r\n \r\n \r\nPage 3 of 35  \r\n28. What parties cannot be compelled to perform. \r\n (i) The effect of dismissing a Suit for Specific Performance  \r\n29. Bar of suit for breach after dismissal. \r\n   (j) Awards and Directions to execute Settlements  \r\n30 . Application of preceding sections to awards and testamentary directions to execute \r\nsettlements. \r\nCHAPTER III  \r\nOF THE RECTIFICATION OF INSTRUMENTS \r\n31. When instrument may be rectified. \r\n32. Presumption as to intent of parties. \r\n33. Principles of rectification. \r\n34. Specific enforcement of rectified contract. \r\nCHAPTER IV  \r\nOF THE RECISSION OF CONTRACTS  \r\n35. When rescission may be adjudged. \r\n36. Rescission for mistake. \r\n37 . Alternative prayer for rescission in suit for specific performance. \r\n38. Court may require party rescinding to do equity. \r\nCHAPTER V  \r\nOF THE CANCELLATION OF INSTRUMENTS \r\n39. When cancellation may be ordered. \r\n40. What instruments may be partially cancelled. \r\n41. Power to require party for whom instrument is cancelled to make compensation. \r\nCHAPTER VI \r\nOF DECLARATORY DECREES  \r\n42. Discretion of Court as to declaration of status or right.  \r\n43. Effect of declaration.  \r\n \r\n \r\n \r\n \r\n \r\nPage 4 of 35  \r\nCHAPTER VII  \r\nOF THE APPOINTMENT OF RECEIVERS  \r\n44. Appointment of receivers discretionary.  \r\nReference to code of Civil Procedure. \r\nCHAPTER VIII  \r\nOF THE ENFORCEMENT OF PUBLIC DUTIES  \r\n45 to 51. [Omitted.] \r\nPART III  \r\nOf Preventive Relief  \r\nCHAPTER IX  \r\nOF INJUNCTIONS GENERALLY  \r\n52. Preventive relief how granted. \r\n53. Temporary injunctions.  \r\nPerpetual injunctions. \r\nCHAPTER X  \r\nOF PERPETUAL INJUNCTIONS  \r\n54. Perpetual injunctions when granted. \r\n55. Mandatory injunction. \r\n56. Injunction when refused. \r\n57. Injunction to perform negative agreement. \r\n \r\nSCHEDULE.__ [ Repealed.] \r\n  \r\n \r\n \r\n \r\nPage 5 of 35  \r\nTHE SPECIFIC RELIEF ACT, 1877 \r\n1Act No. I of 1877 \r\n[7th February, 1877] \r\nAn Act to define and amend the law relating to certain kinds of Specific Relief. \r\nWHEREAS it is expedient to define and amend the law relating to certain kinds of specific \r\nrelief obtainable in civil suits; It is hereby enacted as follows :— \r\n \r\nPART I \r\nPreliminary \r\n1. Short title. This Act may be called the Specific Relief Act, 1877.  \r\n Local extent. 2[It extends to the whole of Pakistan.] \r\n Commencement. And it shall come into force on the first day of May, 1877. \r\n 2. [Repeal of enactments.] Rep. by the Amending Act, 1891 (XII of 1891). \r\n 3. Interpretation­clause. In this Act, unless there be something repugnant in the subject or \r\ncontext,___ \r\n “obligation” includes every duty enforceable by law: \r\n “trust” includes every species of express, implied, or constructive fiduciary ownership: \r\n “trustee” includes every person holding, expressly, by implication, or constructively, a \r\nfiduciary character: \r\nIllustrations \r\n(a) Z bequeaths land to A, “not doubting that he will pay thereout an annuity of \r\nRs. 1,000 to B for his life”. A accepts the beque st. A is a trustee, within the \r\nmeaning of this Act, for B, to the extent of the annuity. \r\n \r\n \r\n \r\n \r\n \r\n1For the Statement of Objects and Reasons, see Gazette of India, 1875, Pt. V, P. 258 ; for the Report of the Select Committee, see ibid., 1876, Pt. V, p. \r\n1445; for discussions in Council, see ibid., 1875, Supplement, pp. 981 and 1025 ; ibid., 1876, Supplement, p. 1284 and ibid., 1877, Supplement, p. 177. \r\nIt has been extended, by notification under s. 5 of the Scheduled Districts Act, 1874 (14 of 1874), to the following Scheduled Districts, namely:­  \r\nthe Scheduled Districts of the \r\nPunjab. . See Gazette of India, 1877, Pt. I, p. 562.  \r\nSind . . Ditto, 1880, Pt. I, p. 676. \r\nIt has been applied to Phulera in the Excluded Area of Upper Tanawalto the extent the Act is applicable in the N.W.F.P., subject to certain \r\nmodifications ; and extended to the Excluded Area of Upper Tanawal (N.W.F.P.) other than Phulera with effect from such date and subject to such \r\nmodifications as may be notified, see N.W.F.P. (Upper Tanawal) (Excluded Area) Laws Regulation, 1950. \r\nS. 9 has been declared to be in force in Balochistan by the British Balochistan Laws Regulation, 1913 (2 of 1913), s. 3. (w.e.f. 18th August, 1913). \r\nIt has also been extended to the Leased Areas of Balochistan, see the Leased Areas (Laws) Order, 1950 (G.G.O. 3 of 1950) (w.e.f. 15th August, 1947) ; \r\nand applied in the Federated Areas of Balochistan, see Gazette of India, 15th August, 1937, Pt. I, p. 1499. \r\n2Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 960), s. 3 and 2nd Sch. (w.e.f. 14th October, 1955), for the original para, as \r\namended by A. O., 1949, Arts. 3 (2) and 4. (w.e.f. 28th March, 1949). \r\n \r\n \r\n \r\nPage 6 of 35  \r\n(b) A is the legal, medical, or spiritual adviser of B. By availing himself of his \r\nsituation as such adviser, A gains some pecuniary advantage which might \r\notherwise have accrued to B. A is a trustee, for B, within the meaning of this \r\nAct, of such advantage. \r\n(c) A, being B’s banker, discloses for his own purpose the state of B’s account. A \r\nis a trustee, within the meaning of this Act, for B, of the benefit gained by him \r\nby means of such disclosure. \r\n(d) A, the mortgagee of certain leaseholds, renews the lease in his own name. A is \r\na trustee, within the meaning of this Act, of the renewed lease, for those \r\ninterested in the original lease. \r\n(e) A, one of several partners, is employed to purchase goods for the firm. A, \r\nunknown to his co­partners, supplies them, at the market­price, with goods \r\npreviously bought by himself when the price was lower, and thus makes a \r\nconsiderable profit. A is a trustee for his co­ partners, within the meaning of \r\nthis Act, of the profit so made. \r\n(f) A, the manager of B’s indigo­factory, becomes agent for C, a vendor of \r\nindigo­seed, and receives, without B’s assent, commission on the seed \r\npurchased from C for the factory. A is a trustee, within the meaning of this \r\nAct, for B, of the commission so received. \r\n(g) A buys certain land with notice that B has already contracted to buy it. A is a \r\ntrustee, within the meaning of this Act, for B, of the land so bought. \r\n(h) A buys land from B, having notice that C is in occupation of the land. A omits \r\nto make any inquiry as to the nature of C’s interest therein. A is a trustee, \r\nwithin the meaning of this Act, for C, to the extent of that interest. \r\n “settlement “ means any instrument (other than a will or codicil as defined by \r\nthe Indian Succession Act (X of 1865)1) whereby the destination or devolution \r\nof successive interests in moveable or immoveable property is disposed of or \r\nis agreed to be disposed of: \r\n Words defined in Contract Act. and all words occurring in this Act, which are defined in \r\nthe Contract Act, 1872 (IX of 1872), shall be deemed to have the meanings respectively assigned to \r\nthem by that Act. \r\n 4. Savings. Except where it is herein otherwise expressly enacted, nothing in this Act shall be \r\ndeemed___ \r\n(a) to give any right to relief in respect of any agreement which is not a contract; \r\n(b) to deprive any person of any right to relief, other than specific perfor mance, \r\nwhich he may have under any contract; or \r\n \r\n \r\n1See now the Succession Act, 1925 (39 of 1925). \r\n \r\n \r\n \r\nPage 7 of 35  \r\n(c) to affect the operation of the Indian Registration Act1 on documents. \r\n 5. Specific relief how given. Specific relief is given___ \r\n(a)  by taking possession of certain property and delivering it to a claimant; \r\n(b) by ordering a party to do the very act which he is under an obligation to do ; \r\n(c) by preventing a party from doing that which he is under an obligation not to \r\ndo ; \r\n(d) by determining and declaring the rights of parties otherwise than by an award \r\nof compensation; or \r\n(e) by appointing a receiver. \r\n 6. Preventive relief. Specific relief granted under clause (c) of section 5 is called preventive \r\nrelief. \r\n 7. Relief not granted to enforce penal law. Specific relief cannot be granted for the mere \r\npurpose of enforcing a penal law. \r\nPART II \r\nOf Specific Relief \r\nCHAPTER I \r\nOF RECOVERING POSSESSION OF PROPERTY \r\n(a) Possession of Immoveable Property \r\n 8. Recovery of specific immoveable property. A person entitled to the possession of \r\nspecific immoveable property may recover it in the manner prescribed by the Code of Civil \r\nProcedure2. \r\n 39. Suit by person dispossessed of immoveable property. If any person is dispossessed \r\nwithout his consent of immoveable property otherwise than in due course of law, he or any person \r\nclaiming through him may, by suit 4* * * recover possession thereof, notwithstanding any other title \r\nthat may be set up in such suit. \r\n \r\n \r\n \r\n \r\n \r\n1See now the Registration Act, 1908 (16 of 1908). \r\n2See now the Code of Civil Procedure, 1908 (Act 5 of 1908). \r\n3But see as to tenancies in the Punjab, the Punjab Tenancy Act, 1887 (16 of 1887), s. 51. \r\n4The words “instituted within six months from the date of the dispossession” rep. by the Repealing and Amending Act, 1891 (12 of 1891) (w.e.f. 21st \r\nMarch, 1891). \r\nPage 8 of 35 \r\n \r\n \r\n Nothing in this section shall bar any person from suing to establish his title to such property \r\nand to recover possession thereof. \r\n No suit under this section shall be brought against 1[the 2[Federal Government] or any \r\nProvincial Government]. \r\n No appeal shall lie from any order or decree passed in any suit instituted under this section, \r\nnor shall any review of any such order or decree be allowed. \r\n(b) Possession of Moveble Property \r\n 10. Recovery of specific moveable property. A person entitled to the possession of specific \r\nmoveable property may recover the same in the manner prescribed by the Code of Civil Procedure3. \r\n Explanation 1.__ A trustee may sue under this section for the possession of property to the \r\nbeneficial interest in which the person for whom he is trustee is entitled. \r\n Explanation 2.