Specific Relief Act, 1963 – Economic, Business and Commercial Laws Important Questions

Specific Relief Act, 1963 – Economic, Business and Commercial Laws Important Questions

Question 1.
Write a short note on the Specific performance of a contract [June 2010 (4 Marks)]
Answer:
The law relating to specific relief is contained in the Specific Relief Act, 1963. If it is wrong or injury, there are two remedies are available:

  • To claim damages or to claim compensation, or
  • To obtain an order from Courts, for the fulfilment of exact obligation by another party.

Sometimes monetary compensation may not be an adequate remedy, in that case, the aggrieved may pray to Court and may get an order against another party to fulfil the obligation it has undertaken.

The general principles upon which the remedy of specific relief is granted are as follows:
1. Damages not an adequate remedy: Where damages in money are not an adequate remedy, the Court grants on equitable grounds the remedy of specific performance.

2. Principles that guide the Courts in granting specific relief: The principles which guide the Courts in granting specific relief are:

  • He who comes to equity must come with clean hands.
  • He who seeks equity shall do equity.
  • Delay defeats equity.

3. Specific relief granted only for enforcing individual ‘Civil Rights’ and not for enforcing ‘Penal Laws’ [Section 4]: Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the purpose of enforcing a penal law. But where enforcement of penal law is merely incidental to the grant of specific relief, the Court will not refuse it if the relief claimed is with regard to the civil right affecting the person or property of the plaintiff.

Example: Arnav threatens to publish a libel (which is a crime under the Indian Penal Code) against Bikram. Bikram may seek an injunction against the publication of the libel which the Court may grant.

Question 2.
Kumar unlawfully takes possession of house X from Hemant on 4th April 2019. On 9lh January 2020, Hemant initiates proceedings under section 6 of the Specific Relief Act, 1963 against Kumar for regaining possession of the house. Kumar pleads that he is entitled to take possession of the house because he is the owner of the house. Decide? [June 2000 (5 Mark)]
Answer:
As per Section 6 of the Specific Relief Act, 1963, if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom he has been in possession or any person claiming through him may recover possession thereof by filing a suit.

No suit under this section shall be brought after the expiry of 6 months from the date of dispossession; or against the Government. Thus, Hemant will not succeed as the suit was brought after 6 months.

Question 3.
“A contract may not always be specifically enforceable.” Comment. [Dec. 2011 (4 Marks)]
Answer:
Contracts not specifically enforceable [Section 14]: [Amended by the Specific Relief (Amendment) Act, 2018]

Following contracts cannot be specifically enforced:
(a) Where a party to the contract has obtained substituted performance of a contract in accordance with the provisions of section 20.
(b) A contract, the performance of which involves the performance of a continuous duty which the Court cannot supervise.
(c) A contract that is so dependent on the personal qualifications of the parties that the Court cannot enforce specific performance of its material terms.
(d) A contract which is in its nature ‘determinable.

Determinable = Capable of being brought to an end under given conditions; Liable to come to an end upon the happening of a certain contingency.

Question 4.
Persons against whom the specific performance of the contract is available. Comment. [Dec. 2012 (4 Marks)]
Answer:
Who may obtain specific performance [Section 15]: The specific performance of a contract may be obtained by:

  • Any party thereto.
  • The representative in interest (i.e. agent) or the principal.
  • Where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder.
  • Remainder-man.
  • A reversioner in possession.
  • A reversioner in the remainder.
  • The new company arises out of the amalgamation.
  • Promoters of a company, when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such a contract is warranted by the terms of the incorporation of the company and the company has accepted the contract and has communicated such acceptance to the other party to the contract.
  • When LLP has entered into a contract and subsequently becomes amalgamated with another LLP, the new LLP arises out of the ‘ amalgamation.

Generally, only a party to the contract can get its specific performance. The section gives the list of persons who can sue for the specific performance of a contract. The general principle is that in a suit for specific performance of a contract, all the parties to the contract should be parties to the suit and no one else.

