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Thursday, February 28, 2013

Explain the Specific relief Act in details

Q.Explain the Specific relief Act in details
Q. What do you understand by equitable remedies and how they are granted.
(1999) (2001) (2004) (2006)
1. Introduction:

 
Specific relief is a form of judicial redress. it belongs to the law of procedure. it is a legal redress which a plaintiff seeks through a civil court. in this kind of relief the contractual party is compelled, to do or refrained from doing an act. the specific relief act relief on the English principles of equity in granting or refusing such relief.
2. Relevant provisions:
Sec. 5 to 35 for specific relief.
Sec. 36 to 42 Preventive relief.
3. Meaning:
The word relief means ending or removal of pain, anxiety or help.
4. Definition of specific relief:
Specific relief in specie. it is a remedy by which a party to a contract is compelled to do or omit the very acts which he has undertaken to do or omit.
According to 'Bentham" :
'The law ought to assure me every thing which is mine. without forcing me to accept equivalents, although I have no particular objections to them."
5. Nature of specific relief:
The specific relief act 1877 is not an exhaustive code. it deals with those specific relief which fall within the domain of court of equity. the relief is ordinary available in a civil courts. the defaulting party is compelled to do or to omit the every act which he has undertaken to do or to omit. the specific relief is adjective law
Case Law
PLD 1971 Lah. 199
The jurisdiction vested in the court for the grant of decree for specific performance is discretionary and the court is not bound to grant such relief even if it is lawful to do so. however the discretion vested in a court of law must not be exercised arbitrarily rather on sound and convincing reasons guided by judicial principles and capable of correction by a court of appeal.
6. Object of specific relief:
The main object of specific relief is to discourage people from taking law into their own hands. it provides summary and speedy remedy through a medium of civil court.
7. Explanation:
T.S Desai
"A person any of whose rights are infringed can go a court of law for a relief and seek a remedy if he has one. the general remedy at law, the remedy which is most common consists in awarding pecuniary compensation, court will compel the defendant to give up the pecuniary value of some benefit which he has wrongfully obtained, or to pay the pecuniary value of goods which he has wrongfully taken or detained."
8. Illustration:
If a person agrees to sell a house to another in case the latter pays him a certain sum and this sum is paid up as agreed upon and the owner of the house does not execute a sale deed, the aggrieved person may either prosecute the other for cheating, or he may sue for the damages and return of the amount paid, or he may ask a competent court to compel the other to perform his contract by executing the sale deed. this last prayer requiring the promisor to do or perform the very thing which he undertook to do will be prayed for specific relief.
9. Features of specific relief:
(i) Specific relief is granted under the principles of equity.
(ii) Its basic purpose is to give a very thing to a person who is entitled for it.
(iii) The defaulting party is compelled to do or to omit the very act which he has undertaken to do or to omit.
10. Modes of specific performance or kinds of equitable remedies:
Under specific performance or equitable remedies relief may be given in the following ways.
I. Delivery of possession:
By taking possession of certain property and thereby delivering it to its claimant.
II. Specific performance of contracts:
By ordering a party to do the act which he is under an obligation to do.
III. Injunctions:
By preventing a party from doing that which he is under an obligation not to do or to do.
IV. Declaration of rights:
By determining and declaring the rights of the parties otherwise than by an award of compensation.
V. Appointment of receiver:
In a dispute over a business between the two parties the court may appoint a receiver who looks after the affairs the business until the case is decided by the court.
VI. Rectification of instruments:
When through fraud or a mutual mistake of the parties, a contract or the other instrument in writing does not truly express their intention, the court can issue order for its rectification or on the request of the parties entitled thereto.
VII: Recession of the contracts:
If any contract in writing has been entered by the parties which is voidable or where the contract is unlawful and the defendant is more blamable or where a decree or specific performance of sale of a contract to take a lease has been made and the purchase or the lease holder does not make payment, the court can order to resind the contract.
VIII. Cancellation of instruments:
Any person against whom a written instrument is void or voidable and the apprehension is of causing serious injury to him. he can get the cancellation of such instrument from the court.
11. Basis of specific relief or equitable remedies:
Basic of specific relief or equitable remedies are as under:
(i) He who comes to equity must come with clean hands.
(ii) He who seeks equity must do equity.
(iii) Delay defeat the equity.
12. Conclusion:
To conclude I can say that, specific relief is relief is a relief in specie. it aims consequently at the exact fulfillment of an obligation and is directed straightway to the obtaining of the very thing which he had been deprived. the specific relief or equitable remedies relief on English principles of equity in granting of refusing relief.



 
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1 comment:

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