Professional Documents
Culture Documents
Plaint Structure
Drafting is an essence of any litigation Legal Drafting can be defined as the crystallization and
expression of a legal right, privilege, function, duty, or status in a definitive form.
It helps in meeting the clients goal and carry out the clients instructions.
It helps in maintaining the standard of care which protects the interests of the client.
It helps in accurately addressing all the relevant legal and factual issues.
Precedents form an essential part of drafting and the same can be very helpful in litigation
Meaning of Pleadings
Pleadings are statements in writing drawn up and filled by each party to a case stating what
his contentions will be at the trial and giving all such details as his opponent needs to know in
order to prepare his case in answer.
Pleadings Generally
Order VI Rule 1, Code of Civil Procedure 1908, provides that, Pleading means plaint or
written statement.
Order VI Rule 14, Code of Civil Procedure 1908, provides that Every Pleadings shall be
signed by the parties and his pleader (if any)
Order VI Rule 15, Code of Civil Procedure 1908, provides that Every Pleadings shall be
verified at the foot by the party or by one of the parties pleading.
What is pleading?
Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and
defenses. The plaintiff submits a complaint stating the cause of action -- the issue or issues
in controversy. The defendant submits an answer stating his or her defenses and denials. The
defendant may also submit a counterclaim stating a cause of action against the plaintiff.
Pleadings serve an important function of providing notice to the defendant that a lawsuit
has been instituted concerning a specific controversy or controversies. It also provides notice
to the plaintiff of the defendant's intentions in regards to the suit.
Background:-
Old common law rules of pleading were complicated and rigourous. Meritorious complaints
were often thrown out of court for technical flaws in form rather than substance. Today, in
most if not all states, a pleading must no longer conform to archaic formats but may be a
simple petition or complaint setting forth the relevant facts and asking for a remedy.
Pleading in a Suit:-
Pleading is defined in the code of civil procedure in O 6, RULE 1.as given below :-
"pleading" shall mean plaint or written statement."
Order 6 Rule 2 says pleading to state material facts and not evidence.
Order 6, Rule 2 (1) every pleading shall contain and contain only a statement in concise form
of the material facts on which the party pleading relies for his claim or defence as the case may
be, but not the evidence by which they are to be proved.
Basic principle of pleading is that "pleading should refer to fact alone, it should not be
argumentative averment."(M/s strong construction v. state of up. AIR 2005 ),
Case Law :-
1. Jitu Patnaik versus Sanatan Mohakud & Others 2012 (1) U.A.D. 767 (SC).
A distinction between "material facts" and "particulars", however, must not be overlooked.
"Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the
defendant in support of the case set up by him either to prove his cause of action or defence.
"Particulars", on the other hand, are details in support of material facts pleaded by the party.
They amplify, refine and embellish material facts by giving distinctive touch to the basic
contours of a picture already drawn so as to make it full, more clear and more informative.
"Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise.
All "material facts" must be pleaded by the party in support of the case set up by him. Since the
object and purpose is to enable the opposite party to know the case he has to meet with, in
the absence of pleading, a party cannot be allowed to lead evidence.
Failure to state even a single material fact, hence, will entail dismissal of the suit or petition.
Particulars, on the other hand, are the details of the case which is in the nature of evidence a
party would be leading at the time of trial."
2. Union of India versus Ibrahim Uddin & Anr 2012 (2) U.A.D. 566 (SC)
The court cannot travel beyond the pleadings as no party can lead the evidence on an
issue/point not raised in the pleadings and in case,such evidence has been adduced or a finding of
fact has been recorded by the court, it is just to be ignored.
Object of Pleading:-
It is well settled position of law that the whole object of pleading is to give fair notice to each
party of what the opponent's case is, and to ascertain, with precision, the points on which the
parties agree and those on which they differ, and thus to bring the parties to a definite issue.
The purpose of pleading is also to eradicate irrelevancy.
In order to have a fair trial it is imperative that the party should state the essential facts so that
other party may not be taken by surprise.
The parties thus themselves know what are matters left in dispute and what facts they have to
prove at the proceeding and are thus given an opportunity to bring forward such evidence as may
be appropriate.
The main object of pleadings is to find out and narrow down the controversy between the
parties.
Contention which are not based on the pleadings cannot be permitted to be raised either at
the time of arguments or at the appellate stage."The New India Assurance Co. Ltd. vs.
Surender singh & others. (HC) UAD 2007
Description of Parties:-
There are two types of pleading mainly in a suit:
1. Plaint
Order 7 Rule 1 of civil procedure code says that plaint shall contain the following particulars:-
1. The name of the court in which the suit is brought.
2. The name, description and place of residence of the plaintiff.
3. The name, description and place of residence of the defendant, so far as they can be ascertained.
4. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect
5. The fact constituting the cause of action and when it arose.
6. The fact showing that the court has jurisdiction;
7. The relief which the plaintiff claim;
8. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or so relinquished :and
9. A statement of the value of the subject matter of the suit for the purposes of jurisdiction and of
court fees, so far as the case admits.
2. Written Statement:
A 'defence' called the written statement, in general this is a reply of plaint ,in which
defendant deny or admit the each and every allegation or facts given in the plaint. Denial or
admission must be Para wise and clear.
It is settled law that denial for want of knowledge is no denial at all. The provisions contained
in Order 8 Rule 5 require pleadings to be answered specifically in written statement.
Muddasani venkata narsaiah versus Muddasani sarojana. In the written statement
defendant can put his case also under the heading additional plea, and can states new facts or
ground which is necessary to defeat the opponent. If defendant want to put his own claim
against the plaintiff he can put it by way of set- off and counter claim u/o 8 Rule 6 and 6A
of C.P.C.
