{ "schema_version": "qanun-law-text/1", "id": "punjab-code-129c450e456d34db", "title": "SPECIFIC RELIEF ACT, 1877", "source_collection": "Punjab", "content_kind": "stored_law_text", "content_extent": null, "source_url": "https://punjabcode.punjab.gov.pk/en/show_article/ADZXYgQyW2s-", "version": null, "source_snapshot": "2026-08-06T17:03:05Z", "legal_status": "not independently verified", "text_quality": "Complete stored UTF-8 TXT file recovered byte-for-byte from owned Drive. Source transcription retained verbatim; legal completeness, OCR accuracy and current consolidation unverified.", "text_sha256": "9b7bc9049681a796af89af22eb9415c635ca4ff3dd2deadefdc9be23cb9f60fb", "source_sha256": "9b7bc9049681a796af89af22eb9415c635ca4ff3dd2deadefdc9be23cb9f60fb", "text_version_id": "law:punjab-code-129c450e456d34db:sha256:9b7bc9049681a796af89af22eb9415c635ca4ff3dd2deadefdc9be23cb9f60fb", "quality_flags": [], "encoding": "UTF-8", "text": "THE SPECIFIC RELIEF ACT, 1877 \r\n(I of 1877) \r\nCONTENTS \r\nPART I \r\nPreliminary \r\n1. Short title. Local Extent. Commencement \r\n2. Repealed \r\n3. Interpretation-clause \r\nWords 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\n--------- \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 \r\nentitled to immediate possession \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 \r\nsmall \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 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 \r\nsettler \r\n(f) For whom Contacts cannot be specifically enforced, \r\nexcept with a Variation \r\n26. Non enforcement 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 \r\ntitle \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\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 \r\nto execute settlements \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 RESCISSION 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 \r\ncompensation \r\nCHAPTER VI \r\nOF DECLARATORY DECREES \r\n42. Discretion of Court as to declaration of status or right. Bar to such \r\ndeclaration \r\n43. Effect of declaration \r\nCHAPTER VII \r\nOF THE APPOINTMENT OF RECEIVERS \r\n44. Appointment of receivers discretionary . Reference to Code of Civil \r\nProcedure \r\n \r\nCHAPTER VIII \r\nOf The Enforcement of Public Duties \r\n45--51. Omitted. \r\nPART III \r\nOf Preventive Relief \r\n---------- \r\nCHAPTER IX \r\nOF INJUNCTIONS GENERALLY \r\n52. Preventive relief how granted \r\n53. Temporary injunctions. Perpetual injunctions \r\nCHAPTER X \r\nOF PERPETUAL INJUNCTIONS \r\n54. Perpetual injunctions when granted \r\n55. Mandatory injunctions \r\n56. Injunction when refused \r\n57. Injunction to perform negative agreement \r\n------- \r\nSCHEDULE \r\nRepealed \r\n \r\nTEXT \r\nTHE SPECIFIC RELIEF ACT, 1877 \r\n1\r\n(I of 1877) \r\n[7th February, 1877] \r\nAn \r\nAct \r\nto define and amend the law relating to certain kinds of Specific Relief. \r\nPreamble.– Whereas it is expedient to define and amend the law relating to certain \r\nkinds of specific relief obtainable in civil suits; \r\nIt is hereby enacted as follows:– \r\nPART I \r\nPreliminary \r\n1. Short title.– This Act may be called the Specific Relief Act, 1877. \r\nLocal extent.– \r\n2\r\n[It extends to the whole of \r\n3\r\n[the Punjab]. \r\nCommencement.– And it shall come into force on the first day of May, 1877. \r\n4\r\n[2. Repeal of enactments.– * * * * * * * ] \r\n3. Interpretation-clause.– In this Act, unless there be something repugnant in \r\nthe subject or context,– \r\n \r\n1For the Statement and Objects and Reasons, see Gazette of India, 1875, Pt.V, P.258; for the Report of the Select Committee, \r\nsee ibid., 1876, Pt.V, p.1 445; for discussions in Counsil, see ibid., 1875, Supplement, pp.981 and 1025; ibid., 1876, \r\nSupplement, p.1284 and ibid., 1877, Supplement, p.177. \r\nIt has been extended, by notification under s.5 of the Scheduled Districts Act, 1874 ( XIV of 1874), to the fo llowing Scheduled \r\nDistricts, 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 Tanawalt the extent the Act is applicable in th e N.W.F.P., subject \r\nto certain modifications; and extended to the Excluded Area of Upper Tanawal (N.W.F.P.) other than Phulera with effect from \r\nsuch date and subject to such modifications as may be notified, see N.W.F.P. (Upper Tanawal) (Excluded Area) Law s \r\nRegulation, 1950. \r\nS.9 has been declared to be in force in Baluchistan by the British Balu chistan Laws Regulation, 1913 (II of 1913), s.3. (w.e.f. \r\n18th August, 1913). \r\nIt has also been extended to the Leased Areas of Baluchistan, see the Leased Areas (Laws ) Order, 1950 (G.G.O. 3 of 1950) \r\n(w.e.f. 15th August, 1947); and applied in the Federated Areas of Baluchistan, see Gazette of India, 15 th August, 1937, Pt. I, p. \r\n1499. \r\n2Substituted by the Central Laws (Statute Reform) Ordinance, 1960 ( XXI of 1960); and pu blished in the Gazette of Pakistan \r\n(Extraordinary), dated 9.6.1960, pages 725-845, s.3 and Second Schedule. \r\n3 The word “Pakistan” is substituted as the words “the Punjab” by the Specific Relief (Amendment) Act, 2012 (VI of 2012) ; and \r\npublished in the Punjab Gazette (Extraordinary), dated 11.2.2012, pages 40197-40198, s.2 \r\n4Repealed by the Repealing and Amending Act, 1891 (XII of 1891); and published in the Government Gazette, Punjab and its \r\nDependencies, Part IV, dated 9.4.1891, pages 21-67, s.2 and First Schedule, Part I. \r\n'obligation' includes every duty enforceable by law: \r\n'trust' includes every species of express, implied, or constructive fiduciary \r\nownership: \r\n'trustee' includes every person holding, expressly, by implication, or \r\nconstructively, a fiduciary character: \r\nIllustrations \r\n(a) Z bequeaths land to A, “not doubting that he will pay thereout an \r\nannuity of Rs. 1,000 to B for his life”. A accepts the bequest. A is a trustee, within the \r\nmeaning of this Act, for B, to the extent of the annuity. \r\n(b) A is the legal, medical, or spiritual adviser of B. By availing himself of \r\nhis situation 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 Act, of \r\nsuch advantage. \r\n(c) A, being B's banker, discloses for his own purpose, the state of B's \r\naccount. A is trustee, within the meaning of this Act , for B, of the benefit gained by \r\nhim by means of such disclosure. \r\n(d) A, the mortgagee of certain leaseholds, renews the lease in his own \r\nname. A is a 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. \r\nA, unknown to his co -partners, supplies them, at the ma rket price, 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 this Act, \r\nof the profit so made. \r\n(f) A, the manager of B's i ndigo-factory, becomes agent for C, a vendor of \r\nindigo-seed, and receives, without B's assent, commission on the seed purchased \r\nfrom C for the factory. A is a trustee, within the meaning of this Act, for B, of the \r\ncommission so received. \r\n(g) A buys certain land with notice that B has already contracted to buy it. \r\nA is a trustee, 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 \r\nomits to make any inquiry as to the nature of C's interest there in. 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\r\n5\r\n) whereby the destination or devolution of successive \r\ninterests in movable or immovable property is disposed of or is agreed to be \r\ndisposed of: \r\nWords defined in Contract Act .– and all words occurring in this Act, which \r\nare defined in the Contract Act, 1872\r\n6\r\n, shall be deemed to have the meanings \r\nrespectively assigned to them by the Act. \r\n \r\n5See now the Su ccession Act, 1925 ( XXXIX of 1925); and published in the Gazette of India, Part IV, dated10.101925, pages \r\n69-127 \r\n6IX of 1877 \r\n4. Savings.– Except where it is herein otherwise expressly enacted, nothing in \r\nthis Act shall be deemed– \r\n(a) to give any right to relief in respect of any agreement which is not a \r\ncontract; \r\n(b) to deprive any person of any right to r elief, other than specific \r\nperformance, which he may have under any contract; or \r\n(c) to affect the operation of the \r\n7\r\n[****]Registration Act] on documents. \r\n5. 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 \r\ndo; \r\n(c) by preventing a party from doing that which he is under an obligation \r\nnot to do; \r\n(d) by determining and declaring the rights of parties otherwise than by an \r\naward of compensation; or \r\n(e) by appointing a receiver. \r\n6. Preventive relief .– Specific relief granted under clause (c) of section 5 is \r\ncalled preventive relief. \r\n7. Relief not granted to enforce penal law .– Specific relief cannot be g ranted \r\nfor the mere purpose of enforcing a penal law. \r\nPART II \r\nOf Specific Relief \r\n------------- \r\nCHAPTER I \r\nOF RECOVERING POSSESSION OF PROPERTY \r\n(a) Possession of Immoveable Property \r\n8. Recovery of specific immov eable property .– A person entitled to the \r\npossession of specific immoveable property may recover it in the manner prescribed \r\nby the Code of Civil Procedure\r\n8\r\n. \r\n9\r\n[9. Suit by person dispossessed of immov eable property.– If any person is \r\ndispossessed without his consent of immov eable property otherwise tha n in due \r\n \r\n7The word “Indian” is omitted by The Specific Relief (Am endment) Act, 2012 (VI of 2012); and publis hed in the Punjab Gazette \r\n(Extraordinary), dated 11.2.2012, pages 40197-40198, s.3. \r\n8See now the Code of Civil Procedure, 1908 (V of 1908). \r\n9But see as to tenancies in the Punjab, the Punjab Tenancy Act, 1887 (XVI of 1887), s.51. \r\ncourse of law, he or any person claiming through him may, by suit \r\n10\r\n[***] recover \r\npossession thereof, notwithstanding any other title that may be set up in such suit. \r\nNothing in this section shall bar any person from suing to establish his title to \r\nsuch property and to recover possession thereof. \r\nNo suit under this section shall be brought against \r\n11\r\n[the \r\n12\r\n[Federal \r\nGovernment], \r\n13\r\n[***] or any Provincial Government.] \r\nNo appeal shall lie from any order or decree passed in any suit instituted \r\nunder this section, nor shall any review of any such order or decree be allowed.] \r\n(b) Possession of Moveable Property \r\n10. Recovery of Specific mov eable property .– A person entitled to the \r\npossession of specific mov eable property may recover the same in the manner \r\nprescribed by the Code of Civil Procedure.\r\n14\r\n \r\nExplanation I.