Preamble Specific Relief Act, 1877 Par 1

Preamble
Specific Relief Act, 1877



PART I PRELIMINARY
1. Short title, Local extent, & Commencement
2. [Repeal of enactment.] Rep.
3. Interpretation clause
4. Savings
5. Specific relief how given
6. Preventive relief
7. Relief not granted to enforce penal law
PART II OF SPECIFIC RELIEF
CHAPTER I Of Recovering Possession of Property
8. Recovery of specific immovable property
9. Suit by person dispossessed of immovable property
10. Recovery of Specific movable property
11. Liability of person in possession, not as owner, to deliver to person entitled to
immediate possession
CHAPTER II Of the Specific performance of Contracts
12. Cases in which specific performances enforceable
13. Contract of which the subject has partially ceased to exist
14. Specific performance of part of contract where part unperformed is small
15. Specific performance of part of contract where part unperformed is large
16. Specific performance of independent part of contract
17. Bar in other cases of specific performance of part of contract
18. Purchaser‘s right against vendor with imperfect title
19. Power to award compensation in certain cases
20. Liquidation of damages not a bar to specific performance
21. Contracts not specifically enforceable
22. Discretion as to decreeing specific performance
23. Who may obtain specific performance
24. Personal bars to the relief
25. Contracts to sell property by one who has no title or who is a voluntary settler
26. Non-enforcement except with variation
27. Relief against parties and persons claiming under them by subsequent title
27-A. Specific performance in case of part performance of contract to lease
28. What parties cannot be compelled to perform
29. Bar of suit for breach after dismissal
30. Application of preceding sections to awards and testamentary directions to execute
settlements
CHAPTER III Of The Rectification of Instruments
31. When instrument may be rectified
32. Presumption as to intent of parties
33. Principles of rectification
34. Specific enforcement of rectified contract
CHAPTER IV Of The Rescission of Contracts
35. When rescission may be adjudged
36. Rescission for mistake
37. Alternative prayer for rescission in suit for specific performance
38. Court may require party rescinding to do equity
CHAPTER V Of the Cancellation of Instruments
39. When cancellation may be ordered
40. What instrument may be partially cancelled
41. Power to require party for whom instrument is cancelled to make compensation
CHAPTER VI Of Declaratory Decrees
42. Discretion of Court as to declaration of status or right
43. Effect of declaration
CHAPTER VII Of the Appointment of Receivers
44. Appointment of receivers discretionary
Ss 45 -- 51 Omitted
CHAPTER VIII Of The Enforcement of Public Duties
PART III Of Preventive Relief
CHAPTER IX Of Injunctions Generally
52. Preventive relief how granted
53. Temporary injunctions
CHAPTER X Of Perpetual injunctions
54. Perpetual injunction when granted
55. Mandatory injunction
56. Injunction when refused
57. Injunction to perform negative agreement
Enactments Repealed
SCHEDULE
Preamble
I of 1877
An Act to define and amend the law relating to certain kinds of Specific Relief.
Preamble.
Whereas it is expedient to define and amend the law relating to certain kinds of specific
relief obtainable in civil suits‘


It is hereby enacted as follows: --


1. Short title, Local extent, & Commencement
This Act may be called the Specific Relief Act, 1877.
[It extends to the whole of Pakistan].
And it shall come into force on the first day of May, 1877.
2. [Repeal of enactment.] Rep.
Rep. By the Amending Act, 1891 (XII of 1891).
3. Interpretation clause
In this Act, unless there be something repugnant in the subject or context. -
‗obligation‘ includes every duty enforceable by law:
‘trust’ includes every species of express, implied, or constructive fiduciary ownership;
‘trustee’ includes every person holding, expressly, by implication, or constructively, a
fiduciary character;
Illustrations
(a) Z. bequeaths land to A, ‗not doubting that he will pay there out an annuity of Rs. 1,000
to B for his life‘. A accepts the bequest. A is a trustee, within the meaning of this Act, for B
to the extent of the annuity.
(b) A is the legal, medical or spiritual adviser of B. By availing himself of this situation as
such adviser, A gains some pecuniary advantage which might otherwise have accrued to B.
A is a trustee for B, within the meaning of this Act, of such advantage.
(c) A, being B‘s banker, discloses for his own purpose, the state of B‘s account. A is
trustee, within the meaning of this Act for B, of the benefit gained by him by means of such
disclosure.
(d) A, the mortgagee of certain lease-holds, renews-the lease in his own name. A is a
trustee, within the meaning of this Act, of the renewed lease, for those interested in the
original lease.