NOTE:-The facts which remain unanswered by the defendant, it will be presumed that the
said fact was admitted by the defendant. In general the fact which is taken to be admitted need
not be proved. Pleading must be unambiguous clear and correct .Carelessly prepared pleading
can spoil the suit.
Time for Filing of Written Statement:
Order, 8 Rule 1:-Time for filing written statement is fix for 30 days from the date of service
of summon on him and maximum time limit from the date of service of summons is ninety
days.
Provision of Order 8, Rule 1, are directory in nature even after expiry of stipulated period
court can extend time to file written statement. (Rameshwar Lal v. Daya Nand AIR 2005.)
Frame of Suit:
Order 2 Rule 1 says:- "Every suit shall as far as practicable be framed so as to afford ground
for final decision upon the subject in dispute and to prevent further litigation concerning
them.
" There are two important things in order 2 rule 1, firstly, before framing a suit pleader should be
remembered that "as far as practicable, it should be so framed as to afford ground for final
decision of the subject in disputes." and secondly, to prevent further litigation concerning them.
Order 2 Rule 2 says:- that "every suit shall include the whole of the claims which the plaintiff
is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion
of his claim in order to bring the suit within the jurisdiction of any court.
Actually the main object of this rule is to avoid the multiplicity of suits, so its requires that every
suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause
of action" If he omits or relinquishes any portion of his claim he shall not afterwards sue in
respect of the portion so omitted or relinquishes ( Order 2 Rule2 sub rule 3 ) but if he omits or
relinquished any relief with the permission of the court he shall afterward can sue for the relief so
omitted or relinquished ( Sub rule 3 of Rule 2 C.P.C.)
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what
he verifies of his own knowledge and what he verifies upon information received and believed to be
true.
(3) The verification shall be signed by the person making it and shall state the date on which and the
place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
Sub rule (4) of the aforesaid provision came to be inserted by the Amendment Act 46 of 1999 w.e.f.
01.07.2002. Prior to the amendment to Rule 15 CPC, there was no provision regarding verification
of the pleadings in a plaint by way of an affidavit.
Section 26 of the CPC that deals with institution of suits prescribes as below :-
26. Institution of suits - (1) Every suit shall be instituted by the presentation of a plaint or in such other
manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit.
It may be noted that sub rule (2) of Section 26 was also inserted by way of the amendments that were
given effect from 01.07.2002
When the aforesaid provisions are read conjointly, what clearly emerges is that a suit is instituted upon
presentation of the plaint or in such a manner as maybe prescribed in the CPC and the facts stated in the
plaint are to be proved by affidavit.
In the case of Salim Haji Abdul , the provisions of Order VIII Rule 1, post amendment were held to
be directory in nature by applying the oft quoted maxim that rules of procedure are handmaids of
justice and while the language employed by the draftsman of the processual law may be liberal or
stringent, the object of the prescribing procedure is advance the cause of justice.
Application for setting aside ex-part decree
Format of an application to set aside a decree passed ex parte
Important points
an ex parte decree is a decree that is passed by the court in absence of any response
from the defendant as per Order 9 Rule 6 of CPC.
As per Order 9 Rule 13, the defendant may apply before the court that passed the decree to set it
aside on the following grounds:
If he satisfies the court that the summons was not duly served
He was prevented by any other sufficient cause from attending the hearing. For
example, bona fide mistake as to the date or hearing, late arrival of train, etc. are
sufficient causes for absence of the defendant.
Such an application for setting aside may be made within 30 days from the date of
decree as per Section 123 of Limitation Act.
The period of limitation for an application to set aside a decree passed ex parte or to re-hear an appeal
decreed or heard ex parte {Explanation: For the purpose of this article, substituted service under Rule 20
of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service] is thirty days,
the time of limitation starts to run from the date of the decree or where the summons or notice was not
duly served, when the applicant had knowledge of the decree.
Article 123 applies not only to set aside the decree passed ex parte but also rehear an appeal
decreed or heard ex parte.
According to Order IX Rule 13 of Civil Procedure Code the Court can entertain an application by a
defendant to set aside a decree passed against him ex parte. Though the Article 123 governs only
suits, it is made applicable to application by reason of Section 141 of the Civil Procedure Code. The
Art. 123 is not restricted to an application to set aside the ex parte decree passed in a suit. If an
order is passed ex parte and has the force of a decree, then an application to set it aside will also be
governed by the Art. 123. An application to set aside an ex parte final decree is governed by the Art.
123.
The provisions of Order IX Rule 13 of the Civil Procedure Code would be applicable to a probate
proceeding to recall an ex parte order granting probate of a Will. For setting aside an ex parte decree by
the High Court original side Order IX, Rule 13 of the Civil Procedure Code is attracted by Art. 123 of
the Limitation Act.
The expression knowledge of the decree means something more than a mere knowledge that a
decree has been passed in some suit in some Court against the applicant. It means that the applicant
must have knowledge not merely that a decree has been passed against him, ex parte by some Court
against him, but that a particular decree has been passed against him in a particular Court for a particular
sum as relief.
In M. Narasimha Reddy v. Begari Samuel, [AIR 2003 NOC 357 (AP)], it has been held that the
substituted service under Order V, Rule 20 of the Civil Procedure Code should not be deemed to be due
service for the purpose of the Article 123. It is observed that the Explanation to Art. 123 is a specific
provision which is mandatory in nature, but, in exceptional circumstances or if the Court feels basing on
facts and circumstances of the case including the conduct of the party to draw an inference regarding
service, then the presumption can be held to be rebutted, however, it is a rare phenomenon and such
inference of due service cannot be drawn in normal circumstances.
ADVERTISEMENTS:
It is also pointed out that an inference of due service may be drawn in the facts and circumstances of the
case where it appears that the defendant is deliberately pleading ignorance of the knowledge of the
proceeding and trying to take advantage of the Explanation to Art. 123 of the Limitation Act, 1963 and
that in such a case the Court can call upon the parties for adduce evidence in its discretion which shall be
exercised sparingly.
