Specific Relief Act 1877 in Pakistan: Specific Performance, Injunctions, Declaratory Decrees, and Section 42 Suits

The Specific Relief Act 1877 is one of the oldest statutes still in force in Pakistan, and it is also one of the most heavily used. Almost every civil suit that seeks something other than money damages will invoke it. Suits for specific performance of a sale agreement, declaratory suits over disputed title, perpetual injunctions restraining dispossession, temporary injunctions under Order XXXIX CPC read with Section 94 CPC, and suits to recover possession of immovable property under Section 9 all draw their substantive law from this 19th century statute. Despite its age, the Act continues to govern how civil courts in Pakistan grant equitable reliefs, and every practitioner in civil litigation needs a working command of its provisions.

This article sets out the structure of the Act, the key sections a litigant in Pakistan is likely to encounter, and the principles the Supreme Court of Pakistan and the High Courts have developed around specific performance and injunctions.

Structure of the Act

The Specific Relief Act is divided into three parts. Part I deals with the recovery of possession of property under Sections 8 and 9. Part II covers specific performance of contracts, rectification of instruments, rescission of contracts, and cancellation of instruments, running from Sections 12 to 41. Part III deals with declaratory decrees under Section 42, and then moves into preventive relief, temporary injunctions, and perpetual injunctions from Section 52 onwards. This layout has not changed since 1877, and the section numbers quoted by courts have remained stable, which makes research unusually straightforward for a statute of this vintage.

Recovery of Possession: Sections 8 and 9

Section 8 allows a person entitled to possession of specific immovable property to recover it in the manner provided by the Code of Civil Procedure 1908. Section 9 is the more famous provision. It gives any person dispossessed of immovable property without his consent otherwise than in due course of law a right to sue for possession within six months of the dispossession, and the court will not enquire into title. A Section 9 suit is a summary remedy directed purely at the fact of possession. The defendant cannot plead a better title, and no appeal lies from a decree passed in such a suit, although a review or a constitutional petition may lie. Section 9 is often filed where a tenant or a landowner has been thrown out by force, because it restores status quo quickly and leaves the dispute over title to a separate suit under Section 8.

Specific Performance of Contracts: Sections 12 to 30

Section 12 lists the cases in which specific performance of a contract may be enforced. Broadly, specific performance is available where there is no standard for ascertaining the actual damage caused by non-performance, or where pecuniary compensation would not afford adequate relief. Contracts for the sale of immovable property are presumed to fall within this category because every piece of land is treated as unique, and courts routinely grant specific performance of sale agreements where the plaintiff has performed or is ready and willing to perform his part.

Section 13 deals with cases where part of a contract cannot be specifically performed. Section 21 lists the contracts that cannot be specifically enforced, which include contracts for personal service, contracts so dependent on personal qualifications that the court cannot enforce specific performance of their material terms, and contracts whose terms the court cannot find with reasonable certainty. Section 22 sets out the discretionary nature of the relief. The Supreme Court of Pakistan has repeatedly held that a decree for specific performance is discretionary and that the discretion is to be exercised on sound judicial principles, not arbitrarily. If the court finds that equity tilts in favour of the plaintiff, a decree will follow, otherwise the plaintiff is left to his remedy in damages under Section 19.

In a suit for specific performance, the plaintiff must plead and prove that he has always been and continues to be ready and willing to perform his part of the contract. This is the readiness and willingness rule, and it has been reinforced by countless judgments of the Lahore, Sindh, Islamabad, Peshawar, and Balochistan High Courts. A plaintiff who has not deposited the balance sale consideration, or who has not tendered it, will usually fail. The court will also look at whether the suit has been filed within the limitation period, which under Article 113 of the Limitation Act 1908 is three years from the date fixed for performance, or from when the plaintiff has notice that performance is refused.

Rectification, Rescission, and Cancellation: Sections 31 to 41

Section 31 allows rectification of written instruments where, through fraud or mutual mistake of the parties, the instrument in writing does not truly express their intention. Sections 35 to 38 govern rescission of contracts. Rescission is the act of treating the contract as at an end and requiring the parties to restore any benefits received. A contract may be rescinded where it is voidable or terminable by the plaintiff, or where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff. Sections 39 and 40 allow cancellation of instruments that are void or voidable, and where there is reasonable apprehension that such an instrument, if left outstanding, may cause serious injury. Suits for cancellation of registered sale deeds and general powers of attorney allegedly obtained by fraud are commonly filed under these sections.