– A trustee may sue under this section for the possession of property \r\nto the beneficial interest in which the person for whom he is trustee is entitled. \r\nExplanation 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 \r\non the land, 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 \r\nbefore he is entitled to do so. A, without having paid or tendered the amount of the \r\nloan, sues 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 custody. \r\n(c) A receives a letter addressed to him by B. B gets back the letter \r\nwithout A's consent. A has such a property therein as entitles him to recover it from \r\nB. \r\n(d) A deposits books and papers for safe custody with B. B loses them and \r\nC finds them, 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, 1872\r\n15\r\n. \r\n \r\n10The words “instituted wit hin six months from the date of the dispossession” rep ealed by the Repealing and Amending Act, \r\n1891 (XII of 1891); and published in the Government Gazette, Punjab and its Dependencies, Part IV, dated 9 .4.1891, s.2 and \r\nFirst Schedule, Part I. \r\n11The original words “the Government” were first substituted by the Government of India (Adaptation of Indian Laws) Order, \r\n1937; and published in the Gazette of India (Extraordinary), dated 1.4.1937, pages 75-344, Article 3 and Schedule I. \r\n12Substituted for the words “Cen tral Government.” by the Federal Adaptation of Laws Order, 1975 (P.O.4 of 1975); and \r\npublished in the Gazette of Pakistan (Extraordinary), dated 1.8.1975, pages 435 -466, Article 2 and Table of General \r\nAdaptations. \r\n13Words “the Crown Representative” omitted by the Adaptation of Central Acts and Ordinances Order, 1949 (G.G.O.4 of 1949); \r\nand published in the Gazette of Pakistan (Extraordinary), dated 28.3.1949, Article 3 and Schedule. \r\n14See now the Code of Civil Procedure, 1908 (V of 1908). \r\n15IX of 1872 \r\n(e) A, a warehouse-keeper, is charged with the delivery of certain goods to \r\nZ, which B takes out of A's possession. A may sue B for the goods. \r\n11. Liability of person in possession, not as owner, to deliver to person \r\nentitled to immediate possession .– Any person having the possession or control \r\nof a particular article of movable property, of which he is not the owner, may be \r\ncompelled specifically to deliver it to the person entitled to its immediate possession, \r\nin any of the following cases:– \r\n(a) when the thing claimed is held by the defendant as the agent or trustee \r\nof the claimant; \r\n(b) when compensation in money would not afford the claimant adequate \r\nrelief for the loss of the thing claimed; \r\n(c) when it would be extremely difficult to ascertain the actual damage \r\ncaused by its loss; \r\n(d) when the possession of the thing claimed has been wrongfully \r\ntransferred from the claimant. \r\nIllustrations \r\nof clause (a)– \r\nA, proceeding to Europe, leaves his furniture in charge of B as his agent \r\nduring his absence. B, without A's authori ty, pledges the furniture to C, and C, \r\nknowing that B has no right to pledge the furniture, advertises it for sale. C may be \r\ncompelled to deliver the furniture to A, for he holds it as A's trustee. \r\nof clause (b)– \r\nZ has got possession of an idol belonging t o A's family, and of which A is the \r\nproper custodian. Z may be compelled to deliver the idol to A. \r\nof clause (c)– \r\nA is entitled to a picture by a dead painter and a pair of a rare China vases. B \r\nhas possession of them. The articles are of too special a cha racter to bear an \r\nascertainable market-value. B may be compelled 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\n12. Cases in which specific performance enforceable .– Except as oth erwise \r\nprovided in this Chapter, the specific performance of any contract may in the \r\ndiscretion of the Court be enforced– \r\n(a) when the act agreed to be done is in the performance, wholly or partly, \r\nof a trust; \r\n(b) when \r\n16\r\n[their] exists no standard for ascer taining the actual damage \r\ncaused by non-performance of the act agreed to be done; \r\n \r\n16See should read “there”. \r\n(c) when the act agreed to be done is such that pecuniary compensation \r\nfor its non-performance would not afford adequate relief; or \r\n(d) when it is probable that pecuniary com pensation cannot be got for the \r\nnon-performance of the act agreed to be done. \r\nExplanation.– Unless and until the contrary is proved, the Court shall presume that \r\nthe breach of a contract to transfer immovable property cannot be adequately \r\nrelieved by compe nsation in money, and that the breach of a contract to transfer \r\nmovable property can be thus relieved. \r\nIllustrations \r\nof clause (a)– \r\n17\r\n[* * * * * * * * * * * * * ] \r\nof clause (b)– \r\nA agrees to buy, and B agrees to sell, a picture by a dead painter and two \r\nrare China vases. A may compel B specifically to perform this contract, for there is \r\nno standard for ascertaining the actual damage which would be caused by its non -\r\nperformance. \r\nof clause (c)– \r\nA contracts with B to sell him a house for Rs. 1,000. B is entitl ed to a decree \r\ndirecting A to convey the house to him, he paying the purchase-money. \r\nIn consideration of being released from certain obligations imposed on it by its \r\nAct of Incorporation, a Railway -Company contract with Z to make an arch way \r\nthrough their railway to connect lands of Z served by the railway, to construct a road \r\nbetween certain specified points, to pay a certain annual sum towards the \r\nmaintenance of this road, and also to construct a siding and a wharf as specified in \r\nthe 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 \r\nmay appoint a proper person to superintend the construction of the archway, road, \r\nsiding and wharf. \r\nA contracts to sell and B contracts to buy, a certain number of Railway shares \r\nof a particular description. A refuses to complete the sale. B may compel A \r\nspecifically to perform this agreement, for the shares are limited in number and not \r\nalways to be had in the ma rket, and their possession carries with it the status of a \r\nshare holder, which cannot otherwise be procured. \r\nA contracts with B to paint a picture for B who , agrees to pay therefor e Rs. \r\n1,000. The picture is painted, B is entitled to have it delivered to h im on payment or \r\ntender of the Rs. 1,000. \r\nof clause (d)– \r\nA transfers without endorsement, but for valuable consideration, a promissory \r\nnote to B. A becomes insolvent, and C is appointed his assignee. B may compel C to \r\n \r\n17Omitted by the Federal Laws (Revision & Declaration) Ordinance, 1981 (XXVII of 1981); and published in the Gazette of \r\nPakistan (Extraordinary), dated 6.7.1981, pages 345-475, s.2 and 3 and Second Schedule, Part III, at serial No.19. \r\nendorse the note, for C has succeeded to A's liabilities, and a decree for pecuniary \r\ncompensation for not endorsing the note would be fruitless. \r\n13. Contract of which the subject has partially ceased to exist .– \r\nNotwithstanding anything contained in section 56 of the Contract Act\r\n18\r\n, a contract i s \r\nnot wholly impossible of performance because a portion of its subject matter, existing \r\nat its date, has ceased to exist at the time of the performance. \r\n19\r\n[* * * * * * * * * * * * * ] \r\n14. Specific performance of part of contract where part unperformed is \r\nsmall.– Where a party to a contract is unable to perform the whole of his part of it, \r\nbut the part which must be left unperformed bears only a small proportion to the \r\nwhole in value, and admits of compensation in money, the Court may, at the suit of \r\neither party, direct the specific performance of so much of the contract as can be \r\nperformed, and award compensation in money for the deficiency. \r\nIllustrations \r\n(a) A contracts to sell B a piece of a land consisting of 100 bighas. It turns \r\nout that 98 bighas of the land belong to A, and the two remaining bighas to a \r\nstranger, who refuses to part with them. The two bighas are not necessary for the \r\nuse or enjoyment of the 98 bighas, nor so important for such use or enjoyment that \r\nthe loss of them may not be made go od in money. A may be directed at the suit of B \r\nto convey to B the 98 bighas and to make compensation to him for not conveying the \r\ntwo remaining bighas; or B may be directed, at the suit of A, to pay to A, on receiving \r\nthe conveyance and possession of the land, the stipulated purchase -money less a \r\nsum awarded as compensation for the deficiency. \r\n(b) In a contract for the sale and purchase of a house and lands for two \r\nlakhs of rupees, it is agreed that part of the furniture should be taken at a valuation. \r\nThe Court 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 have \r\nthe furniture valued in the suit and included it in the decree for specific performance, \r\nor may confine its decree to the house. \r\n15. Specific performance of part of contract where part unperformed is \r\nlarge.– Where a party to a contract is unable to perform the whole of his part of it, \r\nand the part which must be left unperformed forms a considerable portion of the \r\nwhole, or does not admit of compensation in money, he is not entitled to obtain a \r\ndecree for specific performance. But the Court may, at the suit of the other party \r\ndirect the party in default to perform specifically so much of his part of the contract as \r\nhe can perform, provided that the plaintiff relinquishes all claim to further \r\nperformance, and all right to compensation either for the deficiency, or for the loss or \r\ndamage sustained by him through the default of defendant. \r\nIllustrations \r\n \r\n18IX of 1872 \r\n19Omitted by the Specific Relief (Amendment) Ordinance, 1983 (XXII of 1983); and published in the Gazette of Pakistan \r\n(Extraordinary), dated 20.9.1983, s.3. \r\n(a) A contracts to sell to B a piece of land consisting of 100 bighas. It turns \r\nout that 50 bighas of the land belong to A, and the other 50 bighas to a stranger, who \r\nrefuses to part with them. A cannot obtain a decree against B for the specific \r\nperformance of the contract; but if B is willing to pay the price agreed upon, and to \r\ntake the 50 bighas which belong to A, waiving all rights to compensation either for \r\nthe deficiency or for loss sustained by him through A's neglect or default, B is entitled \r\nto a dec ree directing A to convey those 50 bighas to him on payment of the \r\npurchase-money. \r\n(b) A contracts to sell to B an estate with a house and garden for a lakh of \r\nrupees. The 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 specific \r\nperformance of the contract, but if B is willing to pay the price agreed upon, and to \r\ntake the estate and house without the garden, waiving all rights to compensation \r\neither for the deficiency 'or for loss sustained by him through A's neglect or default. B \r\nis entitled to a decree directing A to convey the house to him on payment of the \r\npurchase-money. \r\n16. Specific performance of independent part of contract .