below had returned their findings in accordance with law and the suit was rightly
dismissed. 2001 CLC 1001 Subedar Muhammad Yousuf v. Muhammad Sarwar Khan and
others PLD 1955 Lah.521; Pyare Lal and others v. Mt. Kalawati AIR 1949 All. 340 and
Official Receiver of Salem v. Chinna Goundan and another AIR 1957 Mad. 630
distinguished. Moosa and others v. Muhammad Yakoob and others PLD 1966 (W.P.) Kar.
376 ref.
When Marginal witness to agreement in question, not supporting agreement to sell. Name
of one of witnesses was written on document in question but his thumb-impression was not
obtained on the same. Co-vendee 'in whose favour agreement to sell had allegedly been
executed filed his written statement categorically admitting therein that agreement in
question, was fictitious and false one. Co-vendee also denied that neither he nor other
vendees had paid consideration to vendor lady who was illiterate and that defendants
wanted to deprive her other property. Plaintiffs had failed to prove that any illegality or
material irregularity was committed by Courts below in exercise of their Jurisdiction in
dismissing their claim to specific performance of alleged agreement to sell. Plaintiffs were
thus, not entitled to any relief. P.L.J.1999 Lah. 1624 = 1999 CLC 967.
Whether time was of the essence of contract-- Plaintiff was pursuing the matter and was
ready and willing to perform his part of contract - Defendant failed to show the plaintiff
clear title to the suit property - Effect - Defendant had acted malafidely and purposely
delayed the process - Had the relevant documents been shown clear to the plaintiff, the
conveyance would have been concluded, as such the time given in the agreement could not
be taken as essence of the contractSuit was decreed accordingly, 2001 CLC 1029
13. Contract of which the subject has partially ceased to exist
Notwithstanding anything contained in section 56 of the Contract Act, a contract is not
wholly impossible of performance because a portion of its subject-matter, existing at its
date, has ceased to exist at the time of the performance.
Illustrations
Punjab Amendment .-Illustration (a) and (b) omitted.
(a) A contracts to sell a house to B for a lakh of rupees. The day after the contract is made
the house is destroyed by a cyclone. B may be compelled to perform his part of the
contract by paying the purchase-money.
(b) In consideration of a sum of money payable by B.A. contracts to grant an annuity to B
for B‘s life. The day after the contract has been made, B is thrown from his horse and
killed. B‘s representative may be compelled to pay the purchase-money.
Court Decisions
Time was of essence of contract--Appellant entered into agreement to purchase evacuee
plot for a lump sum--Respondent got refund of the price of passage for which appellant
claimed proportionate decrease an price per Marla--Various documents produced by parties
dad not suggest that the passage once sold to respondent was retained either by the
Department itself or for someone else--All copies of PTD consistently disclosed that the
passage had been given free of cost to respondent, obviously meaning thereby that the
title thereto was not taken back from him otherwise the title to passage must have been
clearly retained by the department for itself for future disposal--Attempt to apply rate per
marla appeared to be a subterfuge under which appellant perhaps purposely worked to
cloak his failure to abide by the contract--Nothing could be easily imported in written terms
and conditions of a contract--Parties were ad idem and no one-sided interpretation styled
later could help the concerned party*-Case was not that of impossibility under which partial
performance could be claimed--Impossibility envisaged by the provisions of Ss.12 & 14 of
the Specific Relief Act was entirely different like a happening beyond one's control (vis.
major) etc.--Respondent proved on record that time was of the essence of the contract
which appellant failed to abide by--Appeal dismissed in circumstances. 1989 M L D 2770
14. Specific performance of part of contract where part unperformed is small
Where a party to a contract is unable to perform the whole of his part of it, but the part
which must be left unperformed bears only a small proportion to 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.
Illustrations
(a) A contracts to sell to B a piece of a 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. The two bighas, are not necessary for the use or enjoyment of the 98
bighas, nor so important for such use or enjoyment that the loss of them may not be made
good in money. A may be directed at the suit of B to convey to B the 98 bighas, and to
make compensation to him for not conveying the two remaining bighas; or B may be
directed, at the suit of A, to pay to A, on receiving the conveyance and possession of the
land, the stipulated purchase money, less a sum awarded as compensation for the
deficiency.
(b) In a contract of the sale and purchase of a house and lands for two lakhs of rupees, it
is agreed that pan of the furniture should be taken at a valuation. The Court may direct
specific performance of the contract,
notwithstanding the parties are unable to agree to the valuation of the furniture and may
either have the furniture valued in the suit and included it in the decree for specific
performance, or may confine its decree to the house.
Court Decisions
Appellant entered into agreement to purchase evacuee plot for a lump sum--Respondent
got refund of the price of passage for which appellant claimed proportionate decrease an
price per Marla--Various documents produced by parties dad not suggest that the passage
once sold to respondent was retained either by the Department itself or for someone else-All
copies of PTD consistently disclosed that the passage had been given free of cost to respondent,
obviously meaning thereby that the title thereto was not taken back from him otherwise the title to
passage must have been clearly retained by the department for itself for future disposal--Attempt
to apply rate per marla appeared to be a subterfuge under which appellant perhaps purposely worked
to cloak his failure to abide by the contract-Nothing could be easily imported in written terms and conditions
of a contract--Parties were ad idem and no one-sided interpretation styled later could help the concerned party*-Case was not that of impossibility under which partial performance could be claimed-- Impossibility envisaged by the provisions of Ss.12 & 14 of the Specific Relief Act was entirely different like a happening beyond one's control (vis. major) etc.--Respondent proved on record that time was of the essence of the contract which appellant failed to abide by--Appeal dismissed in circumstances. 1989 M L D 2770
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 for 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 the
plaintiff relinquishes all claim to further performance, and all right to compensation either
for the deficiency, or for the loss or damage sustained by him through the default of
defendant.
Illustrations
(a) A contracts to sell to B a piece of land consisting of 100 bighas. It turns out that 50
bighas of the land belong to A, and the other 50 bighas to a stranger who refuses to pan
with them. A cannot obtain a decree against B for the specific performance of the contract;
but if B is willing to pay the price agreed upon, and to take the 50 bighas which belong to A
waiving all rights to compensation either for the deficiency or for loss sustained by him
through A‘s neglect, or default, B is entitled to decree directing A to convey those 50
bighas to him on payment of the purchase-money.
(b) A contracts to sell to B an estate with a house and garden for a lakh of rupees. The
garden is important for enjoyment of the house. It turns out that A is unable to convey the
garden. A cannot obtain a decree against B for the specific performance of the contract;
but if B is willing to pay the price agreed upon and to take the estate and house without
the garden waiving all rights to compensation either for the deficiency ‗or for loss sustained
by him through A‘s neglect or default, B is entitled to a decree directing A to convey the
house to him on payment of the purchase-money.