In regard to an application for setting aside an ex parte decree in a suit, the starting point of limitation
runs from the date of decree where the summons have been duly served but where the summons was not
served then from the time the applicant had the knowledge of the decree. Similarly, the limitation for
filing an application of the appeal decreed ex parte, the limitation would start from the date when the ex
parte decree is passed where there was a service of the notice of the appeal.
The expression knowledge of the decree means something more than a mere knowledge that a decree
has been passed in some suit in some Court against the applicant. It means that the applicant must have
knowledge not merely that a decree has been passed against him, ex parte by some Court against him,
but that a particular decree has been passed against him in a particular Court for a particular sum as
relief.
FORMAT:-
In the Court of Civil Judge Class - I at Indore
Vs.
M. N. s/o O. P.
456, A B Road, Indore, MP .......................................................... Respondent/Applicant
(2) The applicant came of know of this fact on 15/10/2009, when a demand notice was served on him by
the plaintiff for the decretal amount.
(4) The summons in the said case was not served at all on the respondent/applicant.
(4) The respondent/applicant could not enter appearance in the said case by reason on non-service of the
summons.
(5) Relief Claimed: The applicant accordingly prays that the decree passed ex parte on 10/10/2009
against the applicant in the afore mentioned case be set aside and the aforementioned case be tried in
presence of the applicant.
YYY
Advocate for
Respondent/Applicant
Verification
I, M. N. s/o O.P. do hereby verify that the contents from paras 1 to 5 are correct and true to the best of
my knowledge and the rest of the contents are based on legal advice, which I believe to be true.
Affirmed at Indore this 4th Day of September 2009.
(Signature)
Respondent/Applicant
Suit under Order XXXVII of CPC and the difference between the two suits
ORDER (37) XXXVII: SUMMARY PROCEDURE
Court and classes of suits to which the Order is to apply
(1) This Order shall apply to the following Courts, namely:-
(a) High Courts, City Civil Courts and Courts of Small Causes: and
(b) Other Courts:
Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification
in the Official Gazette, restrict the operation of this Order only to such categories of suits as it
deems proper, and may also, from time to time, as the circumstances of the case may require, by
subsequent notification in the official Gazette, further restrict, enlarge 6r vary, the categories of
suits to be brought under the operation of this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits,
namely
In a summary suit, the defendant is not entitled as a right to defend the suit as he is in an
ordinary suit and he must apply for leave to defend. If no leave is granted then the plaintiff is
entitled to a decree.
To obtain such a leave the defendant will have to state on affidavit such facts as it would make
incumbent on the Plaintiff to prove consideration.
In a summary suit, the defendant must prove his facts within ten days from the service of
summons for judgement. However in an ordinary suit, he has a time limit of 30 days for filing a
written statement.
Generally speaking, summary suits are much easier to establish for the Plaintiff and much
tougher for the Defendant to defend than ordinary suits. This is because of the fact that the
Defendant has an added burden of proving as to why he should be allowed to put up a
defense.
In theory, a summary suit is supposed to be a faster remedy than an ordinary suit. Sometimes
multiple summons are served on a defendant before an ex parte decree in favour of the Plaintiff
is passed. In a summary suit however, if the defendant fails to establish as to why he should be
allowed to defend within 10 days, an ex parte decree is immediately given.
Hence it is my humble opinion that a summary procedure should always be opted for whenever the
circumstances allow, as compared to an ordinary suit.
Permanent Injunction
A permanent injunction can be granted by the court by passing a decree made at the hearing and upon
the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the
assertion of a right, or from the commission of an act, which would be contrary to the rights of the
plaintiff.
When can a permanent injunction be granted?
A permanent injunction may be granted:
To the plaintiff in a suit to prevent a breach of an obligation existing in his favour, whether
implicit or explicit. However, in a case where such an obligation arises out of a contract, the
court follows the rules as specified by Chapter II of the Act. Chapter II, under Section 9 provides
that a person may claim relief in respect to a contract, by pleading in his defense, any of the
ground available to him under any law relating to contracts.
In a case where the defendant invades or threatens to invade the plaintiffs right to, or enjoyment
of, property, the court may grant a permanent injunction where:
In Municipal Corporation of Delhi v. Suresh Chand Jaipuria, , their Lordships of the Supreme
Court held that permanent injunction cannot be granted when an alternative efficacious
relief is obtainable in any other usual mode or proceedings. But in that case remedy for the
plaintiff was available under Delhi Municipal Corporation Act. When Section 41 (h) of
the Specific Relief Act lays down that an injunction cannot be granted when equally efficacious
relief can certainly be obtained by any other usual mode or proceedings.
It is a court order which restrains one of the parties to a suit in equity from doing or permitting
others who are under his control to do an act which is unjust to the other party. An injunction
clearly forbids a certain type of conduct.
It is a remedy that originated in the English courts of equity. Like other equitable remedies, it
has traditionally been given when a wrong cannot be effectively remedied by an award of money
damages. Injunctions are intended to make whole again someone whose rights have been
violated. Nevertheless, while deciding whether to grant an injunction, courts also take into
account the interests of non-parties (that is, the public interest). When deciding whether to
give an injunction, and deciding what its scope should be, courts give special attention to
questions of fairness and good faith.
One manifestation of this is that injunctions are subject to equitable defenses, such as laches
and unclean hands. Injunctions are given in many different kinds of cases. They can prohibit
future violations of the law, such as trespass to real property, infringement of a patent etc.
Taking in to consideration the duration and the stage, they can be classified in to
Temporary injunctions
and Perpetual injunctions.
Otherwise, an injunction that requires conduct is called a "mandatory injunction." An injunction
that prohibits conduct is called a "prohibitory injunction.