__ A special or temporary right to the present possession of property is \r\nsufficient to support a suit under this section. \r\nIllustrations \r\n(a) A bequeaths land to B for his life, with remainder to C. A dies. B enters on the \r\nland, but C, without B’s consent, obtains possession of the title deeds. B may \r\nrecover them from C. \r\n(b) A pledges certain Jewels to B to secure a loan. B disposes of them before he is \r\nentitled to do so. A, without having paid or tendered the amount of the loan, \r\nsues B for possession of the jewels. The suit should be dismissed, as A is not \r\nentitled to their possession, whatever right he may have to secure their safe \r\ncustody. \r\n(c) A receives a letter addressed to him by B. B gets back the letter without A’s \r\nconsent. A has such a property therein as entitles him to recover it from B. \r\n(d) A deposit books and papers for safe custody with B. B loses them and C finds \r\nthem, but refuses to deliver them to B when demanded. B may recover them \r\nfrom C, subject to C’s right, if any, under section 168 of the Contract Act, \r\n1872 (IX of 1872). \r\n(e) A, a warehouse­keeper, is charged with the delivery of certain goods to Z, \r\nwhich B takes out of A’s possession. A may sue B for the goods. \r\n \r\n \r\n \r\n1The original words “the Government” were first subs. by A. O., 1937 (w.e.f. 1st April, 1937) and then amended by A. O., 1949 (w.e.f. 28th March, \r\n1949) to read as above. \r\n2Subs. by F. A. O., 1975, Art. 2, for “Central Government” (w.e.f. 28th July, 1975). \r\n3See now the Code of Civil Procedure, 1908 (Act 5 of 1908). \r\nPage 9 of 35 \r\n \r\n \r\n 11. Liability of person in possession, not as owner, to deliver to person entitled to \r\nimmediate possession.  Any person having the possession or control of a particular article of \r\nmoveable property, of which he is not the owner, may be co mpelled specifically to deliver it to the \r\nperson entitled to its immediate possession, in any of the following cases :__ \r\n(a) when the thing claimed is held by the defendant as the agent or trustee of the \r\nclaimant; \r\n(b) when compensation in money would not afford the claimant adequate relief \r\nfor the loss of the thing claimed; \r\n(c) when it would be extremely difficult to ascertain the actual damage caused by \r\nits loss; \r\n(d) when the possession of the thing claimed has been wrongfully transferred \r\nfrom the claimant. \r\nIllustrations \r\nof clause (a)— \r\n A, proceeding to Europe, leaves his furniture in charge of B as his agent during his absence. \r\nB, without A’s authority, pledges the furniture to C, and C, knowing that B had no right to pledge the \r\nfurniture, advertises it for sale. C may be compelled to deliver the furniture to A, for he holds it as \r\nA’s trustee. \r\nof clause (b)— \r\n Z has got possession of an idol belonging to A’s family, and of which A is the proper \r\ncustodian. Z may be compelled to deliver the idol to A. \r\nof clause (c) \r\n A is entitled to a picture by a dead painter and a pair of rare China vases. B has possession of \r\nthem. The articles are of too special a character to bear an ascertainable market­value. B may be \r\ncompelled to deliver them to A. \r\nCHAPTER II \r\nOF THE SPECIFIC PERFORMANCE OF CONTRACTS \r\n(a) Contracts which may be specifically enforced \r\n 12. Cases in which specific performance enforceable. Except as otherwise provided in this \r\nChapter, the specific performance of any contract may in the discretion of the Court be enforced___ \r\n(a)  when the act agreed to be done is in the performance, wholly or partly, of a \r\ntrust; \r\n  \r\nPage 10 of 35 \r\n \r\n \r\n(b) when 1[their] exists no standard for ascertaining the actual damage caused by \r\nnon­ performance of the act agreed to be done; \r\n(c) when the act agreed to be done is such that pecuniary compensation for its \r\nnon­performance would not afford adequate relief; or \r\n(d) when it is probable that pecuniary compensation cannot be got for the \r\nnon­performance of the act agreed to be done. \r\n Explanation.___ Unless and until the contrary is proved, the Court shall presume that the \r\nbreach of a contract to transfer immoveable property cannot be adequately relieved by compensation \r\nin money, and that the breach of a contract to transfer moveable property can be thus relieved. \r\nIllustrations \r\n 2* * * * * * * \r\nof clause (b)— \r\n A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare China vases. A \r\nmay compel B specifically to perform this contract, for there is no standard for ascertaining the \r\nactual damage which would be caused by its non­performance. \r\nof clause (c)— \r\n A contracts with B to sell him a house for Rs. 1,000. B is entitled to a decree directing A to \r\nconvey the house to him, he paying the purchase­money. \r\n In consideration of being released from certain obligations imposed on it by its act of \r\nIncorporation, a railway­company contract with Z to make an archway through their railway to \r\nconnect lands of Z served by the railway, to construct a road between certain specified points, to pay \r\na certain annual sum towards the maintenance of this road, and also to construct a siding and a wharf \r\nas specified in the contract. Z is entitled to have this contract specifically enforced, for his interest in \r\nits performance cannot be adequately compensated for by money: and the Court may appoint a \r\nproper person to superintend the construction of the archway, road, siding and wharf. \r\n A contracts to sell, and B contracts to buy, a certain number of railway shares of a particular \r\ndescription. A refuses to complete the sale. B may compel A specifically to perform this agreement, \r\nfor the shares are limited in number and not always to be had in the market, and their possession \r\ncarries with it the status of a shareholder, which cannot otherwise be procured. \r\n A contracts with B to paint a picture for B, who agrees to pay therefor Rs. 1,000. The picture \r\nis painted. B is entitled to have it delivered to him on payment or tender of the Rs. 1,000. \r\n  \r\n \r\n1See. should read “there”. \r\n2The first Illustration omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and 2nd Sch. \r\n \r\n  \r\n  \r\nPage 11 of 35 \r\n \r\n \r\nof clause (d)— \r\nA transfers without endorsement, but for valuable consideration, a promissory note to B. A becomes \r\ninsolvent, and C is appointed his assignee. B may compel C to endorse the note, for C has succeeded \r\nto A’s liabilities, and a decree for pecuniary compensation for not endorsing the note would be \r\nfruitless. \r\n 13. Contract of which the subject has partially ceased to exist. Notwithstanding anything \r\ncontained in section 56 of the Contract Act, a contract is not wholly impossible of performance \r\nbecause a portion of its subject matter, existing at its date, has ceased to exist at the time of the \r\nperformance. \r\n 1*  *  * * * * * * \r\n 14. Specific performance of part of contract where part unperformed is small. Where a \r\nparty to a contract is unable to perform the whole of his part of it, but the part which must be left \r\nunperformed bears only a small proportion to the whole in value, and admits of compensation in \r\nmoney, the Court may, at the suit of either party, direct the specific performance of so much of the \r\ncontract as can be performed, and award compensation in money for the deficiency. \r\nIllustrations \r\n(a) A contracts to sell B a piece of lane consisting of 100 bighas. It turns out that \r\n98 bighas of the land belong to A, and the two remaining bighas to a stranger, \r\nwho refuses to part with them. The two bighas are not necessary for the use or \r\nenjoyment of the 98 bighas, nor so important for such use of enjoyment that \r\nthe loss of them may not be made good in money. A may be directed at the \r\nsuit of B to convey to B the 98 bighas and to make compensation to him for \r\nnot conveying the two remaining bighas ; or B may be directed, at the suit of \r\nA, to pay to A, on receiving the conveyance and possession of the land, the \r\nstipulated purchase­money less a sum awarded as compensation for the \r\ndeficiency. \r\n(b) In a contract for the sale and purchase of a house and lands for two lakhs of \r\nrupees, it is agreed that part of the furniture should be taken at a valuation. The \r\nCourt may direct specific performance of the contract notwithstanding the \r\nparties are unable to agree as to the valuation of the furniture, and may either \r\nhave the furniture valued in the suit and include it in the decree for specific \r\nperformance, or may confine its decree to the house. \r\n 15. Specific performance of part of contract where part unperformed is large. Where a \r\nparty to a contract is unable to perform the whole of his part of it, and the part which must be left \r\nunperformed forms a considerable portion of the whole, or does not admit of compensation in \r\nmoney, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit \r\nof the other party direct the party in default to perform specifically so much of his part of the contract \r\nas he can perform, provided that the plaintiff relinquishes all claim to further performance, and all \r\nright to compensation either for the deficiency, or for the loss or damage sustained by him through \r\nthe default of the defendant. \r\n \r\n \r\n1Omitted by Ord. No. XXII of 1983, s.2. \r\nPage 12 of 35 \r\n \r\n \r\nIllustrations \r\n(a) A contracts to sell to B a piece of land consisting of 100 bighas. It turns out \r\nthat 50 bighas of the land belong to A, and the other 50 bighas to a stranger, \r\nwho refuses to part with them. A cannot obtain a decree against B for the \r\nspecific performance of the contract; but if B is willing to pay the price agreed \r\nupon, and to take the 50 bighas which belong to A, waiving all right to \r\ncompensation either for the deficiency or for loss sustained by him through \r\nA’s neglect or default, B is entitled to a decree directing A to convey those 50 \r\nbighas to him on payment of the purchase­money. \r\n(b) A contracts to sell to B an estate with a house and garden for a lakh of rupees. \r\nThe garden is important for the enjoyment of the house. It turns out that A is \r\nunable to convey the garden. A cannot obtain a decree against B for the \r\nspecific performance of the contract, but if B is willing to pay the price agreed \r\nupon, and to take the estate and house without the garden, waiving all right to \r\ncompensation either for the deficiency or for loss sustained by him through \r\nA’s neglect or default, B is entitled to a decree directing A to convey the house \r\nto him on payment of