– When a part of a \r\ncontract which, taken by itself, can and ought to be specifically performed, stands on \r\na separate and independent footing from another part of the same contract which \r\ncannot or ought not to be specifically performed, the Court may direct specific \r\nperformance of the former part. \r\n17. Bar in other cases of specific performance of part of contract .– The \r\nCourt shall not direct the specific performance of a part of a contract except in cases \r\ncoming under one or other of the three last preceding sections. \r\n18. Purchaser's rights against vendor with imperfect title .– Where a person \r\ncontract to sell or let certain property, having only an imperfect title thereto, the \r\npurchaser or lessee (except as otherwise provided by this Cha pter) has the following \r\nrights:– \r\n(a) if the vendo r or lessor has subsequently to the sale or lease acquired \r\nany interest in the property, the purchaser or lessee may compel him to \r\nmake good the contract out of such interest; \r\n(b) where the concurrence of other persons is necessary to validate the \r\ntitle, and they are bound to convey at the vendor's or lessor's request, \r\nthe purchaser or lessee may compel him to procure such concurrence; \r\n(c) where the vendor professes to sell unencumbered property, but the \r\nproperty is mortgaged for an amount not exceeding the purchase-\r\nmoney, and the vendor has in fact only a right to redeem it, the \r\npurchaser may compel him to redeem the mortgage and to obtain a \r\nconveyance from the mortgagee; \r\n(d) where the vendor or lessor sues for specific performance of the \r\ncontract, and the suit is dismissed on the ground of his imperfect title, \r\nthe defendant has a right to a return of his deposit (if any) with interest \r\nthereon, to his costs of the suit, and to a lien for such deposit, interest \r\nand costs on the interest of the vendor or lesso r in the property agreed \r\nto be sold or let. \r\n19. Power to award compensation in certain cases .– Any person suing for the \r\nspecific performance of a contract may also ask for compensation for its breach, \r\neither in addition to, or substitution for, such performance. \r\nIf in any such suit the Court decides that specific performance ought not to be \r\ngranted, but that there is a contract between the parties which has been broken by \r\nthe defendant and that the plaintiff is entitled to compensation for that breach, it s hall \r\naward him compensation accordingly. \r\nIf in any such suit the Court decides that specific performance ought to be \r\ngranted, but that it is not sufficient to satisfy the justice of the case, and that some \r\ncompensation for breach of the contract should als o be made to the plaintiff, it shall \r\naward him such compensation accordingly. \r\nCompensation awarded under this section may be assessed in such manner \r\nas the Court may direct. \r\nExplanation.– The circumstance that the contract has become incapable of specific \r\nperformance does not preclude the Court from exercising the jurisdiction conferred \r\nby this section. \r\nIllustrations \r\nof the second paragraph– \r\nA contracts to sell a hundred maunds of rice to B. B brings a suit to compel A \r\nto perform the contract or to pay comp ensation. The Court is of opinion that A has \r\nmade a valid contract and has broken it, without excuse, to the injury of B, but that \r\nspecific performance is not the proper remedy. It shall award to B such \r\ncompensation as it deems just. \r\nof the third paragraph– \r\nA contracts with B to sell him a house for Rs. 1,000, the price to be paid and \r\nthe possession given on the 1st January 1877. A fails to perform his part of the \r\ncontract, and B brings his suit for specific performance and compensation, which is \r\ndecided in his favour on the 1st January, 1878. The decree may, besides ordering \r\nspecific performance, award to B compensation for any loss which he has sustained \r\nby A's refusal. \r\nof the Explanation– \r\nA, a purchaser, sues B, his vendor, for specific performance of a c ontract for \r\nthe sale of a patent. Before the hearing of the suit the patent expires. The Court may \r\naward A compensation for the non -performance of the contract, and may, if \r\nnecessary, amend the plaint for that purpose. \r\nA sues for the specific performance o f a resolution passed by the Directors of \r\na public company, under which he was entitled to have a certain number of shares \r\nallotted to him, and for compensation for the non -performance of the resolution. All \r\nthe shares had been allotted before the institut ion of the suit. The Court may, under \r\nthis section, award A compensation for the non-performance. \r\n20. Liquidation of damages not a bar to specific performance .– A contract, \r\notherwise proper to be specifically enforced, may be thus enforced, though a sum be \r\nnamed in it as the amount to be paid in case of its breach, and the party in default is \r\nwilling to pay the same. \r\nIllustration \r\nA contracts to grant B an under -lease of property held by A under C, and that \r\nhe will apply to C for a licence necessary to the v alidity of the under-lease, and that, \r\nif the license is not procured, A will pay B Rs. 10,000. A refuses to apply for the \r\nlicence and offers to pay B the Rs. 10,000. B is nevertheless entitled to have the \r\ncontract specifically enforced if C consents to give the license. \r\n(b) Contracts which cannot be specifically enforced. \r\n21. Contracts not specifically enforceable .– The following contracts c annot be \r\nspecifically enforced:– \r\n(a) a contract for the non-performance of which compensation in money is \r\nan adequate relief; \r\n(b) a contract which runs into such minute or numerous details, or which \r\nis so dependent on the personal qualifications or volition of the parties, \r\nor otherwise from its nature is such, that the Court cannot enforce \r\nspecific performance of its material terms; \r\n(c) a contract the terms of which the Court cannot find with reasonable \r\ncertainty; \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 \r\nbreach of their trust; \r\n(f) a contract mad e by or on behalf of a corporation or public company \r\ncreated for special purposes, or by the promoters of such company, \r\nwhich is in excess of its powers; \r\n(g) a contract the performance of which involves the performance of a \r\ncontinuous duty extending over a longer period than three years from \r\nits date; \r\n(h) a contract of which a material part of the subject -matter, supposed by \r\nboth parties to exist, has, before it has been made, ceased to exist. \r\nAnd, save as provided by the \r\n20\r\n[Arbitration Act, 1940], no contra ct to refer \r\n21\r\n[present or future differences] to arbitration shall be specifically enforced; \r\n22\r\nbut if any \r\nperson who has made such a contract \r\n23\r\n[other than an arbitration agreement to which \r\nthe provisions of the said Act apply] and has refused to perform it s ues in respect of \r\n \r\n20Substituted by the Arbitration Act, 1940 ( X of 1940); and published in the Gazette of India , pages 41-52, dated 16.3.1940, \r\ns.49 and Fourth Schedule ( w.e.f. 1.7.1940). \r\n21Substituted for the word “a controversy” by the Indian Arbitration Act, 1899 (IX of 1899); and published in the Gazette of India, \r\nPart IV, dated 4.3.1899, pages 57-60, s.21. \r\n22The last thirty seven words of s.21, do not apply to any submission or arbitration to which the provisions of the Indian \r\nArbitration Act, 1899 (IX of 1899); and published in the Gazette of India, Part IV, dated 4.3.1899, pages 57-60, s.21, for the time \r\nbeing apply (see s.3 of that Act), or to any agreement to refer to arbitration or to any award to which Sch edule II of the Code of \r\nCivil Procedure, 1908, applies, see para. 22 of that Schedule. \r\n23Inserted by the Arbitration Act, 1940 (X of 1940); and published in the Gazette of India, pages 41-52, dated 16.3.1940, s.49 \r\nand Fourth Schedule. \r\nany subject which he has contracted to refer, the existence of such contract shall bar \r\nthe suit. \r\nIllustrations \r\nto (a)– \r\nA contracts to sell, and B contracts to buy, a lakh of rupees in the four per \r\ncent. loan of the \r\n24\r\n[****] Government; \r\nA contracts to sell, and B contracts to buy, 40 chests of indigo at Rs. 1,000 \r\nper chest: \r\nIn consideration of certain property having been transferred by A to B, B \r\ncontracts to open a credit in A's favour to the extent of Rs. 10,000, and to honour A's \r\ndrafts to that amount: \r\nThe above contracts cannot be specifically enforced, for in the first and \r\nsecond both A and B, and in the third A, would be reimbursed by compensation in \r\nmoney. \r\nto (b)– \r\nA contracts to render personal service to B: \r\nA contracts to employ B on personal service: \r\nA, an author, contracts with B, a publisher, to complete a literary work: \r\nB cannot enforce specific performance of these contracts. \r\nA contracts to buy B's business at the amount of a valuation to be made by \r\ntwo valuers, one to be named by A and the other by B. A and B each name a valuer, \r\nbut before the valuation is made, A instructs his valuer not to proceed: \r\nBy a charter -party entered into in \r\n25\r\n[Chittagong] between A, the owner of \r\na\r\n26\r\n[aeroplane], and B, the charterer, it is agreed that the \r\n27\r\n[aeroplane] shall proceed to \r\n28\r\n[Lahore] and there load a cargo of rice, and thence proceed to London, freight to be \r\npaid, one -third on arrival at \r\n29\r\n[Lahore], and two -thirds on delivery of the cargo in \r\nLondon: \r\nA lets land to B and contract to cultivate it i n a particular manner for three \r\nyears next after the date of the lease: \r\n \r\n24The word “Federal” is omitted by the Specific Relief (Amendment) Act, 2012 (VI of 2012); and published in the Punjab Gazette \r\n(Extraordinary), dated 11.2.2012, pages 40197-40198, s.4. \r\n25Substituted for the words “Calcutta” by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960); and published in \r\nthe Gazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725-845, s.3 and Second Schedule. \r\n26The word “ship” is substitute d as the word “aeroplane” by the Specific Relief (Amendment) Act, 2012 (VI of 2012); and \r\npublished in the Punjab Gazette (Extraordinary), dated 11.2.2012, pages 40197-40198, s.4. \r\n27The word “ship” is substituted as the word “aeroplane” by the Specific Relie f (Am endment) Act, 2012 (VI of 2012); and \r\npublished in the Punjab Gazette (Extraordinary), dated 11.2.2012, pages 40197-40198, s.4. \r\n28The word “Karachi” is substituted as the word “Lahore” by the Specific Relief (Amendment) Act, 2012 (VI of 2012) ; and \r\npublished in the Punjab Gazette (Extraordinary), dated 11.2.2012, pages 40197-40198, s.4.. \r\n29The word “Karachi” is substituted as the word “Lahore” by the Specific Relief (Amendment) Act, 2012 (VI of 2012) ; and \r\npublished