Question 5.
Against whom the specific performance of a contract may be enforced under the Specific Relief Act, 1963? Explain. [June 2019 (3 Marks)]
Answer:
Who may obtain specific performance [Section 15]: The specific performance of a contract may be obtained by:

  • Any party thereto.
  • The representative in interest (Le. agent) or the principal.
  • Where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder.
  • Remainder-man.
  • A reversioner in possession.
  • A reversioner in the remainder.
  • The new company arises out of the amalgamation.
  • Promoters of a company, when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such a contract is warranted by the terms of the incorporation of the company and the company has accepted the contract and has communicated such acceptance to the other party to the contract.
  • When LLP has entered into a contract and subsequently becomes amalgamated with another LLP, the new LLP arises out of the ‘ amalgamation.

Generally, only a party to the contract can get its specific performance. The section gives the list of persons who can sue for the specific performance of a contract. The general principle is that in a suit for specific performance of a contract, all the parties to the contract should be parties to the suit and no one else.

Question 6.
Do Alok contract to sell a piece of land to Vimal consisting of 100 bighas for ₹ 10 lakhs and it turns out that only 60 bighas of land belong to Alok? Who can demand specific performance of the contract and who cannot? If there is a demand for specific performance from the rightful party, what will be the consideration? [June 2010 (4 Marks)]
Answer:
According to Section 12(3) of the Specific Relief Act, 1963, if the part of a contract that is left unperformed forms a considerable portion of the whole or does not admit of compensation in money, the plaintiff is not entitled to a decree for specific performance. But if the plaintiff relinquishes all claims to further performance and all rights to compensation either for the deficiency or for the loss or damage sustained by him, he can sue for and the Court may grant specific performance.

In the problem under consideration, Alok is not in a position to perform a substantial part of the contract and for the part left unperformed, does not admit of compensation in money. Hence, ordinarily, the Court will not J order specific performance of the contract.

However, the Court may grant specific performance of the part of the contract if:

  1. Vimal pays consideration for the whole of the contract without any abatement, and
  2. Relinquishes all claims to the performance of the remaining part of the contract.
    Alok cannot demand specific performance of the contract, but Vimal can demand specific performance of the contract to get the 60 bighas of land from Alok.

Question 7.
April contracts Bhushan to sell a piece of land consisting of five bighas of land for ₹ 5 lakh. Subsequently, it turns out that only four bighas of land belong to Amrit. Whether specific enforcement of such part-contract may be possible on the part of either party to the contract? Decide by referring to the specific provisions of the Specific Relief Act, 1963. [Dec. 2010 (5 Marks)]
Answer:
According to Section 12(3) of the Specific Relief Act, 1963, if the part of a contract that is left unperformed forms a considerable portion of the whole or does not admit of compensation in money, the plaintiff is not entitled to a decree for specific performance. But if the plaintiff relinquishes all claims to further performance and all rights to compensation either for the deficiency or for the loss or damage sustained by him, he can sue for and the Court may grant specific performance.

In the problem under consideration, Alok is not in a position to perform a substantial part of the contract and for the part left unperformed, does not admit of compensation in money. Hence, ordinarily, the Court will not J order specific performance of the contract.

However, the Court may grant specific performance of the part of the contract if:

  1. Vimal pays consideration for the whole of the contract without any abatement, and
  2. Relinquishes all claims to the performance of the remaining part of the contract.
    Alok cannot demand specific performance of the contract, but Vimal can demand specific performance of the contract to get the 60 bighas of land from Alok.

Question 8.
A contract to sell B a piece of land consisting of 100 bighas. It turns out that 98 bighas of the land belong to A and the two remaining bighas to a stranger, who refuses to part with them. B files the suit for specific performance against A. Decide with the help of the legal provisions, whether the specific performance suit is maintainable. [Dec. 2018 (5 Marks)]
Answer:
According to Section 12(2) of the Specific Relief Act, 1963, if the part which is left unperformed bears only a small proportion of the whole in value and admits of compensation in money, the Court may at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. In given case part left unformed is a small portion of whole i.e. 2 bighas of land, hence Court may at the suit of either party, direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency.

Question 9.
Mention persons against whom specific performance cannot be enforced. {June 2012 (5 Marks)],
Answer:
Personal bars to relief [Section 16]: Specific performance of a contract cannot be enforced in favour of a person:

  • Who has obtained substituted performance of contract u/s 20, or
  • Who has become incapable of performing, or violates any essential term of the contract or acts in fraud or wilfully acts at variance in relation to the contract, or
  • Who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him.