the purchase­money. \r\n 16. Specific performance of independent part of contract. When a part of a contract \r\nwhich, taken by itself, can and ought to be specifically performed, stands on a separate and \r\nindependent footing from another part of the same contract which cannot or ought not to be \r\nspecifically performed, the Court may direct specific performance of the former part. \r\n 17. Bar in other cases of specific performance of part of contract. The Court shall not \r\ndirect the specific performance of a part of a contract except in cases coming under one or other of \r\nthe three last preceding sections. \r\n 18. Purchaser’s rights against vendor with imperfect title. Where a person contracts to \r\nsell or let certain property, having only an imperfect title thereto, the purchaser or lessee (except as \r\notherwise provided by this Chapter) has the following rights:__ \r\n(a) if the vendor or lessor has subsequently to the sale or lease acquired any \r\ninterest in the property, the purchaser or lessee may compel him to make good \r\nthe contract out of such interest; \r\n(b) where the concurrence of other persons is necessary to validate the title, and \r\nthey are bound to convey at the vendor’s or lessor’s request, the purchaser or \r\nlessee may compel him to procure such concurrence; \r\n(c) where the vendor professes to sell unincumbered property, but the property is \r\nmortgaged for an amount not exceeding the purchase­money, and the vendor \r\nhas in fact only a right to redeem it, the purchaser may compel him to redeem \r\nthe mortgage and to obtain a conveyance from the mortgagee; \r\n(d) where the vendor or lessor sues for specific performance of the contract, and \r\nthe suit is dismissed on the ground of his imperfect title, the defendant has a \r\nright to a return of his deposit (if any) with interest thereon, to his costs of the \r\nsuit, and to a lien for such deposit, interest and costs on the interest of the \r\nvendor or lessor in the property agreed to be sold or let. \r\nPage 13 of 35 \r\n \r\n \r\n 19. Power to award compensation in certain cases. Any person suing for the specific \r\nperformance of a contract may also ask for compensation for its breach, either in addition to, or in \r\nsubstitution for, such performance. \r\n If in any such suit the Court decides that specific performance ought not to be granted, but \r\nthat there is a contract between the parties which has been broken by the defendant and that the \r\nplaintiff is entitled to compensation for that breach, it shall award him compensation accordingly. \r\n If in any such suit the Court decides that specific performance ought to be granted, but that it \r\nis not sufficient to satisfy the justice of the case, and that some compensation for breach of the \r\ncontract should also be made to the plaintiff, it shall award him such compensation accordingly. \r\n Compensation awarded under this section may be assessed in such manner as the Court may \r\ndirect. \r\nExplanation.__ The circumstance that the contract has become incapable of specific \r\nperformance does not preclude the Court from exercising the jurisdiction conferred by this section. \r\nIllustrations \r\nof the second paragraph___ \r\n A contracts to sell a hundred maunds of rice to B. B brings a suit to compel A to perform the \r\ncontract or to pay compensation. The Court is of opinion that A has made a valid contract and has \r\nbroken it, without excuse, to the injury of B, but that specific performance is not the proper remedy. \r\nIt shall award to B such compensation as it deems just. \r\nof the third paragraph___ \r\n A contracts with B to sell him a house for Rs. 1,000, the price to be paid and the possession \r\ngiven on the 1st January 1877. A fails to perform his part of the contract, and B brings his suit for \r\nspecific performance and compensation, which is decided in his favour on the 1st January, 1878. The \r\ndecree may, besides ordering specific performance, award to B compensation for any loss which he \r\nhas sustained by A’s refusal. \r\nof the Explanation___ \r\n A, a purchaser, sues B, his vendor, for specific performance of a contract for the sale of a \r\npatent. Before the hearing of the suit the patent expires. The Court may award A compensation for \r\nthe non­ performance of the contract, and may, if necessary, amend the plaint for that purpose. \r\n A sues for the specific performance of a resolution passed by the Directors of a public \r\ncompany, under which he was entitled to have a certain number of shares allotted to him, and for \r\ncompensation for the non­performance of the resolution. All the shares had been allotted before the \r\ninstitution of the suit. The Court may, under this section, award A compensation for the \r\nnon­performance. \r\n 20. Liquidation of damages not a bar to specific performance. A contract, otherwise \r\nproper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount \r\nto be paid in case of its breach, and the party in default is willing to pay the same. \r\n \r\nPage 14 of 35 \r\n \r\n \r\nIllustration \r\n A contracts to grant B an under­lease of property held by A under C, and that he will apply to \r\nC for a license necessary to the validity of the under­lease, and that, if the license is not procured, A \r\nwill pay B Rs. 10,000. A refuses to apply for the license and offers to pay B the Rs. 10,000. B is \r\nnevertheless entitled to have the contract specifically enforced if C consents to give the license. \r\n(b) Contracts which cannot be specifically enforced \r\n 21. Contracts not specifically enforceable. The following contracts cannot be specifically \r\nenforced:___ \r\n(a) a contract for the non­performance of which compensation in money is an \r\nadequate relief; \r\n(b) a contract which runs into such minute or numerous details, or which is so \r\ndependent on the personal qualifications or volition of the parties, or otherwise \r\nfrom its nature is such, that the Court cannot enforce specific performance of \r\nits material terms; \r\n(c) a contract the terms of which the Court cannot find with reasonable certainty; \r\n(d) a contract which is in its nature revocable; \r\n(e) a contract made by trustees either in excess of their powers or in breach of \r\ntheir trust; \r\n(f) a contract made by or on behalf of a corporation or public company created for \r\nspecial purposes, or by the promoters of such company, which is in excess of \r\nits powers; \r\n(g) a contract the performance of which involves the performance of a continuous \r\nduty extending over a longer period than three years from its date; \r\n(h) a contract of which a material part of the subject­matter, supposed by both \r\nparties to exist, has, before it has been made, ceased to exist. \r\n And, save as provided by the 1[Arbitration Act, 1940 (X of 1940)], no contract to refer \r\n2[present or future differences] to arbitration shall be specifically enforced; 3but if any person who \r\nhas made such a contract 4[other than an arbitration agreement to which the provisions of the said \r\nAct apply] and has refused to perform it sues in respect of any subject which he has contracted to \r\nrefer, the existence of such contract shall bar the suit. \r\n  \r\n1Subs. by the Arbitration Act,1940 (10 of 1940), s. 49 and IV Sch., (w.e.f. 1st July, 1940) for “Code of Civil Procedure, [and the Indian Arbitration Act, \r\n1899,]”. The words in brackets had been ins. by the Indian Arbitration Act, 1899 (9 of 1899), s. 21 (w.e.f. 1st July, 1899). \r\n2Subs. by Act, 9 of 1899, s. 21 for “a controversy”. \r\n3The last thirty­seven words of s. 21, do not apply to any submission or arbitration to which the provisions of the Indian Arb itration Act, 1899 (9 of \r\n1899), for the time being apply ( see s. 3 of that Act), or to a ny agreement to refer to arbitration or to any award to which Sch. II of the Code of Civil \r\nProcedure, 1908, applies, see para. 22 of that Schedule. \r\n4Ins. by Act 10 of 1940, s. 49 and IV Sch. \r\nPage 15 of 35 \r\n \r\n \r\nIllustrations \r\nto (a)___ \r\n \r\nA contracts to sell, and B contracts to buy, a lakh of rupees in the four per cent. loan of the 1[Federal \r\nGovernment]. \r\n A contracts to sell, and B contracts to buy, 40 chests of indigo at Rs. 1,000 per chest: \r\n In consideration of certain property having been transferred by A to B, B contracts to open a credit in \r\nA’s favour to the extent of Rs. 10,000, and to honour A’s drafts to that amount; \r\n The above contracts cannot be specifically enforced, for in the first and second both A and B, and in \r\nthe third A, would be reimbursed by compensation in money. \r\nto (b)___ \r\n A contracts to render personal service to B: \r\n A contracts to employ B on personal service: \r\n A, an author, contracts with B, a publisher, to complete a litrary work:  \r\n B cannot enforce specific performance of these contracts. \r\n A contracts to buy B’s business at the amount of a valuation to be made by two valuers, one to be \r\nnamed by A and the other by B. A and B each name a valuer, but before the valuation is made, A instructs his \r\nvaluer not to proceed: \r\n By a charter­party entered into in 2[Chittagong] between A, the owner of a ship, and B, the charterer, \r\nit is agreed that the ship shall proceed to 3[Karachi] and there load a cargo of rice, and thence proceed to \r\nLondon, freight to be paid, one­third on arrival at 3[Karachi], and two­thirds on delivery of the cargo in \r\nLondon: \r\n A lets land to B and B contracts to cultivate it in a particular manner for three years next after the date \r\nof the lease: \r\n A and B contract that, in consideration of annual advances to be made by A, B will for three years \r\nnext after the date of the contract grow particular crops on the land in his possession and deliver them to A \r\nwhen cut and ready for delivery: \r\n A contracts with B that, in consideration of Rs.1,000 to be paid to him by B, he will paint a picture for \r\nB : \r\n A contracts with B to execute certain works which the Court cannot superintend: A contracts to \r\nsupply B with all the goods of a certain class which B may require: \r\n A contracts with B to take from B a lease of a certain house for a specified term, at a specified rent, \"if \r\nthe drawing­room is handsomely decorated,\" even if it is held to have so much certainty that compensation \r\ncan be recovered for its breach: \r\n \r\n1Subs. by F.A.O., 1975, Art. 2, for “Central Government” (w.e.f . 