Many injunctions are boththat is, they have both mandatory and prohibitory components, because they
require some conduct and forbid other conduct. When an injunction is given, it can be enforced with
equitable enforcement mechanisms such as contempt. It can also be modified or dissolved (upon a
proper motion to the court) if circumstances change in the future. These features of the injunction allow
a court granting one to manage the behaviour of the parties.
Indian law:-
In Indian legal system the law of injunctions is mainly governed by Order XXXIX and section 36 and
42 of the Specific relief Act. Section 94(c) of the Civil Procedure Code also gives supplemental
provision for grant of temporary injunction. It is also settled that there is no bar in granting injunction or
supplementary orders under Section 151 of the Civil Procedure Code for compliance of injunction in
just cases. The later provision of inherent powers increases the scope of civil courts for granting
injunctions.
TEMPORARY INJUNCTION
When the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in suit, the Court may grant a temporary injunction to
restrain such an act or make other order for the purpose of preventing the dispossession of the
plaintiff or for the purpose of preventing the causing of injury to the plaintiff in relation to any
property in dispute.
If the defendants are creating third party interest/rights as he is trying to dispose of part of the
property, the plaintiff can claim the injunction.
Temporary injunction is a provisional remedy that is invoked to preserve the subject matter in its
existing condition. It's purpose is to prevent dissolution of the plaintiff's rights. The main reason
for use of a temporary injunction is the need for immediate relief.
Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court
may in order to prevent the ends of justice from being defeated, grant a temporary injunction or
make such other interlocutory order as may appear to the Court to be just and convenient.
Section 95 of Civil Procedure Code further provides that where in any suit a temporary
injunction is granted and it appears to the Court that there were no sufficient grounds, or the
suit of the plaintiff fails and it appears to the Court that there was no reasonable or
probable ground for instituting the same, the Court may on application of the defendant award
reasonable compensation which may be to the extent of the pecuniary Jurisdiction of the Court
trying the suit.
Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit. At the stage of deciding the application for temporary injunction,
the Court is not required to go into the merits of the case in detail.
Generally, before granting the injunction, the court must be satisfied about the following aspects:
* ubi jus ibi remediam.Whenever there is right there is remedy.
* One who seeks equity must come with clean hands.
* One who seeks equity must do equity.
* Where equities are equal, the law will prevail.
* Equity follows the law.
* Equity aids the vigilant, not those who slumber on their rights.
* The power to grant a temporary injunction is at the discretion of the court.
* This discretion, however, should be exercised reasonably, judiciously and on sound legal principles.
* Injunction should not be lightly granted as it adversely affects the other side.
* The grant of injunction is in the nature of equitable relief, and the court has undoubtedly power to
impose such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as
not to make it impossible for the party to comply with the same and thereby virtually denying the relief
which he would otherwise be ordinarily entitled to.
Introduction
An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding
the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or
attempting to commit, or restraining him in the continuance thereof, such act being unjust and
inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action fit law.[1]
For example, if it so happens that a person is demolishing a building you have possible claims on, you
may ask the competent court to order such person to not demolish the building until the trial for the
claim of the building is complete and judgement goes in his favour.
The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter, the Act), and
is also regulated by the Code of Civil Procedure, 1908 in India.
Generally speaking, there are two types of injunctions under the act[2], as mentioned below:
1. Temporary Injunction
2. Perpetual/Permanent Injunction
Temporary Injunction
Temporary injunctions, as the name suggests, are the injunctions that are given for a specific period of
time or until the court gives further order regarding the matter in concern. They can be obtained during
any stage of the trial and are regulated by the Code of Civil Procedure (CPC), 1908[3]:
Section 94: The section provides for supplemental proceedings, to enable the court to prevent
the ends of justice from being defeated. Section 94(c) states that a court may grant temporary
injunction and in case of disobedience commit the person guilty thereof to the civil prison and
order that his property be attached and sold. Section 94(e) of the Code enables the court to
make interlocutory orders as may appear to it to be just and convenient.
Section 95: If it is found by the court that there were no sufficient grounds to grant the
injunction, or the plaintiff is defeated in the suit, the court may award reasonable
compensation to the defendant on his application claiming such compensation.
Order XXXIX:
Rule 1: It enlists the situations when a court may grant temporary injunction. These are:
Rule 2: It provides that an interim injunction may be granted for restraining the defendant
from committing a breach of contract or other injury of any kind to the plaintiff.
Rule 3: It states that a court shall direct a notice of application to the opposite party, before
granting the injunction to the plaintiff. However, if it seems to the court that the purpose of
the injunction would be defeated by the delay, it may not provide the notice.
Rule 4: It provides for vacation of already granted temporary injunction.
Rule 5: It states that an injunction directed to a corporation is binding not only on the
corporation itself, but also on all members and officers of the corporation whose personal
action the injunction seeks to restrain.
In the M. Gurudas and Ors. case[4], the Honble Supreme Court of India has opined, while
considering an application for injunction, the Court would pass an order thereupon having regard
to prima facie, balance of convenience and irreparable injury.
Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N. Banerjee, while discussing
a the meaning of the prima facie case, the court said:
A prima facie case does not mean a case proved to the hilt but a case which can be said to be
established if the evidence which is led in support of the same were believed. While determining
whether a prima facie case had been made out the relevant consideration is whether on the evidence led
it was possible to arrive at the conclusion in question and not whether that was the only conclusion
which could be arrived at on that evidence.
Prima facie case is a must to be eligible to obtain a temporary injunction. However, it is not sufficient
and temporary injunction cannot be granted if the damage that will be caused if the injunction is not
given is not irreparable.
2. Irreparable Injury:
Irreparable injury means such injury which cannot be adequately remedied by damages. The remedy
by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of
success in the suit would not place him in the position in which he was before injunction was refused.[7]
3. Balance of Convenience:
In the case of Anwar Elahi , the court has clearly explained the meaning of balance of convenience.