Question 10.
What are the contracts which cannot be specifically enforced under the Specific Relief Act, 1963? {Dec. 2019 (3 marks)]
Answer:
The specific performance of a contract shall be enforced by the Court subject to the provisions contained in Section 11(2), Section 14 & Section 16. [Amended by the Specific Relief {Amendment) Act, 2018]

Thus, in the following cases contract cannot be enforced by the Court as a general rule:

  1. A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced. [Section 11 (2)]
    Example: Ram is a trustee of land with the power to lease it for 7 years. He enters into a contract with Shyam to grant a lease of the land for 7 years, with a covenant to renew the lease at the expiry of the term. This contract cannot be specifically enforced because the trustee has acted in excess of his power
  2. Contracts mentioned in Section 14.
  3. Specific performance of a contract that cannot be enforced in favour of certain persons mentioned in Section 16.

Contracts not specifically enforceable [Section 14]: [Amended by the Specific Relief (Amendment) Act, 2018]
Following contracts cannot be specifically enforced:
(a) Where a party to the contract has obtained substituted performance of a contract in accordance with the provisions of section 20.
(b) A contract, the performance of which involves the performance of a continuous duty which the Court cannot supervise.
(c) A contract that is so dependent on the personal qualifications of the parties that the Court cannot enforce specific performance of its material terms.
(d) A contract which is in its nature determinable.
Determinable = Capable of being brought to an end under given conditions;

Liable to come to an end upon the happening of a certain contingency.

Question 11.
Explain the provisions relating to ‘substituted performance of a contract under the Specific Relief Act, 1963?
Answer:
Substituted performance of contract [Section 20]:
1. Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872 and except as otherwise agreed upon by the parties, where the contract is broken due to non-performance of promise by any party, the party who suffers by such breach shall have the option of substituted performance through a third party or by his own agency, and, recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach.

2. No substituted performance of the contract under subsection (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than 30 days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by a third party or by his own agency. However, the party who suffers such breach shall not be entitled to recover the expenses and costs unless he has got the contract performed through a third party or by his own agency.

3. Where the party suffering breach of contract has got the contract performed through a third party or by his own agency after giving notice, he shall not be entitled to claim relief of specific performance against the party in breach.

4. The party who has suffered a breach of contract is entitled to claim compensation from the party in breach.

Amendment in section 20 introduced the concept of substituted performance of contracts.

Section 20 which provided for ‘discretion to decree specific performance’ has been replaced by a new section 20 by the Specific Relief (Amendment) Act, 2018.

This new provision gives an option to the party which has suffered a breach to go for substituted performance through a third party or by its own agency and recover the expenses and other costs actually incurred, spent or suffered by such party from the party which had committed the breach.

However, the party who has suffered such breach has to give written notice of not less than 30 days to the party in breach. Also, the party who has suffered such breach would be entitled to recovery of such expenses and costs only if the contract has been performed j through a third party or by its own agency.

Section 20(3) makes it further clear that once the substituted performance has opted, the party suffering breach would not be entitled to claim relief of specific performance against the party in breach.

Question 12.
Explain Rectification of an instrument [Dec. 2009 (4 Marks)]
Answer:
Rectification means the correction of an error in an instrument.

When instrument may be rectified [Section 26]: Where a contract reduced into writing in pursuance of a previous agreement but fails to express the real intention of the parties, the Court will rectify the instrument in accordance with their true intention.

The Court allows rectifying the instrument if the following conditions are satisfied.

  • There must a complete agreement and it must be in writing.
  • There must be clear evidence of mutual mistake or of fraud.
  • It does not show the real intention of the parties.

However, this section doesn’t apply to the Article of Association of the company to which the Companies Act, 2013 applies.

It should be noted that no relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed.

The only limitation placed on the Court’s discretion is that the rectification can be done without prejudice to the right acquired by third persons in good faith and for value.

Example: X agrees with Y to sell his house together with one of the 3 godowns adjacent to it but in the deed of agreement. Purporting to incorporate this agreement all the 3 godowns are by the fraud of Y included under the terms of the sale. The Court may bind the parties to the real intention.

