THE SPECIFIC RELIEF ACT, 1963

Outline-

Introduction to Specific relief act, 1963

 History of Specific Relief Act, 1963
 Meaning of specific performance
 Remedies available under Specific Relief Act-
Reliefs regarding possession of movable and immovable property
 Immovable Property
 Movable Property
Specific performance of contract
Defenses
Part performance of contract
Rectification
Recession
Cancellation
Declaration
Injunction
 Introduction

 History of Specific Relief Act, 1963-

In India, the common law doctrine of equity had traditionally been followed even after it became
independent in 1947. However it was in 1963 that the ―Specific Relief Act‖ was passed by the
Parliament of India following the recommendation of the Law Commission of India in its ninth
report on the act, the specific relief bill 1962 was introduced in Lok Sabha in June 1962 and
repealing the earlier ―Specific Relief Act‖ of 1877.

 Developed in England by Equity Courts

 In England, before the invent of Specific Relief, the only remedy was that of ‗damages‘
under which the party in breach need not to perform the promise

 Sometimes, the damages would prove to be insufficient

 So, in order to obviate such hardships, the Equity Court developed certain reliefs called
‗Specific Relief‘

 Originally drafted upon the lines of the draft New York Civil Code, 1862

 passed in 1877

 Amended by Acts of 1882, 1891, 1899, 1929, 1940, 1951, and was repealed in 1963

 Embodies the doctrines evolved by the English Equity Courts

 Principles of Equity, Justice & Good Conscience

 Required to be pleaded specifically to be enforced

 In the event of situation not covered under the 1963 Act, the Indian Courts can exercise
their inherent powers in term of Sec. 151 of C.P.C.
  Meaning of specific performance

Laws fall into three categories.—

 Those which define Rights.

 Those which define Remedies.
 Those which define Procedure.

The Law of Specific Relief belongs to the second category. It is a law which deals with
‗Remedies‘.

The expression Specific Relief means a relief in specie. It is a remedy which aims at exact
fulfillment of an obligation. The suit under Specific Relief Act may be brought to compel the
performance of the contract by the person in default. Such relief may be either positive or
negative. It is positive when a claim to the performance of it and negative when it is desired to
prevent the doing of thing enjoined or undertaken as not to be done.

The Specific Relief Act explains and enunciates the various reliefs which can be granted under
its provisions, provides the law with respect to them. It provides for the exact fulfilment of the
obligation or the specific performance of contract. It is directed to the obtaining of the very thing
which a person is deprived of and ought to be entitled to ask for. It is a remedy by which party to
a contract is compelled to do or omits the very acts which he has undertaken to do or omit. The
remedies which has been administered by Civil Courts of Justice against any wrong or injury fall
broadly into two classes,

(i) those by which the suitor obtains the very thing to which he is entitled, and

(ii) those by which he obtains not that very thing, but compensation for the loss of it.

• The former is the specific relief. Thus specific relief is a remedy which aims at the exact
fulfilment of an obligation. It is remedial when the court directs the specific performance
of contract and protective when the court makes a declaration or grants an injunction.
 Damages/Compensation Indian Contract Act

Breach of Contract

Specific Performance SPECIFIC RELIEF ACT

 Remedies available under Specific Relief Act-

SPECIFIC RELIEF ACT, 1963

PRELIMINARY RELIEFS
Section (1-4) Section (5-44)

Specific Relief
Sec (5-35)

Preventive Relief
Sec (36-44)
The Specific Relief Act, 1963 extends to the whole of India,
except the State of Jammu and Kashmir. The Specific Relief
Act deals only with certain kinds of equitable reliefs and
these are now:

• Recovery of Possession of Property

• Specific Performance of Contract
• Rectification of Instrument
• Rescission of Contracts
• Cancellation of instruments
• Declaratory Decrees
• Injunctions
 Reliefs regarding possession of movable and immovable property

 Immovable Property-

Section 5 of the Specific Relief Act deals with the recovery of specific immovable property.

Recovery of specific immovable property.—A person entitled to the possession of specific

immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908
(5 of 1908).

The section in simple words provides that any person who is lawful owner of immovable
property can get the possession of such property by due course of law. It means that when a
person is entitled to the possession of specific immovable property he can recover the same by
filing the suit as per provisions of CPC. He may file suit for ejectment on the strength of his title
and can get a decree for ejectment on the basis of title within 12 years of the date of possession.
Section 5 of the Act declares that in a suit for recovery of immovable property by person
‗entitled to‘ provisions Order XXI, Rule 35 and 36 of CPC would apply.