Court Decisions
Specific performance of part of contract where part unperformed is large:-- Where legal
part of agreement can be severed from illegal and void contract, such separated part may
be enforced. Where Specific performance of agreement to sell-consisting of two parts i.e.,
legal part and illegal part - Trial Court decreed plaintiff's suit to the extent of legal part -
Dismissal of suit as a whole by Appellate Court was not warranted in as much as, legal part
of agreement could have been enforced - Judgment and decree of Appellate Court was set
aside while that of trial Court decreeing legal part of agreement was restored in
circumstances. P.L.J. 2002 Lah.575
Partial performance of contract - Agreement of sale executed between the parties and
power of attorney executed by vendor lady in favour of his attorney showed that whole
land in dispute and not a part thereof was to be sold to the vendee - Sale of portion of land
by attorney in favour of son of deceased vendee was wholly without lawful authority -
Courts below bad rightly concluded that transaction smacked of fraud and mala fides being
based on collusion with attorney who had tried to deprive the lady of the land. 2001 MLD
988
Plea of non-payment of sale price having not been pressed in High Court, could not be
allowed to be raised before Supreme Court. P.L.J.1998 SC 623.
16. Specific performance of independent part of contract
When a part of a contract which taken by itself, can and ought to be specifically performed,
stands on a separate and independent footing from another part of the same contract
which cannot or ought not to be specifically performed, the Court may direct specific
performance of the former part.
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.
18. Purchaser’s right against vendor with imperfect title
Where a person contract to sell or let certain property, having only an imperfect title
thereto, the purchaser or lessee (except as otherwise provided by this Chapter) has the
following rights:-
(a) If the vendor lessor has subsequently to the sale or lease acquired any interest in the
property, the purchaser or lessee may compel him to make good the contract out of such
interest;
(b) Where the concurrence of other persons is necessary to validate the title, and they are
bound to convey at the vendor‘s or lessor‘s request, the purchaser or lessee may compel
him to procure such concurrence;
(c) Where the vendor professes to sell unencumbered property, but the property is
mortgaged for an amount not exceeding the purchase-money, and the vendor has in fact
only a right to redeem it, the purchaser may compel him to redeem the mortgage and to
obtain a conveyance from the mortgagee;
(d) Where the vendor or lessor sues for specific performance of the contract, and the suit is
dismissed on the ground of his imperfect title, the defendant has a right to a return of his
deposit (if any) with interest thereon, to his costs of the suit, and to lien for such deposit,
interest and costs on the interest of the vendor or lessor in the property agreed to be sold
or let.
Court Decisions
Agreement to sell executed by and between parties on 13.10.1985, when defendant was
not owner of land in question - Defendant acquired title of such land on 27-3-1986 -
Defendant was bound to perform agreement in question executed by him - Judgment and
decree of Appellate court non-suiting plaintiff was set aside while that of trial court
decreeing plaintiff‘s suit was restored. PLJ 2004 Pesh. 30
19. Power to award compensation in certain cases
Any person suing for specific performance of a contract may also ask for compensation for
its breach, either in addition to, or substitution for, such performance.
If in any such suit, the Court decides that specific performance ought not be granted, but
that there is a contract between the parties which has been broken by the defendant and
that the plaintiff is entitled to compensation for that breach, it shall award him
compensation accordingly.
If in any such suit the Court decides that specific performance ought to be granted but,
that it is not sufficient to satisfy the justice of the case, and that some compensation for
breach of the contract should also be made to the plaintiff, it shall award him such
compensation accordingly.
Compensation awarded under this section may be assessed in such manner as the Court
may direct.
Explanation. The circumstances that the contract has become incapable of specific
performance does not preclude the Court from exercising the jurisdiction conferred by this
section.
Illustrations
OF THE SECOND PARAGRAPH-
A contracts to sell a hundred maunds of rice to B; B brings a suit to compel A to perform
the contract or to pay compensation. The Court is of opinion that A has made a valid
contract and has broken it, without excuse, to the injury of B, but that specific performance
is not the proper remedy. It shall award to B such compensation as it deems just.
OF THE THIRD PARAGRAPH‘
A contracts with B to sell him a house for Rs. 1,000, the price to be paid and the
possession given on the 1st January. 1877. A fails to perform his part of the contract, and
B brings his suit for specific performance and compensation. which is decided in his favour
on 1st January, 1878. The decree may. besides ordering specific performance, award to B
compensation for any loss which he has sustained by A‘s refusal.
Of the Explanation- A. a purchaser, sues ff, his vendor, for specific performance of a contract for the sale of a
patent. Before the hearing of the suit the patent expires. The Court may award A
compensation for the non-performance of the contract, and may, if necessary, amend the
plaint for that purpose.
A sues for the specific performance of a resolution passed by the directors of a public
company, under which he was entitled to have a certain number of shares allotted to him,
and for compensation for the non-performance of the resolution. All the shares had been
allotted before the institution of the suit. The Court may under this section, award A
compensation for the non-performance.
Court Decisions
Compensation of breach. Person suing performance of contract can also ask for
compensation of breach either in addition to or in substitution for such performance.
Person seeking alternative relief of compensation in addition to or in substitution of relief of
specific performance would not render himself disentitled to grant of specific performance
of contract. Non-performance of agreement pertaining to immovable property could not be
compensated in terms of money and, therefore, its enforcement could hot be refused
unless, extreme hardship was likely to be caused to other side. P.L.J.1999 Lah. 1354 = PLD
1999 Lah. 193.
Contract between parties was of category of contracts which could not be specifically
enforced and fell within the mischief of Cl. of S. 21 of the Specific Relief Act, 1877 and bar
of injunction as provided in S. 56 of the Act was attracted. Plaintiffs could not make out
prima facie case for grant of temporary injunction pending decision of suit, in so far as
third party interest had been created in property in question as per plaintiffs' own
admission and their failure to implead such persons as party in their suit. Balance of
convenience, thus,, would not be in favour, of plaintiffs. Plaintiffs having themselves
estimated damages/losses suffered by them on account of breach of agreement in the sum
of specified amount, no case for temporary injunction was made out. Where relief asked for
could be measured in terms of money and plaintiffs themselves having claimed specified
amount as damages in their suit, grant of temporary injunction respecting land in question
was not warranted, and, hence, refused. P.L.J.1998 Kar. 822 = 1998 CLC 441.
20. Liquidation of damages not a bar to specific performance
A contract otherwise proper to be specifically enforced, may be thus enforced, though a
sum be named in it as the amount to be paid in case of its breach, and the party in default
is willing to pay the same.
Illustration
A contracts to grant B an under-lease of property held by A under C, and that he will apply
to C for a licence necessary to the validity of the under-lease, and that, if the license is not
produced, A will pay B Rs. 10,000. A refuses to apply for the licence and offers to pay 5 the
Rs. 10,000. B is nevertheless entitled to have the contract specifically enforced if C
consents to give the license.
Court Decisions
If contract provided for a specific amount as damages, its specific performance
whether can be granted or not. As far as first consideration to refuse specific
performance of contract is concerned, explanation to Section 12 of Specific Relief Act to
effect that unless and until contrary is proved, Court shall presume that breach of a
contract to transfer immovable property cannot be adequately relieved by compensation io
money, escaped notice of learned Courts, provisions of Section 20 of said Act also escaped
consideration of learned Courts. Refusal to grant specific performance on ground that
agreement provided for penalty is not sustainable.-P.L.J.2000.Lah. 1485. 21. Contracts not specifically enforceable
The following contracts cannot be specifically enforced:-
(a) a contract for the non-performance of which compensation in money is an adequate
relief;
(b) a contract which runs into such minute or numerous details, or which is so dependent
on the personal qualifications or volition of the parties, or otherwise from its nature is such,
that the Court cannot enforce specific performance of its material terms;
(c) a contract the terms of which the Court cannot find with reasonable certainty;
(d) a contract which is in its nature revocable;
(e) a contract made by trustees wither in excess of their powers or in breach of their trust;
(f) a contract made by or on behalf of a corporation or public company created for special
purposes, or by the promoters of such company, which is in excess of its power.