Question 13.
Write a short note on Rectification of an instrument [June 2010 (4 Marksj]
Answer:
Substituted performance of contract [Section 20]:
1. Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872 and except as otherwise agreed upon by the parties, where the contract is broken due to non-performance of promise by any party, the party who suffers by such breach shall have the option of substituted performance through a third party or by his own agency, and, recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach.

2. No substituted performance of the contract under subsection (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than 30 days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by a third party or by his own agency. However, the party who suffers such breach shall not be entitled to recover the expenses and costs unless he has got the contract performed through a third party or by his own agency.

3. Where the party suffering breach of contract has got the contract performed through a third party or by his own agency after giving notice, he shall not be entitled to claim relief of specific performance against the party in breach.

4. The party who has suffered a breach of contract is entitled to claim compensation from the party in breach.

Amendment in section 20 introduced the concept of substituted performance of contracts.

Section 20 which provided for ‘discretion to decree specific performance’ has been replaced by a new section 20 by the Specific Relief (Amendment) Act, 2018.

This new provision gives an option to the party which has suffered a breach to go for substituted performance through a third party or by its own agency and recover the expenses and other costs actually incurred, spent or suffered by such party from the party which had committed the breach.

However, the party who has suffered such breach has to give written notice of not less than 30 days to the party in breach. Also, the party who has suffered such breach would be entitled to recovery of such expenses and costs only if the contract has been performed j through a third party or by its own agency.

Section 20(3) makes it further clear that once the substituted performance has opted, the party suffering breach would not be entitled to claim relief of specific performance against the party in breach.

Question 14.
In what circumstances may rescission of contracts be sought under the Specific Relief Act, 1963?
Answer:
Rescission means the revocation of a contract.
Rescission of contracts [Section 27]: Any person interested in a contract may sue to have it rescinded and Court may allow rescission in the following cases:
1. Where the contract is voidable or terminable by the plaintiff.
Example: X sells a field to Y. There is a right of way over the field of which X has direct personal knowledge but which he conceals from Y. Y is entitled to have the contract rescinded.

2. Where the contract is unlawful and the defendant is more to blame than the plaintiff.
Example: P, an attorney, induces has client R, a Hindu Widow, to ’ transfer property to him for the purpose of defrauding R’s creditors. R is entitled to have the instrument of transfer rescinded. However, the Court may refuse to rescind a contract.

3. Where the plaintiff has expressly or impliedly rectified the contract.

4. Where due to change in circumstances parties cannot be put in an original position.
Example: When the subject matter of the contract has been destroyed or its value or quality considerably diminished.

5. When a third party acquires interest without notice.

6. Where only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract.

Question 15.
State the grounds under which an instrument can be cancelled under the Specific Relief Act, 1963. [June 2014 (6 Marks)]
Answer:
When cancellation may be ordered [Section 31]: A written document that is void or voidable against a person may cause him in some cases a serious injury, if it is left outstanding. In such a case, if he has any such apprehension, he may file a suit to have the document adjudged void or voidable.

Example: X, the owner of a ship, by fraudulently representing it to be seaworthy, induces Y, an underwriter, to insurer ship, Y may obtain the cancellation of the policy.

Conditions for relief:

  • The instrument sought to be cancelled is void or voidable against the plaintiff.
  • He has a reasonable apprehension of serious injury from the instrument if it is left outstanding.
  • That the apprehended injury is serious and in view of the circumstances of the case the Court considers it reasonable and necessary to cancel the document.

If the instrument has been registered under the Registration Act, 1908 the Court shall also send a copy of its decree to the officer in whose office the instrument has been registered.

Instruments may be partially cancelled [Section 32]: Where an instrument is evidence of different rights or different obligations, the court may, in a proper case, cancel it in part and allow it to stand for the residue.

Example: X executes a deed of mortgage in favour of Y for a loan of ₹ 1,20,000. A gets back the deed from Y by fraud and endorses on it a receipt for ₹ 1,20,000 purporting to be signed by Y. Y’s signature is forged. Y is entitled to have the endorsement cancelled, leaving the deed to stand in other respects. ‘

Question 16.
Write a short note on Declaratory decree [June 2008 (4 Marks)]
Answer:
Discretion of court as to declaration of status or right [Section 34]:
The Court may grant a declaratory decree in favour of the plaintiff when the plaintiff satisfies the Court as to the following:

  • That he is entitled to a legal character or right to property.
  • He will also have to prove that the defendant is either denying or interested to deny his title to such character or right.