There are three types of actions which can be brought in law for the recovery of specific
immovable property:

a) A suit based on title by ownership;

b) A suit based on possessory title;

c) A suit based merely on the previous possession of the plaintiff where he has been
dispossessed without his consent otherwise than in due course of law.

The last remedy is provided in Section 6 of the Act. The suits of the first two types can be filed
under the provisions of CPC.

The word ‗entitled to possession‘ means having a legal right to title to possession on the basis of
ownership of which the claimant has been dispossessed. Plaintiff must show that he had
possession before the alleged trespasser got possession. In Ismail Ariff v. Mohammed Ghouse,
the Privy Council held, ―the possession of the plaintiff was sufficient evidence a title of owner
against the defendant by section 6 of the Specific Relief Act, 1962, if the plaintiff has been
dispossessed otherwise than in due course of law.‖ there may be title by contract, and
prescription or even by possession and the last will prevail where no preferable title is shown.

Section 6 Suit by person dispossessed of immovable property.—

1. 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 possession
thereof, notwithstanding any other title that may be set up in such suit.
2. No suit under this section shall be brought—
a. after the expiry of six months from the date of dispossession; or
b. against the Government.
3. 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.
4. Nothing in this section shall bar any person from suing to establish his title to such
property and to recover possession thereof.

The main object of Section 6 is to discourage forcible dispossession on the principle that
disputed rights are to be decided by due process of law and no one should be allowed to take law
into his own hands, however good his title may be. Section 6 provides summary remedy through
the medium of Civil Courts for the restoration of possession to a party dispossessed by another
within 6 months of its dispossession leaving them to fight out the question of their respective title
in a competent Court if they are so advised.

The object of this section appears to have been to give special remedy to the party illegally
dispossessed by depriving the dispossessor of the privilege proving a better title to the land in
dispute. Section 6 should be read as part of the Limitation Act and its object to put an additional
restraint upon illegal dispossession with a view to prevent the applicant of that dispossession,
from getting rid of the operation of the Act by his unlawful conduct. If the suit is brought within
the period prescribed by that Section, even the right of the land is precluded from showing his
title.

Difference between section 5 and 6-

  Movable Property-

Section 7 - Recovery of specific movable property —A person entitled to the possession of

specific movable property may recover it in the manner provided by the Code of Civil Procedure,
1908.

Explanation 1.—A trustee may sue under this section for the possession of movable 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 movable property is
sufficient to support a suit under this section.

Property of every description except immovable property is movable property. Example:

Government Securities, share certificates are movable property but not money. For application of
the section it must be specific i.e. ascertained and ascertainable capable of being seized and
delivered. The remedy of recovery of specific movable property means the property itself and
not its equivalent.

Section 7 provides for the recovery of movable property in specie i.e. the things itself. The things
to be recovered must be specific in the sense they are ascertained and capable of identification.
The nature of things must continue without alteration.

Section 7 and 8 embody the English Rules as to detinue. An action in detinue would lie only for
some specific article of movable property capable of being recovered in species and of being
seized and delivered up to the party entitled. A person can seek recovery of his personal
belongings under this section. The cases in which movable property can be recovered in specie
are given under Section 8. However if the goods have ceased to be recoverable the remedy lies in
compensation .

Who can sue under Sec 7-

To succeed under this section it is sufficient if the plaintiff seeking possession has a right to
present or immediate possession or by way of special or temporary right to present possession
i.e. of a bailee, Pawnee, finder of lost goods. A trustee can sue under this section possession of
movable property to protect the beneficial interest of the beneficiary and it is not necessary to
make the beneficiaries, parties to the suit.
 Specific performance of contract

(Sections 10, 14, 15, 16)

Q1- When can the Specific Performance be awarded? Sec 10

Q2- When can the remedy of specific performance not be awarded? Sec 14

Q3- Who can claim Specific Performance? Sec 15

Q4- Who cannot claim Specific Performance?- Sec 16

Q5- Against whom can the Specific Performance be claimed? Sec 19

 Who can claim Specific
Performance
Sec 15

the representative in any person beneficially

either party entitled
interest of either party

learning skill, solvency,

if the contract is of
personal quality of party is
marriage settlement
ingredient

contract provides- interest or compromise of doubtful

of party shall not be rights betwwen members of
assigned same family

representative in
interest not entitled to
performance
When can the remedy of specific performance not be awarded

1963 Act 2018 Amendment Act

The remedy of performance available at court‘s Now it is mandatory for the court to grant
discretion. specific performance
It is to be granted only when- It can be rejected only when it is so barred by
a- the actual damage caused due to the non- the provisions of the Act under Sec. 14 and
performance of the action could not be Sect. 16.
ascertained
b- monetary compensation would not be
adequate relief for the non-performance of
contract.