28th July, 1975) which had been subs. by A. O.,1937, for “G. of I.”. \r\n2Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch., for \"Calcutta” (w.e.f. 14th October, 1955). \r\n3Subs. ibid., for “Rangoon” (w.e.f. 14th October, 1955). \r\nPage 16 of 35 \r\n \r\n \r\nA contracts to marry B : \r\n The above contracts cannot be specifically enforced. \r\nTo (c)___ \r\n A, the owner of a refreshment­room, contracts, with B to give him accommodation there for \r\nthe sale of his goods and to furnish him with the necessary appliances. A refuses, to perform his \r\ncontract. The case is one for compensation and not for specific performance, the amount and the \r\nnature of the accommodation and appliances being undefined. \r\nTo (d)___ \r\n A and B contract to become partners in a certain business, the contract not specifying the \r\nduration of the proposed partnership. This contract cannot be specifically performed, for, if it were so \r\nperformed, either A or B might at once dissolve the partnership. \r\nto (e)___ \r\n A is a trustee of land with power to lease it for seven years. He enters into a contract with B \r\nto grant a lease of the land for seven years, with a covenant to renew the lease at the expiry of the \r\nterm. This contract cannot be specifically enforced. \r\n The Directors of a company have power to sell the concern with the sanction of a general \r\nmeeting of the shareholders. They contract to sell it without any such sanction. This contract cannot \r\nbe specifically enforced. \r\n Two trustees, A and B, empowered to sell trust­property worth a lakh of rupees, contract to \r\nsell it to C for Rs. 30,000. The contract is so disadvantageous as to be a breach of trust. C cannot \r\nenforce its specific performance. \r\n The promoters of a company for working mines contract that the company, when formed, \r\nshall purchase certain mineral property. They take no proper precautions to ascertain the value of \r\nsuch property__ and in fact agree to pay an extravagant price therefor. They also stipulate that the \r\nvendors shall give them a bonus out of the purchase­money. This contract cannot be specifically \r\nenforced. \r\nto (f)___ \r\n A company existing for the sole purpose of making and working a railway contract for the \r\npurchase of a piece of land for the purpose of erecting a cottonmill thereon. This contract cannot be \r\nspecifically enforced. \r\nto (g)___ \r\n A contracts to let for twenty­one years to B the right to use such part of a certain railway \r\nmade by A as was upon B’s land, and that B should have a right of running carriages over the whole \r\nline on certain terms, and might require A to supply the necessary engine­power, and that A should \r\nduring the term keep the whole railway in good repair. Specific performance of this contract must be \r\nrefused to B. \r\nPage 17 of 35 \r\n \r\n \r\nto (h)___ \r\n A contracts to pay an annuity to B for the lives of C and D. It turns out that, at the date of the \r\ncontract, C, though supposed by A and B to be alive, was dead. The contract cannot be specifically \r\nperformed. \r\n(c) Of the Discretion of the Court \r\n 22. Discretion as to decreeing specific performance. The jurisdiction to decree specific \r\nperformance is discretionary, and the Court is not bound to grant such relief merely because it is \r\nlawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by \r\njudicial principles and capable of correction by a Court of appeal. \r\n The following are cases in which the Court may properly exercise a discretion not to decree \r\nspecific performance:___ \r\n I. Where the circumstances under which the contract is made are such as to give the plaintiff \r\nan unfair advantage over the defendant, though there may be no fraud or misrepresentation on the \r\nplaintiff’s part. \r\nIllustrations \r\n(a) A, a tenant for life of certain property, assigns his interest therein to B. C \r\ncontracts to buy, and B contracts to sell, that interest. Before the contract is \r\ncompleted, A receives a mortal injury from the effects of which he dies the \r\nday after the contract is executed. If B and C were equally ignorant or equally \r\naware of the fact, B is entitled to specific performance of the contract. If B \r\nknew the fact, and C did not, specific performance of the contract should be \r\nrefused to B. \r\n(b) A contracts to sell to B the interest of C in certain stock­in­trade. It is \r\nstipulated that the sale shall stand good, even though it should turn out that C’s \r\ninterest is worth nothing. In fact, the value of C’s interest depends on the result \r\nof certain partnership­accounts, on which he is heavily in debt to his partners. \r\nThis indebtedness is known to A, but not to B. Specific performance of the \r\ncontract should be refused to A. \r\n(c) A contracts to sell, and B contracts to buy, certain land. To protect the land \r\nfrom floods, it is necessary for its owner to maintain an expensive \r\nembankment. B does not know of this circumstance, and A conceals it from \r\nhim. Specific performance of the contract should be refused to A. \r\n(d) A’s property is put up to auction. B requests C, A’s attorney, to bid for him. C \r\ndoes this inadvertently and in good faith. The persons present, seeing the \r\nvendor’s attorney bidding, think that he is a mere puffer and cease to compete. \r\nThe lot is knocked down to B at a low price. Specific performance of the \r\ncontract should be refused to B. \r\n II. Where the performance of the contract would involve some hardship on the defendant \r\nwhich he did not foresee, whereas its non­performance would involve no such hardship on the \r\nplaintiff. \r\nPage 18 of 35 \r\n \r\n \r\nIllustrations \r\n 1*  *  *  *  *  *  * \r\n(f) A and B, trustees, join their beneficiary, C, in a contract to sell the trust­estate \r\nto D, and personally agree to exonerate the estate from heavy encumbrances to \r\nwhich it is subject. The purchase­money is not nearly enough to discharge \r\nthose encumbrances, though, at the date of the contract, the vendors believed it \r\nto be sufficient. Specific performance of the contract should be refused to D. \r\n(g) A, the owner of an estate, contracts to sell it to B, and stipulates that he, A, \r\nshall not be obliged to define its boundary. The estate really comprises a \r\nvaluable property, not known to either to be part of it. Specific performance of \r\nthe contract should be refused to B unless he waives his claim to the unknown \r\nproperty. \r\n(h) A contracts with B to sell him certain land, and to make a road to it from a \r\ncertain railway­station. It is found afterwards that A cannot make the road \r\nwithout exposing himself to litigation. Specific performance of the part of the \r\ncontract relating to the road should be refused to B, even though it may be \r\nheld that he is entitled to specific performance of the rest with compensation \r\nfor loss of the road. \r\n(i) A, a lessee of mines, contracts with B, his lessor, that at any time during the \r\ncontinuance of the lease B may give notice of his desire to take the machinery \r\nand plant used in and about the mines, and that he shall have the articles \r\nspecified in his notice delivered to him at a valuation on the expiry of the \r\nlease. Such a contract might be most injurious to the lessee’s business, and \r\nspecific performance of it should be refused to B. \r\n(j) A contracts to buy certain la nd from B. The contract is silent as to access to \r\nthe land. No right of way to it can be shown to exist. Specific performance of \r\nthe contract should be refused to B. \r\n(k) A contracts with B to buy from B’s manufactory and not elsewhere all the \r\ngoods of a certain class used by A in his trade. The Court cannot compel B to \r\nsupply the goods, but if he does not supply them, A may be ruined unless he is \r\nallowed to buy them elsewhere. Specific performance of the contract should \r\nbe refused to B. \r\n The following is a case in which the Court may properly exercise a discretion to decree \r\nspecific performance: \r\n III. Where the plaintiff has done substantial acts or suffered losses in consequence of a \r\ncontract capable of specific performance. \r\n \r\n \r\n1Omitted by Ord. XXII of 1983, s.3. \r\n \r\n  \r\nPage 19 of 35 \r\n \r\n \r\nIllustration \r\n A sells land to a railway­company, who contract to execute certain works for his \r\nconvenience. The company take the land and use it for their railway. Specific performance of the \r\ncontract to execute the works should be decreed in favour of A. \r\n(d) For whom Contracts may be specifically enforced \r\n 23. Who may obtain specific performance. Except as otherwise provided by this Chapter, \r\nthe specific performance of a contract may be obtained by___ \r\n(a) any party thereto; \r\n(b) the representative in interest, or the principal, of any party thereto: provided \r\nthat, where the learning, skill, solvency or any personal quality of such party is \r\na material ingredient in the contract, or where the contract provides that his \r\ninterest shall not be assigned, his representative in interest or his principal \r\nshall not be entitled to specific performance of the contract, unless where his \r\npart thereof has already been performed; \r\n(c)  where the contract is a settlement on marriage, or a compromise of doubtful \r\nrights between members of the same family, any person beneficially entitled \r\nthere under; \r\n(d)  where the contract has been entered into by a tenant for life in due exercise of \r\na power, the remainder man; \r\n(e) a reversioner in possession, where the agreement is a covenant entered into \r\nwith his predecessor in title and the reversioner is entitled to the benefit of \r\nsuch covenant; \r\n(f) a reversioner in remainder, where the agreement is such a covenant, and the \r\nreversioner is entitled to the benefit thereof and will sustain material injury by \r\nreason of its breach; \r\n(g) when a public company has entered into a contract and subsequently becomes \r\namalgamated with another public company, the new company which arises out \r\nof the amalgamation; \r\n(h) when the promoters of a public company have, before its incorporation, \r\nentered into a contract for the purposes of the company, and such contract is \r\nwarranted by the terms of the incorporation, the company. \r\n(e) For whom Contracts cannot be specifically enforced. \r\n 24. Personal bars to the relief. Specific performance of a