(e) A, one of several partners, is employed to purchase goods for the firm. A, unknown to
his co-partners, supplies them, at the market price, with goods previously bought by
himself when the price was lower and thus makes a considerable profit. A is a trustee for
his co-partners within the meaning of this Act, of the profit so made.
(f) A, the manager of B‘s indigo factory becomes agent for C, a vendor of indigo-seed, and
receives, without B‘s assent, commission on the seed purchased from C for the factory. A is
a trustee, within the meaning of this Act, for B, of the commission so received.
(g) A buys certain land with notice that B has already contracted to buy it. A is a trustee,
within the meaning of this Act, for B of the land so bought.
(h) A buys land from B having notice that C is in occupation of the land. A omits to make
any inquiry as to the nature of C‘s interest therein. A is a trustee, within the meaning of
this Act for C, to the extent of that interest.
‗settlement‘ means any instrument other than a will or codicil as defined by the Succession
Act whereby the destination or devolution of successive interest in movable or immovable
property is disposed of or is agreed to be disposed of.
Words defined in Contract Act. And all words occurring in this Act, which are defined in
the Contract Act, 1872, shall be deemed to have the meanings respectively assigned to
them by the Act.
Court Decisions
Consent-- "consent" or free-consent in Contract Act, 1872 applies to provisions of Specific
Relief Act under residuary clause of S. 3 of Specific Relief Act. 1982 SCMR 741.
4. Savings
Except where it is herein otherwise expressly enacted, nothing in this Act shall be deemed-
(a) to give any right to relief in respect of any agreement which is not a contract;
(b) to deprive any person of any right to relief, other than specific performance, which he
may have under any contract; or
(c) to affect the operation of the Indian Registration Act, on documents.
Court Decisions
Sindh People's Local Government Ordinance: Factum of such contract was denied by
defendant (KMC) Effect, neither any formal contract as provided under s. 42 Sindh People's
Local Government Ordinance, 1972 (since repealed) was executed nor the same
was.placed before Local Council/Corporation which was mandatory. There was no
concluded and binding contract between plaintiffs and defendants for lease or sale of
property in question. P.L.J.1999 Kar. 114 = 1999 CLC 1547.
Specific relief is given-
5. Specific relief how given
(a)by taking possession of certain property and delivering it to a claimant;
(b)by ordering a party to do the very act which he is under an obligation to do;
(c)by preventing a party from doing that which he is under an obligation not to do;
(d)by determining and declaring the rights of parties otherwise than by an award of
compensation; or
(e)by appointing a receiver.
6. Preventive relief
Specific relief granted under clause (C) of section 5 is called preventive relief.
7. Relief not granted to enforce penal law
Specific relief cannot be granted for the mere purpose of enforcing a penal law.
8. Recovery of specific immovable property
A person entitled to the possession of specific immovable property may recover it in the
manner prescribed by the Code of Civil Procedure.
Court Decisions
Co-Sharer dispossess by other co-Sharer. Remedy to regain possession. After
dispossession of a co-Sharer by other co-Sharer he has two remedies for seeking redress,
namely, a suit under section 9 of Specific Relief Act and proceedings for partition of Joint
property. A third remedy that is an ordinary suit for restoration of exclusive possession
wold amount to placing one set of co-Sharers in a much more advantageous position as
compared to other for which there is no warrant in law or equity. Where evidence on record
does not show that title of appellants in respect of disputed land was superior to that of
respondents. Mere fact that appellants remained in exclusive possession of disputed land
for a long time would not make any difference, as admitted position in case is that both
parties were Joint owners in Abadi Deh and Shamlat Deh which included disputed portion
of land. P.L.J.2000 SC 1071.
Objection against findings of Trial Court-Non-filing of objections in appeal - Plea of adverse
possession was raised by the defendants and Trial Court dismissed the suit being time barred
-
Lower Appellate Court found the plaintiff in constructive possession and allowed
(he appeal as the suit was within limitation-Defendants did not file any cross-objection
before the Lower Appellate Court as provided under O.XLI,R.22, C.P.C,
-Validity
-Where defendants raised no other plea to occupy the disputed property except that
which had already been decided against them by Trial Court, the defendants had
no legal entitlement to remain in possession of the property
-High Court declined to interfere with the Judgment passed by the Lower
Appellate Court in circumstances.PLD 2001 Lah.390 PLD 1996 Central Statutes 1296;
Maqbool Ahmad v. Government Of Pakistan 1991 SCMR 2063; Shah Sultan v. Abdul Khaliq
1987 SCMR 1791 and Afzal Khan and 2 others v.Abdul Faheem and 4 others PLD 1994 Quetta
26 ref.