As per amended Sec 14 following are the grounds on which specific performance is not granted-

To state that the following categories of contracts cannot be specifically enforced:

(i) where an aggrieved party has obtained substituted performance of the contract

(ii) where the contract involves performance of a continuous duty which cannot be supervised
by the court;

Joseph v. National Magazine Co Ltd. [1958]

A writer refused to have his name published as the author which had been re-edited and altered
by a magazine expressing other opinions in a different style. He was not entitled to specific
performance of his contract as that would require supervision by the court of editing the article
though he would be entitled to damages for loss of opportunity of enhancing his reputation.

Example: Where A contracts to render personal service to B or contracts to employ B on

personal service or being an author contracts with B, a publisher to complete a literary work, B
cannot enforce specific performance to these contracts.

(iii) where the contract is dependent on personal qualifications of an individual;

Example: The principle applies equally where the employer seeks to enforce the contract. Even if
a person has contracted with another to perform a service and there is consideration for such
service in the shape of liquidation of debt or even remuneration he cannot be forced by
compulsion of law to continue to perform such service as that would be forced labour within
inhibition of Article 23 of the Constitution of India.

(iv) the contract is determinable by its nature.

Example: Where A and B contract to become partners in a certain business the contract not
specifying the duration of the proposed partnership, the contract cannot be specifically
performed for if it were so performed either A or B might at once dissolve the partnership.

Substituted performance- the concept has been introduced for the first time by the 2018
Amendment Act. Section 20 of the SRA now permits a party suffering from a breach of contract,
to have the contract performed by a third-party or through its agent and recover the costs and
expenses incurred in substituting such performance, from the defaulting party (unless agreed
otherwise under the contract).

As per sec 16 specific performance of a contract cannot be enforced in favour of a person or be

claimed by a person—

(a) who has obtained substituted performance of contract under section 20;

(b) who has become incapable of performing,

(c) who has violated any essential term of, the contract that on his part remains to be performed

(d) who has acted in fraud of the contract, or willfully acts at variance with, or in subversion of,
the relation intended to be established by the contract; or

(c) who has failed to prove that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him, other than terms of
the performance of which have been prevented or waived by the defendant.

Hence, Specific performance of contract is to be granted on all grounds except when covered by
the aforementioned grounds.
 Part performance of contract-

The general rule is that the court shall not direct specific performance of part of the contract
except in following case-

Part not performed forms a small portion of the whole contract

Either party If the defaulting court may allow performance so far as possible and award
may obtain party admits of compensation for the remaining portion.
specific compensation in
performance money
Part not performed forms a large portion of the whole contract
The defaulting party is not entitled to obtain a decree for specific performance whether or not he admits
of compensation in money.
The other party may institute a suit for specific performance
Where the The court may And require the other party –
defaulting party direct the party in  to pay the agreed consideration for the whole of
admits to default to perform the contract reduced by the consideration for the part which
compensation in specifically so must be left unperformed
money much of his part of  relinquishes all claims to the performance of the
the contract as he remaining part of the contract
can  relinquish all right to compensation, either for the
Perform deficiency or for the loss or damage sustained by him
through the default
Where the The court may And require the other party to-
defaulting party direct the party in  pay the consideration for the whole of
does not admit to default to perform the contract without any abatement
compensation in specifically so  relinquishes all claims to the performance of the
money much of his part of remaining part of the contract
the contract as he  relinquish all right to compensation, either for the
can deficiency or for the loss or damage sustained by him
Perform through the default
Part which cannot be performed is separate and independent from the other part (contract is
divisible) - The court can direct performance of the part which can be performed.
 Defenses

Sec 9 of the Specific Relief Act, 1963 provides for the defences against specific performance of
contracts. It states that, where any relief is claimed under this Chapter in respect of a contract, the
person against whom the relief is claimed may plead by way of defence any ground which is
available to him under any law relating to contracts. For enforcement of specific performance of
a contract, there must be a valid contract. Consequently, the remedy of specific performance can-
not be granted if the contract is void or illegal, e.g. A minor‘s agreement is void as a minor is not
competent to contract. Therefore, it can-not be specifically enforced.