in the Punjab Gazette (Extraordinary), da ted 11.2.2012, pages 40197 -40198, s.4. Earlier substituted for the words \r\n“Rangoon” by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960); and published in the Gazette of Pakistan \r\n(Extraordinary), dated 9.6.1960, pages 725-845, s.3 and Second Schedule. \r\nA and B contract, that, in consideration of annual advances to be made by A, \r\nB will for three years next after the date of the contract grow particular crops on the \r\nland in his possession and deliver them to A when cut and ready for delivery: \r\nA contracts with B that, in consideration of Rs. 1,000 to be paid to him by B, \r\nhe will paint a picture for B: \r\nA contracts with B to execute certain work s which the Court cannot \r\nsuperintend: \r\nA contr acts to supply B with all the goods of a certain class which B may \r\nrequire: \r\nA contracts with B to take from B a lease of a certain house for a specified \r\nterm, at a specified rent, “if the drawing -room is handsomely decorated,” even if it is \r\nheld to have so much certainty that compensation can be recovered for its breach: \r\nA contracts to marry B: \r\nThe above contracts cannot be specifically enforced. \r\nto (c)– \r\nA, the owner of a refreshment -room, contracts, with B to give him \r\naccommodation there for the sale of h is goods and to furnish him with the necessary \r\nappliances. A refused to perform his contract. The case is one for compensation and \r\nnot for specific performance, the amount and nature of the accommodation and \r\nappliances being undefined. \r\nto (d)– \r\nA and B cont ract to become partners in a certain business, the contract not \r\nspecifying the duration of the proposed partnership. This contract cannot be \r\nspecifically performed, for, if it were so performed, either A or B might at once \r\ndissolve the partnership. \r\nto (e)– \r\nA is a trustee of land with power to lease it for seven years. He enters into a \r\ncontract with B to grant a lease of the land for seven years, with a covenant to renew \r\nthe lease at the expiry of the term. This contract cannot be specifically enforced. \r\nThe Directors of a company have power to sell the concern with the sanction \r\nof a general meeting of the shareholders. They contract to sell it without any such \r\nsanction. This contract cannot be specifically enforced. \r\nTwo trustees, A and B, empowered to sell tr ust-property worth a lakh of \r\nrupees, contract to sell it to C for Rs. 30,000. The contract is so disadvantageous as \r\nto be a breach of trust. C cannot enforce its specific performance. \r\nThe promoters of a company for working mines contract that the company, \r\nwhen formed, shall purchase certain mineral property. They take no proper \r\nprecautions to ascertain the value of such property -and in fact agree to pay an \r\nextravagant price therefor. They also stipulate that the vendors shall give them a \r\nbonus out of the purchase-money. This contract cannot be specifically enforced. \r\nto (f)– \r\nA company existing for the sole purpose of making and working a railway \r\ncontract for the purchase of a piece of land for the purpose of erecting a cotton mill \r\nthereon. This contract cannot be specifically enforced. \r\nto (g)– \r\nA contracts to let for twenty -one years to B the right to use such part of a \r\ncertain railway made by A as was upon B 's land, and that B should have a right of \r\nrunning carriages over the whole line on certain terms, and m ight require A to supply \r\nthe necessary engine -power, and that A should during the term keep the whole \r\nrailway in good repair. Specific performance of this contract must be refused to B. \r\nto (h)– \r\nA contracts to pay an annuity to B for the lives of C and D. I t turns out that, at \r\nthe date of the contract, C, though supposed by A and B to be alive, was dead. The \r\ncontract cannot be specifically performed. \r\n(c) Of the Discretion of the Court \r\n22. Discretion as to decreeing specific performance .– The jurisdiction to \r\ndecree specific performance is discretionary, and the Court is not bound to grant \r\nsuch relief merely because it is lawful to do so; but the discretion of the Court is not \r\narbitrary but sound and reasonable, guided by judicial principles and capable of \r\ncorrection by a Court of appeal. \r\nThe following are cases in which the Court may properly exercise a discretion \r\nnot to decree specific performance:– \r\nI. Where the circumstances under which the contract is made are such as to \r\ngive the plaintiff an unfair advantag e over the defendant, though there may be no \r\nfraud or misrepresentation on the plaintiff's part. \r\nIllustrations \r\n(a) A, a tenant for life of certain property, assigns his interest therein to B. \r\nC contracts to buy, and B contracts to sell, that interest. Befo re the contract is \r\ncompleted, A receives a mortal injury from the effects of which he dies the day after \r\nthe contract is executed. If B and C were equally ignorant or equally aware of the \r\nfact, B is entitled to specific performance of the contract. If B kn ew the fact, and C \r\ndid not, specific performance of the contract should be refused to B. \r\n(b) A contracts to sell to B the interest of C in certain stock -in-trade. 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 of \r\ncertain partnership -accounts, on which he is hea vily in debt to his partners. This \r\nindebtedness is known to A, but not to B. Specific performance of the contract \r\nshould be refused to A. \r\n(c) A contracts to sell, and B contracts to buy, certain land. To protect the \r\nland from floods, it is necessary for its owner to maintain an expensive embankment. \r\nB does not know of this circumstance, and A conceals it from him. Specific \r\nperformance 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 \r\nhim. C does this inadvertently and in good faith. The persons present, seeing the \r\nvendor's attorney bidding, think that he is a mer e puffer and cease to compete. The \r\nlot is knocked down to B at a low price. Specific performance of the contract should \r\nhe refused to B. \r\nII. Where the performance of the contract would involve some hardship \r\non the defendant which he did not foresee, wherea s its non -performance would \r\ninvolve no such hardship on the plaintiff. \r\n(e) \r\n30\r\n[* * * * * * * * * * * ] \r\n(f) A and B, trustees, join their beneficiary, C. in a contract to sell the trust- \r\nestate to D, and personally agree to exonerate the estate from heavy e ncumbrances \r\nto which it is subject. The purchase -money is not nearly enough to discharge those \r\nencumbrances, though, at the date of the contract, the vendors believed it to be \r\nsufficient. 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 \r\nhe, A, shall 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 the \r\ncontract should be refused to B unless he waives his claim to the unknown property. \r\n(h) A contracts with B to sell him certain land, and to make a road to it from \r\na certain railway -station. It is found afterwards that A cannot make the road without \r\nexposing himself to litigation. Specific performance of the part of the contract relating \r\nto the road should be refused to B, even though it may be held that he is entitled to \r\nspecific performance of the rest with compensation for loss of the road. \r\n(i) A, a lessee of mines, cont racts, with B, his lessor, that at any time \r\nduring the continuance of the lease B may give notice of his desire to take the \r\nmachinery and plant used in and about the mines, and that he shall have the articles \r\nspecified in his notice delivered to him at a v aluation on the expiry of the lease. Such \r\na contract might be most injuries to the lessee's business, and specific performance \r\nof it should be refused to B. \r\n(j) A contracts to buy certain land from B. The contract is silent as to \r\naccess to the land. No rig ht of way to it can be shown to exist. Specific performance \r\nof the contract should be refused to B. \r\n(k) A contracts with B to buy from B's manufactory and not elsewhere all \r\nthe goods 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 be \r\nrefused to B. \r\nThe following is a case in which the Court may properly exercise a discretion \r\nto decree specific performance:– \r\nIII. Where the plaintiff had done substantial acts or suffered losses in \r\nconsequence of a contract capable of specific performance. \r\nIllustration \r\n \r\n30Omitted by the Specific Relief (Amendment) Ordinance, 1983 (XXII of 1983); and published in the Gazette of Pakistan \r\n(Extraordinary), dated 20.9.1983, s.2. \r\nA sells land to a Railway -company, who contract to execute certain works for \r\nhis conve nience. The company take the land and use it for their railway. Specific \r\nperformance of the contract to execute the works should be decreed in favour of A. \r\n(d) For whom Contracts may be specifically enforced. \r\n23. Who may obtain specific performance .– Except as otherwise provided by \r\nthis Chapter, the 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: \r\nprovided that, where the learning, skill, solvency or any personal quality \r\nof such party is a material ingredient in the contract, or where the \r\ncontract provides that his interest shall not be assigned, his \r\nrepresentative-in-interest or his principal shall not be entitled to specific \r\nperformance of the contract, unless where his part thereof has already \r\nbeen performed; \r\n(c) where the contract is a settlement on marriage, or a compromise of \r\ndoubtful rights between members of the same family, any person \r\nbeneficially entitled thereunder; \r\n(d) where the contract has be en entered into be a tenant for life in due \r\nexercise of a power, the remainder man; \r\n(e) a reversioner in possession, where the agreement is a covenant \r\nentered into with his predecessor -in-title and the reversioner is entitled \r\nto the benefit of such covenant; \r\n(f) a reversioner in remainder, where the agreement is such a covenant, \r\nand the reversioner is entitled to the benefit thereof and will sustain \r\nmaterial injury by reason of its breach; \r\n(g) when a public company has entered into a contract and subsequent ly \r\nbecomes amalgamated with another public company, the new \r\ncompany which arise out of 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 \r\ncontract is warranted by the terms of the incorporation, the company. \r\n(e) For whom Contracts cannot be specifically enforced \r\n24. Personal bars to the relief .