Private partition of land. Private partition of land would not invest a co-sharer with
possession with exclusive title of land until and unless a regular partition took place
 between co-owners through Rev. Authorities. Interest of other co-Sharer, who was not in
possession of particular survey number, would not extinguish and he would remain a coSharer
until
a co-Sharer
in
exclusive
possession
of
a
specific
part
of
Joint
land
proved
his

adverse
possession
over
same.
P.L.J.2000
SC(AJ
&
K)
390.

Recovery of possession by co-sharer - Accrual of cause of action - Plaintiffs assailed
mutation on the basis that the transferor was owner of limited estate and under S. 3 of
West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, she could not transfer
the property in excess of her legal share - judgment and decree passed by Trial Court in
favour of the plaintiffs was set aside by Appellate Court on the ground that the suit was
barred by time - Plaintiffs contended that as they were co-sharers, therefore, they had a
continuous cause of action - Validity - Entry in the record of rights if was adverse of the
interest of the plaintiffs and if on every such entry at every four years there was denial of
the right of plaintiffs, the plaintiffs had the option to file a suit on every denial and every
denial would furnish a fresh cause of action - Such aspect of the case had not been
adverted to by the Appellate Court who passed the judgment – judgment and decree
passed by the Appellate Court was set aside and that of the Trial Court was restored. PLD
2003 Lah. 186
Suit for declaration and possession - Plaintiffs claiming to be owners of suit land having
been purchased by their predecessor-in-interest, prayed for its possession and for
declaration of their title and in alternative having same matured by prescription - Suit was
decreed by Trial Court, but was dismissed by Appellate Court - High Court in revision set
aside judgment of Appellate Court and restored that of Trial Court - Validity - Important
piece of evidence in support of plaintiffs claim was copy of unregistered and unstamped
agreement to sell - Photo copy of agreement had been exhibited in evidence without
directing production of original document and without leave of court to lead secondary
evidence after proof of loss or destruction of original agreement, thus, were guilty of
withholding best available primary evidence - Since contents of such document purported
to transfer absolute ownership of land, same required compulsory registration irrespective
of fact, whether such document was agreement of sale or sale-deed - Such document
being inadmissible in evidence, no presumption as to its correctness or validity could arise
- Such document lacking necessary particulars in respect of identity of land and being
unregistered would not transfer any valid title in favour of plaintiffs - High Court, without
adverting to such aspect of the case, had proceeded to accept document as a valid deed of
transfer being thirty years old - Such document was executed on 6-10-1947 - Mutation was
recorded on 9-2-1957, but was cancelled on 25-2-1957 - Suit was filed on 3-12-1984 -
Such inordinate delay on plaintiff‘s part in bringing suit created doubts about bona fides of
their acts and genuineness of their cause - Plaintiffs were not sure as to which of Khasra
numbers was purchased by their predecessor - Construction of shops and production of
rent notes executed by tenants was not sufficient to identify land - Entries in record of
rights were showing predecessor of defendants as owners, whereas predecessor of
plaintiffs as tenant-at-will - If possession of plaintiffs was permissive in nature, then same
could not be in their own rights nor adverse to right/interest of real owners - Plaintiffs or
their own rights nor adverse to right/interest of real owners - Plaintiffs or their predecessor
had not remained in possession of land in their own right in pursuance of alleged
agreement - No assertion of open and hostile title adverse to interest of defendants was
made - Findings of High Court affirming that of Trial court were suffering from serious
misconstruction of evidence and misconception of law as evidence on record had not been
appreciated in its true perspective - Supreme Court accepted appeal, set aside
judgments/decrees passed by Trial Court and High Court and restored judgment/decree
passed by Appellate Court. PLD 2003 SC 410
Suit for possession, mesne profits and damages. Whether a suit'for possession is
maintainable without praying for declaration of title. Change of ownership rights and
mutation in the name of plaintiff by KDA in their records followed by execution of a valid
and lawful indenture of lease in his favour establish that it can be very conveniently and
safely held that plaintiff is entitled to sue for recovery of possession without seeking
declaration of title. P.L.J.1997 Kar. 76 = 1997 CLC 176=NLR 1997Civil 130.