According to the court:
Balance of convenience means that comparative mischief or inconvenience which is likely to issue
from withholding the injunction will be greater than that which is likely to arise from granting it. In
applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be
done to the applicant if the injunction is refused and compare it with that which is likely to be caused to
the other side if the injunction is granted.
Permanent Injunction
A permanent injunction can be granted by the court by passing a decree made at the hearing and upon
the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the
assertion of a right, or from the commission of an act, which would be contrary to the rights of the
plaintiff..
a. To the plaintiff in a suit to prevent a breach of an obligation existing in his favour, whether implicit or
explicit. However, in a case where such an obligation arises out of a contract, the court follows the rules
as specified by Chapter II of the Act. Chapter II, under Section 9 provides that a person may claim relief
in respect to a contract, by pleading in his defence, any of the ground available to him under any law
relating to contracts.
b. In a case where the plaintiff invades or threatens to invade the plaintiffs right to, or enjoyment of,
property, the court may grant a permanent injunction where:
Mandatory Injunction
If the court finds it necessary and within its capability, to compel the performance of an act, to prevent
the breach of an obligation, it may do so granting a mandatory injunction to the plaintiff, compelling the
defendant to perform the requisite acts..
Damages In Lieu of, or in Addition to Injunction
If the plaintiff claims for any additional damages along with the injunction sought for, either perpetual or
mandatory, or in substitution of the said injunction, the court may award him such damages, if it thinks
fit[14]. If no damages have been claimed, the court may allow the plaintiff to make the required
amendments to the plaint and claim damages[15].
However, it is highly recommended to claim damages in the plaint before submitting it, as permission
for further amendments rests solely at the discretion of the court.
The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff bars his
right to sue for damages for such breach.[16]
The court can grant an injuncmtion to not do certain acts, which are prohibited by the contract to do. The
court may do so even if it is unable to compel the performance of the affirmative terms of the contract,
i.e. the terms that requires the defendant to do (perform) certain acts. However, it is subject to the fact,
whether the plaintiff has performed the terms of the contract binding on him or not. Non performance by
the plaintiff dis-entitles him from obtaining such an injunction.[17]
In the case of Jujhar Singh vs. Giani Talok Singh[18] where a permanent injunction was sought for by
a son to prevent his father who happened to be the Karta of the Hindu Undivided Family (HUF), from
selling the HUF property was set aside. It was not maintainable because the son, also a coparcener, had
got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of
the sale.
On the other hand, granting the injunction sought would allow the son to use the injunction to prevent
the father from selling the property even if he is compelled to do so, due to legal necessities.
Where in the case of Cotton Corporation Of India vs. United Industrial Bank, an injunction was
sought for to restrain the defendants from presenting a winding-up petition under the Companies Act,
1956 or under the Banking Regulation Act, 1949, the court dismissed the petition as it was not
competent to grant, as a relief, a temporary injunction restraining a person from instituting a proceeding
in a court not subordinate to it.
The court here was of the view that if a perpetual injunction cannot be granted for the subject matter of
the case under Section 41(b) of the act, ipso facto temporary injunction cannot be granted.[19]
Question no.9 :- What are the circumstances in which the Court can exercise its discretion properly ?
Answer:-
If the terms of contract give the plaintiff unfair advantage over the defendant; or
If the conduct of the parties of contract or other circumstances, gives the plaintiff unfair advantage over
the defendant
If the performance of contract would involve hardship on the defendant which he did not foresee,
whereas its non performance would involve no such hardship on the plaintiff; or
Where the defendant entered into the contract under circumstances which, though not rendering the
contract voidable makes it inequitable to enforce specific performance
Question no.10 :- What do the terms Ready and willing to perform mean? Whether the conduct of the
plaintiff is to be considered in a suit for Specific Performance Suit?
Answer:- In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. MANU/SC/0025/1996 : (1995) 5
SCC 115 at para 5, this Court held:
Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant.
The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the
relief of specific performance. This circumstance is material and relevant and is required to be
considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or
prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of
the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to
the filing of the suit alongwith other attending circumstances. The amount of consideration which he has
to pay to the defendant must of necessity be proved to be available. Right from the date of the execution
till date of the decree he must prove that he is ready and has always been willing to perform his part of
the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is
to be adjudged with reference to the conduct of the party and the attending circumstances. The court may
infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his
part of the contract.
Question no.11 :- Is specific performance of contract by Minor enforceable?
Answer:- Sri Kakulam Subrahmanyam and another Vs. Kurra Subba Rao, AIR1948PC95, Held: A
minors agreement being now decided to be void, it is clear that there is no agreement to be specifically
enforced; and it is unnecessary to refer to former decisions and distinctions, following English
authorities which were applicable only on the view now overruled by the Privy Council.
Question no.12 :- Is specific performance of contract by Agent enforceable?
Answer:- An agent cannot personally enforce contracts entered into by him on behalf of his principal not
is he personally bound by them in the absence of any contract to that effect. See section 230 of Indian
Contract Act,1872.
Question no.13 :- Can Legal representative enforce specific performance of contract?
Answer:- The legal representative of a deceased party can enforce a contract of sale . see ruling 1972 (2)
MLJ 281, Dorai Swany vs Kanuiappa.
Question no.14 :- Whether specific performance of contract can be granted with doubtful title?
Answer:- No. Where the doubtfulness of the title cannot be resolved except by proving certain intruinsic
facts or by agitating against the parties other than the parties to the contract; the court cannot grant the
relief of specific performance; A doubtful title is one regarding which some doubt persists but a bad
title one defective in its nature. See Ahmedbhoy vs Sir Dinshaw.
Question no.15 :- When Time is essence of contract?
