(( I I of of 18187777 ))
The need for upto
The need for upto date Specific Relief Act is date Specific Relief Act is most essential for most essential for lawyers, judges and law students.lawyers, judges and law students. There has been enormous pressure and persistent demand from those who are associated with the There has been enormous pressure and persistent demand from those who are associated with the legal profession for having an updated
legal profession for having an updated Specific Relief Act upon DLR. It is Specific Relief Act upon DLR. It is needless to point outneedless to point out that the Specific Relief Act is the most important law publication in the branch of civil law. We that the Specific Relief Act is the most important law publication in the branch of civil law. We have tried in this to incorporate the
have tried in this to incorporate the most important sections of Specific Relief Act with upto datemost important sections of Specific Relief Act with upto date amendments case laws reported so far in DLR,
amendments case laws reported so far in DLR, BLC, BSCD, BLD and BLC, BSCD, BLD and other law jurnals.other law jurnals.
Section 5 Section 5
Specific Relief How Given: Specific Relief How Given: Specific Relief is Specific Relief is
given-(a)
(a) by taking possession by taking possession of certain property of certain property and delivering it and delivering it to a claimant;to a claimant; (b)
(b) by orderiby ordering a party to do very act whng a party to do very act which he is under an oblich he is under an obligatioigation to do;n to do; (c)
(c) byby prevenpreventing a parting a party from doty from doing that wing that which he is unhich he is under an oblider an obligation nogation not to do;t to do; (d)
(d) by determining and declariby determining and declaring the rights ng the rights of parties of parties otherwise than by otherwise than by an award ofan award of compensation; or
compensation; or (e)
(e) by apby appointipointing a ng a receivreceiver.er.
Reference: Reference:
# When the plaintiff as per the
# When the plaintiff as per the terms of the deed of agreement terms of the deed of agreement performed his part, the defendantperformed his part, the defendant is also bound to perform his part, otherwise, the Court will act on behalf of the plaintiff
is also bound to perform his part, otherwise, the Court will act on behalf of the plaintiff u/s 5.u/s 5.
M Mizanur Ah
M Mizanur Ahmed vsmed vs Inge FlatzInge Flatz, 11 BLC 28, 11 BLC 280.0.
# In a suit for
# In a suit for permanent injunction simpliciter permanent injunction simpliciter an issue whether the registeran issue whether the registered deed is forged ored deed is forged or not cannot be decided (Section 5 read with 56).
not cannot be decided (Section 5 read with 56).Susil Kumar Paik and another vs Harendra NathSusil Kumar Paik and another vs Harendra Nath Samadde
Section 9
Suit by person dispossessed of immoveable property- If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in suit.
Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
No suit under this section shall be brought against the Government.
# The subsequent acquisition of title, if any, by way of lease from Enemy Property Authority did not validate the illegal dispossession by the defendents.Pramatha Nath vs Shamsur Rahman, 29 DLR 347
# If a summery suit is brought within 6 months, the plaintiff therein who as dispossessed otherwise than in due course of law, will be entitled to be reinstated even if the defendant, who dispossessed him, be the true owner, or a person claiming under him. Ganga Din vs Bakul, AIR(1950) All 407.
# In a suit u/s 9 the plaintiff must prove->that he was in possession;
>that he has been dispossessed, i.e., deprived of actual physical possession of land; >that the dispossession took place without his consent;
>that the dispossession took place within six months before institution of suit u/s 9.
Sona Mia vs Prokash, AIR 1940 (cal) 464.
# In the absence of any clear evidence as to the possession of the plaintiff prior to dispossession by the defendants from the suit land, the trial Court, in decreeing the suit, committed a serious
error of law resulting in an error in the decision occasioning a failure of justice. Jaher Ali(Md) and ors vs Md Ziarat Hossain, 57 DLR 315.
Cases in which specific performance
enforceable-Except as otherwise provided in this chapter the specific performance of any contract may in the discretion be
enforced-(a) when the act agreed to be done is in the performance, wholly or partly, of a trust; (b) when there exists no standard for ascertaining the actual damage caused by the
non- performance of the act agreed to be done;
(c) when the act agreed to be done is such that pecuniary compensation for its non- performance would not afford adequate relief; or
(d) when it is probable that pecuniary compensation cannot be got for the non- performance of the act agreed to be done.