Suit for possession, declaration and mesne profits ---Revisional jurisdiction, exercise
of---Suit was resisted by defendant on grounds that identity of suit property was in dispute
and that defendant had claimed title in respect of suit property by virtue of inheritance and
on basis .of will--*Validity---Full description of suit. property had been given and identity of
property had not been disputed by defendant either before Trial Court or before Appellate
Court---Such controversy could not be urged at revisional stage---Defendant could not
produce any document to prove his title in suit property by virtue of inheritance or on
basis; of alleged Will---Plaintiff on the contrary had succeeded in establishing her title in
property resting on registered instrument---Presumption as to genuineness, .correctness
and authenticity of registered documents under Arts.85(5) & 129of Qanun-e-Shahadat,
1984 was not dispelled by defendant and oral assertion was not sufficient to rebut
registered documents produced by plaintiff in proof of her title in respect of suit
property---Suit for possession and declaration was rightly decreed by Trial Court and
Appellate Court---Concurrent findings of Courts below could not be interfered with in
revisional jurisdiction of High Court when no illegality was pointed out in concurrent finding
of Courts below. 2002 M L D 1397 Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247;
Muhammad Hussain v. Waheed Ahmed 2000 MLD 281 and Syed Akhtar Hussain Zaidi's
case 1988 SCMR 753 ref.
Suit for possession – plaintiff having based his claim on suit property on ownership
having title, suit could proceed under S. 8 of Specific Relief Act, 1877. PLD 2003 Lah. 204
Suit for possession of immovable property - Where the case was neither of trespassing nor
of adverse possession, rather it was a case of permissive possession, provisions of Art. 142
of Limitation Act, 1908, would be attracted- PLD 2001 Lah.390
Suit for specific performance of agreement to sell - Vendor entered into agreement to
sell with plaintiff on payment of Rs. 26,000, but later on sold the land to subsequent
vendees for Rs. 1,00,000 - Trial Court dismissed plaintiff‘s suit - High court in revision
enhanced decretal amount of Rs. 26,000 to Rs. 1,30,000 - Vendor had not challenged such
increase of decretal amount - thus, he was bound to pay the same - present value of
property according to parties was more than Rs. 2,00,000 - if property had so much
escalated in value, then amount paid by plaintiff had equally escalated in similar proportion
- Value of currency had gone down due to high inflationary trends in economy - Plaintiff
and his legal heirs needed to be compensated for torture of protracted litigation for last
22/23 years - Had amount paid by plaintiff been invested, same would have enhanced in
value at least ten times - Plaintiff was entitled by all means to such compensation -
Supreme Court converted petition into appeal and after partially accepting same granted
decree to plaintiff for recovery of Rs. 2,30,000, out of which decree against vendor would
be of Rs. 1,30,000 and against subsequent vendees would be of Rs. 1,00,000. PLD 2003
SC 494
Symbolic possession:-- Decree granted in favour of vendee in his suit for possession was
for symbolic possession---Even if vendors were in possession of property in question as a
co-sharers, they could not object to decree granted to vendees--*Contention that vendors'
possession being that of co-sharers, a suit for partition or a suit under S.9, could only have
been filed, was repelled being misconceived. 1994MLD461 Fazil etc. v. Manzoor Hussain
etc. PLD 1979 Note 9 at p. 6 ref.
9. Suit by person dispossessed of immovable property
If any person is dispossessed without his consent of immovable property otherwise than in
due course of law, he or any person claiming through him may, by suit, recover
(a) possession thereof, notwithstanding any other title than may be set up in such 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 Federal Government or any
Provincial Government.
No appeal shall lie from any order or decree passed in any suit instituted under this
section, nor shall any review of any such order or decree be allowed.
(b) Possession of Movable Property

Court Decisions
Gift-deed and delivery of possession. When points relating to an issue are deposed in
evidence and opposite party does not cross-examine that witness on those points, such
portions of statement of witness shall be deemed to have been admitted by opposite side.
After execution of gift-deed plaintiff/respondent was handed over possession of suit land
and subsequently illegal construction was raised by defendant-appellant a week prior to
institution of suit, hence, suit being within a period of six months from date of
dispossession could not be said to be beyond period of limitation. Appellant did not utter
even a single word with regard to entries of new settlement record in favour of respondent
as being false and fictitious. P.L.J.1999 SC (AJK) 129 = 1999 PLC 4511.
Limitation--* Appellant/plaintiff was owner in possession of the suit land within 12 years of
the institution of the suit-Period of limitation for recovery of such possession under Art.
142, Limitation Act, 1908 was 12 years from the date of dispossession or discontinuanceBoth
the
Courts
below
had
wrongly
concluded
from
the
evidence
on
record
that
the
suit

was
time*
barred-Suit
was within
time
and
was
properly
valued-Judgments
and
decrees
of

both
the
Courts
below
were
set
aside.