The defendant may take the defence that the remedy claimed should not be granted on the
following grounds:

 Invalidity of contract
 sufficiency of compensation
 discretion of the Court
Rectification

Sec. 26 provides that a contract or any other instrument may be rectified when it does not express
the real intention of the parties because of any fraud or mutual mistake of the parties.
Rectification consists in bringing the document in conformity with the actual or prior agreement.
The essentials of application of rule of rectification are-

a) There must have been a genuine agreement different from the expressed agreement.
b) It was through fraud or mutual mistake between the parties that the contract in question
did not express truly the intention of the parties.
c) A unilateral mistake will not afford relief for rectification of instrument.
d) The court has to determine the intention of the parties with regard to meaning and legal
consequences of the instrument.

It is discretionary for the court to grant the relief of rectification.

 Recession

Sections 27-30 of SRA provide the remedy of recession. Recession, i.e. revocation or abrogation
of contract is the mode by which a contract may be discharged, and as such relief of recession is
the opposite of relief of specific performance. According to Section 27, a contract may be
rescinded on following grounds-

1- Where the contract is voidable or terminable by the plaintiff.

Contract is voidable when it falls under the ambit of Sec 19, 19 A, 39, 53 and 55 of
the Indian Contract Act.
2- Where the contract is unlawful for causes not apparent on its face and the defendant
is more to blame than the plaintiff.

Limitation to the right of rescission-

The right of rescission is subject to the following limitations. In such situations the law may not
permit the exercise of the right of rescission-

(a) the contract has been expressly or impliedly ratified by the plaintiff

(b) the parties cannot be substantially restored to the position in which they stood when the
contract was made where due to the change of circumstances which has taken place since the
making of the contract (however not due to any act of the defendant himself),

(c) third parties have acquired rights in good faith without notice and for value

(d) only a part of the contract is sought to be rescinded and such part is not severable from the
rest of the contract.

Where a suit for specific performance of contract is decreed and purchaser does not pay the
purchase money which the court has ordered him to pay, the vendor may apply in same suit to
have contract rescinded and court may rescind the contract and may direct:-

 Restoration of possession;
 Refund of earnest money and other profits;
 Restore any benefits received;
  To give compensation.

Principle of unjust enrichment- On adjudging the rescission of a contract, the court may require
the party to whom such relief is granted to restore, so far as may be, any benefit which he may
have received from the other party and to make any compensation to him which justice may
require.

Cancellation

Sec 31 to 33 of SRA deals with cancellation. Following conditions need to be satisfied to have an
instrument cancelled-

1- The provisions are applicable to any instrument (includes contract, will etc.)
2- Any person can have the instrument cancelled if the instrument is void or voidable
against him and who has reasonable apprehension that such instrument if left outstanding
may cause him serious injury.
3- Ordering cancellation is discretion of the.
4- If the instrument has been registered the court shall also send a copy of its decree to
registration office.
5- The instrument can be cancelled partially.
6- The court may direct plaintiff to restore benefits taken or grant compensation to
defendant.
 Declaration

If any person entitled to any legal character, or to any rights as to any property is denied by
another and if any suit is filed by the person so denied it is called a declaratory suit. A
Declaratory decree is a binding declaration of right in equity without consequential relief. In
simple terms, a declaratory decree is cone which settles the right and removes the confusion of
the status of the party.

Provision regarding declaratory decree has been provided in sections 34 and 35 of the Specific
Relief Act, 1963.

Section 34-

“Any person entitled to any legal character, or to any right as to any property, may institute a
suit against any person denying, or interested to deny, his title to such character or right, and the
court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need
not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits to do so.

Explanation: A trustee of property is a "person interested to deny "a title adverse to the title of
someone who is not in existence, and for whom, if in existence, he would be a trustee”

Essentials of a declaratory suit

 The person filing the suit must be entitled to legal right or any right as to any property
 The person against whom the suit is to be filed must actually be denying the right or is
interested in denying the right of the plaintiff
 Passing a declaratory decree is on the discretion of the court.