contract cannot be enforced in \r\nfavour of a person__ \r\n(a)  who could not recover compensation for its breach; \r\n \r\nPage 20 of 35 \r\n \r\n \r\n(b) who has become incapable of performing, or violates, any essential term of the \r\ncontract that on his part remains to be performed; \r\n(c) who has already chosen his remedy and obtained satisfaction for the alleged \r\nbreach of contract; or \r\n(d)  who, previously to the contract, had notice that a settlement of the \r\nsubject­matter thereof (though not founded on any valuable consideration) had \r\nbeen made and was then in force. \r\nIllustrations \r\nto clause (a)___ \r\n A, in the character of agent for B, enters into an agreement with C to buy C’s house. A is in \r\nreality acting, not as agent for B, but on his own account. A cannot enforce specific performance of \r\nthis contract. \r\nto clause (b) \r\n A contracts to sell B a house and to become tenant thereof for a term of fourteen years from \r\nthe date of the sale at a specified yearly rent. A becomes insolvent. Neither he nor his assignee can \r\nenforce specific performance of the contract. \r\n A contracts to sell B a house and garden in which there are ornamental trees, a material \r\nelement in the value of the property as a residence. A, without B’s consent, fells the trees. A cannot \r\nenforce specific performance of the contract. \r\n A, holding land under a contract with B for a lease, commits waste, or treats the land in an \r\nunhusband like manner. A cannot enforce specific performance of the contract. \r\n A contracts to let, and B contracts to take, an unfinished house, B contracting to finish the \r\nhouse and the lease to contain covenants on the part of A to keep the house in repair. B finishes the \r\nhouse in a very defective manner: he cannot enforce the contract specifically, though A and B may \r\nsue each other for compensation for breach of it. \r\nto clause (c) \r\n A contracts to let, and B contracts to take, a house for a specified term at a specified rent. B \r\nrefuses to perform the contract. A thereupon sues for, and obtains, compensation for the breach. A \r\ncannot obtain specific performance of the contract. \r\n 25. Contracts to sell property by one who has no title or who is a voluntary settler. A \r\ncontract for the sale or letting of property, whether moveable or immoveable, cannot be specifically \r\nenforced in favour of a vendor or lessor– \r\n(a) who, knowing himself not to have any title to the property, has contracted to \r\nsell or let the same; \r\n(b) who, though he entered into the contract believing that he had a good title to \r\nthe property, cannot, at the time fixed by the parties or by the Court for the \r\ncompletion of the sale or letting, give the purchaser or lessee a title free from \r\nPage 21 of 35 \r\n \r\n \r\nreasonable doubt; \r\n(c) who, previous to entering into the contract, has made settlement (though not \r\nfounded on any valuable consideration) of the subject­matter of the contract. \r\nIllustrations \r\n(a) A, without C’s authority, contracts to sell to B an estate which A knows to \r\nbelong to C. A cannot enforce specific performance of this contract, even \r\nthough C is willing to confirm. \r\n(b) A bequeaths his land to trustees declaring that they may sell it with the consent \r\nin writing of B. B gives a general prospective assent in writing to any sale \r\nwhich the trustees may make. The trustees then enter into a contract with C to \r\nsell him the land. C refuses to carry out the contract. The trustees cannot \r\nspecifically enforce this contract, as in the absence of B’s consent to the \r\nparticular sale to C, the title which they can give C is, as the law stands, not \r\nfree from reasonable doubt. \r\n(c) A, being in possession of certain land, contracts to sell it to Z. On inquiry it \r\nturns out that A claims the land as heir of B, who left the country several years \r\nbefore, and is generally believed to be dead, but of whose death there is no \r\nsufficient proof. A cannot compel Z specifically to perform the contract. \r\n(d) A, out of natural love and affection, makes a settlement of certain property on \r\nhis brothers and their issue, and afterwards enters into a contract to sell the \r\nproperty to a stranger. A cannot enforce specific performance of this contract \r\nso as to override the settlement, and thus prejudice the interests of the persons \r\nclaiming under it. \r\n(f) For whom Contracts cannot be specifically enforced, except with a Variation \r\n 26. Non enforcement except with variation. Where a plaintiff seeks specific performance of \r\na contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the \r\nperformance sought, except with the variation so set up, in the following cases (namely):__ \r\n(a) where by fraud or mistake of fact the contract of which performance is sought \r\nis in terms different from that which the defendant supposed it to be when he \r\nentered into it ; \r\n(b)  where by fraud, mistake of fact, or surprise the defendant entered into the \r\ncontract under a reasonable misapprehension as to its effect as between \r\nhimself and the plaintiff ; \r\n(c) where the defendant, knowing the terms of the contract and understanding its \r\neffect, has entered into it relying upon some misrepresentation by the plaintiff, \r\nor upon some stipulation on the plaintiff’s part, which adds to the contract, but \r\nwhich he refuses to fulfill ; \r\n(d) where the object of the parties was to produce a certain legal result, which the \r\ncontract as framed is not calculated to produce; \r\nPage 22 of 35 \r\n \r\n \r\n(e) where the parties have, subsequently to the execution of the contract, \r\ncontracted to vary it. \r\nIllustrations \r\n(a) A, B and C sign a writing by which they purport to contract each to enter into \r\na bond to D for Rs. 1,000. In a suit by D, to make A, B and C separately liable \r\neach to the extent of Rs. 1,000, they prove that the word “each” was inserted \r\nby mistake; that the intention was that they should give a joint bond for Rs. \r\n1,000. D can obtain the performance sought only with the variation thus set \r\nup. \r\n(b) A sues B to compel specific performance of a contract in writing to buy a \r\ndwelling­house. B proves that he assumed that the contract included an \r\nadjoining yard, and the contract was so framed as to leave it doubtful whether \r\nthe yard was so included or not. The Court will refuse to enforce the contract, \r\nexcept with the variation set up by B. \r\n(c) A contracts in writing to let to B a wharf, together with a strip of A’s land \r\ndelineated in a map. Before signing the contract, B proposed orally that he \r\nshould be at liberty to substitute for the strip mentioned in the contract another \r\nstrip of A’s land of the same dimensions, and to this A expressly assented. B \r\nthen signed the written contract. A cannot obtain specific performance of the \r\nwritten contract, except with the variation set up by B. \r\n(d) A and B enter into negotiations for the purpose of securing land for B for his \r\nlife, with remainder to his issue. They execute a contract, the terms of which \r\nare found to confer an absolute ownership on B. The contract so framed \r\ncannot be specifically enforced. \r\n(e) A contracts in writing to let a house to B, for a certain term, at the rent of Rs. \r\n100 per month, putting it first into tenantable repair. The house turns out to be \r\nnot worth repairing, so, with B’s consent, A pulls it down and erects a new \r\nhouse in its place: B contracting orally to pay rent at Rs. 120 per mensum. B \r\nthen sues to enforce specific performance of the contract in writing. He cannot \r\nenforce it except with the variations made by the subsequent oral contract. \r\n(g) Against whom contracts may be specifically enforced. \r\n27. Relief against parties and persons claiming under them by subsequent title. Except as \r\notherwise provided by this Chapter, specific performance of a contract may be enforced against___ \r\n(a) either party thereto; \r\n(b) any other person claiming under him by a title arising subsequently to the \r\ncontract, except a transferee for value who has paid his money in good faith \r\nand without notice of the original contract; \r\n(c) any person claiming under a title which, though prior to the contract and \r\nknown to the plaintiff, might have been displaced by the defendant; \r\n(d) when a public company has entered into a contract and subsequently becomes \r\nPage 23 of 35 \r\n \r\n \r\namalgamated with another public company, the new company which arises out \r\nof the amalgamation; \r\n(e) when the promoters of a public company have, before its incorporation, \r\nentered into a contract, the company: provided that the company has ratified \r\nand adopted the contract and the contract is warranted by the terms of the \r\nincorporation. \r\nIllustrations \r\nto clause (b)___ \r\n A contracts to convey certain land to B by a particular day, A dies intestate before that day \r\nwithout having conveyed the land. B may compel A’s heir or other representative in interest to \r\nperform the contract specifically. \r\n A contracts to sell certain land to B for Rs. 5,000. A afterwards conveys the land for Rs. \r\n6,000 to C, who has notice of the original contract. B may enforce specific performance of the \r\ncontract as against C. \r\n A contracts to sell land to B for Rs. 5,000. B takes possession of the land. Afterwards A sells \r\nit to C for Rs. 6,000. C makes no inquiry of B relating to his interest in the land. B’s possession is \r\nsufficient to affect C with notice of his interest, and he may enforce specific performance of the \r\ncontract against C. \r\n A contracts, in consideration of Rs. 1,000, to bequeath certain of his lands to B. Immediately \r\nafter the contract A dies intestate, and C takes out administration to his estate. B may enforce \r\nspecific performance of the contract against C. \r\n A contracts to sell certain land to B. Before the completion of the contract, A becomes a \r\nlunatic and C is appointed his committee. B may specifically enforce the contract against C. \r\nto clause (c)___ \r\n A, the tenant for life of an estate, with remainder to B, in due exercise of a power conferred \r\nby the settlement under which he is tenant for life, contracts to sell the estate to C, who has notice of \r\nthe settlement. Before the sale is completed, A dies. C may enforce specific performance of the \r\ncontract against B. \r\n A and B are joint tenants of land, his undivided moiety of which either may alien in his \r\nlifetime, but which, subject to that right, devolves on the survivor. A contracts to sell his moiety to C \r\nand dies. C may enforce specific performance of the contract against B. \r\n 1[27A. Specific performance in case of part performance of contract to lease.  