1999
Y
L
R
1981

Previous possession and wrongful dispossession proved by plaintiffs - Plaintiffs
were not required to establish their title to land in question - Defendant was unable to
established source of its title as asserted - Findings arrived at by trial court on question of
possession of plaintiffs and dispossession on the part of defendant did not call for any
interference - Appraisal of evidence by both courts below was neither arbitrary nor suffered
from misreading of evidence or misconstruction of any material available on record -
Judgments of Courts below were maintained in circumstances. P L J 2004 SC 137
Punjab Tenancy Act, 1887. Petitioner who had been dispossessed through the agency of
the police at direction of Deputy Commissioner, could not resort to the filing of civil suit
under S. 9 of Specific Relief Act, or under S, 50 of the Punjab Tenancy Act, 1887 as his
personal and individual right stood infringed and he had rightly resorted to the filing of
Constitutional petition. Provisions of Art. 199 of Constitution of 1973 confer very wide
powers on High Court for enforcement of Fundamental and legal rights. P.L.J.1999 Lah.
140 = 1998 MLD 1977 = NLR 1998 Civil 714.
Restoration of possession. Contention that petitioner had purchased property in dispute
and Respondents obtained decree for possession without impleading him as a party to suit.
Any decision/decree rendered or passed by court under Section 9 of Specific Relief Act, is
tentative in nature and-is designed to restore possession of an ousted party quickly and
without determining title of parties. Such decision is neither subject to incident of appeal
nor review. Order passed in execution proceedings being continuation of the suit are not
subject to any appeal or review. P.L.J.1995 Lah. 495 = 1995 CLC 777. In order to become
entitled to relief under Section 9, plaintiff must prove that he was in possession of
property; he has been dispossessed by defendant otherwise than in due course of law and
dispossession took place within 6 months of suit. No question of title either of plaintiff or
defendant can be raised or gone into in such cases. Such a relief can be granted even
against true owner of property himself. P.L.J.2000 SC 1894. When plaintiff is dispossessed
during pendency of suit, it is always open to court to grant him relief of possession in suit
or declaration. Otherwise also relief for possession can always be granted in suit under
section 42 of Specific Relief Act by allowing amendment in plaint. Decree for possession
has been rightly granted by learned appellate court. P.L.J.1996 Lah. 372 = PLD 1995 Lah.
617. Appellant/plaintiff was owner in possession of the suit land within 12 years of the
institution of the suit-Period of limitation for recovery of such possession under Art. 142,
Limitation Act, 1908 was 12 years from the date of dispossession or discontinuance-Both
the Courts below had wrongly concluded from the evidence on record that the suit was
time* barred-Suit was within time and was properly valued-Judgments and decrees of both
the Courts below were set aside. 1999 Y L R 1981
Sharer dispossess by other co-Sharer. Remedy to regain possession. After dispossession of
a co-Sharer by other co-Sharer he has two remedies for seeking redress, namely, a suit
under section 9 of Specific Relief Act and proceedings for partition of Joint property. A third
remedy that is an ordinary suit for restoration of exclusive possession wold amount to
placing one set of co-Sharers in a much more advantageous position as compared to other
for which there is no warrant in law or equity. Where evidence on record does not show
that title of appellants in respect of disputed land was superior to that of respondents. Mere
fact that appellants remained in exclusive possession of disputed land for a long time would
not make any difference, as admitted position in case is that both parties were Joint
owners in Abadi Deh and Shamlat Deh which included disputed portion of land. P.L.J.2000
SC 1071.
Suit by tenant dispossessed from shop by force - - Prima facie evidence showing
possession of shop by tenant was in the form of electricity and telephone bills--- Such
position would not be affected ,if shop was lying locked over a certain period - Tenant was
regularly depositing rent in Court and thus was entitled to appropriate relief - In view of
conduct of parties, appropriate measures were required to safeguard their interest and
prevent property from being wasted or creation of third party interest - High court
accepted application and appointed official Assignee as receiver to take all necessary steps
to secure and seal shop. Defendant (purchaser) Later on got himself impleaded as party
and produced sale-deed in his favour and possession note showing handing over
possession of shop by tenant - Tenant denied execution of any document or handing over
possession of ship to any of the defendants, and further prayed for cancellation of
documents being fraudulent - Contention ot defendants was that on account of additional
reliefs clamied through amended plaint, the suit had seized to be one under S. 9 of Specific
Relief Act, 1877 - Validity - Cause of grievance in such suit was execution of alleged
document of handing over vacant possession of shop by tenant to landlord - Tenant had
challenged such document as a fraudulent one - Such document pertained to valuable
rights of possession of tenant - Suit challenging such document on ground of fraud
instituted by tenant was maintainable. PLD 2003 Kar. 436
Suit by tenant for possession of property under S. 9 of Specific Relief Act, 1877 -
Sale of property by defendant-owner - Plaintiff would not be entitled to object to such sale
- Suit challenging validity of such sale and transfer of property would not be maintainable.