The declaration cannot be sought on speculative grounds.
When Court refuses to grant declaratory decree: However, the Court will refuse to grant a declaratory decree where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Instances of legal status are:

  • Status of an adopted son
  • Priest of a temple
  • Legal character by marriage
  • Legitimacy or illegitimacy
  • Divorce on the ground of impotency.

Effect of declaration [Section 35]: A declaration is binding only on:

  • Parties to the suit.
  • Persons claiming through them respectively.
  • Where any of the parties are trustees, on the persons for whom, if in 2 existence at the date of the declaration, such parties would be trustees.

Such declaratory decrees are not judgments-in-rem and as such cannot g bind strangers.

Question 17.
A, a Hindu, in a suit to which B, his alleged wife is the defendant, seeks a declaration that his marriage was duly solemnised and prays for the order of restitution of conjugal rights. The Court makes the declaration and order of restitution of conjugal rights. C, a third party claiming that B is his wife, sues A for the recovery of B. Decide whether the declaration made in the former suit is binding upon C. [Dec. 2014 (5 Marks)]
Answer:
According to Section 35 of the Specific Relief Act, 1963, a declaratory 1 decree is binding only on the parties to the suit in which their decree is passed, or on persons claiming through such parties respectively.

Since C was not a party to the suit in which the decree was passed, it is not binding against him.

Question 18.
again, a singer agreed to sing at Lakshmi’s Theatre from January to April 2009 and not to sing anywhere else during that period. Afterwards, she entered into a contract to sing at Kamala’s theatre during the said period and refused to sing at Lakshmi’s theatre during that period.
Lakshmi filed an injunction application to the appropriate court. What relief Lakshmi is entitled to get, and for which part Court may refuse to grant the injunction? Decide giving reasons. [Dec. 2009 (6 Marks)]
Answer:
When a contract involves personal qualification or volition, the Court will not enforce the specific performance of its material terms. In this case, the agreement by the defendant to give a performance at the plaintiff’s theatre for four months would not be enforced by the Court, since it involves the personal volition of the party.

As per the provision of Section 42 of the Specific Relief Act, 1963, although the Court is unable to compel specific performance of the affirmative agreement, yet it can order for the performance of the negative agreement. Accordingly, Lakshmi will get an order of injunction from the Court for restraining the Ragini from performing in another theatre.

Question 19.
Write a short note on Perpetual injunction [June 2010 (4 Marks)]
Answer:
A perpetual or permanent injunction is a type of order issued by a Court after a full trial on the merits of a case. A permanent injunction order is typically issued for the purpose of requiring a person or entity to permanently stop acting in a certain manner. Perpetual injunction is one that is granted by the judgment that ultimately disposes of the injunction suit. It is ordered at the time of final judgment. This type of injunction must always be a final relief. Permanent injunctions are regarded as perpetual conditions that produced them remain permanent.

Perpetual injunction when granted [Section 38]: When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely:

  • Where the defendant is the trustee of the property for the plaintiff.
  • Where there exists no standard for ascertaining the actual damage caused or likely to be caused.
  • Where compensation in money could not afford adequate relief.
  • Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Question 20.
Write a short note on Temporary and perpetual injunction [June 2011 (4 Marks)]
Answer:
Following are the main points of distinction between temporary and perpetual injunction:

Points Temporary Injunction Perpetual Injunction
Meaning A temporary injunction is a Court Order prohibiting an action by a party to a lawsuit until their lias been a trial or other court action. A perpetual or permanent in-junction is a type of order issued by a Court after a full trial on the merits of a case has been conducted.
Nature A temporary injunction is provisional in nature as it does not and cannot conclude or determine a right. Perpetual injunction is permanent in nature as it concludes or determines rights upon the merits of the suit.
Governing statute Temporary injunctions also known as interlocutory and are granted under the Civil Procedure Code, 1908. Perpetual injunctions are granted under Section 38 of the Specific Relief Act, 1963.
Stage of granting It is granted before the plaintiff establishing his case at the trial and continues up to a specified time. Perpetual injunction can be granted after hearing the defendant and upon the merits of the suit.
Replacement A temporary injunction may be replaced by a perpetual injunction on the merits of the case. Perpetual injunction cannot be replaced by temporary injunction.