Effect of declaration

The provision for the effect of declaration has been provided under section 35 of Specific Relief
Act. Section 35 reads as:
―A declaration made under this Chapter is binding only on the parties to the suit, persons
claiming through them respectively, and, where any of the parties are trustees, on the persons for
whom, if in existence at the date of declaration, such parties would be trustees.‖

That means a declaratory decree is binding only on the parties to the suit and upon the
representatives of the parties to the suit. So, declaratory decree is ―in personam‖ and not ―in
rem‖.

So a declaratory decree is one which resolves the legal uncertainty of the rights and status of the
parties. However, passing of a declaratory decree is a matter of discretion of court and it cannot
be claimed a right.

Section 34 of the Specific Relief Act also provides that any person entitle to any legal character
may institute a suit for declaration and the court may in its discretion make a declaration that he
is so entitled and the plaintiff in such a suit need not ask any further relief.

The power of the civil court to issue declaratory decrees in exercise of power under Section 34
Specific Relief Act is not exhaustive and the civil court has power to grant further declaratory
decrees independently of the requirements provided under Section 34 of the Specific Relief Act.

Discretion of court as to declaration of status or right: According to section 42 of the S.R Act any
person entitled to any legal character, or to any rights as to any property may institute a suit
against any person denying, or interested to deny, his title to such character or right, and the
court may in its discretion make therein a declaration that he is so entitled, the plaintiff need not
in such suit ask for any further relief.

Bar to such declaration- Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Illustration: A is in possession of certain property. B alleging that he is the owner of the property
requires A to deliver it to him. A may obtain a declaration of his right to whole the property.
 Injunction

There can be cases where the nature of the contract does not allow damages to likely serve any
purpose nor admit to specific performance. In such cases, the court may have to restrain the party
who threatens the breach, to the possible extent. When he is prevented from resorting to other
openings, it may exert some pressure upon his mind and he may be persuaded to go ahead with
the performance of his contract. This type of remedy is known as preventive relief. This is
granted by issuing an order known as injunction.

Injunction is a form of specific relief which the court grant when the pecuniary compensation
would be inadequate or altogether futile. Injunction is an order or decree by which a party to an
action is required to do or refrain from doing a particular act or thing.

An injunction has 3 characteristics-

a) It is a judicial process
b) The object attained thereby is restraint or prevention and in some cases of doing certain
acts
c) The thing restrained or prevented is a wrongful act.

Specific Relief Act, 1963 makes provision for Perpetual injunction (Sec 38) and Mandatory
injunctions (Sec. 39), while temporary injunction is granted under the Civil Procedure Code,
1908.

 Temporary injunction-

Temporary injunctions are those which remain in force until specified time or till date of next
hearing of the case, or until further orders of the court. Such injunctions can be granted at any
stage of the suit and are governed by Order 39 of the Code of Civil Procedure, 1908 and not by
Specific Relief Act, 1963.

Gujarat Bottling Co. Ltd. vs. Coca Cola Company [1995(5) SCC 545]

The object of the interlocutory injunction is to protect the plaintiff against injury by violation of
his right for which he could not be adequately compensated in damages recoverable in the action
if the uncertainty were resolved in his favour at the trial.
  Permanent injunction-

Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be
granted by a decree at the hearing and upon the merits of the case. Thus, for obtaining a
permanent injunction, a regular suit is to be filed in which the right claimed is examined upon
merits and finally, the injunction is granted by means of judgement. A permanent injunction
therefore finally decides the rights of a person whereas a temporary injunction does not do so. A
permanent injunction completely forbids the defendant to assert a right which would be contrary
to the rights of the plaintiff.

Section 38 of the Specific Relief Act, 1963 specifies certain circumstances under which
permanent injunction may be granted by the court:

 Where the defendant is a trustee of the property for the plaintiff.

Where there exists no measure to ascertain the loss or actual damage caused. For example, ‗A‘
pollutes the air with smoke so as to interfere with the physical comfort of Band C, who carries on
business in the neighbourhood. ‗B‘ and ‗C‘ may sue for an injunction to restrain ‗A‘ from
polluting the air.

 Where the invasion is such that compensation in terms of money is not an adequate
relief.

For example, ‗A‘ a professor deliver lectures to his students, being his own literature
composition he does not communicate them to the whole world. These lectures are the property
of the professor and he is entitled to restrain the students from publishing without his contents.

 Where it is necessary to prevent a multiplicity of judicial proceedings.

Requirements of Applicability

The conditions pre-requisite for the application of this section are-

 There must be an expressed or implied legal right in favour of the plaintiff;

 Such a right must be violated or there should be a threatened invasion;
 Such right must be an existing one;
  It should fall within the sphere of restraining provisions (referred to in section 41 of the
specific relief act).