Subject to \r\nthe provisions of this Chapter, where a contract to lease immoveable property is made in writing \r\nsigned by the parties thereto or on their behalf, either party may, notwithstanding that the contract, \r\nthough required to be registered, has not be en registered, sue the other for specific performance of \r\nthe contract if,___ \r\n \r\n1S. 27A ins. by the Transfer of Property (Amdt.) Supplementary Act, 1929 (21 of 1929), s. 3 (w.e.f. 1st April, 1930). \r\n  \r\nPage 24 of 35 \r\n \r\n \r\n(a) where specific performance is claimed by the lessor, he has delivered \r\npossession of the property to the lessee in part performance of the contract; \r\nand \r\n(b) where specific performance is claimed by the lessee, he has, in part \r\nperformance of the contract, taken possession of the property, or, being \r\nalready in possession, continues in possession in part performance of the \r\ncontract, and has done some act in furtherance of the contract: \r\n Provided that nothing in this section shall affect the rights of a transferee for consideration \r\nwho has no notice of the contract or of the part performance thereof. \r\n This section applies to contracts to lease executed after the first day of April, 1930.] \r\n(h) Against whom Contracts cannot be specifically enforced \r\n 28. What parties cannot be compelled to perform. Specific performance of a contract \r\ncannot be enforced against a party thereto in any of the following cases:__ \r\n(a) if the consideration to be received by him is so grossly inadequate, with \r\nreference to the state of things existing at the date of the contract, as to be \r\neither by itself or coupled with other circumstances evidence of fraud or of \r\nundue advantage taken by the plaintiff ; \r\n (b) if his assent was obtained by the misrepresentation (whether willful or \r\ninnocent), concealment, circumvention or unfair practices, of any party to \r\nwhom performance would become due under the contract, or by any promise \r\nof such party which has not been substantially fulfilled; \r\n(c) if his assent was given under the influence of mistake of fact, misapprehension \r\nor surprise: Provided that, when the contract provides for compensation in \r\ncase of mistake, compensation may be made for a mistake within the scope of \r\nsuch provision, and the contract may be specifically enforced in other respects \r\nif proper to be so enforced. \r\nIllustrations  \r\nto clause (c)___ \r\n A, one of two executors, in the erroneous belief that he had the authority of his co­executor, \r\nenters into an agreement for the sale to B of his testator’s property. B cannot insist on the sale being \r\ncompleted. \r\n A directs an auctioneer to sell certain land. A afterwards revokes the auctioneer’s authority as \r\nto 20 bighas of this land, but the auctioneer inadvertently sells the whole to B, who has not notice of \r\nthe revocation. B cannot enforce specific performance of the agreement. \r\n(i) The effect of dismissing a Suit for Specific Performance \r\n 29. Bar of suit for breach after dismissal. The dismissal of a suit for specific performance \r\nof a contract or part thereof shall bar the plaintiff’s right to sue for compensation for the breach of \r\nsuch contract or part, as the case may be. \r\nPage 25 of 35 \r\n \r\n \r\n \r\n(j) Awards and Directions to execute Settlements \r\n 30. Application of preceding sections to awards and testamentary directions to execute \r\nsettlements. The provisions of this Chapter as to contracts shall, mutatis mutandis, apply to awards \r\nand to directions in a will or codicil to execute a particular settlement. \r\n___________ \r\nCHAPTER III \r\nOF THE RECTIFICATION OF INSTRUMENT \r\n 31. When instrument may be rectified. When, through fraud or a mutual mistake of the \r\nparties, a contract or other instrument in writing does not truly express their intention, either party, or \r\nhis representative in interest, may institute a suit to have the instrument rectified; and if the Court \r\nfind it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the \r\nreal intention of the parties in executing the same, the Court may in its discretion rectify the \r\ninstrument so as to express that intention, so far as this can be done without prejudice to rights \r\nacquired by third persons in good faith and for value. \r\nIllustrations \r\n(a)  A, intending to sell to B his house and one of three godowns adjacent to it, \r\nexecutes a conveyance prepared by B, in which, through B’s fraud, all three \r\ngodowns are included. Of the two godowns which were fraudulently included, \r\nB gives one to C and lets the other to D for a rent, neither C nor D having any \r\nknowledge of the fraud. The conveyance may, as against B and C, be rectified \r\nso as to exclude from it the godown given to C; but it cannot be rectified so as \r\nto affect D’s lease. \r\n(b) By a marriage settlement, A, the father of B, the intended wife, covenants with \r\nC, the intended husband, to pay to C, his executors, administrators and \r\nassigns, during A’s life, an annuity of Rs. 5,000. C dies insolvent and the \r\nofficial assignee claims the annuity from A. The Court, on finding it clearly \r\nproved that the parties always intended that this annuity should be paid as a \r\nprovision for B and her children, may rectify the settlement and decree that the \r\nassignee has no right to any Part of the annuity. \r\n 32. Presumption as to intent of parties. For the purpose of rectifying a contract in writing, \r\nthe Court must be satisfied that all the parties thereto intended to make an equitable and \r\nconscientious agreement. \r\n 33. Principles of rectification. In rectifying a written instrument, the Court may inquire what \r\nthe instrument was intended to mean, and what were intended to be its legal consequences, and is not \r\nconfined to the inquiry what the language of the instrument was intended to be. \r\n 34. Specific enforcement of rectified contract. A contract in writing may be first rectified \r\nand then, if the plaintiff has so prayed in his plaint and the Court thinks fit, specifically enforced. \r\n \r\nPage 26 of 35 \r\n \r\n \r\nIllustration \r\n A contracts in writing to pay his attorney, B, a fixed sum in lieu of costs. The contract \r\ncontains mistakes as to the name and rights of the client, which, if construed strictly, would exclude \r\nB from all rights under it. B is entitled, if the Court thinks fit, to have it rectified, and to an order for \r\npayment of the sum, as if at the time of its execution it had expressed the intention of the parties. \r\n____________ \r\nCHAPTER IV \r\nOF THE RESCISSION OF CONTRACTS \r\n 35. When rescission may be adjudged. Any person interested in a contract in writing 1may \r\nsue to have it rescinded, and such rescission may be adjudged by the Court in any of the following \r\ncases, namely:__ \r\n(a)  where the contract is voidable or terminable by the plaintiff ; \r\n(b)  where the contract is unlawful for causes not apparent on its face, and the \r\ndefendant is more to blame than the plaintiff ; \r\n(c) where a decree for specific performance of a contract of sale, or of a contract \r\nto take a lease, has been made, and the purchaser or lessee makes default in \r\npayment of the purchase­money or other sums which the Court has ordered \r\nhim to pay. \r\n When the purchaser or lessee is in possession of the subject­matter, and the Court finds that \r\nsuch possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents \r\nand profits, if any, received by him as such possessor. \r\n In the same case, the Court may, by order in the suit in which the decree has been made and \r\nnot complied with, rescind the contract, either so far as regards the party in default, or altogether as \r\nthe justice of the case may require. \r\nIllustrations  \r\nto (a)___ \r\n A sells a field to B. There is a right of way over the field of which A has direct personal \r\nknowledge, but which he conceals from B. B is entitled to have the contract rescinded. \r\nto (b)___ \r\n A, an attorney, induces his client B, a Hindu widow, to transfer property to him, for the \r\npurpose of defrauding B’s creditors. Here the parties are not equally in fault, and B is entitled to have \r\nthe instrument of transfer rescinded. \r\n \r\n \r\n1The words “in writing” are rep. wherever the Transfer of Property Act, 1882 (4 of 1882), is in force, see ss. 1 and 2 of that Act. \r\nPage 27 of 35 \r\n \r\n \r\n 36. Rescission for mistake. Rescission of a contract in writing1 cannot be adjudged for mere \r\nmistake, unless the party against whom it is adjudged can be restored to substantially the same \r\nposition as if the contract had not been made. \r\n 37. Alternative prayer for rescission in suit for specific performance. A plaintiff \r\ninstituting a suit for the specific performance of a contract in writing may pray in the alternative that, \r\nif the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; \r\nand the Court, if it refuses to enforce the contract specifically, may direct it to be rescinded and \r\ndelivered up accordingly. \r\n 38. Court may require party rescinding to do equity. On adjudging the rescission of a \r\ncontract, the Court may require the party to whom such relief is granted to make any compensation \r\nto the other which justice may require. \r\n___________ \r\nCHAPTER V \r\nOF THE CANCELLATION OF INSTRUMENTS \r\n 39. When cancellation may be ordered. Any person against whom a written instrument is \r\nvoid or voidable, who has reasonable apprehension that such instrument, if left outstanding, may \r\ncause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its \r\ndiscretion, so adjudge it and order it to be delivered up and cancelled. \r\n If the instrument has been registered under the Indian Registration Act2, the Court shall also \r\nsend a copy of its decree to the officer in whose office the instrument has been so registered; and \r\nsuch officer shall note on the copy of the instrument contained in his books the fact of its \r\ncancellation. \r\nIllustrations \r\n(a) A, the owner of a