(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 specifically 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.
Illustrations
to (a)-
A contracts to sell, and B contracts to buy, a lakh of rupees in the four per cent. loan of the
[Central Government];
A contracts to sell, and B contracts to buy, 40 chests of indigo at Rs. 1,000 per chest:
In consideration of certain property having been transferred by A to B, B contracts to open
a credit in A‘s favour to the extent of Rs. 10,000, and to honour A‘s drafts to that amount:
The above contracts cannot be specifically enforced, for in the first and second both A and
B, and in the third A, would be reimbursed, by compensation in money.
to (b)-
A contracts to render personal service to B;
A contracts to employ B on personal service;
A, an author, contracts with B, a publisher, to complete a literary work;
B cannot enforce specific performance of these contracts.
A contracts to buy B‘s business at the amount of a valuation to be made by two valuers,
one to be named by A and the other by B. A and B each name a valuer, but before the
valuation is made, A instructs his valuer, not to proceed.
By a charter-party entered into in Chittagong between A, the owner of a ship, and B, the
charterer, it is agreed that the ship shall proceed to Karachi, and there load a cargo of rice,
and thence proceed to London, freight to be paid, one-third on arrival at Karachi, and twothirdsdelivery
of the cargo in London.
A lets land to B and contract to cultivate it in a particular manner for three years next after
the date of the lease.
A and B contract, that, in consideration of annual advances to be made by A, B will for
three years next after the date of the contract grow particular crops on the land in his
possession and deliver them to A when cut and ready for delivery.
A contracts with B that in consideration of Rs. 1,000 to be paid to him by B, he will paint a
picture for B. A contracts with B to execute certain work which the Court cannot
superintend. A contracts to supply B with all the goods of a certain class which B may
require.
The promoters of a company for working mines contract that the company, when formed
shall purchase certain mineral property. They take no proper precautions to ascertain the
value of such property and in fact agree to pay an extravagant price therefor. They also
stipulate that the vendors shall give them a bonus out of the purchase-money. This
contract cannot be specifically enforced.
To (c)-
A company existing for the sole purpose of making and working a railway, contract for the
purchase of ? piece of land for the purpose of erecting a cotton mill thereon. This contract
cannot be specifically enforced.
to (d)-
A contracts to let for twenty-one years to B the right to use such part of a certain railway
made b> B‘s land, and that B should have a right of running carriages over the whole line
on certain terms, and might
A contracts with B to take from B lease of a certain house for a specified term, at a
specified rent, ‗if the drawing-room is handsomely decorated,‘ even if it is held to have so
much certainty that compensation can be recovered for its breach.
A contracts to marry B. The above contracts cannot be specifically enforced.
to (e)-
A the owner of a refreshment-room, contracts with B to give him accommodation there for
the sale of his goods and to furnish him with the necessary appliances. A refused to
perform his contract. The ease is one for compensation and not for specific performance,
the amount and nature of the accommodation and appliances being undefined.
to (f)-
A and B contract to become partners in a certain business, the contract not specifying the
duration of the proposed partnership. This contract cannot be specifically performed, for, if
it were so performed, either A or B might at once dissolve the partnership.
to (g)-
A is a trustee of land with power to lease it for seven years. He enters into a contract with
B to grant a lease of the land for seven years, with a covenant to renew the lease at the
expiry of the term. This contract cannot be specifically enforced.
The Directors of a company have power to sell the concern with the sanction of a general
meeting of the shareholders.
They contract to sell it without any such sanction. This contract cannot be specifically
enforced.
Two trustees, A and B, empowered to sell trust property worth a lakh of rupees, contract to
sell it to C for Rs. 30,000. The contract is so disadvantageous as to be a breach of trust. C
cannot enforce its specific performance.
The promoters of a company for working mines contract that the company, when formed
shall purchase certain mineral property. They take no proper precautions to ascertain the
value of such property and in fact agree to pay an extravagant price therefor. They also
stipulate that the vendors shall give them a bonus out of the purchase-money. This
contract cannot be specifically enforced.
to (f)-
A company existing for the sole purpose of making and working a railway, contract for the
purchase of a piece of land for the purpose of erecting a cotton mill thereon. This contract
cannot be specifically enforced.
to (g)-
A contracts to let for twenty-one years to B the right to use such part of a certain railway
made by A as was upon 5‘s land, and that B should have a right of running carriages over
the whole line on certain terms, and might require A to supply the necessary engine power,
and that A should during the term keep the whole railway in good repair.Specific performance
of this contract must be refused to
B.to (h)-
A contracts to pay an annuity to B for the lives of C and D. It turns out that. at the date of
the contract. C, though supposed by A and B to be alive was dead. The contract cannot be
specifically performed.
Court Decisions
Scope - Such relief is discretionary and when the contract is abandoned, the same cannot
be enforced at the instance of plaintiffs. 2002 CLC 218
Ashrafi (Pvt.) Limited and another v. Kar. Transport Syndicate Limited, Kar. and another
PLD 1973 Note 119 at p. 184 and NarainJan and others v. Muhammad Yunus AIR 1932
Lah.265 ref.
Contracted goods were neither of extraordinary special kind nor are commodity which was
not available in market so as to entitle plaintiffs to decree of specific performance. Plaintiffs
in equity would be entitled to proportionate compensation for quantity of goods not
supplied to them at least at that rate at which they purchased entire quantity of goods.
Court while calculating price at that rate worked out specified amount to which plaintiffs
were found entitled and they were awarded decree in terms of such specified amount.P.L.J.1997
Kar.
940
=
1997
CLC.
88.
Enforcement of contractual obligation. High Court had dismissed Petitioners Constitutional
petition for- enforcement of same. Validity. Discretionary relief had been claimed by
petitioner after considerable delay and thus, suffered from laches. Contract in question
having been terminated allegedly by respondents, appellants would have claimed damages
under normal law which was available to him and could have been claimed. Agreement
itself contained clause for Arbitration on whereby difference of opinion between parties or
any dispute arising out of impugned agreement could be referred to arbitrator for
settlement instead of bringing legal action. Efficacious and effective remedy being available
to appellate in form of Arbitration on civil action under normal law, Constitutional
Jurisdiction in such situation could not be invoked-Judgment passed by Single Judge of
High Court did not warrant interference in circumstances. P.L.J.1999 Lah. 126 = 1999 CLC
26.
Specific performance of an agreement which cast an obligation on the respondents to
appoint the appellant or his nominee against a class IV post and this process shall continue
till such time the school is in existence. Agreement seems to be in perpetuity for all times
to come, generation after -generation. Such an agreement which has cast a duty of
performance for a period longer than three years cannot therefore specifically be enforced.
P.L.J.1997 SC 494 = 1997 SCMR 855 = NLR 1997 Civil 335.