– Specific performance of a contract cannot be \r\nenforced in favour of a person– \r\n(a) who could not recover compensation for its breach; \r\n(b) who has become incapable of performing, or violates, any essential \r\nterm of the contract that on his part remains to be performed; \r\n(c) who has already chosen his remedy and obtained satisfaction for the \r\nalleged breach of contract; or \r\n(d) who, previously to the contract, had notice that a settlement of the \r\nsubject-matter thereof (though not found on any valuable \r\nconsideration) had been made and was then in force. \r\nIllustrations \r\nto clause (a)– \r\nA, in the character of agent for B, ent ers into an agreement with C to buy C's \r\nhouse. A is in reality acting, not as agent for B, but on his own account. A cannot \r\nenforce specific performance of this contract. \r\nto clause (b)– \r\nA contracts to sell B a house and to become a tenant thereof for a ter m of 14 \r\nyears from the date of the sale at a specified yearly rent. A becomes insolvent. \r\nNeither he nor his assignee can enforce specific performance of the contract. \r\nA contracts to sell B a house and garden in which there are ornamental trees, \r\na material element in the value of the property as a residence. A, without B's, \r\nconsent fells the trees. A cannot enforce specific performance of the contract. \r\nA, holding land under a contract with B for a lease, commits waste, or treats \r\nthe land in an unhusband like manner. A cannot enforce specific performance of the \r\ncontract. \r\nA contracts to let, and B contracts to take, an unfinished house, B contracting \r\nto finish the house and the lease to contain covenants on the part of A to keep the \r\nhouse in repair. B finishes the house in a very defective manner: he cannot enforce \r\nthe contract specifically, though A and B may sue each other for compensation for \r\nbreach of it. \r\nto clause (c)– \r\nA contracts to let, and B contracts to take a house for a specified term at a \r\nspecified rent. B refuses to perform the contract. A thereupon sues for, and obtains, \r\ncompensation for the breach. A cannot obtain specific performance of the contract. \r\n25. Contracts to sell property by one who has no title or who is a voluntary \r\nsettler.– A contract for the sale or letting of property, whether movable or \r\nimmovable, cannot be specifically enforced in favour of a vendor or lessor– \r\n(a) who, knowing himself not to have any title to the property, has \r\ncontracted to sell or let the same; \r\n(b) who, though he entered into the contract believing that he had a good \r\ntitle to the property, cannot, at the time fixed by the parties or by the \r\nCourt for the completion of the sale or letting, give the purchaser or \r\nlessee a title free from reasonable doubt; \r\n(c) who, prev ious to entering into the contract, has made a settlement \r\n(though not founded on any valuable consideration) of the subject -\r\nmatter of the contract. \r\nIllustrations \r\n(a) A, without C's authority, contracts to sell to B an estate which A knows \r\nto belong to C. A cannot enforce specific performance of this contract, even though \r\nC is willing to confirm it. \r\n(b) A bequeaths his land to trustees declaring that they may sell it with the \r\nconsent in writing of B. B gives general prospective assent in writing to any sale \r\nwhich the trustees may make. The trustees then enter into a contract with C to sell \r\nhim the land. C refuses to carry out the contract. The trustees cannot specifically \r\nenforce this contract, as in the absence of B's consent to the particular sale to C, the \r\ntitle which they can give C is, as the law stands, not free from reasonable doubt. \r\n(c) A, being in possession of certain land, contracts to sell it to Z. On \r\ninquiry it turns out that A claims the land as heir of B, who left the country several \r\nyears before, 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 \r\nproperty on his brothers and their iss ue, and afterwards enters into a contract to sell \r\nthe property to stranger. A cannot enforce specific performance of this contract so as \r\nto override the settlement, and thus prejudice the interest of the persons claiming \r\nunder it. \r\n(f) For whom Contracts cannot be specifically enforced, except with a \r\nVariation. \r\n26. Non enforcement except with variation .– Where a plaintiff seeks specific \r\nperformance of a contract in writing, to which the defendant sets up a variation, \r\nplaintiff cannot obtain the performance s ought, except with the variation so set up, i n \r\nthe following cases (namely):– \r\n(a) where by fraud or mistake of fact the contract of which performance is \r\nsought is in terms different from that which the defendant supposed it \r\nto be when he entered into it; \r\n(b) where by fraud, mistake of fact, or surprise the defendant entered into \r\nthe contract under a reasonable misapprehension as to its effect as \r\nbetween himself and the plaintiff; \r\n(c) where the defendant, knowing the terms of the contract and \r\nunderstanding its effect, has entered into it relying upon some \r\nmisrepresentation by the plaintiff, or upon some stipulation on the \r\nplaintiff's part, which adds to the contract, but which he refuses to fulfill; \r\n(d) where the object of the parties was to produce a certai n legal result, \r\nwhich the contract as framed is not calculated to produce; \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 \r\nenter into a bond to D for Rs. 1.000. In a suit by D, to make A, B and C separately \r\nliable each 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. 1.000. D \r\ncan obtain the performance sought only with the variation thus set up. \r\n(b) A sues B to compel specific performance of a contract in writing to buy \r\na dwelling-house. B proves that he assumed that the contract included an adjoining \r\nyard, and the contract was so framed as to leave it doubtful whether the yard was so \r\nincluded or not. The Court will refuse the contract, except with the variation set up by \r\nB. \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 should be \r\nat liberty to substitute for the strip mentioned in the contract another strip of A's land \r\nof the same dimensions, and to this A expressly assented. B then signed the written \r\ncontract. A can not obtain specific performance of the written contract, except with \r\nthe variation set up by B. \r\n(d) A and B enter into negotiations for the purpose of securing land for B \r\nfor his life, with remainder to his issue. They execute a contract, the terms of whic h \r\nare found to confer an absolute ownership on B. The contract so framed cannot be \r\nspecifically enforced. \r\n(e) A contracts in writing to let a house to B, for the certain term, at the rent \r\nof Rs. 100 per month, putting it first into tenable repair. The house turns out to be not \r\nworth repairing, so, with B's consent , A pulls it down and erects a new house in its \r\nplace; B contracting orally to pay rent at Rs. 120 per mensem. B then sues to \r\nenforce specific performance of the contract in writing . He cannot enfo rce it except \r\nwith 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 \r\ntitle.– Except as otherwise provided by this Chapter, s pecific performance of a \r\ncontract 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 \r\nthe contract, except a transferee for value who has paid his money in \r\ngood faith and without notice of the original contract; \r\n(c) any person claiming under a title which, though prior to the contract \r\nand known to the plaintiff, might have been displaced by the defendant; \r\n(d) when a public company has entered into a contract and subsequently \r\nbecomes a malgamated with another public company, the new \r\ncompany which arises out of 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 \r\nratified and adopte d the contract and the contract is warranted by the \r\nterms of the incorporation. \r\nIllustrations \r\nto clause (b)– \r\nA contracts to convey certain land to B by a particular day, A dies intestate \r\nbefore that day without having conveyed the land. B may compel A's he ir or other \r\nrepresentatives-in-interest to perform the contract specifically. \r\nA contracts to sell certain land to B for Rs. 5,000. A afterwards conveys the \r\nland for Rs. 6,000 to C, who has notice of the original contract. B may enforce \r\nspecific performance of the contract as against C. \r\nA contracts to sell land to B for Rs. 5,000. B takes possession of the land. \r\nAfterwards A sells it to C for Rs. 6,000. C makes no inquiry of B relating to his \r\ninterest in the land. B's possession is sufficient to effect C wi th notice of his interest, \r\nand he may enforce specific performance of the contract against C. \r\nA contracts, in consideration of Rs. 1,000, to bequeath certain of his lands to \r\nB. Immediately after the contract A dies intestate, and C takes out administration to \r\nhis estate. B may enforce specific performance of the contract against C. \r\nA contracts to sell certain land to B. Before the completion of the contract, A \r\nbecomes a lunatic and C is appointed his committee. B may specifically enforce the \r\ncontract against C. \r\nto clause (c)– \r\nA, the tenant for life of an estate, with remainder to B, in due exercise of a \r\npower conferred by the settlement under which he is tenant for life, contracts to sell \r\nthe estate to C, who has notice of the settlement. Before the sale is completed, A \r\ndies. C may enforce specific performance of the contract against B. \r\nA and B are joint tenants of land, his undivided moiety of which either may \r\nalienate in his life time, but which, subject to that right, devolves on the survivor. A \r\ncontracts to sell his moiety to C and dies. C may enforce specific performance of the \r\ncontract against B. \r\n31\r\n[27-A. Specific performance in case of part performance of contract to lease .– \r\nSubject to the provisions of this Chapter, where a contract to lease immovable \r\nproperty is made in writing signed by the parties thereto or on their behalf, either \r\nparty may, notwithstanding that the contract, though required to be registered, has \r\nnot been registered, sue the other for specific performance of the contract if,– \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 \r\ncontract; and \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, \r\nbeing already in possession, continues in possession in part \r\nperformance of the contract, and has done some act in furtherance of \r\nthe contract: \r\nProvided that nothing in this section shall a ffect the rights of a transferee fo r \r\nconsideration who has no notice of the contract or of the part performance thereof. \r\nThis section applied to contracts to lease executed after the first day of April, \r\n1930.] \r\n(h) Against whom Contracts cannot be specifically enforced \r\n \r\n31S. 27 -A ins erted by the Transfer of Property (Amend ment) Supplementary Act, 1929 ( XXI of 1 929); and published in the \r\nPunjab Gazette, Part IV, dated 25.10.1929, pages133-153, s.3 (w.e.f.1.4.1930). \r\n28. What parties canno t be compelled to perform .