ship by fraudulently representing her to be seaworthy, \r\ninduces B, an underwriter, to insure her. B may obtain the cancellation of the \r\npolicy. \r\n(b) A conveys land to B, who bequeaths it to C and dies. Thereupon D gets \r\npossession of the land and produces a forged instrument stating that the \r\nconveyance was made to B in trust for him. C may obtain the cancellation of \r\nthe forged instrument. \r\n(c) A, representing that the tenants on his land were all at will, sells it to B, and \r\nconveys it to him by an instrument, dated the 1st January 1877. Soon after that \r\nday, A fraudulently grants to C a lease of part of the lands, dated the 1st \r\nOctober, 1876, and procures the lease to be registered under the Indian \r\nRegistration Act.3 B may obtain the cancellation of this lease. \r\n \r\n \r\n1The words “in writing” are rep. wherever the Transfer of Property Act, 1882 (4 of 1882), is in force, see ss. 1 and 2 of that Act. \r\n2See now the Registration Act, 1908 (16 of 1908). \r\n3See now the Registration Act, 1908 (16 of 1908). \r\nPage 28 of 35 \r\n \r\n \r\n(d) A agrees to sell and deliver a ship to B, to be paid for by B’s acceptances of four \r\nbills of exchange, for sums amounting to Rs, 30,000 to be drawn by A on B. The \r\nbills are drawn and accepted, but the ship is not delivered according to the \r\nagreement. A sues B on one of the bills, B may obtain the cancellation of all the \r\nbills. \r\n 40. What instruments may be partially cancelled. Where an instrument is evidence of different \r\nrights or different obligations, the Court may, in a proper case, cancel it in part and allow it to stand for \r\nthe residue. \r\nIllustration \r\nA draws a bill on B, who endorses it to C, by whom it appears to be endorsed to D, who endorses it to E. \r\nC’s endorsement is forged. C is entitled to have such endorsement cancelled, leaving the bill to stand in \r\nother respects. \r\n 41. Power to require party for whom instrument is cancelled to make compensation. On \r\nadjudging the cancellation of an instrument, the Court may require the party to whom such relief is \r\ngranted to make any compensation to the other which justice may require. \r\n_________ \r\nCHAPTER VI \r\nOF DECLARATORY DECREES \r\n  1[42. Discretion of Court as to declaration of status or right.— (1) Any person entitled \r\nto any character, or any right to any property, may institute a suit against any person denying, or \r\ninterested to deny, his title to such character or right, and the Court may in its discretion make therein a \r\ndeclaration that he is so entitled and the plaintiff need not in such suit ask for any further relief: \r\nProvided that no Court shall make any such declaration where the plaintiff, being able to seek \r\nfurther relief than a mere declaration of title, omits to do so. \r\n(2) Notwithstanding anything contained in any other law for the time being in force, a suit \r\nfiled under sub-section (1) shall be decided by the Court within six months and the appellate court shall \r\ndecide the appeal not later than ninety days, as the case may be.] \r\n 43. Effect of declaration. A declaration made under this Chapter is binding only on the parties to \r\nthe suit, persons claiming through them respectively, and, where any of the parties are trustees, on the \r\npersons for whom, if in existence at the date of the declaration, such parties would be trustees. \r\nIllustration \r\n A, a Hindu, in a suit to which B, his alleged wife, and her mother, are defendants, seeks a \r\ndeclaration that his marriage was duly solemnized and an order for the restitution of his conjugal  rights. \r\nThe Court makes the declaration and order. C, claiming that B is his wife, then sues A for the recovery of \r\nB. The declaration made in the former suit is not binding upon C. \r\n \r\n1Subs., by Act XXXIII of 2023, s.2.  \r\nPage 29 of 35 \r\n \r\n \r\nCHAPTER VII \r\nOF THE APPOINTMENT OF RECEIVERS \r\n 44. Appointment of receivers discretionary. The appointment of a receiver pending a suit is a \r\nmatter resting in the discretion of the Court. \r\n Reference to Code of Civil Procedure. The mode and effect of his appointment, and his rights, \r\npowers duties and liabilities, are regulated by the Code of Civil Procedure1. \r\nCHAPTER VIII. ____ [Of the Enforcement of Public Duties.] Omitted by the Federal Laws \r\n(Revision and Declaration ) Ordinance, 1981 (XXVII of 1981), s. 3 and IInd Sch. \r\nPART III \r\nOf Preventive Relief \r\n___________ \r\nCHAPTER IX \r\nOF INJUNCTIONS GENERALLY \r\n 52. Preventive relief how granted. Preventive relief is granted at the discretion of the Court by \r\ninjunction, temporary or perpetual. \r\n 53. Temporary injunctions. Temporary injunctions are such as are to continue until a specified \r\ntime, or until the further order of the Court. They may be granted at any period of a suit, and are regulated \r\nby the 2[Code of Civil Procedure, 1908 (Act V of 1908).] \r\n Perpetual Injunctions. A perpetual injunction can only be granted by the decree made at the \r\nhearing and upon the merits of the suit: the defendant is thereby perpetually enjoined from the assertion \r\nof a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. \r\n_____________ \r\nCHAPTER X \r\nOF PERPETUAL INJUNCTIONS \r\n 54. Perpetual injunctions when granted. Subject to the other provisions contained in, or \r\nreferred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation \r\nexisting in favour of the applicant, whether expressly or by implication. \r\n When such obligation arises from contract, the Court shall be guided by the rules and provisions \r\ncontained in Chapter II of this Act. \r\n When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, \r\nproperty, the Court may grant a perpetual injunction in the following cases (namely):__ \r\n(a) where the defendant is trustee of the property for the plaintiff ; \r\n \r\n1See now the Code of Civil Procedure, 1908 (Act 5 of 1908). \r\n2Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and 2nd Sch., for “Code of Civil Procedure”. \r\nPage 30 of 35 \r\n \r\n \r\n(b) where there exists no standard for ascertaining the actual damage caused, or \r\nlikely to be caused, by the invasion; \r\n(c) where the invasion is such that pecuniary compensation would not afford \r\nadequate relief; \r\n(d) where it is probable that pecuniary compensation can not be got for the \r\ninvasion; \r\n(e) where the injunction is necessary to prevent a multiplicity of judicial \r\nproceedings. \r\nExplanation.___ For the purpose of this section a trademark is property . \r\nIllustrations \r\n(a) A lets certain lands to B and B contracts not to dig sand or gravel thereout. A \r\nmay sue for an injunction to restrain B from digging in violation of his \r\ncontract. \r\n(b) A trustee threatens a breach of trust. His co­trustees, if any, should, and the \r\nbeneficial owners may, sue for an injunction to prevent the breach. \r\n(c) The directors of a public company are about to pay a dividend 1out of capital \r\nor borrowed money. Any of the shareholders may sue for an injunction to \r\nrestrain them. \r\n(d) The directors of a fire and life­insurance company are about to engage in \r\nmarine insurances. Any of the shareholders may sue for an injunction to \r\nrestrain them. \r\n(e) A, an executor, through misconduct or insolvency, is bringing the property of \r\nthe deceased into danger. The Court may grant an injunction to restrain him \r\nfrom getting in the assets. \r\n(f) A, a trustee for B, is about to make an imprudent sale of a small part of the \r\ntrust­property. B may sue for an injunction to restrain the sale, even though \r\ncompensation in money would have afforded him adequate relief. \r\n(g) A makes a settlement (not founded on marriage or other valuable \r\nconsideration) of an estate on B and his children. A then contracts to sell the \r\nestate to C. B or any of his children may sue for an injunction to restrain the \r\nsale. \r\n(h) In the course of A’s employment as a vakil, certain papers belonging to his \r\nclient, B, come into his possession. A threatens to make these papers public, or \r\nto communicate their contents to a stranger. B may sue for an injunction to \r\nrestrain A from so doing. \r\n \r\n \r\n1A Railway Company may, however, pay interest on its paid­up share capital out of capital, for a certain period and subject to  certain restrictions and \r\nconditions: see the Indian Railway Companies Act, 1895 (10 of 1895), s.3. \r\nPage 31 of 35 \r\n \r\n \r\n(i) A is B’s medical adviser. He demands money of B which B declines to pay. A \r\nthen threatens to make known the effect of B’s communications to him as a \r\npatient. This is contrary to A’s duty, and B may sue for an injunction to \r\nrestrain him from so doing. \r\n(j) A, the owner of two adjoining houses, lets one to B and afterwards lets the \r\nother to C. A and C begin to make such alterations in the house let to C as will \r\nprevent the comfortable enjoyment of the house let to B. B may sue for an \r\ninjunction to restrain them from so doing. \r\n(k) A lets certain arable lands to B for purposes of husbandry, but without any \r\nexpress contract as to the mode of cultivation. Contrary to the mode of \r\ncultivation customary in the district, B threatens to sow the lands with seed \r\ninjurious thereto and requiring many years to eradicate. A may sue for an \r\ninjunction to restrain B from sowing the lands in contravention of his implied \r\ncontract to use them in a husband like manner. \r\n(l) A, B and C are partners, the partnership being determinable at will. A \r\nthreatens to do an act tending to the destruction of the partnership­property. B \r\nand C may, without seeking a dissolution of the partnership, sue for an \r\ninjunction to restrain A from doing the act. \r\n(m) A, a Hindu widow in possession of her deceased husband’s property, commits \r\ndestruction of the property without any cause sufficient to justify her in so \r\ndoing. The heir­expectant may sue for an injunction to restrain her. \r\n(n) A, B and C are members of an undivided Hindu family. A cuts timber growing \r\non the family­property, and threatens to destroy part of the family­house and \r\nto sell some of the family­utensils. B and C may sue for an injunction to \r\nrestrain him. \r\n(o) A, the owner of certain houses in 1[Karachi], becomes insolvent B buys them \r\nfrom the Official Assignee and enters into possession. A persists in trespassing \r\non and damaging