PLD 2003 Kar. 436
Suit for possession. Pre-requisites. In suit for possession of property in terms of S. 9 of the
Specific Relief Act plaintiff must prove that he had been dispossessed;
such dispossession was from immovable property; dispossession was without his consent;
and dispossession was otherwise than in due course of law. Possession of plaintiff in
respect of disputed property had been fully established by evidence on record. Possesison
of property in question, having been forcibly taken during absence of plaintiff, he had made
out case for, restoration of possession. P.L.J.1998 Kar. 69 = 1998 MLD 90.
Suit of possession - Essentials - Nature and effect of proceedings under S. 9, Specific
Relief Act 1877 - Essential ingredients to be established at the trial in suit for possession
are; that plaintiff was in possession of land in question; that he was dispossessed by
defendant; that he was dispossessed against his consent and not in accordance with law,
and; that such dispossession took place within period of six months of suit - Object of S. 9,
Specific Relief Act, 1877 is to discourage forcible dispossession and to provide quicker
remedy for recovery of possession where a person was dispossessed from immovable
property otherwise where a person was dispossessed from immovable Property otherwise
than in due course of law - Plaintiff was not required to prove his title but merely his
previous possession and wrongful dispossession. P L J 2004 SC 137
Whether appeal was maintainable. It is clear from concluding part of Section 9 of Act that
there is no statutory provision for appeal from an order or decree passed under this
section. Even review of such order or decree is not allowed. Even proof of title is not
necessary. Plaintiff can succeed merely by establishing that he was unlawfully dispossessed
by his rival party. Party feeling aggrieved by order or decree under Section 9 can bring a
regular suit for establishing its title and eventually recovering possession. Right of appeal
could not have been pressed into service by respondents and appellate order is without
Jurisdiction and void ah initio. P.L.J.1995 Pesh. 114 = 1995 CLC 1600.
10. Recovery of Specific movable property
A person entitled to the possession of specific movable property may recover the same in
the manner prescribed by the Code of Civil Procedure.
Explanation I. A trustee may sue under this section for the possession of property to the
beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2. A special or temporary right to the present possession of property is
sufficient to support a suit under this section.
Illustrations
(a) A bequeaths land to B for his life, with remainder to C. A dies. B enters on the land, but
C, without B‘s consent, obtains possession of the title-deeds. B may recover them from C.
(b) A pledges certain jewels to B to secure a loan. B disposes of them before he is entitled
to do so. A without having paid or tendered the amount of the loan, sues B for possession
of the jewels. The suit should be dismissed, as A is not entitled to their possession,
whatever right he may have to secure their safe custody.
(c) A receives a letter addressed to him by B. B gets back the letter without A‘s consent. A
has such a property therein as entitles him to recover it from B.
(d) A deposits books and papers for safe custody with B. B loses them and C finds them
but refuses to deliver them to B when demanded. B may recover them from C, subject to
C‘s right, if any, under Section 168 of the Contract Act. 1872 (IX of 1872).
(e) A, & warehouse-keeper, is charged with the delivery of certain goods to 7., which B
takes out of A‘s possession. A may sue for the goods.
11. Liability of person in possession, not as owner, to deliver to person entitled to
immediate possession
Any person having the possession or control of a particular article of movable property, of
which he is not the owner, may be compelled specifically to deliver it to the person entitled
to its immediate possession, in any of the following cases:-
(a) When the thing claimed is held by the defendant as the agent or trustee of the
claimant;
(b) When compensation in money would not afford the claimant adequate relief for the loss
of the thing claimed;
(c) When it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) When the possession of the thing claimed has been wrongfully transferred from the
claimant.
Illustrations Of clause (a)-
A proceeding to Europe, leaves his furniture in charge of B as his agent during his absence.
B without A‘s authority, pledges the furniture to C, and C knowing that B has no right to
pledge the furniture, advertises it for sale, C may he compelled to deliver the furniture, to
A, for he holds it as A‘s trustee.
Illustrations Of clause (b)-
Z has got possession of an idol belonging to A‘s family and of which A is the proper
custodian. Z may be compelled to deliver the idol to A.
Illustrations Of clause (c)-
A is entitled to a picture by a dead painter and a pair of a rare China vases.
B has possession of them. The articles are of too special a character to bear
an ascertainable market value. B may be compelled to deliver them to A.