Suit for specific performance of contract---Plaintiff relying on admission of one of the
defendants in his counter-affidavit and claiming entitlement to decree on basis of such
admission---Admission of one defendant could not bind other defendants--*Admission
made by one of defendants being a mistake of fact was rectified in subsequent affidavit--Property
in question belonged to defendant other than the one who had admitted factum of payment
of price---Dispute raised in suit by plaintiff required proof for verdict in his favour--Admission referred
to,could not be treated as conclusive proof of the matter allegedly admitted by one of the defendants and
such admission did not constitute estoppel by itself.1991M LD 2697
'Subject to contract' - 'No contract was executed between the parties - Plaintiff relied upon
a letter which contained terms of oral agreement and the letter was accepted by one of the
defendants subject to contract - Plaintiff failed to show any act of the parties which would
have the effect of lifting the suspensive condition - Validity Such agreement was not
enforceable in law as the agreement had a condition of 'subject to contract' - Where parties
had expressed their intention of not entering into legal obligations without a formal
contract, such term must be respected in order to allow the freedom to the parties to
negotiate a deal without the fear of being trapped into obligations which they never
intended to create, no binding contract, in the present case, existed between the parties -
Plaintiff, thus failed to establish a prima facie case in its favour for the grant of injunction -
Application for grant of injunction was dismissed accordingly. 2002 CLC 218
Major (Retd.) Ahmed Khan Bhatti v. Mst. Masooda Fatmi PLD 1981 Kar. 398; Pakistan
Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P.) Kar. 202; Harichand
Mancharam v. Govind Laxman Gokhale AIR 1923 PC 47; Branca v. Cobarro 1947(2) All ER
101; Damon C.I.A. Naviera SA v. Hapag-Lloyd International SA v. The Blankenstein, The
Bartenstein, The Birkenstein (1985) 1 All ER 475; Ateni Maritime Corporation v. Great
Marine Limited (1990) 2 Lloyd's Rep. 250; Perry v. Suffield's Limited (1916) 2 Ch. D 187;
Voest Alpine Intertrading v. Chevron International Oil Co, (1987) 2 Lloyd's Rep. 547;
Global Container Lines Ltd. v. State Black Sea Shipping Co. Amber Seatrade S.A. and
Clifton Navigation S.A. (1999) 1 Lloyd's Rep. 127; Foley v. Classique Coaches Limited
(1934) 2 KB 1; Sweet and Maxwell Ltd. v. Universal News Services Ltd. (1964) 3 All ER 30;
Finchbourne Ltd. v. Rodrigues (1976) 3 All ER 581; Beer v. Bowden (1981) 1 All ER 1070;
Greater London Council v. Connolly (1970) 1 All ER 870; Tiverton Estates Limited v. Wearwell
Limited (1974)1 All ER 209;Cohen v Nessdale Limited (1981) 3 AllER 118; Attorney General
and another v. Humphreys Estate (Queen's Gardens) Limited (1987) LRC 9 (Comm.) 567;Courtney
& Fairbarin Limited v.Tolaini Bros.(Hotels) Limited (1975)1 All ER 716;Ghulam Nabi and others v.
Muhammad Yaqub and others PLD 1983 SC344;David J.Hennessey v. Clara Woolworth (US SC) 128
US 500;State of Texas v. State of New Mexico (US SC) 96 L.Ed.2d.105;Sandoz Limited and another
v. Federation of Pakistan and others 1995 SCMR 1431; House Building Finance Corporation v. Shahinshah
Human Cooperative House Building Society and others 1992 SCMR 19; Mst.Zeemun Nisa Begum v. Ali
Muhammad PLD1990SC 382;Shajar Ali Hoti v. Esmail Sobani 1987 CLC 2307;Aboo
Noor Muhammad v.General Iron and Steel Works Limited PLD 1973 Kar. 234 and Halsbury's Laws
of England,Vol.9,4th Edn. ref.
(b) A contracts to sell to B the interest of C in certain stock-in-trade. It is stipulated that
the sale shall stand good, even though it should turn out that C‘s interest is worth nothing.
In fact, the value of C‘s interest depends on the result of certain partnership accounts, on
which he is heavily in dcln to his partners. This indebtedness is known to A, but not to B.
Specific performance of the contract should be refused to A.
(c) A contracts to sell. and B contracts to buy. certain land. To protect the land from floods,
it is necessary for us owner to maintain an expensive embankment. B does not know of
this circumstance, and A conceals it from him. Specific performance of the contract should
be refused to A.
(d) A‘s property is put up to auction. B requests C, A‘s attorney, to bid for him. C does this
inadvertently and in good faith. The persons present seeing the vendor‘s attorney bidding,
think that he is a mere puffer and cease to compete. The lot is knocked down to B at a low
price. Specific performance of the contract should he refused to B.
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.
Illustrations
[(e) omitted by Order IV of 1983.]
(f) A and B, trustees join their beneficiary, C. in a contract to sell the trust estate to D, and
personally agree to exonerate the estate from heavy encumbrances to which it is subject.
The purchase-money is not nearly enough to discharge those encumbrances, though at (he
date of the contract, the vendors believed it to be sufficient. Specific performance of the
contract should be refused to D.
(g) A, the owner of an estate, contracts to sell it to B. and stipulates that he. A, shall not
be obliged to define its boundary. The estate really comprises a valuable properly, not
known to either to be a part of it. Specific performance of the contract should be refused to
B, unless he waives his claim to the unknown property.
(h) A contracts with B to sell him certain land, and to make a road to it from a certain
railway station, it is found afterwards (hat A cannot make the road without exposing
himself to litigation. Specific performance of the pan of the contract relating to the road
should be refused to B. even though it may be held that he is entitled to specific
performance of the rest with compensation for loss of the road.
(i) A. lessee of mines, contracts, with B, his lessor, that at any time during the continuance
of the lease. B may give notice of his desire to take the machinery and plant used in and
about the mines, and that he shall have the articles specified in his notice delivered to him
at a valuation on the expiry of the lease. Such a contract might be most injuries to the
lessee‘s business, and specific performance of it should be refused to B.
(j) A contracts to buy certain land from B. The contract is silent as to access to the land.
No right of way to it can be shown to exist. Specific performance of the contract should be
refused to B.
(k) A contracts with B to buy from B‘s manufactory and not elsewhere all the goods of a
certain class used by A in his trade. The Court cannot compel B to supply the goods; but if
he does not supply them. A may be ruined, unless he is allowed to buy them elsewhere.
Specific performance of the contract should be refused to B.
The following is a case in which the Court may properly exercise a discretion to decree
specific performance.
III. Where the plaintiff had done substantial acts or suffered losses in consequence of a
contract capable of specific performance.
Illustration
A sells land to a Railway company, who contract to execute certain works for his
convenience. The company take the land and use it for their railway. Specific performance
of the contract to execute the works should be decreed in favour of A.
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 be no fraud or
misrepresentation on the plaintiff‘s part.