– Specific performance of a \r\ncontract cannot 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 \r\nbe either by itself or coupled with other circumstances evidence of \r\nfraud or of undue 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 \r\nto whom performance would become due under the contract, or by any \r\npromise of such party which has not been substantially fulfilled; \r\n(c) if his assent was given under the influence of mistake of fact, \r\nmisapprehension or surprise: Provided that, when the contract provides \r\nfor compensation in case of mistake, compensation may be made for a \r\nmistake within the scope of such provision, and the contract may be \r\nspecifically enforced in other respects if proper to be so enforced. \r\nIllustrations \r\nto clause (c)– \r\nA, one of two executors, in the erroneous belief that he had the authority of \r\nhis co-executor, enters into an agreement for the sale to B of his testator's property. \r\nB cannot insist on the sale being completed. \r\nA directs an auctioneer to sell certain land. A afterwards revokes the \r\nauctioneer's authority as to 20 bighas of this land, but the auctioneer inadvertently \r\nsells the whole to B, who has no notice of the revocation. B cannot enforce specific \r\nperformance of the agreement. \r\n(i) The effect of dismissing a Suit for Specific Performance. \r\n29. Bar of suit for breach after dismissal .– The dismissal of a suit for specific \r\nperformance of a contract or part thereof shall bar the plaintiff's right to sue for \r\ncompensation for the breach of such contract or part, as the case may be. \r\n(j) Awards and Directions to execute Settlements \r\n30. Application of preceding sections to awards and testamentary directions \r\nto execute settlements .– The provisions of this Chapter as to contract s shall, \r\nmutatis mutandis, apply to awards and to directions in a will or codicil to execute a \r\nparticular settlement. \r\nCHAPTER III \r\nOF THE RECTIFICATION OF INSTRUMENTS \r\n31. When instrument may be rectified .– When, through fraud or a mutual \r\nmistake of the parties, a contract or other instrument in writing does not truly express \r\ntheir intention, either party, or his representative -in-interest, may institute a suit to \r\nhave the instrument rectified; and if the Court find it clearly proved that there has \r\nbeen fraud or mistake in framing the instrument, and ascertain the real intention of \r\nthe parties in executing the same, the Court may in its discretion rectify the \r\ninstruments so as to express that intention, so far as this can be done without \r\nprejudice to rights acquired 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 \r\nto it, executes 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, B \r\ngives 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 so as \r\nto exclude from it the godown given to C; but it c annot be rectified so as to affect D’s \r\nlease. \r\n(b) By a marriage settlement, A, the father of B, the intended wife, \r\ncovenants with C, the intended husband, to pay to C, his executors, administrators \r\nand assigns, during A’s life, an annuity of Rs. 5,000. C dies insolvent and the official \r\nassignee claims the annuity from A. The Court, on finding it clearly proved that the \r\nparties always intended that this annuity should be paid as a provision for B and her \r\nchildren may rectify the settlement and decree that t he assignee has no right to any \r\nPart of the annuity. \r\n32. Presumption as to intent of parties .– For the purpose of rectifying a \r\ncontract in writing, the Court must be satisfied that all the parties thereto intended to \r\nmake an equitable and conscientious agreement. \r\n33. Principles of rectification.– In rectifying a written instrument, the Court may \r\ninquire what the instrument was intended to mean, and what were intended to be its \r\nlegal consequences, and is not confined to the inquiry what the language of the \r\ninstrument was intended to be. \r\n34. Specific enforcement of rectified contract .– A contract in writing may be \r\nfirst rectified and then, if the plaintiff has so prayed in his plaint and the Court thinks \r\nfit, specifically enforced. \r\nIllustration \r\nA contracts in writing to pay his attorney, B, a fixed sum in lieu of cost. The \r\ncontract contains mistakes as to the name and rights of the client, which, if construed \r\nstrictly, would exclude B from all rights under it. B is entitled, if the Court thinks fit, to \r\nhave it rectified, and to an order for payment of the sum, as if at the time of its \r\nexecution it had expressed the intention of the parties. \r\nCHAPTER IV \r\nOF THE RESCISSION OF CONTRACTS \r\n35. When rescission may be adjudged .– Any person interested in a contract in \r\nwriting\r\n32\r\n may sue to have it rescinded, and such rescission may be adjudged by the \r\nCourt in any of the following cases, namely:– \r\n(a) where the contract is voidable or terminable by the plaintiff; \r\n \r\n32The words “in writing” are repealed wherever the Transfer of Property Act, 1882 (IV of 1882); and published in the Gazette of \r\nIndia, Part IV, dated 18.2.1882, pages 127-148, is in force, see ss. 1 and 2 of that Act. \r\n(b) where the contract is unlawful for causes not apparent on it s face, and \r\nthe defendant is more to blame than the plaintiff; \r\n(c) where a decree for specific performance of a contract of sale, or of a \r\ncontract to take a lease, has been made, and the purchaser or lessee \r\nmakes default in payment of the purchase -money or other sums which \r\nthe Court has ordered him to pay. \r\nWhen the purchaser or lessee is in possession of the subject -matter, and the \r\nCourt finds that such possession is wrongful, the Court may also order him to pay to \r\nthe vendor or lessor the rents and profits, if any, received by him as such possessor. \r\nIn the same case, the Court may, by order in the suit in which the decree has \r\nbeen made and not complied with, rescind the contract, either so far as regards the \r\nparty in default, or altogether as the justice of the case may require. \r\nIllustrations \r\nto (a)— \r\nA sells a field to B. There is right of way over the field of which A has direct \r\npersonal knowledge, but which he conceals from B. B is entitled to have the contract \r\nrescinded. \r\nto (b)– \r\nA, an attorney, induces hi s client B, a Hindu widow , to transfer property to \r\nhim, for the purpose of defrauding B's creditor. Here the parties are not equally in \r\nfault, and B is entitled to have the instrument of transfer rescinded. \r\n36. Rescission for mistake .– Rescission of a cont ract in writing\r\n33\r\n cannot to be \r\nadjudged for mere mistake, unless the party against whom it is adjudged can be \r\nrestored to substantially the same position as it the contract had not been made. \r\n37. Alternative prayer for rescission in suit for specific perfor mance.– A \r\nplaintiff instituting a suit for the specific performance of a contract in writing may pray \r\nin the alternative that, if the contract cannot be specifically enforced, it may be \r\nrescinded and delivered up to be cancelled; and the Court, if it refus es to enforce the \r\ncontract specifically, may direct it to be rescinded and delivered up accordingly. \r\n38. Court may require party rescinding to do equity .– On adjudging the \r\nrescission of a contract, 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\nCHAPTER V \r\nOF THE CANCELLATION OF INSTRUMENTS \r\n39. When cancellation may be ordered .– Any person against whom a written \r\ninstrument is void or voidable, who has reasonable apprehension that such \r\ninstrument, if left outstanding, may cause him serious injury, may sue to have it \r\nadjudged void or voidable; and the Court may, in its discretion, so adjudge it and \r\norder it to be delivered up and cancelled. \r\n \r\n33See foot-note 1 on preceding page. \r\nIf the instrument has been registered unde r the \r\n34\r\n[****] Registration Act\r\n35\r\n, the \r\nCourt shall also send a copy of its decree to the officer in whose office the instrument \r\nhas been so registered; and such officer shall note on the copy of the instrument \r\ncontained in his books and fact of its cancellation. \r\nIllustrations \r\n(a) A, the owner of a ship by fraudulently representing her to be sea \r\nworthy, induces 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 \r\ngets possession 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 the \r\nforged instrument. \r\n(c) A, representing that the tenants on his land were all at will, sells it to B, \r\nand conveys 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 October, \r\n1876, and procures the lease to be registered under the \r\n36\r\n[****] Registration Act\r\n37\r\n. B \r\nmay obtain the cancellation of this lease. \r\n(d) A agrees to sell and deliver a ship to B, to be paid for by B's \r\nacceptances of four bills of exchange, for sums amounting to Rs. 30,000 to be drawn \r\nby A on B. The bills are drawn and accepted, but the ship is no t delivered according \r\nto the agreement. A sues B on one of the bills, B may obtain the cancellation of all \r\nthe bills. \r\n40. What instrument s may be partially cancelled .– Where an instrument is \r\nevidence of different rights or different obligations, the Court may, in a proper case, \r\ncancel it in part and allow it to stand for the residue. \r\nIllustration \r\nA draws a bill on B who endorses it to C, by whom it appears to be endorsed \r\nto D , who endorses it to E. C's endorsement is forged. C is entitled to have such \r\nendorsement cancelled, leaving the bill to stand in other respects. \r\n41. Power to require party for whom instrument is cancelled to make \r\ncompensation.– On adjudging the cancellation of an instrument, the Court may \r\nrequire the party to whom such relief is granted to make any compensation to the \r\nother which justice may require. \r\nCHAPTER VI \r\nOF DECLARATORY DECREES \r\n42. Discretion of Court as to declaration of status or right .– Any person \r\nentitled to any legal character, or to any right as to any property, may institute a suit \r\n \r\n34The word “Indian” is omitted by the Specific Relief (Amendment) Act, 2012 (VI of 2012); and published in the Punjab Gazette \r\n(Extraordinary), dated 11.2.2012, pages 40197-40198, s.5 \r\n35See now the Registration Act, 1908 (XVI of 1908); and published in the Gazette of India, dated 19.12.1908, pages 231-246. \r\n36The word “Indian” is omitted by the Specific Relief (Amendment) Act, 2012 (VI of 2012); and published i n the Punjab Gazette \r\n(Extraordinary), dated 11.2.2012, pages 40197-40198, s.5 \r\n37See now the Registration Act, 1908 (XVI of 1908); and published in the Gazette of India, dated 19.12.1908, pages 231-246. \r\nagainst any person denying, or interested to deny, his title to such character or right, \r\nand the Court may in its discretion make therein a declaration that he is so entitled, \r\nand the plaintiff need not in such suit ask for any further relief: \r\nBar to such declaration .