the houses, and B is thereby compelled, at considerable \r\nexpense, to employ men to protect the possession. B may sue for an injunction \r\nto restrain further acts of trespass. \r\n(p) The inhabitants of a village claim a right of way over A’s land. In a suit \r\nagainst several of them, A obtains a declaratory decree that his land is subject \r\nto no such right. Afterwards each of the other villagers sues A for obstructing \r\nhis alleged right of way over the land. A may sue for an injunction to restrain \r\nthem. \r\n(q) A, in an administration­suit to which a creditor, B, is not a party, obtains a \r\ndecree for the administration of C’s assets. B proceeds against C’s estate for \r\nhis debt. A may sue for an injunction to restrain B. \r\n \r\n \r\nlSubs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and 2nd Sch., for “Chittagong” which was subs. by the \r\nCentral Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch., for “Calcutta” (w.e.f. 14th October, 1955). \r\n \r\nPage 32 of 35 \r\n \r\n \r\n(r) A and B are in possession of contiguous lands and of the mines underneath \r\nthem1. A works his mine so as to extend under B’s mine and threatens to \r\nremove certain pillars which help to support B’s mi ne. B may sue for an \r\ninjunction to restrain him from so doing. \r\n(s) A rings bells or makes some other unnecessary noise so near a house as to \r\ninterfere materially and unreasonably with the physical comfort of the \r\noccupier, B . B may sue for an injunction restraining A from making the noise. \r\n(t) A pollutes the air with smoke so as to interfere materially with the physical \r\ncomfort of B and C, who carry on business in a neighbouring house. B and C \r\nmay sue for an injunction to restrain the pollution. \r\n(u) A infringes B’s patent. If the Court is satisfied that the patent is valid and has \r\nbeen infringed, B may obtain an injunction to restrain the infringement. \r\n(v) A pirates B’s copyright. B may obtain an injunction to restrain the piracy, \r\nunless the work of which copyright is claimed is libellous or obscene. \r\n(w) A improperly uses the trademark of B. B may obtain an injunction to restrain \r\nthe user, provided that B’s use of the trademark is honest. \r\n(x) A, a tradesman, holds out B as his partner against the wish and without the \r\nauthority of B. B may sue for an injunction to restrain A from so doing. \r\n(y) A, a very eminent man, writes letters on family­topics to B. After the death of \r\nA and B, C who is B’s residuary legatee, proposes to make money by \r\npublishing A’s letters. D, who is A’s executor, has a prosperity in the letters, \r\nand may sue for an injunction to restrain C from publishing them. \r\n(z) A carries on a manufactory and B is his assistant. In the course of his business, \r\nA imparts to B a secret process of value. B afterwards demands money of A, \r\nthreatening, in case of refusal, to disclose the process to C, a rival \r\nmanufacturer. A may sue for an injunction to restrain B from disclosing the \r\nprocess.  \r\n 55. Mandatory injunction.  When, to prevent the breach of an obligation, it is necessary to \r\ncompel the performance of certain acts which the Court is capable of enforcing, the Court may in its \r\ndiscretion grant an injunction to prevent the breach complained of, and also to compel pe rformance \r\nof the requisite acts. \r\nIllustrations \r\n(a) A, by new buildings, obstructs lights to the access and use of which B has \r\nacquired a right under the 2[Limitation Act, 1908 (IX of 1908)] Part IV. B may \r\nobtain an injunction, not only to restrain A from going on with the buildings, \r\nbut also to pull down so much of them as obstructs B’s lights. \r\n \r\n1As to the working of mines under land, the surface of which has been acquired by Government, see the Land Acquisition (Mines) Act, 1885 (18 of \r\n1885). \r\n2Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and 2nd Sch., for “Indian Limitation Act”. \r\nPage 33 of 35 \r\n \r\n \r\n(b) A builds a house with eaves projecting over B’s land. B may sue for an \r\ninjunction to pull down so much of the eaves as so project. \r\n(c) In the case put as illustration (i) to section 54, the Court may also order all \r\nwritten communications made by B, as patient, to A, as medical adviser, to be \r\ndestroyed. \r\n(d) In the case put as illustration (y) to section 54, the Court may also order A’s \r\nletters to be destroyed. \r\n(e) A threatens to publish statements concerning B which would be punishable \r\nunder Chapter XXI of the Pakistan Penal Code (XLV of 1860). The Court may \r\ngrant an injunction to restrain the publication, even though it may be shown \r\nnot to be injurious to B’s property. \r\n(f) A, being B’s medical adviser, threatens to publish B’s written communications \r\nwith him, showing that B has led an immoral life. B may obtain an injunction \r\nto restrain the publication. \r\n(g) In the cases put as illustrations (v) and (w) to section 54 and in illustrations (e) \r\nand (f) to this section, the Court may also order the copies produced by piracy, \r\nand the trade­marks, statements and communications, therein respectively \r\nmentioned, to be given up or destroyed. \r\n 56. Injunction when refused. An injunction cannot be granted__ \r\n(a)  to stay a judicial proceeding pending at the institution of the suit in which the \r\ninjunction is sought, unless such restraint is necessary to prevent a multiplicity \r\nof proceedings; \r\n(b) to stay proceedings in a Court not subordinate to that from which the \r\ninjunction is sought; \r\n(c) to restraint persons from applying to any legislative body; \r\n(d) to interfere with the public duties of any department of 1[the 2[Federal \r\nGovernment], 3* * * or any Provincial Government], or with the sovereign \r\nacts of a Foreign Government; \r\n(e) to stay proceedings in any criminal matter; \r\n(f) to prevent the breach of a contract the performance of which would not be \r\nspecifically enforced; \r\n(g) to prevent, on the ground of nuisance, an act of which it is not reasonably clear \r\nthat it will be a nuisance; \r\n \r\n1Subs. by A. O.,1937 for “the G. of I. or the L.G.”. (w.e.f.1st April, 1937). \r\n2Subs. by F. A. O., 1975, Art. 2, for “Central Government” (w.e.f. 28th July, 1975). \r\n3The words “the Crown Representative” omitted by A. O., 1949, Sch., (w.e.f. 28th March, 1949). \r\n  \r\nPage 34 of 35 \r\n \r\n \r\n (h) to prevent a continuing breach in which the applicant has acquiesced; \r\n(i) when equally efficacious relief can certainly be obtained by any other usual \r\nmode of proceeding except in case of breach of trust; \r\n(j) when the conduct of the applicant or his agents has been such as to disentitle \r\nhim to the assistance of the Court; \r\n(k) where the applicant has no personal interest in the matter. \r\nIllustrations \r\n(a) A seeks an injunction to restrain his partner, B, from receiving the \r\npartnership­debts and effects. It appears that A had improperly possessed \r\nhimself of the books of the firm and refused B access to them. The Court will \r\nrefuse the injunction. \r\n(b) A manufactures and sells crucibles, designating them as “patent plum­bago \r\ncrucibles,” though, in fact, they have never been patented. B pirates the \r\ndesignation. A cannot obtain an injunction to restrain the piracy. \r\n(c) A sells an article called “Mexican Balm,” stating that it is compounded of \r\ndivers rare essences, and has sovereign medicinal qualities. B commences to \r\nsell a similar article to which he gives a name and description such as to lead \r\npeople into the belief that they are buying A’s Mexican Balm. A sues B for an \r\ninjunction to restrain the sale. B shows that A’s Mexican Balm consists of \r\nnothing but scented hog’s lard. A’s use of his description is not an honest one \r\nand he cannot obtain an injunction. \r\n 57. Injunction to perform negative agreement. Notwithstanding section 56, clause (f), \r\nwhere a contract comprises an affirmative agreement to do a certain act, coupled with a negative \r\nagreement, express or implied, not to do a certain act, the circumstance that the Court is unable to \r\ncompel specific performance of the affirmative agreement shall not preclude it from granting an \r\ninjunction to perform the negative agreement: provided that the applicant has not failed to perform \r\nthe contract so far as it is binding on him. \r\nIllustrations \r\n(a) A contracts to sell to B for Rs.1,000 the good­will of a certain business \r\nunconnected with business­premises, and further agrees not to carry on that \r\nbusiness in 1[Karachi]. B pays A the Rs. 1,000 but A carries on the business in \r\n1[Karachi]. The Court cannot compel A to send his customers to B, but B may \r\nobtain an injunction restraining A from carrying on the business in 1[Karachi]. \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n1Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981) s. 3 and 2nd Sch., for “Chittagong” which w as subs. by the \r\nCentral Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch., for “Calcutta” (w.e.f. 14th October, 1955). \r\n \r\nPage 35 of 35  \r\n(b) A contracts to sell to B the good­will of a business. A then sets up a similar \r\nbusiness close by B’s shop and solicits his old customers to deal with him. \r\nThis is contrary to his implied contract, and B may obtain an injunction to \r\nrestrain A from soliciting the customers, and from doing any act whereby their \r\ngood­will may be withdrawn from B. \r\n(c) A contracts with B to sing for twelve months at B’s theatre and not to sing in \r\npublic elsewhere. B cannot obtain specific performance of the contract to sing, \r\nbut he is entitled to an injunction restraining A from singing at any other place \r\nof public entertainment. \r\n(d) B contracts with A that he will serve him faithfully for twelve months as a \r\nclerk. A is not entitled to a decree for specific performance of the contract. But \r\nhe is entitled to an injunction restraining B from serving a rival house as clerk. \r\n(e) A contracts with B that, in consideration of Rs.l,000 to be paid to him by B on \r\na day fixed, he will not set up a certain business within a specified distance. B \r\nfails to pay the money. A cannot be restrained from carrying on the business \r\nwithin the specified distance. \r\nSCHEDULE.___ [Enactments Repealed] Rep. by the Repealing and Amending Act, 1891 (X II of \r\n1891).",
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