Answer:- In AIR2011SC3234, 2011(5)ALD100(SC), Mrs. Saradamani Kandappans case, it was
observed that the legal position is clear from the decision of a Constitution Bench of this Court in Chand
Rani v.Kamal Rani MANU/SC/0285/1993 : 1993 (1) SCC 519, wherein this Court outlined the principle
thus:
It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as
the essence of the contract. In fact, there is a presumption against time being the essence of the contract.
This principle is not in any way different from that obtainable in England. Under the law of equity which
governs the rights of the parties in the case of specific performance of contract to sell real estate, law
looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the
terms of the contract the parties named a specific time within which completion was to take place, really
and in substance it was intended that it should be completed within a reasonable time. An intention to
make time the essence of the contract must be expressed in unequivocal language.
In the case of Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs, 1993 (1) SCC 519,
it was held that in the case of sale of immovable property there is no presumption as to time being the
essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be
performed in a reasonable time if the conditions are:
1. from the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example: the object of making the contract.
Question no.16 : Is suit for specific performance of contract by one of joint promisees maintainable?
Answer:- Smt. Nirmala Bala Dasi and Anr. Vs. Sudarsan Jana and Ors. AIR1980Cal258. Reliance in
this connection may also be placed on the following passage from the judgment of Privy Council in the
case of Monghibai v. Cooverji Umersey, reported in MANU/PR/0023/1939 : AIR 1939 PC 170 :
It has long been recognized that one or more of several persons jointly interested can bring an action in
respect of joint property and if their right to sue is challenged can amend by joining their co-contractors
as plaintiffs if they will consent or as co-defendants if they will not. Such cases as (1879) 11 Chn D
121 and (1898) 2 QB 380 are examples of this principle. Nor indeed would it matter that a wrong person
had originally sued though he had no cause of action : See (1902) 2 KB 485. Once all the parties are
before the Court, it can make the appropriate order and should give judgment in favour of all the persons
interested whether they be joined as plaintiffs or defendants.
Question no.17 :- Can an unregistered agreement of sale be marked in suit for specific performance?
ANSWER:- (i) A document produced for inspection of the Court cannot be admitted in evidence under
Section 49(c) of the Registration Act, if it is required registration under Section 17 of the said Act.
(ii) Any document by whatever name called not creating, declaring, assigning, limiting or extinguishing
any right, title or interest, but merely creating right to obtain another document does not require
registration under Section 17(1) of the Registration Act.
(iii) As a necessary corollary a document of contract for safe of immovable property creating right to
obtain another document shall not require registration by reason of the payment of earnest money or
whole or part of purchase money by the purchaser.
(iv) In any event, the prohibition under Section 49(c) of the Registration Act does not apply to an
unregistered document effecting immovable property in a suit for specific performance under the
Specific Relief Act or as evidence of part performance of contract of as evidence of any collateral
transaction not required to be effected by registered document.
Question no. 18:- What are the essential elements to constitute Lis Pendens?
Answer:- In order to constitute a lis pendens the following elements must be present :-
(I) There must be a suit or proceeding pending in a Court of competent jurisdiction.
(II) The suit or proceeding must not be collusive.
(III) The litigation must be one in which right to immovable property is directly and specifically in
question.
(IV) There must be a transfer of or otherwise dealing with the property in dispute by any party to the
litigation.
(V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of
the decree or order.
Question no. 19 :- Application of Order 22 Rule 10 of CPC and Order 1 Rule 10 CPC in specific
performance of contract?
Answer:- The object of Order 1, Rule 10, C.P.C. is to discourage contest on technical pleas, and to save
honest and bona fide claimants from being non-suited. The power to strike out or add parties can be
exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a
party to the suit in the following two contingencies :- (i) When he ought to have been joined as plaintiff
or defendant, and is not joined so, or (ii) When, without his presence, the questions in the suit cannot be
completely decided.
Order 1 Rule 10 cpc is wider than the scope Order 22 Rule 10 Cpc. Order 22 Rule 10 Cpc is merely an
enabling provision and that it has certain parameters. Order 22, Rule 10, C.P.C. speaks of cases of an
assignment, creation or devolution of any interest during the pendency of a suit and the suit may, by
leave of the Court, be continued by or against the person to or upon whom such interest has come or
devolved. (See the ruling Lingaraja Mohanty vs Binodini Mohanty & Ors. on 20 April, 2011)
Question no. 20:- Alternative relief of refund of earnest money
Answer:- Where the vendee suing for specific performance of contract of sale in the same suit asked in
the alternative for the relief of refund of earnest money or advance money, paid under the contract of
sale, can, as an aggrieved person, prefer appeal against the judgment and decree of the first court which
granted him only the relief of return of the earnest money or advance money while denying him the
relief of specific performance. (See ruling AIR 1991 Madras 163, Ramani Ammal vs Susilammal)
Question no. 21. Can amendment application be permitted relating to compensation in a suit for specific
performance?
Answer:- Where an amendment relates to relief of compensation in lieu of or in addition to specific
performance where the plaintiff has not abandoned his relief of specific performance the ourt will allow
the amendment at any stage of the proceeding. [See AIR 1992 SC 1604, Jagdish Singh vs Nathu
Singh]
Question no. 22. What is the distinction between Compensation and Damages?
Answer:- In the case of Mahamed Mozaharal Ahad Vs. Mahamed Azimaddin
Bhuinya, AIR1923Cal507, Held: As Lord Esher observed in Dixon v. Calcraft (1892) 1 Q.B. 458 (463)
the expression compensation is not ordinarily used as an equivalent to damages, although as remarked
by Fry, L.J. in Skinners Co. v. Knight (1891)2 Q.B. 542 compensation may often have to be measured
by the same rule as damages in an action for the breach. The term compensation as pointed out in the
Oxford Dictionary, signifies that which is given in recompense, an equivalent rendered. Damages, on the
other hand; constitute the sum of money claimed or ad judged to be paid in compensation for loss or
injury sustained; the value estimated in money, of something lost or withheld. The term compensation
etymologically suggests the image of balancing one thing against another; its primary signification is
equivalence, and the secondary and more common meaning is something given or obtained as an
equivalent.