Illustrations
(a) A. a tenant for life of certain property, assigns his interest therein to B., C. contracts to
buy, and B contracts to sell, that interest. Before the contract is completed. A receives a
mortal injury, from the effects of which he dies the day after the contract is executed. If B
and C were equally ignorant or equally aware of the fact, B is entitled to specific
performance of the contract. If B knew the fact, and C did not, specific performance of the
contract should be refused to B.
dismissed. 2001 CLC 1001 Subedar Muhammad Yousuf v. Muhammad Sarwar Khan and
others PLD 1955 Lah.521; Pyare Lal and others v. Mt. Kalawati AIR 1949 All. 340 and
Official Receiver of Salem v. Chinna Goundan and another AIR 1957 Mad. 630
distinguished. Moosa and others v. Muhammad Yakoob and others PLD 1966 (W.P.) Kar.
376 ref.
When Marginal witness to agreement in question, not supporting agreement to sell. Name
of one of witnesses was written on document in question but his thumb-impression was not
obtained on the same. Co-vendee 'in whose favour agreement to sell had allegedly been
executed filed his written statement categorically admitting therein that agreement in
question, was fictitious and false one. Co-vendee also denied that neither he nor other
vendees had paid consideration to vendor lady who was illiterate and that defendants
wanted to deprive her other property. Plaintiffs had failed to prove that any illegality or
material irregularity was committed by Courts below in exercise of their Jurisdiction in
dismissing their claim to specific performance of alleged agreement to sell. Plaintiffs were
thus, not entitled to any relief. P.L.J.1999 Lah. 1624 = 1999 CLC 967.
Whether time was of the essence of contract-- Plaintiff was pursuing the matter and was
ready and willing to perform his part of contract - Defendant failed to show the plaintiff
clear title to the suit property - Effect - Defendant had acted malafidely and purposely
delayed the process - Had the relevant documents been shown clear to the plaintiff, the
conveyance would have been concluded, as such the time given in the agreement could not
be taken as essence of the contractSuit was decreed accordingly, 2001 CLC 1029
13. Contract of which the subject has partially ceased to exist
Notwithstanding anything contained in section 56 of the Contract Act, a contract is not
wholly impossible of performance because a portion of its subject-matter, existing at its
date, has ceased to exist at the time of the performance.
Illustrations
Punjab Amendment .-Illustration (a) and (b) omitted.
(a) A contracts to sell a house to B for a lakh of rupees. The day after the contract is made
the house is destroyed by a cyclone. B may be compelled to perform his part of the
contract by paying the purchase-money.
(b) In consideration of a sum of money payable by B.A. contracts to grant an annuity to B
for B‘s life. The day after the contract has been made, B is thrown from his horse and
killed. B‘s representative may be compelled to pay the purchase-money.
Court Decisions
Time was of essence of contract--Appellant entered into agreement to purchase evacuee
plot for a lump sum--Respondent got refund of the price of passage for which appellant
claimed proportionate decrease an price per Marla--Various documents produced by parties
dad not suggest that the passage once sold to respondent was retained either by the
Department itself or for someone else--All copies of PTD consistently disclosed that the
passage had been given free of cost to respondent, obviously meaning thereby that the
title thereto was not taken back from him otherwise the title to passage must have been
clearly retained by the department for itself for future disposal--Attempt to apply rate per
marla appeared to be a subterfuge under which appellant perhaps purposely worked to
cloak his failure to abide by the contract--Nothing could be easily imported in written terms
and conditions of a contract--Parties were ad idem and no one-sided interpretation styled
later could help the concerned party*-Case was not that of impossibility under which partial
performance could be claimed--Impossibility envisaged by the provisions of Ss.12 & 14 of
the Specific Relief Act was entirely different like a happening beyond one's control (vis.
major) etc.--Respondent proved on record that time was of the essence of the contract
which appellant failed to abide by--Appeal dismissed in circumstances. 1989 M L D 2770
14. Specific performance of part of contract where part unperformed is small
Where a party to a contract is unable to perform the whole of his part of it, but the part
which must be left unperformed bears only a small proportion to 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.
Illustrations
(a) A contracts to sell to B a piece of a 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. The two bighas, are not necessary for the use or enjoyment of the 98
bighas, nor so important for such use or enjoyment that the loss of them may not be made
good in money. A may be directed at the suit of B to convey to B the 98 bighas, and to
make compensation to him for not conveying the two remaining bighas; or B may be
directed, at the suit of A, to pay to A, on receiving the conveyance and possession of the
land, the stipulated purchase money, less a sum awarded as compensation for the
deficiency.
(b) In a contract of the sale and purchase of a house and lands for two lakhs of rupees, it
is agreed that pan of the furniture should be taken at a valuation. The Court may direct
specific performance of the contract,
notwithstanding the parties are unable to agree to the valuation of the furniture and may
either have the furniture valued in the suit and included it in the decree for specific
performance, or may confine its decree to the house.
Court Decisions
Appellant entered into agreement to purchase evacuee plot for a lump sum--Respondent
got refund of the price of passage for which appellant claimed proportionate decrease an
price per Marla--Various documents produced by parties dad not suggest that the passage
once sold to respondent was retained either by the Department itself or for someone else-All
copies of PTD consistently disclosed that the passage had been given free of cost to respondent,
obviously meaning thereby that the title thereto was not taken back from him otherwise the title to
passage must have been clearly retained by the department for itself for future disposal--Attempt
to apply rate per marla appeared to be a subterfuge under which appellant perhaps purposely worked
to cloak his failure to abide by the contract-Nothing could be easily imported in written terms and conditions
of a contract--Parties were ad idem and no one-sided interpretation styled later could help the concerned party*-Case was not that of impossibility under which partial performance could be claimed-- Impossibility envisaged by the provisions of Ss.12 & 14 of the Specific Relief Act was entirely different like a happening beyond one's control (vis. major) etc.--Respondent proved on record that time was of the essence of the contract which appellant failed to abide by--Appeal dismissed in circumstances. 1989 M L D 2770
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 for 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 the
plaintiff relinquishes all claim to further performance, and all right to compensation either
for the deficiency, or for the loss or damage sustained by him through the default of
defendant.
Illustrations
(a) A contracts to sell to B a piece of land consisting of 100 bighas. It turns out that 50
bighas of the land belong to A, and the other 50 bighas to a stranger who refuses to pan
with them. A cannot obtain a decree against B for the specific performance of the contract;
but if B is willing to pay the price agreed upon, and to take the 50 bighas which belong to A
waiving all rights to compensation either for the deficiency or for loss sustained by him
through A‘s neglect, or default, B is entitled to decree directing A to convey those 50
bighas to him on payment of the purchase-money.
(b) A contracts to sell to B an estate with a house and garden for a lakh of rupees. The
garden is important for enjoyment of the house. It turns out that A is unable to convey the
garden. A cannot obtain a decree against B for the specific performance of the contract;
but if B is willing to pay the price agreed upon and to take the estate and house without
the garden waiving all rights to compensation either for the deficiency ‗or for loss sustained
by him through A‘s neglect or default, B is entitled to a decree directing A to convey the
house to him on payment of the purchase-money.