Illustrations-

 ‗A‘ lets certain land to ‗B‘ and ‗B‘ contracts not to dig sand and gravel. ‗A‘ may sue for
an injunction to refrain ‗B‘ from digging in violation of the contract.
 Where the directors of the company are about to pay a dividend out of capital. Any of the
shareholders may sue for an injunction to restrain them.

Section 38 expressly states that where an obligation arises from contract, the court shall be
guided by the rules and principles given in connection with the specific performance of
contracts. Thus, a perpetual injunction will be granted to prevent a breach of contract only in
those cases where the contract is capable of specific performance (section 41(e)).

However, section 42 says that where a contract compromise of a positive agreement to do

something and negative agreement not to do a certain act, whether expressly or impliedly, the
fact that positive part is not capable of specific performance will not prevent the court from of
enforcing the negative part by means of an injunction.

The crux of this section is that where an agreement contains both affirmative and negative
agreement, the court may enforce the negative agreement if a positive agreement is incapable of
specific performance and may restrain a party from committing a breach of the negative part.

Temporary injunction Perpetual injunction

For a specified time and may be granted at any By the decree of the court, by the examination
point during the suit. merits of the case.
Order 39 (Rules 1 to 5) of CPC governs Sections 38 to 42 of SRA governs perpetual
temporary injunctions. Injunctions.

Is non-conclusive and short run. Is Final, Conclusive and Long Run.

May only focus on the Plaintiff‘s side. Focuses on the Plaintiff as well as the
Defendant.
May be revoked by the court Is non-revocable by the court, though
appealable

 Mandatory injunction-

A mandatory injunction is defined by Salmond as ―an order requiring the defendant to do some
positive act for the purpose of putting an end to a wrongful state of things created by him, or
otherwise in the fulfilment of his legal obligations.‖

Section 39 of the Specific Relief Act, 1963 prescribes that, ―When to prevent breach of an
obligation it is necessary to compel the performance of certain acts which the court is capable of
enforcing, the court may in its discretion grant an injunction to prevent the breach complained
of, and also compel the performance of requisite acts.”

The object of a mandatory injunction is to restore him to the original condition and not create a
new state of things. It is a most exceptional remedy and one which is never to be applied except
with the greatest safeguard for the prevention of waste, as well as injustice.

In granting a mandatory injunction under the Specific Relief Act two elements have to be taken
into consideration.

 First, the Court has to determine what acts are necessary in order to prevent a breach of
the obligation.
 Secondly, the requisite acts must be such as the Court is capable of enforcing. In a suit
for mandatory injunction it is necessary to prove special injury or substantial damage.

Before a suit for mandatory injunction can be filed, there must be an obligation on the part of the
defendant to perform certain acts, whether it is not alleged that other party has committed a
breach of an obligation on his part as the case is merely one of trespass, the plaintiff's remedy to
file a suit for possession of the land and a suit for mandatory injunction cannot be filed without
suing for possession of the land.

The obligation must be a legal obligation and not a mere moral duty.
Dorab Cawasji Warden vs. Coomi Sorab Warden [AIR 1990 S.C.867]

The guidelines for interim mandatory injunctions are laid down -

1. The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima
facie case that is normally required for a prohibitory injunction.
2. It is necessary to prevent irreparable or serious injury which normally cannot be
compensated in terms of money.
3. The balance of convenience is in favour of the one seeking such relief.

 Sec. 41 lays down cases where the injunction when cannot be granted -

An injunction cannot be granted -

(a) to restrain any person from prosecuting a judicial proceeding at the institution of the suit,
in which injunction is sought, unless restraint is necessary to prevent multiplicity of
proceeding.
(b) to restrain any person from instituting or prosecuting any proceeding in a Court not
subordinate to that, from which injunction is sought.
(c) to restrain any person from applying to any legislative body,
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter,
(e) to prevent the breach of a contract the performance of which could not be specifically
enforced.
(f) to prevent on the ground of nuisance, and act of which it is not reasonably clear that it
will be a nuisance.
(g) to prevent a continuing breach in which the plaintiff has acquiesced
(h) when equally efficacious relief can be certainly be obtained by any other usual mode of
proceeding except in case of breach of trust, when conduct of the plaintiff or his agents
has been such as to disentitle him to the assistance of the Court.
(i) when the plaintiff has no personal interest in the matter.