12. Cases in which specific performances enforceable
Except as otherwise provided in this chapter, the specific performance of any contract may
in the discretion of the Court be enforced-
(a) when the act agreed to be done is in the performance, wholly or partly, of a trust;
(b) when their exists no standard for ascertaining the actual damage caused by nonperformance
of
the
act
agreed
to
be
done;

(c) when the act agreed to be done is such that pecuniary compensation for its nonperformance
would
not afford
adequate
relief;
or

(d) when it is probable that pecuniary compensation cannot be got for the nonperformance
of
the
act
agreed
to
be
done.

Explanation. Unless and unless the contrary is proved, the Court shall presume that the
breach of a contract to transfer immovable property cannot be adequately relieved by
compensation in money, and that the breach of a contract to transfer movable property
can be thus relieved.
Illustrations Of clause (a)- .-
Omitted by the Federal Laws (Revision & Declaration) Ordinance, XXVII of 1981.
Of clause (b)-
A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare China
vases. A may compel B specifically to perform his contract for there is no standard for
ascertaining the actual damage which would be caused by its non-performance.
Of clause (c).
A contracts with B to sell him a house for Rs. 1,000. B is entitled to a decree directing A to
convey the house to him he paying the purchase-money.
In consideration of being released from certain obligations imposed on it by its Act of
Incorporation, a Railway Company contracts with Z to make an arch way through their
railway to connect lands of Z served by the railway to construct a road between certain
specified points, to pay a certain annual sum towards the maintenance of this road and
also to construct a siding and a wharf as specified in the contract. Z is entitled to have this
contract specifically enforced for his interest in its performance cannot be adequately
compensated for by money ; and the Court may appoint a proper person to superintend
the construction of the archway, road, siding and wharf.
A contracts to sell and B contracts to buy, a certain number of Railway shares of a
particular description. A refuses to complete the sale. B may compel A specifically to
perform this agreement, for the shares are limited in number and not always to be had in
the market, and their possession carries with it the status‘ of a share holder, which cannot
otherwise be procured.
Contracts with B to paint a picture for B who agrees to pay therefore Rs. 1,000. The picture
is painted; B is entitled to have it delivered to him on payment or tender of Rs. 1,000.
Of clause (d)-
A transfer without endorsement, but for valuable consideration, a promissory note to B. A
becomes insolvent, and C is appointed his assignee. B may compel C to endorse the note,
for C has succeeded to A‘s liabilities and a decree for pecuniary compensation for not
endorsing the note would be fruitless.
Court Decisions
Specific performance:– Suit for specific performance alone would be competent in presence
of agreement to sell. Declaratory suit U/S. 42 in such case would be barred. P.L.J.2000 SC
331.
Plaintiffs being tenants against whom order of ejectment had been passed, had filed suit to
the effect that after order of ejectment was passed against .them, there was agreement of
sale between parties and that plaintiffs had passed on earnest money to defendants as per
terms of agreement of sale. Defendant had totally denied such agreement. Share of
defendants being admittedly undivided, even if it was proved that they had agreed to .sell
property, such agreement would be deemed to be void. Plaintiffs having failed to make out
prima facie case for grant of temporary injunction. Plaintiffs, however, being tenants they
would not be dispossessed/ejected otherwise than in due course, of law. Relief claimed
could not be granted for no injunction could be granted to stay Judicial proceedings in
terms of S. 56, Specific Relief Act, 1877. P.L.J.1999 Kar. 213 = 1998 CLC 1515.
Court while passing decree in such suit fixed time for deposit of sale price and provided
consequences of dismissal of suit in case of failure to comply with the decree - Extension of
such time - Powers of Court - Scope - Such decree was not preliminary, but to all intents
and purposes was final in nature - court had no jurisdiction to extend the time under S.
148, C.P.C., on principle of becoming functus officio - Such rule was not absolute, but
subject to certain exceptions including situations beyond control of the decree-holder to
comply with decree or the act of court which impeded compliance thereof - When judgment
and decree was corrected, then time provided in original decree for such deposit would
start from the time, when the correction was allowed - Principles and exceptions illustrated.