Court Decisions
Specific performance of part of contract where part unperformed is large:-- Where legal
part of agreement can be severed from illegal and void contract, such separated part may
be enforced. Where Specific performance of agreement to sell-consisting of two parts i.e.,
legal part and illegal part - Trial Court decreed plaintiff's suit to the extent of legal part -
Dismissal of suit as a whole by Appellate Court was not warranted in as much as, legal part
of agreement could have been enforced - Judgment and decree of Appellate Court was set
aside while that of trial Court decreeing legal part of agreement was restored in
circumstances. P.L.J. 2002 Lah.575
Partial performance of contract - Agreement of sale executed between the parties and
power of attorney executed by vendor lady in favour of his attorney showed that whole
land in dispute and not a part thereof was to be sold to the vendee - Sale of portion of land
by attorney in favour of son of deceased vendee was wholly without lawful authority -
Courts below bad rightly concluded that transaction smacked of fraud and mala fides being
based on collusion with attorney who had tried to deprive the lady of the land. 2001 MLD
988
Plea of non-payment of sale price having not been pressed in High Court, could not be
allowed to be raised before Supreme Court. P.L.J.1998 SC 623.
16. Specific performance of independent part of contract
When a part of a contract which taken by itself, can and ought to be specifically performed,
stands on a separate and independent footing from another part of the same contract
which cannot or ought not to be specifically performed, the Court may direct specific
performance of the former part.
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.
18. Purchaser’s right against vendor with imperfect title
Where a person contract to sell or let certain property, having only an imperfect title
thereto, the purchaser or lessee (except as otherwise provided by this Chapter) has the
following rights:-
(a) If the vendor lessor has subsequently to the sale or lease acquired any interest in the
property, the purchaser or lessee may compel him to make good the contract out of such
interest;
(b) Where the concurrence of other persons is necessary to validate the title, and they are
bound to convey at the vendor‘s or lessor‘s request, the purchaser or lessee may compel
him to procure such concurrence;
(c) Where the vendor professes to sell unencumbered property, but the property is
mortgaged for an amount not exceeding the purchase-money, and the vendor has in fact
only a right to redeem it, the purchaser may compel him to redeem the mortgage and to
obtain a conveyance from the mortgagee;
(d) Where the vendor or lessor sues for specific performance of the contract, and the suit is
dismissed on the ground of his imperfect title, the defendant has a right to a return of his
deposit (if any) with interest thereon, to his costs of the suit, and to lien for such deposit,
interest and costs on the interest of the vendor or lessor in the property agreed to be sold
or let.
Court Decisions
Agreement to sell executed by and between parties on 13.10.1985, when defendant was
not owner of land in question - Defendant acquired title of such land on 27-3-1986 -
Defendant was bound to perform agreement in question executed by him - Judgment and
decree of Appellate court non-suiting plaintiff was set aside while that of trial court
decreeing plaintiff‘s suit was restored. PLJ 2004 Pesh. 30
19. Power to award compensation in certain cases
Any person suing for specific performance of a contract may also ask for compensation for
its breach, either in addition to, or substitution for, such performance.
If in any such suit, the Court decides that specific performance ought not be granted, but
that there is a contract between the parties which has been broken by the defendant and
that the plaintiff is entitled to compensation for that breach, it shall award him
compensation accordingly.
If in any such suit the Court decides that specific performance ought to be granted but,
that it is not sufficient to satisfy the justice of the case, and that some compensation for
breach of the contract should also be made to the plaintiff, it shall award him such
compensation accordingly.
Compensation awarded under this section may be assessed in such manner as the Court
may direct.
Explanation. The circumstances that the contract has become incapable of specific
performance does not preclude the Court from exercising the jurisdiction conferred by this
section.
Illustrations
OF THE SECOND PARAGRAPH-
A contracts to sell a hundred maunds of rice to B; B brings a suit to compel A to perform
the contract or to pay compensation. The Court is of opinion that A has made a valid
contract and has broken it, without excuse, to the injury of B, but that specific performance
is not the proper remedy. It shall award to B such compensation as it deems just.
OF THE THIRD PARAGRAPH‘
A contracts with B to sell him a house for Rs. 1,000, the price to be paid and the
possession given on the 1st January. 1877. A fails to perform his part of the contract, and
B brings his suit for specific performance and compensation. which is decided in his favour
on 1st January, 1878. The decree may. besides ordering specific performance, award to B
compensation for any loss which he has sustained by A‘s refusal.
Of the Explanation- A. a purchaser, sues ff, his vendor, for specific performance of a contract for the sale of a
patent. Before the hearing of the suit the patent expires. The Court may award A
compensation for the non-performance of the contract, and may, if necessary, amend the
plaint for that purpose.
A sues for the specific performance of a resolution passed by the directors of a public
company, under which he was entitled to have a certain number of shares allotted to him,
and for compensation for the non-performance of the resolution. All the shares had been
allotted before the institution of the suit. The Court may under this section, award A
compensation for the non-performance.
Court Decisions
Compensation of breach. Person suing performance of contract can also ask for
compensation of breach either in addition to or in substitution for such performance.
Person seeking alternative relief of compensation in addition to or in substitution of relief of
specific performance would not render himself disentitled to grant of specific performance
of contract. Non-performance of agreement pertaining to immovable property could not be
compensated in terms of money and, therefore, its enforcement could hot be refused
unless, extreme hardship was likely to be caused to other side. P.L.J.1999 Lah. 1354 = PLD
1999 Lah. 193.
Contract between parties was of category of contracts which could not be specifically
enforced and fell within the mischief of Cl. of S. 21 of the Specific Relief Act, 1877 and bar
of injunction as provided in S. 56 of the Act was attracted. Plaintiffs could not make out
prima facie case for grant of temporary injunction pending decision of suit, in so far as
third party interest had been created in property in question as per plaintiffs' own
admission and their failure to implead such persons as party in their suit. Balance of
convenience, thus,, would not be in favour, of plaintiffs. Plaintiffs having themselves
estimated damages/losses suffered by them on account of breach of agreement in the sum
of specified amount, no case for temporary injunction was made out. Where relief asked for
could be measured in terms of money and plaintiffs themselves having claimed specified
amount as damages in their suit, grant of temporary injunction respecting land in question
was not warranted, and, hence, refused. P.L.J.1998 Kar. 822 = 1998 CLC 441.
20. Liquidation of damages not a bar to specific performance
A contract otherwise proper to be specifically enforced, may be thus enforced, though a
sum be named in it as the amount to be paid in case of its breach, and the party in default
is willing to pay the same.
Illustration
A contracts to grant B an under-lease of property held by A under C, and that he will apply
to C for a licence necessary to the validity of the under-lease, and that, if the license is not
produced, A will pay B Rs. 10,000. A refuses to apply for the licence and offers to pay 5 the
Rs. 10,000. B is nevertheless entitled to have the contract specifically enforced if C
consents to give the license.
Court Decisions
If contract provided for a specific amount as damages, its specific performance
whether can be granted or not. As far as first consideration to refuse specific
performance of contract is concerned, explanation to Section 12 of Specific Relief Act to
effect that unless and until contrary is proved, Court shall presume that breach of a
contract to transfer immovable property cannot be adequately relieved by compensation io
money, escaped notice of learned Courts, provisions of Section 20 of said Act also escaped
consideration of learned Courts. Refusal to grant specific performance on ground that
agreement provided for penalty is not sustainable.-P.L.J.2000.Lah. 1485. 21. Contracts not specifically enforceable
The following contracts cannot be specifically enforced:-
(a) a contract for the non-performance of which compensation in money is an adequate
relief;
(b) a contract which runs into such minute or numerous details, or which is so dependent
on the personal qualifications or volition of the parties, or otherwise from its nature is such,
that the Court cannot enforce specific performance of its material terms;
(c) a contract the terms of which the Court cannot find with reasonable certainty;
(d) a contract which is in its nature revocable;
(e) a contract made by trustees wither in excess of their powers or in breach of their trust;
(f) a contract made by or on behalf of a corporation or public company created for special
purposes, or by the promoters of such company, which is in excess of its power.