Question no. 23. Can Court make an order under section 151 CPc directing the plaintiff to file an
undertaking that he will pay some amount directed by the court to the defendant as damages if he fails in
the suit?
Answer:- A Court in exercise of inherent power under Section 151 of the Code cannot make an interim
Order directing the Plaintiff to file an undertaking that he will pay a sum directed by the Court to the
Defendant as damages in case he fails in the suit. [2010(5)ALD124(SC), Vinod Seth Vs. Devinder Bajaj
and Anr.]
Question no. 24. Is escalation in the price of the land ground to deny relief of specific performance?
Explain section 20 of SR Act.
Answer. Escalation in the price of the land cannot, by itself, be a ground for denying relief of specific
performance. In K. Narendra v. Riviera Apartments (P) Ltd. (supra), this Court interpreted Section 20 of
the Act and laid down the following propositions:
Section 20 of the Specific Relief Act, 1963 provides that 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; 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. Performance of the contract involving some hardship on the
Defendant which he did not foresee while non-performance involving no such hardship on the Plaintiff,
is one of the circumstances in which the court may properly exercise discretion not to decree specific
performance. The doctrine of comparative hardship has been thus statutorily recognized in
India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the
Defendant or improvident in its nature, shall not constitute an unfair advantage to the Plaintiff over the
Defendant or unforeseeable hardship on the Defendant.[ See AIR2012SC2035, Narinderjit Singh Vs.
North Star Estate Promoters Ltd.]
Question no. 25. Whether grant of relief for specific performance will cause hardship to Defendant
within meaning of Clause (b) of Sub-section (2) of Section 20 of Specific Relief Act, 1963?
Answer:- The question as to whether the grant of relief for specific performance will cause hardship to
the Defendant within the meaning of Clause (b) of sub-section (2) of Section 20 of the Specific Relief
Act, 1963, being a question of fact, the first appellate court without framing such an issue ought not to
have reversed the finding of the trial court while concurring with it on all other issues with regard to the
Appellants entitlement to relief for specific performance of contract.[ Prakash
Chandra Vs. Narayan, AIR2012SC2826]
Question no. 26. When does false representation disentitle the plaintiff to t he equitable relief under
section 22 of the Act?
Answer:- The question naturally arises as to whether this false representation disentitles the plaintiffs to
the equitable relief under S. 22 of the Act. As stated earlier, mere false representation is not enough. It
has to be further shown by the defendants that this false representation resulted in adversely affecting
their interest, or it altered the position of the parties in such a way that it would be inequitable to grant
relief to the plaintiffs.( AIR1967AP63, Vuppalapati Butchiraju and Anrs case)
Question no. 27. The plea of Bonafide purchaser
Answer:- Section 19(b) of the Specific Relief Act, 1963, protects the bona fide purchaser in good faith
for value without notice of the original contract. This protection is in the nature of an exception tot he
general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is in
innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each
case. Section 52 of the Penal Code emphasises due care and attention in relation to good faith. In the
General Clauses Act exphasis is laid on honesty.(Narayana Reddy (deceased) (D2) and Ors.
Vs. P. Chandra Reddy, MANU/TN/7408/2007)
Question no. 28:- Whether Court need to grant the order for specific relief on the ground that it is lawful
to grant specific relief?
Answer:- The jurisdiction to decree specific relief is discretionary and the Court can consider various
circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific
relief, the Court need not grant the order for specific relief; but this discretion shall not be exercised in
an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2)of the
Specific Relief Act, 1963 as to under what circumstances the Court shall exercise such discretion. If
under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may
not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the
defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is
inequitable to grant specific relief, then also the Court would desist from granting a decree to the
plaintiff. (This para was observed in Nallam Seeta Mahalakshmi and Ors. Vs. Talari
Vijayalakshmi, 2005(4)ALD130).
Question no. 29.:- Would a bare averment in the plaint or a statement made in the examination-in-
chief suffice to prove ready and willing to perform contract?
Answer:- In Umabai and Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs and
Anr. MANU/SC/0285/2005 : (2005) 6 SCC 243, it was observed as follows.
It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the
Plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is
mandatorily required under Section16(c) of the Specific Relief Act must be determined having regard to
the entire attending circumstances. A bare averment in the plaint or a statement made in the
examination-in-chief would not suffice. The conduct of the Plaintiff-Respondents must be judged having
regard to the entirety of the pleadings as also the evidences brought on records.
Question no. 30:- Can Karta Alienate of joint family property?
Answer:- Even if it is to be assumed that the property in question was part of the assets of the co-
parcenerary or joint family, it is possible for a karta, which, the appellant indeed is, to alienate the
property for the family necessity. The right of the karta of a Hindu Joint Family, in this regard, is almost
unquestioned. The only rider is that the co-parceners can challenge the sale so made, at a later point of
time, by pleading that there did not exist any genuine family necessity, warranting the sale of the
property.( Jala Anjaiah Vs. Ramisetty Anjaiah, MANU/AP/1014/2011).
Section 73 of Indian Contract Act, 1872 deals with Compensation for loss or damage caused by
breach of contract
When a contract has been broken, the party who suffers by such breach is entitled to receive, from
the party who has broken the contract, compensation for any loss or damage caused to him thereby,
which naturally arose in the usual course of things from such breach, or which the parties knew,
when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason
of the breach.