– Provided that no Court shall make any such \r\ndeclaration where the plaintiff, being able to seek further relief than a mere \r\ndeclaration of title, omits to do so. \r\nExplanation.– A trustee of property is a “person interested to deny” a title adverse to \r\nthe title of some one who is not in existence, and for whom, if in existence, he would \r\nbe a trustee. \r\nIllustrations \r\n(a) A is lawfully in possession of certain land. The inhabitants of a \r\nneighbouring village claim a right of way across the land. A may sue for a declaration \r\nthat they are not entitled to the right so claimed. \r\n(b) A bequeaths his property to B, C and D, “to be equally divided amongst \r\nall and each of them, if living at the time of my death, then amongst their surviving \r\nchildren.” No such children are in existence. In a suit against A's executor, the Court \r\nmay declare whether B, C and D took the property absolutely, or only for their lives, \r\nand it may also declare the interests of the children before their rights are vested. \r\n(c) A covenants that, if he should at any time be entitled to property \r\nexceeding one lakh of rupees, he will settle it upon certain trusts. Before any such \r\nproperty accrues, or any persons entitled under the trusts are ascertained, he \r\ninstitutes a suit to obtain a declaration that the covenant is void for uncertainty. The \r\nCourt may make the declaration. \r\n(d) A alienates to B property in which A has merely a life interest. The \r\nalienation is invalid as against C, who is entitled as reversioner. The Court may in a \r\nsuit by C against A and B declare that C is so entitled. \r\n(e) The widow of a sonless Hindu alienates part of the property of which \r\nshe is in possession as such. The person presumptively entitled to possess the \r\nproperty if he survive her may, in a suit again st the alienee, obtain a declaration that \r\nthe alienation was made without legal necessity and was therefore void beyond the \r\nwidow's lifetime. \r\n(f) A Hindu widow in possession of property adopts a son to her deceased \r\nhusband. The person presumptively entit led to possession of the propert y on her \r\ndeath without a son may, in a suit against the adopted son, obtain a declaration that \r\nthe adoption was invalid. \r\n(g) A is in possession of certain property. B, alleging that he is the owner \r\nof the property, requires A to deliver it to him. A may obtain a declaration of his right \r\nto hold the property. \r\n(h) A bequeaths property to B for his life, with remainder to B's wife and \r\nher children if any, by B, but it B dies without any wife or children, to C. B has a \r\nputative wife, D, and children, but C denies that B and D were ever lawfully married. \r\nD and her children, may, in B's lifetime, institute a suit against C and obtain therein a \r\ndeclaration that they are truly the wife and children of B. \r\n43. Effect of declaration.– A declaration made under this Chapter is binding only \r\non the parties to the suit, persons claiming through them respectively, and, where \r\nany of the parties are trustees, on the persons for whom, if in existence at the date of \r\nthe declaration, such parties would be trustees. \r\nIllustration \r\nA, a Hindu, in a suit to which B, his alleged wife, and her mother, are \r\ndefendants, seeks a declaration that his marriage was duly solemnized and an order \r\nfor the restitution of his conjugal rights. The Court makes the decla ration and order. \r\nC, claiming that B is his wife, then sues A for the recovery of B. The declaration \r\nmade in the former suit is not binding upon C. \r\nCHAPTER VII \r\nOF THE APPOINTMENT OF RECEIVERS \r\n44. Appointment of receivers discretionary .– The appointment of a receiver \r\npending a suit is a matter resting in the discretion of the Court. \r\nReference to Code of Civil Procedure . The mode and effect of his \r\nappointment, and his rights, powers, duties and liabilities, are regulated by the \r\n38\r\nCode \r\nof Civil Procedure. \r\n39\r\n[CHAPTER VIII \r\nOF THE ENFORCEMENT OF PUBLIC DUTIES \r\n****************] \r\nPART III \r\nOf Preventive Relief \r\n----------- \r\nCHAPTER IX \r\nOF INJUNCTIONS GENERALLY \r\n52. Preventive relief how granted.– Preventive relief is granted at the discretion \r\nof the Court by injunction, temporary or perpetual. \r\n53. Temporary injunctions.– Temporary injunctions are such as are to continue \r\nuntil a specified time, or until the further order of the Court. They may be granted at \r\nany period of a suit, and are regulated by the \r\n40\r\n[Code of Civil Procedure, 1908 (Act V \r\nof 1908)]. \r\nPerpetual injunctions .– A perpetual injunction can only be granted by the \r\ndecree made at the hearing and upon the merits of the suit; the defendant is thereby \r\n \r\n38See now the Code of Civil Procedure, 1908 (V of 1908). \r\n39Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981) ; and published in the Gazette of \r\nPakistan (Extraordinary), dated 6.7.1981, pages 345-475, s.2 and 3 and Second Schedule, Part III, at serial No.19. \r\n40Substituted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981); and published in the Gazette of \r\nPakistan (Extraordinary), dated 6.7.1981, pages 345-475, s.2 and 3 and Second Schedule, Part III, at serial No.19. \r\nperpetually enjoined from the assertion of a right, or from the commi ssion of an act, \r\nwhich would be contrary to the rights of the plaintiff. \r\nCHAPTER X \r\nOF PERPETUAL INJUNCTIONS \r\n54. Perpetual injunction when granted .– Subject to the other provisions \r\ncontained in, or referred to by, this Chapter, a perpetual injunction may be granted to \r\nprevent the breach of an obligation existing in favour of the applicant, whether \r\nexpressly or by implication. \r\nWhen such obligation arises from contract, the Court shall be guided by the \r\nrules and provisions contained in Chapter II of this Act. \r\nWhen the defendant invades or threatens to invade the plaintiff's right to, or \r\nenjoyment of, property, the Court may grant a perpetual injunction i n the following \r\ncases (namely):– \r\n(a) where the defendant is trustee of the property for the plaintiff; \r\n(b) where there exists no standard for ascertaining the actual damage \r\ncaused, or likely to be caused, by the invasion; \r\n(c) where the invasion is such that pecuniary compensation would not \r\nafford adequate relief; \r\n(d) where it is probable that pecuniary compensati on cannot 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 land to B and B contracts n ot to dig sand or gravel \r\nthereout. A may 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 co -trustees, if any , should, \r\nand the beneficial 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\r\n41\r\n out of \r\ncapital or borrowed money. Any of the shareholders may sue for an injunction to \r\nrestrain them. \r\n(d) The directors of a fire and life -insurance company are about to engage \r\nin marine insurances. Any of the share -holders may sue for an injunction to restrain \r\nthem. \r\n(e) A, an executor, through misconduct or insolvency, is bringing the \r\nproperty of the deceased into danger. The Court may grant an injunction to restrain \r\nhim from getting in the assets. \r\n \r\n41A Railway Company may, however, pay interest on its paid-up share capital out of capital, for a certain period and subject to \r\ncertain restrictions and conditions: see the Indian Railway Companies Act, 1895 (X of 1895), s.3. \r\n(f) A, a trustee for B, is about to make an imprudent sale of a small part of \r\nthe trust -property. 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 estate \r\nto C. B or any of his children may sue for an injunction to restrain the sale. \r\n(h) In the course of A's employment as a vakil, certain papers belonging to \r\nhis client, 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 restrain A \r\nfrom so doing. \r\n(i) A is B's me dical adviser. He demands money of B which B declines to \r\npay. A then 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 restrain him \r\nfrom so doing. \r\n(j) A, the owner of two adjoining houses, lets one to B and afterwards lets \r\nthe other to C. A and C begin to make such alternations in the house let to C as will \r\nprevent the comfortable enjoyment of the house let to B. B may sue for an injunction \r\nto restrain them from so doing. \r\n(k) A lets certain arable lands to B for the purposes of husbandry, but \r\nwithout any express 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 injurious \r\nthereto and requiring many years to eradicate. A may sue for an injunction to restrain \r\nB from sowing the lands in contravention of his implied contract to use them in a \r\nhusband like manner. \r\n(l) A, B and C are partners, the partnership being determinable at w ill. A \r\nthreatens to do an act tending to the destruction of the partnership property. B and C \r\nmay, without seeking a dissolution of the partnership, sue for an injunction to restrain \r\nA from doing the act. \r\n(m) A, a Hindu widow in possession of her deceased husband's property, \r\ncommits destruction of the property without any cause sufficient to justify her in so \r\ndoing. The heir-expectant 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 \r\ngrowing on the family-property, and threatens to destroy part of the family-house and \r\nto sell some of the family utensils. B and C may sue for an injunction to restrain him. \r\n(o) A, the owner of certain houses in \r\n42\r\n[Karachi], becomes insolvent. B \r\nbuys them from the Official Assignee and enters into possession. A persists in \r\ntrespassing on and damaging the houses, and B is thereby compelled, at a \r\nconsiderable expense, to employ men to protect the possession. B may sue for an \r\ninjunction to 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 to no \r\n \r\n42Earlier substituted for the word “Chittagong” by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of \r\n1981); and published in the Gazette of Pakistan (Extraordinary), dated 6.7.1981, pages 345 -475, s.2 and 3 and Second \r\nSchedule, Part III, at serial No.19, and then substituted for the word “Calcutta” by the Central Laws (Statute Reform) Ordinance, \r\n1960 (XXI of 1960); and published in the Gazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725 -845, s.3 and Second \r\nSchedule. \r\nsuch right. Afterwards each of the other villagers sues A for obstructing his alle ged \r\nright of way over the land. A may sue for an injunction to restrain them. \r\n(q) A, in an administration-suit to which a creditor, B, is not a party, obtains \r\na decree for the administration of C's assets. B proceeds against C's estate for his \r\ndebts. A may sue for an injunction to restrain B. \r\n(r) A and B are in possession of contiguous lands and of the mines \r\nunderneath them\r\n43\r\n. 