Question 21.
Distinguish between: ‘Remedies of specific performance’ and ‘remedies of injunction’. [Dec. 2012 (4 Marks)]
Answer:
Following arc main points of distinction between remedies of specific performance and remedies of injunction:

Points Remedies of specific performance Remedies of injunction
Meaning Sometimes monetary compensation may not be an adequate remedy, in that case, the aggrieved may pray to Court and may get an order against other parties to fulfil the obligation it has undertaken. This is known as specific relief. Where a party is in breach of a negative term of a contract i.e. where he is doing something which he promised not to do, the Court may by issuing an order, restrain him from doing what he promised not to do so. Such an order of the Court is known as an injunction.
Order Orders of specific performance are issued to do specifically what the party has agreed to do. Orders of injunctions are issued from prohibiting a person from doing what he has promised not to do.
Coverage Specific performances arc issued fen- performance of contracts. Injunctions can be issued for contracts as well as for torts.

Question 22.
Distinguish between: ‘Specific performance’ and ‘injunction’ [June 2013 (4 Marks)]
Answer:
Following are the main points of distinction between temporary and perpetual injunction:

Points Temporary Injunction Perpetual Injunction
Meaning A temporary injunction is a Court Order prohibiting an action by a party to a lawsuit until their lias been a trial or other court action. A perpetual or permanent in-junction is a type of order issued by a Court after a full trial on the merits of a case has been conducted.
Nature A temporary injunction is provisional in nature as it does not and cannot conclude or determine a right. Perpetual injunction is permanent in nature as it concludes or determines rights upon the merits of the suit.
Governing statute Temporary injunctions also known as interlocutory and are granted under the Civil Procedure Code, 1908. Perpetual injunctions are granted under Section 38 of the Specific Relief Act, 1963.
Stage of granting It is granted before the plaintiff establishing his case at the trial and continues up to a specified time. Perpetual injunction can be granted after hearing the defendant and upon the merits of the suit.
Replacement A temporary injunction may be replaced by a perpetual injunction on the merits of the case. Perpetual injunction cannot be replaced by temporary injunction.

Question 23.
Explain ‘mandatory injunction’ under the Specific Relief Act, 1963. [Dec. 2014 (4 Marks)]
Answer:
Sometimes, to prevent the breach of an obligation and to compel the performance of certain acts, Court may at its discretion grant an injunction, such injunctions are known as a mandatory injunction.

The mandatory injunctions may be one of the following types:

  1. Restitutory
  2. Prohibitory

Examples:

  • A, by new buildings, obstruct light to the access and use of which B has acquired a right under the Limitation Act, 1963. B may obtain an injunction not only to restrain A from going on with the buildings but also to pull down so much of them as obstructs B’s light.
  • A threatens to publish statements concerning B which would be punishable under the Indian Penal Code, 1860. The Court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B.
  • A being’s medical adviser threatens to publish A’s written communication with him, showing that B has led an immoral life. B may obtain an injunction to restrain the publication.

Question 24.
Distinguish between: Specific performance and Injunction [June 2019 (3 Marks)]
Answer:
Following are the main points of distinction between temporary and perpetual injunction:

Points Temporary Injunction Perpetual Injunction
Meaning A temporary injunction is a Court Order prohibiting an action by a party to a lawsuit until their lias been a trial or other court action. A perpetual or permanent in-junction is a type of order issued by a Court after a full trial on the merits of a case has been conducted.
Nature A temporary injunction is provisional in nature as it does not and cannot conclude or determine a right. Perpetual injunction is permanent in nature as it concludes or determines rights upon the merits of the suit.
Governing statute Temporary injunctions also known as interlocutory and are granted under the Civil Procedure Code, 1908. Perpetual injunctions are granted under Section 38 of the Specific Relief Act, 1963.
Stage of granting It is granted before the plaintiff establishing his case at the trial and continues up to a specified time. Perpetual injunction can be granted after hearing the defendant and upon the merits of the suit.
Replacement A temporary injunction may be replaced by a perpetual injunction on the merits of the case. Perpetual injunction cannot be replaced by temporary injunction.

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