PLD 2004 Lah. 103 Application for amendment of the plaint - Limitation, computation of
– proposed amendment in the plaint - Limitation, computation of - proposed amendment in
the plaint was allowed by the Trial Court on payment of costs and defendant received the
costs and did not challenge the said order - Cumulative effect of the acceptance of the
application for amendment of the plaint and the acquiescence of the defendant was that no
right had accrued to the defendant by efflux of time - Plaintiff, in the present case, was in
possession of the suit-land and in addition of the alternate relief by way of amendment in
the plaint had not substituted the cause of action, therefore, the amendment would relate
back to the date of institution of the suit and as such he alternate relief was not barred by
limitation. PLD 2004 SC 62 Parties by mentioning one month time in agreement had not
intended to make the time of the essence of contract - Conduct of parties showed that
plaintiff being a property dealer by profession had been anxious for completion of contract
with a view to frustrate contract, whereas plaintiff had issued timely notice to her for
discharge of her obligation by executing relevant documents - Defendant herself had been
found to be in breach f contract and she could not be permitted to take advantage of her
own wrong - If plaintiff was in breach of contract, defendant in law and equity was under
obligation to provide reasonable time to plaintiff for performance of his part of contract
before resorting to hasty and abrupt revocation of contract before expiry of thirty days - No
stipulation existed in the agreement that in case of plaintiff‘s failure to perform his part of
contract, same would stand revoked - Only stipulation in agreement was that on plaintiff‘s
failure to make payment as indicated earnest money would stand forfeited - Courts below
had rightly found that time was not of the essence of contract - Concurrent findings of fact
did not suffer from misconception of law or misconstruction of evidence - Supreme court
dismissed appeal in circumstances. PLD 2003 SC 430 Vendor entered into agreement to
sell with plaintiff on payment of Rs. 26,000, but later on sold the land to subsequent
vendees for Rs. 1,00,000 - Trial Court dismissed plaintiff‘s suit - High court in revision
enhanced decretal amount of Rs. 26,000 to Rs. 1,30,000 - Validity - Vendor had not
challenged such increase of decretal amount - thus, he was bound to pay the same -
present value of property according to parties was more than Rs. 2,00,000 - if property
had so much escalated in value, then amount paid by plaintiff had equally escalated in
similar proportion - Value of currency had gone down due to high inflationary trends in
economy - Plaintiff and his legal heirs needed to be compensated for torture of protracted
litigation for last 22/23 years - Had amount paid by plaintiff been invested, same would
have enhanced in value at least ten times - Plaintiff was entitled by all means to such
compensation - Supreme Court converted petition into appeal and after partially accepting
same granted decree to plaintiff for recovery of Rs. 2,30,000, out of which decree against
vendor would be of Rs. 1,30,000 and against subsequent vendees would be of Rs.
1,00,000. PLD 2003 SC 494 Both the parties blamed each other for a not completing the
contract - Property in question was sold to another party which took the plea that he was a
bona fide purchaser without notice of any prior agreement to sell - Contention of the
subsequent purchaser was that he had discharged his burden of proof by stating that he
had no knowledge of the prior agreement to sell - Plaintiff stated that they were in
possession of the property and resultantly, such fact was sufficient to put the prior
agreement to sell - Plaintiff stated that they were in possession of the property and
resultantly, such fact was sufficient to put the prior purchaser to the notice of the
agreement to sell - Validity - Prior agreement to sell did not mention that the possession
had been delivered not any documentary evidence had been led, to prove the fact, which
could have put the subsequent vendee to notice to inquire about the nature of the
possession - Findings of the Appellate Court on the issue being against the record and the
law, could not sustain which were set aside and that of Trial court restored. PLD 2003
Lah. 542 Filing of ejectment petition by petitioner against respondent and suit for specific
performance of agreement to sell by respondent against petitioner during pendency of
ejectment petition. Striking off defence of petitioner in suit for specific performance.
Suspension of operation of impugned order and permission for filing written statement by
High Court (Single Bench) When another counsel appeared and requested that he had been
engaged on same day by petitioner who was not in Pakistan, rather he was abroad, request
could be granted by court as no punative action was called for and court did not indicate in
any order that it is last opportunity for submission of written statement. In previous order
he had written that only in the interest of Justice one opportunity was given. Moreover, no
warning was given in previous order to petitioner that if he does not submit written
statement and also written reply punitive action will be taken against him. Moreover,
eviction petition is still pending adjudication before Rent Controller and suit for specific
performance also relates to same subject matter of property and petitioner cannot be
deprivecftrom narrating facts in written statement which enables court to formulate issues
on pleadings of parties. Impugned order being violative of settled proposition of law is
hereby set aside. P.L.J.1998 Lah. 1082 = 1998 CLC 824.Contention of defendant
(allottee) was that such agreement was void and unenforceable owing to restriction placed
on her by S. 19(2) of Cooperative Societies act, 1925 and Bye-Law 17(3) of Bye-Laws of
Lahore Cantonment cooperative Housing Society - Validity - Defendant in preliminary
objections had only asserted that agreement was void and unenforceable, but had not even
indirectly pleaded such bar - Such plea had not been pressed before High Court - Fact that
plaintiff was not member of society had neither been pleaded nor even alluded to -