Declaratory Decrees: Section 42

Section 42 is perhaps the most litigated provision in the entire Act. It allows any person entitled to any legal character, or to any right as to any property, to 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 a declaration that he is so entitled. The proviso to Section 42 is critical. Where the plaintiff is able to seek further relief than a mere declaration, and omits to do so, the court shall not make any such declaration. This means that a plaintiff out of possession must sue for possession and not merely for a declaration of title. The Supreme Court has struck down countless declaratory decrees where the plaintiff was out of possession and had not sought the consequential relief of possession or cancellation of a sale deed. A bare declaration in such cases is barred by the proviso.

Preventive Relief and Temporary Injunctions

Preventive relief is granted at the discretion of the court by injunction, either temporary or perpetual. Temporary injunctions are governed by Sections 52 and 53 of the Specific Relief Act read with Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. The well settled three part test requires the plaintiff to establish a prima facie case, a balance of convenience in his favour, and irreparable injury that cannot be adequately compensated in damages if the injunction is refused. Pakistani courts have consistently applied this test, and appellate courts interfere with the grant or refusal of a temporary injunction only where the trial court has exercised its discretion arbitrarily, capriciously, or contrary to settled principles.

Perpetual Injunctions: Sections 54 and 55

A perpetual injunction can only be granted by the final decree after trial on the merits. Section 54 provides that a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether express or implied. Where the obligation arises from contract, the court is guided by the rules in Chapter II on specific performance. Section 54 also lists the classic cases in which a perpetual injunction is granted, which include situations where the defendant is trustee of the property for the plaintiff, where there exists no standard for ascertaining the actual damage caused, where pecuniary compensation would not afford adequate relief, and where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Section 55 allows mandatory injunctions, where in order to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing. Section 56 lists the cases in which an injunction cannot be granted. It includes staying proceedings in a court, restraining any person from instituting or prosecuting proceedings in a court not subordinate to that from which the injunction is sought, restraining the central or a provincial government, and preventing the breach of a contract the performance of which would not be specifically enforced.

Section 42 Proviso in Practice

Because the proviso to Section 42 is so often missed, a practical example is useful. Consider a plaintiff who claims that a registered sale deed in favour of the defendant is the result of fraud and forgery, and that the plaintiff was dispossessed after the sale deed was recorded. If the plaintiff files a suit only for a declaration that the sale deed is void, without seeking cancellation of the deed and recovery of possession, the suit is liable to be dismissed on the ground that the plaintiff was able to seek further relief and failed to do so. The correct pleading seeks a declaration that the plaintiff is the owner, cancellation of the sale deed under Section 39, and possession under Section 8, together with a perpetual injunction under Section 54 restraining the defendant from alienating the property during the pendency of the suit.

Court Fee and Valuation

The Court Fees Act 1870 and the Suits Valuation Act 1887 apply to suits under the Specific Relief Act. A suit for specific performance is valued on the contract consideration, and ad valorem court fee is payable. A suit for a declaration with a consequential relief of possession is valued on the market value of the property. A bare declaratory suit attracts a fixed court fee under Schedule II Article 17 of the Court Fees Act. The failure to value a plaint correctly and to affix the proper court fee is a common reason for plaints being returned under Order VII Rule 11 CPC.

Practical Tips for Litigants

First, plead readiness and willingness specifically in every suit for specific performance, and tender or deposit the balance consideration in court where required. Second, in a Section 42 suit, always check whether the plaintiff is in possession and whether consequential relief is available, and plead it if so. Third, in a suit for injunction, apply for temporary injunction on the date of filing together with an affidavit disclosing all material facts. Material non disclosure is a ground for refusal. Fourth, do not ignore limitation. Specific performance suits have a three year limitation under Article 113, cancellation suits under Article 91 also have a three year limitation, and Section 9 possession suits must be filed within six months. Fifth, pay the correct court fee, because a returned plaint can cause serious delay, and the limitation period does not stop running while the plaint is outside the court.

Reform Prospects

The Specific Relief Act has survived almost unchanged for nearly 150 years in Pakistan. India replaced its equivalent statute with the Specific Relief Act 1963, and amended it further in 2018 to make specific performance a general rule rather than a discretionary remedy for commercial contracts. Pakistan has not followed that path, and the 1877 Act still governs. Practitioners should expect reform proposals to appear from time to time, particularly in the context of commercial litigation, but for now the old statute continues to do the work of every civil court in the country.