(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 specifically 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.
Illustrations
to (a)-
A contracts to sell, and B contracts to buy, a lakh of rupees in the four per cent. loan of the
[Central Government];
A contracts to sell, and B contracts to buy, 40 chests of indigo at Rs. 1,000 per chest:
In consideration of certain property having been transferred by A to B, B contracts to open
a credit in A‘s favour to the extent of Rs. 10,000, and to honour A‘s drafts to that amount:
The above contracts cannot be specifically enforced, for in the first and second both A and
B, and in the third A, would be reimbursed, by compensation in money.
to (b)-
A contracts to render personal service to B;
A contracts to employ B on personal service;
A, an author, contracts with B, a publisher, to complete a literary work;
B cannot enforce specific performance of these contracts.
A contracts to buy B‘s business at the amount of a valuation to be made by two valuers,
one to be named by A and the other by B. A and B each name a valuer, but before the
valuation is made, A instructs his valuer, not to proceed.
By a charter-party entered into in Chittagong between A, the owner of a ship, and B, the
charterer, it is agreed that the ship shall proceed to Karachi, and there load a cargo of rice,
and thence proceed to London, freight to be paid, one-third on arrival at Karachi, and twothirdsdelivery
of the cargo in London.
A lets land to B and contract to cultivate it in a particular manner for three years next after
the date of the lease.
A and B contract, that, in consideration of annual advances to be made by A, B will for
three years next after the date of the contract grow particular crops on the land in his
possession and deliver them to A when cut and ready for delivery.
A contracts with B that in consideration of Rs. 1,000 to be paid to him by B, he will paint a
picture for B. A contracts with B to execute certain work which the Court cannot
superintend. A contracts to supply B with all the goods of a certain class which B may
require.
The promoters of a company for working mines contract that the company, when formed
shall purchase certain mineral property. They take no proper precautions to ascertain the
value of such property and in fact agree to pay an extravagant price therefor. They also
stipulate that the vendors shall give them a bonus out of the purchase-money. This
contract cannot be specifically enforced.
To (c)-
A company existing for the sole purpose of making and working a railway, contract for the
purchase of ? piece of land for the purpose of erecting a cotton mill thereon. This contract
cannot be specifically enforced.
to (d)-
A contracts to let for twenty-one years to B the right to use such part of a certain railway
made b> B‘s land, and that B should have a right of running carriages over the whole line
on certain terms, and might
A contracts with B to take from B lease of a certain house for a specified term, at a
specified rent, ‗if the drawing-room is handsomely decorated,‘ even if it is held to have so
much certainty that compensation can be recovered for its breach.
A contracts to marry B. The above contracts cannot be specifically enforced.
to (e)-
A the owner of a refreshment-room, contracts with B to give him accommodation there for
the sale of his goods and to furnish him with the necessary appliances. A refused to
perform his contract. The ease is one for compensation and not for specific performance,
the amount and nature of the accommodation and appliances being undefined.
to (f)-
A and B contract to become partners in a certain business, the contract not specifying the
duration of the proposed partnership. This contract cannot be specifically performed, for, if
it were so performed, either A or B might at once dissolve the partnership.
to (g)-
A is a trustee of land with power to lease it for seven years. He enters into a contract with
B to grant a lease of the land for seven years, with a covenant to renew the lease at the
expiry of the term. This contract cannot be specifically enforced.
The Directors of a company have power to sell the concern with the sanction of a general
meeting of the shareholders.
They contract to sell it without any such sanction. This contract cannot be specifically
enforced.
Two trustees, A and B, empowered to sell trust property worth a lakh of rupees, contract to
sell it to C for Rs. 30,000. The contract is so disadvantageous as to be a breach of trust. C
cannot enforce its specific performance.
The promoters of a company for working mines contract that the company, when formed
shall purchase certain mineral property. They take no proper precautions to ascertain the
value of such property and in fact agree to pay an extravagant price therefor. They also
stipulate that the vendors shall give them a bonus out of the purchase-money. This
contract cannot be specifically enforced.
to (f)-
A company existing for the sole purpose of making and working a railway, contract for the
purchase of a piece of land for the purpose of erecting a cotton mill thereon. This contract
cannot be specifically enforced.
to (g)-
A contracts to let for twenty-one years to B the right to use such part of a certain railway
made by A as was upon 5‘s land, and that B should have a right of running carriages over
the whole line on certain terms, and might require A to supply the necessary engine power,
and that A should during the term keep the whole railway in good repair.Specific performance
of this contract must be refused to
B.to (h)-
A contracts to pay an annuity to B for the lives of C and D. It turns out that. at the date of
the contract. C, though supposed by A and B to be alive was dead. The contract cannot be
specifically performed.
Court Decisions
Scope - Such relief is discretionary and when the contract is abandoned, the same cannot
be enforced at the instance of plaintiffs. 2002 CLC 218
Ashrafi (Pvt.) Limited and another v. Kar. Transport Syndicate Limited, Kar. and another
PLD 1973 Note 119 at p. 184 and NarainJan and others v. Muhammad Yunus AIR 1932
Lah.265 ref.
Contracted goods were neither of extraordinary special kind nor are commodity which was
not available in market so as to entitle plaintiffs to decree of specific performance. Plaintiffs
in equity would be entitled to proportionate compensation for quantity of goods not
supplied to them at least at that rate at which they purchased entire quantity of goods.
Court while calculating price at that rate worked out specified amount to which plaintiffs
were found entitled and they were awarded decree in terms of such specified amount.P.L.J.1997
Kar.
940
=
1997
CLC.
88.
Enforcement of contractual obligation. High Court had dismissed Petitioners Constitutional
petition for- enforcement of same. Validity. Discretionary relief had been claimed by
petitioner after considerable delay and thus, suffered from laches. Contract in question
having been terminated allegedly by respondents, appellants would have claimed damages
under normal law which was available to him and could have been claimed. Agreement
itself contained clause for Arbitration on whereby difference of opinion between parties or
any dispute arising out of impugned agreement could be referred to arbitrator for
settlement instead of bringing legal action. Efficacious and effective remedy being available
to appellate in form of Arbitration on civil action under normal law, Constitutional
Jurisdiction in such situation could not be invoked-Judgment passed by Single Judge of
High Court did not warrant interference in circumstances. P.L.J.1999 Lah. 126 = 1999 CLC
26.
Specific performance of an agreement which cast an obligation on the respondents to
appoint the appellant or his nominee against a class IV post and this process shall continue
till such time the school is in existence. Agreement seems to be in perpetuity for all times
to come, generation after -generation. Such an agreement which has cast a duty of
performance for a period longer than three years cannot therefore specifically be enforced.
P.L.J.1997 SC 494 = 1997 SCMR 855 = NLR 1997 Civil 335.