Explanation- Unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money, and the breach of a contract to transfer moveable property can be thus be relieved.
# The explanation to section 12 of SR Act raised a presumption that the breach of a contract to transfer moveable property can adequately be relieved by compensation unless and until contrary is proved. Bazlur Rahman Bhuiyan vs BSC, 34 DLR(AD) 42.
# A contract relating to sale of immoveable properties cannot be said to have been specifically performed till the kabala embodying the terms of the contract is presented for registration either by executant or his legal representative. Hafer Ahmed vs Obedur Rahman, 7 DLR 263.
#Contract in favor of several persons jointly, one of them can bring a suit for enforcement of contract on payment of the entire amount due. Niranjan Das vs Charubala Das, 15 DLR 611. # Where in a deed of agreement no time is mentioned for registration of sale deed and the plaintiff already put in possession of the suit land in pursuance of the agreement duly executed by the defendant upon receipt of the bulk of the consideration money, time is not an essence of the contract. It is true that a contract implies two parties, but a contract, in this cou ntry does not necessarily implies that the document must be signed by both the parties thereto. Abdul Samad Gazi vs Abdul Khalil Gazi and others, 53 DLR 262.
Section 15
Specific performance of part of contract where part unperformed is
large-Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree of specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all rights to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.
# When a defendant contracts his behalf and on behalf of a minor and it is found that it is unenforceable against the minor then the defendant is not a party to the contract who is unable the whole of his part of it. Archana Prasad Nandi vs Miss Chilla Randolph, 32 DLR 118 .
Section 17
Bar in other cases of specific performance of part of contract- The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections.
# When specific performance of contract cannot be granted, the general rule of equity is that the court will not compel specific performance of a contract unless it can enforce the whole contract. This rule is embodied in section 17 of SR Act. Under section 17, a contract cannot be
specifically enforced in part except under situations provided for under sections 14,15 & 16 of the said Act . 32 DLR 118 .
Section 21
Contracts not specifically enforceable- The following contracts cannot be specifically
enforceable:-(a) a contract for the non-performance of which compensation in money is an adequate relief;
(b) a contracts which runs into minutes or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise fom its nature is such, that the court cannot endorse specific performance of it material terms; (c) a contract the term of which the court cannot find with reasonable certainty; (d) a contract which is in its nature revocable;
special purposes, or by the promoters of such company, which is in excess of its powers;
(g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;
(h) a contract of which a material part of the subject matter, supposed by both parties to exist, has before it has been made, ceased to exist.
And, save as provided by the Arbitration Act 1940 no contract to refer present or future
differences to arbitration shall be enforced; but if any person who has made such a contract other than an arbitration agreement to which the provisions of the said Act apply and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such
contract shall bar the suit.
# A contract which in its nature is revocable cannot be specifically enforced. Dainik Janakantha, represented by it Editor and Publisher and others vs Dhaka sangbadpatra Hawkers Bahumukhi Samabaya Samity Ltd, 1 BLC 433.
# No agreement came into existence and defendants had no obligation, legal or otherwise, to allot any plot of land in favor of the plaintiff. Shaikh Jahangir Hossain vs Government of Bangladesh and Others, 55 DLR 405. (Under section 21 read with 42)
Section 22
Discretion as to decreeing specific performance- The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
The following are cases in which the court may properly exercise a discretion not to decree specific performance:
I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff’s part.
II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.
The following is a case in which the court may properly exercise a discretion to decree specific performance:
III. Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
# Its therefore a case of extreme hardship which is likely to result from the performance of the contract. Having regard to the facts and circumstances of the case, there is no manner of doubt that this is a fit case in which the discretionary power of the court to refuse specific performance of contract should be exercised, even though it may be argued that this hardship arises out of events subsequent to the date of contract. Administrator of Waqfs vs Sahera Begum, 28 DLR 238.
# The relief of specific performance of contract is a discretionary one. The court if it finds that it would be unconscionable to allow it will not allow specific performance. Abdur Razzaque
Mollah vs Md Qayum Mollah and others, 53 DLR 535.
# Granting or refusal of relief for specific performance of contract is discretionary with the court. On payment of reasonable compensation or solarium, the court reserves the right of refusing performance of such a contract (Section 22 read with 24).Santash Kumar Paul vs Nuruddin Ansari, 47 DLR 72.