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 mine. B may sue f or an injunction to \r\nrestrain him from so doing. \r\n(s) A rings bells or make some other unnecessary noise so near a house \r\nas to interfere materially and unreasonably with a physical comfort of the occupier, \r\nB. 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 \r\nphysical comfort of B and C, who carry on business in a neighbouring house. B and \r\nC may 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 \r\nand has been 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 \r\npiracy, unless 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 \r\nrestrain the 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 \r\nthe authority 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 family -topics to B. After the \r\ndeath of A 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 property in the letters, and may \r\nsue for an injunction to restrain C from publishing them. \r\n(z) A carries on manufactory and B is his assistant. In the course of his \r\nbusiness, A imparts to B a secret process of value. B afterwards deman ds money of \r\nA, threatening, in case of refusal, to disclose the process to C, a rival manufacturer. \r\nA may sue for an injunction to restrain B from disclosing the process. \r\n55. Mandatory injunction .– When, to prevent the breach of an obligation, it is \r\nnecessary to compel the performance of certain acts which the Court is capable of \r\nenforcing, the Court may in its discretion grant an injunction to prevent the breach \r\ncomplained of, and also to compel performance of the requisite acts. \r\nIllustrations \r\n(a) A, by n ew buildings, obstructs light to the access and use of which B \r\nhas acquired a light under the \r\n44\r\n[Limitation Act, 1908 (IX of 1908)] Part IV. B may \r\n \r\n43As to the working of mines under land, the surface of which has been acquir ed by Government, see the Land Acquisition \r\n(Mines) Act, 1885 (XVIII of 1885); and published in the Government Gazette, Punjab and Its Dependencies, Part IV, dated \r\n29.10.1985, pages 71-73. \r\n44Substituted for the words, comma and figure “Indian Contract Act, 1 872” by the Federal Laws (Revision and Declaration) \r\nOrdinance, 1981 (XXVII of 1981); and published in the Gazette of Pakistan (Extraordinary), dated 6.7.1981, pages 345-475, s.2 \r\nand 3 and Second Schedule, Part III, at serial No.19. \r\nobtain an injunction, not only to restrain A from going on with the buildings, but also \r\nto pull down so much of them as obstructs B's lights. \r\n(b) A builds a house with e aves 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 \r\nall wri tten communication made by B, as patient to A, as medical advisor, to be \r\ndestroyed. \r\n(d) In the case put as illustration (y) to Section 54, the Court may also \r\norder A's letter to be destroyed. \r\n(e) A threatens to publish statements concerning B which would be \r\npunishable under Chapter XXI of the Pakistan Penal Code\r\n45\r\n. The Court may grant an \r\ninjunction to restrain the publication, even though it may be shown not to be injurious \r\nto B's property. \r\n(f) A, being B's medical advisor, threatens to publish B's writte n \r\ncommunications with him, showing that B had led an immoral life. B may obtain an \r\ninjunction to restrain the publication. \r\n(g) In the cases put as illustrations (v) and (w) to Section 54 and as \r\nillustrations (e) and (f) to this section, the Court may also order the copies produced \r\nby piracy, and the trademarks, statements and communications, therein respectively \r\nmentioned, to be given up or destroyed. \r\n56. Injunction when refused.– An injunction cannot be granted– \r\n(a) to stay judicial proceeding pending at the institution of the suit in which \r\nthe injunction is sought, unless such restraint is necessary to prevent a \r\nmultiplicity of 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 restrain persons from applying to any legislative body; \r\n(d) to interfere with the public duties of any department of \r\n46\r\n[the \r\n47\r\n[Federal \r\nGovernment], \r\n48\r\n[***] or any Provincial Government ], or with the \r\nsovereign acts 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 \r\nbe specifically enforced; \r\n(g) to prevent, on the ground of nuisance, an act of which it is not \r\nreasonably clear that it will be a nuisance; \r\n \r\n45XLV of 1860 \r\n46Substituted for the words “The Government of India, or the Local Government” the Government of India (Adaptation of Indian \r\nLaws) Order, 1937 ; and published in the Gazette of India (Extraordinary), dated 1.4.1937, pages 75 -344, Article 3 and \r\nSchedule I. \r\n47Substituted for the words “Central Government” by the Federal Adaptation of Laws Order, 1975 (P .O.4 of 1975); and \r\npublished in the Gazette of Pakistan (Extraordinary), dated 1.8.1975 , pages 435 -466, Article 2 and Table of General \r\nAdaptations. \r\n48Words “the Crown Representative” omitted by the Adaptation of Central Acts and Ordinances Order, 1949 (G.G.O.4 of 1949); \r\nand published in the Gazette of Pakistan (Extraordinary), dated 28.3.1949, Article 3 and Schedule. \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 \r\nusual mode 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 \r\ndisentitle him 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\npartnership debts and effects. It appears that A had improp erly possessed himself of \r\nthe books of the firm and refused B access to them. The Court will refuse the \r\ninjunction. \r\n(b) A manufactures and sells crucibles, designating them as “patent \r\nplumbago crucibles”, though, in fact, they have never been patented. B p irates 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 \r\nof diverse 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 people \r\ninto the belief that they are buying A's Mexican Balm. A sues B for an injunction to \r\nrestrain the sale. B shows that A's Mexican Balm consists of nothing but scented \r\nhog's lard. A's use of hi s description is not an honest one and he cannot obtain an \r\ninjunction. \r\n57. Injunction to perform negative agreement .– Notwithstanding section 56, \r\nclause (f), where a contract comprises an affirmative agreement to do a certain act, \r\ncoupled with a negative a greement, express or implied, not to do a certain act, the \r\ncircumstance that the Court is unable to compel specific performance of the \r\naffirmative agreement shall not preclude it from granting an injunction to perform the \r\nnegative agreement: provided that the applicant has not failed to perform the \r\ncontract 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 business premises, and further agrees not to carry on that \r\nbusiness in \r\n49\r\n[Lahore]. B pays A the Rs. 1,00 but A carries on the business in \r\n \r\n49The word “Karachi” is substituted as the word “Lahore” by The Specific Relief (Am endment) Act, 2012 (VI of 2012) ; and \r\npublished in the Punjab Gazette (Extraordinary), dated 11.2.2012, pages 40197 -40198, s.6. Earlier substituted for the word \r\n“Chittagong” by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981); and published in the Gazette of \r\nPakistan (Extraordinary), dated 6.7.1981, pages 345 -475, s.2 and 3 and Second Schedule, Part III, at serial No.19, and then \r\nsubstituted for the word “Calcutta” by the Central Laws (Statute Reform) Ordinan ce, 1960 (XXI of 1960); and published in the \r\nGazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725-845, s.3 and Second Schedule. \r\n50\r\n[Lahore]. The Court cannot compel A to send his customers to B, but B may obtain \r\nan injunction restraining A from carrying on the business in \r\n51\r\n[Lahore]. \r\n(b) A contracts to sell to B the good -will of a business. A then sets up a \r\nsimilar business close by B's shop and solicit his old customers to deal with him. This \r\nis contrary to his implied contract, and B may obtain an injunction to restrain A from \r\nsoliciting the customers, and fro m doing any act whereby their good -will may be \r\nwithdrawn from B. \r\n(c) A contracts with B to sing for twelve months at B's theatre and not to \r\nsing in public elsewhere. B cannot obtain specific performance of the contract to \r\nsing, but he is entitled to an inj unction 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 \r\na clerk. A is not entitled to a decree for specific performance of the contract. But he \r\nis 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. 1,000 to be paid to him \r\nby B on a day fixed, he will not set up a certain business within a specified distance. \r\nB fails to pay the money. A cannot be restrained from carrying on the business within \r\nthe specified distance. \r\n52\r\n[SCHEDULE ****] \r\n \r\n50The word “Karachi” is substituted as the word “Lahore” by The Specific Relief (Am endment) Act, 2012 (VI of 2012); and \r\npublished in the Punjab Gazette (Extraordinary), dated 11.2.2012, pages 40197 -40198, s.6. Earlier substituted for the word \r\n“Chittagong” by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981); and published in the Gazette of \r\nPakistan (Extraordinary), dated 6.7.1981, pages 345 -475, s.2 and 3 and Second Schedule, Part III, at serial No.19, and then \r\nsubstituted for the word “Calcutta” by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960); and published in the \r\nGazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725-845, s.3 and Second Schedule. \r\n51The word “Karachi” is substituted as the word “Lahore” by The Specific Relief (Am endment) Act, 2012 (VI of 2012); and \r\npublished in the Punjab Gazette (Extraordinary), dated 11. 2.2012, pages 40197 -40198, s.6. Earlier substituted for the word \r\n“Chittagong” by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981); and published in the Gazette of \r\nPakistan (Extraordinary), dated 6.7.1981, pages 345 -475, s.2 and 3 and Second Schedule, Part III, at serial No.19, and then \r\nsubstituted for the word “Calcutta” by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960); and published in the \r\nGazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725-845, s.3 and Second Schedule. \r\n52Repealed by the Repealing and Amending Act, 1891 (XII of 1891) ; and published in the Government Gazette, Punjab and its \r\nDependencies, Part IV, dated 9.4.1891, pages 21-67, s.2 and First Schedule, Part I.", "passage_offset_convention": "zero-based Unicode code points and UTF8 bytes; end exclusive", "passages": [ { "passage_id": 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