Suit for specific performance of contract---Plaintiff relying on admission of one of the
defendants in his counter-affidavit and claiming entitlement to decree on basis of such
admission---Admission of one defendant could not bind other defendants--*Admission
made by one of defendants being a mistake of fact was rectified in subsequent affidavit--Property
in question belonged to defendant other than the one who had admitted factum of payment
of price---Dispute raised in suit by plaintiff required proof for verdict in his favour--Admission referred
to,could not be treated as conclusive proof of the matter allegedly admitted by one of the defendants and
such admission did not constitute estoppel by itself.1991M LD 2697
'Subject to contract' - 'No contract was executed between the parties - Plaintiff relied upon
a letter which contained terms of oral agreement and the letter was accepted by one of the
defendants subject to contract - Plaintiff failed to show any act of the parties which would
have the effect of lifting the suspensive condition - Validity Such agreement was not
enforceable in law as the agreement had a condition of 'subject to contract' - Where parties
had expressed their intention of not entering into legal obligations without a formal
contract, such term must be respected in order to allow the freedom to the parties to
negotiate a deal without the fear of being trapped into obligations which they never
intended to create, no binding contract, in the present case, existed between the parties -
Plaintiff, thus failed to establish a prima facie case in its favour for the grant of injunction -
Application for grant of injunction was dismissed accordingly. 2002 CLC 218
Major (Retd.) Ahmed Khan Bhatti v. Mst. Masooda Fatmi PLD 1981 Kar. 398; Pakistan
Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P.) Kar. 202; Harichand
Mancharam v. Govind Laxman Gokhale AIR 1923 PC 47; Branca v. Cobarro 1947(2) All ER
101; Damon C.I.A. Naviera SA v. Hapag-Lloyd International SA v. The Blankenstein, The
Bartenstein, The Birkenstein (1985) 1 All ER 475; Ateni Maritime Corporation v. Great
Marine Limited (1990) 2 Lloyd's Rep. 250; Perry v. Suffield's Limited (1916) 2 Ch. D 187;
Voest Alpine Intertrading v. Chevron International Oil Co, (1987) 2 Lloyd's Rep. 547;
Global Container Lines Ltd. v. State Black Sea Shipping Co. Amber Seatrade S.A. and
Clifton Navigation S.A. (1999) 1 Lloyd's Rep. 127; Foley v. Classique Coaches Limited
(1934) 2 KB 1; Sweet and Maxwell Ltd. v. Universal News Services Ltd. (1964) 3 All ER 30;
Finchbourne Ltd. v. Rodrigues (1976) 3 All ER 581; Beer v. Bowden (1981) 1 All ER 1070;
Greater London Council v. Connolly (1970) 1 All ER 870; Tiverton Estates Limited v. Wearwell
Limited (1974)1 All ER 209;Cohen v Nessdale Limited (1981) 3 AllER 118; Attorney General
and another v. Humphreys Estate (Queen's Gardens) Limited (1987) LRC 9 (Comm.) 567;Courtney
& Fairbarin Limited v.Tolaini Bros.(Hotels) Limited (1975)1 All ER 716;Ghulam Nabi and others v.
Muhammad Yaqub and others PLD 1983 SC344;David J.Hennessey v. Clara Woolworth (US SC) 128
US 500;State of Texas v. State of New Mexico (US SC) 96 L.Ed.2d.105;Sandoz Limited and another
v. Federation of Pakistan and others 1995 SCMR 1431; House Building Finance Corporation v. Shahinshah
Human Cooperative House Building Society and others 1992 SCMR 19; Mst.Zeemun Nisa Begum v. Ali
Muhammad PLD1990SC 382;Shajar Ali Hoti v. Esmail Sobani 1987 CLC 2307;Aboo
Noor Muhammad v.General Iron and Steel Works Limited PLD 1973 Kar. 234 and Halsbury's Laws
of England,Vol.9,4th Edn. ref.
(b) A contracts to sell to B the interest of C in certain stock-in-trade. It is stipulated that
the sale shall stand good, even though it should turn out that C‘s interest is worth nothing.
In fact, the value of C‘s interest depends on the result of certain partnership accounts, on
which he is heavily in dcln to his partners. This indebtedness is known to A, but not to B.
Specific performance of the contract should be refused to A.
(c) A contracts to sell. and B contracts to buy. certain land. To protect the land from floods,
it is necessary for us owner to maintain an expensive embankment. B does not know of
this circumstance, and A conceals it from him. Specific performance of the contract should
be refused to A.
(d) A‘s property is put up to auction. B requests C, A‘s attorney, to bid for him. C does this
inadvertently and in good faith. The persons present seeing the vendor‘s attorney bidding,
think that he is a mere puffer and cease to compete. The lot is knocked down to B at a low
price. Specific performance of the contract should he refused to B.
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.
Illustrations
[(e) omitted by Order IV of 1983.]
(f) A and B, trustees join their beneficiary, C. in a contract to sell the trust estate to D, and
personally agree to exonerate the estate from heavy encumbrances to which it is subject.
The purchase-money is not nearly enough to discharge those encumbrances, though at (he
date of the contract, the vendors believed it to be sufficient. Specific performance of the
contract should be refused to D.
(g) A, the owner of an estate, contracts to sell it to B. and stipulates that he. A, shall not
be obliged to define its boundary. The estate really comprises a valuable properly, not
known to either to be a part of it. Specific performance of the contract should be refused to
B, unless he waives his claim to the unknown property.
(h) A contracts with B to sell him certain land, and to make a road to it from a certain
railway station, it is found afterwards (hat A cannot make the road without exposing
himself to litigation. Specific performance of the pan of the contract relating to the road
should be refused to B. even though it may be held that he is entitled to specific
performance of the rest with compensation for loss of the road.
(i) A. lessee of mines, contracts, with B, his lessor, that at any time during the continuance
of the lease. B may give notice of his desire to take the machinery and plant used in and
about the mines, and that he shall have the articles specified in his notice delivered to him
at a valuation on the expiry of the lease. Such a contract might be most injuries to the
lessee‘s business, and specific performance of it should be refused to B.
(j) A contracts to buy certain land from B. The contract is silent as to access to the land.
No right of way to it can be shown to exist. Specific performance of the contract should be
refused to B.
(k) A contracts with B to buy from B‘s manufactory and not elsewhere all the goods of a
certain class used by A in his trade. The Court cannot compel B to supply the goods; but if
he does not supply them. A may be ruined, unless he is allowed to buy them elsewhere.
Specific performance of the contract should be refused to B.
The following is a case in which the Court may properly exercise a discretion to decree
specific performance.
III. Where the plaintiff had done substantial acts or suffered losses in consequence of a
contract capable of specific performance.
Illustration
A sells land to a Railway company, who contract to execute certain works for his
convenience. The company take the land and use it for their railway. Specific performance
of the contract to execute the works should be decreed in favour of A.
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 be no fraud or
misrepresentation on the plaintiff‘s part.
Illustrations
(a) A. a tenant for life of certain property, assigns his interest therein to B., C. contracts to
buy, and B contracts to sell, that interest. Before the contract is completed. A receives a
mortal injury, from the effects of which he dies the day after the contract is executed. If B
and C were equally ignorant or equally aware of the fact, B is entitled to specific
performance of the contract. If B knew the fact, and C did not, specific performance of the
contract should be refused to B.
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