Compensation for failure to discharge obligation resembling those created by contract.-When an
obligation resembling those created by contract has been incurred and has not been discharged, any
person injured by the failure to discharge it is entitled to receive the same compensation from the
party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation.-In estimating the loss or damage arising from a breach of contract, the means which
existed of remedying the inconvenience caused-by the non-performance of the contract must be
taken into account.
The term damages may be defined as the monetary compensation payable by the defaulting party to the
aggrieved party for the loss suffered by him. The aggrieved party, may therefore bring an action for
damages against the party who is guilty of the breach of the contract. And the party, guilty of the breach,
id liable to pay damages to the aggrieved party. The primary aim of damages is to compensate the
aggrieved party, and to place him in the same position which he would have occupied had the breach of
contract not occurred. It may, therefore, be noted that the damages are given by way of compensation for
the loss suffered by the aggrieved party, and not for the purpose of punishing the default party.
Kinds Of Damages
Law recognizes various kinds of damages or losses. Once the court has determined which loss may be
recovered, it is then faced with the problem of quantifying the loss, i.e. determining just how just how
much the aggrieved party should receive. The kinds of damages are as follows:
1) Compensatory Damages
There are two categories of compensatory damages. The first category, general damages, includes all
those damages that arise naturally from breach of contract. The second category called special damages
arise due to the special circumstances foreseeable by the parties at the time of making contract.
a) General damages (ordinary damages) there are damages that arise naturally from the breach of
contract. They are restricted to the direct and proximate consequences and not to the remote or indirect
losses or consequences of the breach of a contract.
In the case of Hadley v. Baxendale[1], the crankshift of a mill broke and it was necessary for it to be sent
to the manufacturers as a pattern for the new one. The mill owners engaged carriers for this purpose, but
the carriers delayed delivery, and the mill owners were unable to use the mill for longer than if there had
been no delay. Consequently, the loss of profits suffered by the millers was greater than if no delay had
occurred. The millers sued the carriers for such loss of profits. The courts held that since the only
information given by the millers was that the article to be carried was the broken shaft of a mill, and it
was not made known to them that the delay would result in loss of profits, they were not liable for the
loss of profits.
b) Special damages these are the consequential damages caused by the breach of contract due to the
existence of special circumstances. Such damages are awarded by the courts only when at the time of
making a contract, these special circumstances were forseeable by the party committing the breach.
In the case of Victoria Laundry Limited v. Newman Industries Limited [2], V the launders and dyers
required a bolier for the purpose of expanding their business. V entered into an agreement with N where
N was to supply the Bolier on June 5th. Due to the fault of N, the Bolier was not delivered till November
8th. Consequently, V could not service his new customers and had a loss of lucrative profits worth 278
Pounds. V claimed this loss from N. N contended that he did not know about Vs lucrative business
contacts. The court held that V could recover the loss of ordinary laundry profits but not the loss
resulting from some lucrative contacts with specific customers because N was not aware of these
contacts and such a loss was not in contemplation of both the parties when the contract was made.
If the special circumstances was already in the knowledge of the party responsible for the breach of
contract, the formality of communicating them to him may not be necessary.
In the case of Simpson v. London & North Western Railway Company[3], S a manufacturer used to
exhibit his samples of his equipment at agricultural exhibitions. He delivered his samples to railway
company to be exhibited at New Castle. On the occasion he wrote must reach at New Castle on
Monday certain. On the account of negligence on the part of railway company, the samples reached
only after the exhibition was over. S, claimed damages from railway company for his loss of profits
from the exhibition. The court held that the railway company was liable to pay these damages as it had
the knowledge of special circumstances, and must have contemplated that a delay in delivery might
result in such loss.
This section warrants the need to assess such damages, general or special, according to the facts of the
case.
In the case of a contract for sale or purchase general rule as regards to measuring of the damage is that
i. The damage would be assessed on the difference between the contract price and the market price on
the date of the breach.
In the case of Jamal v. Moola Dawood Sons & Co.[4], M agreed to purchase certain shares from J on a
particular date and subsequently declined to purchase them on that date. The difference between contract
price and market price on that date was Rs. 1, 09, 218. J later on sold those shares and the actual loss
amounted Rs. 79, 862. J sued M claiming Rs. 1, 09, 218 as damages. The courts held that he was entitled
to Rs, 1, 09, 218, because the damages are meausred according to the circumstances existing on the date
of breach.
ii. Under a contract of sale of goods, damages can be claimed for breach of condition, or warranty and
such damages include all damages flowing from the breach.
In the case of Jackson v. Walson & Sons[5], Js wife died from poisoning caused by the tinned fish
supplied by W. in an action for damages for breach, the court held that J was entitled to damages
incurred by employing extra servants by reason of the loss of wifes services during illness, medical
expenses, pecuniary loss occasioned by the death of his wife.
iii. If the seller is selling services rather than something tangible and the buyer breaches the contract, the
calculation of general damages is somewhat different.
d) Duty to mitigate damages suffered-
The way in which liability for contract damages is limited by the courts imposing a duty on the party
who has been harmed by a breach of contract to mitigate the damages resulting from the breach. In other
words, the party who has been harmed may not sit idly and watch the damages accumulate. Moreover
the party is supposed to act prudently to minimize such damages.
In the case of Neki v. Pribhu[6], A took a shop from B on rent and paid one months rent in advance. B
could not give possession of shop to A. there were other shops available in the vicinity but A chose not
to do business for eight months. After eight months, A sued B for breach of contract claiming damages
including advance rent and loss of profits for eight months. The court held that he was entitled to a
refund of his advance and nothing more, as he failed in his duty to minimize the loss by not taking
another shop in the neighbourhood.
In another case, Derbshire v. Warran [1963], D was the owner of X brand of car which was damaged
in an accident by negligence of W. D was informed that the pre-accident value of the car was 85 pounds
and the estimated cost of repair was 192 pounds, and as such an uneconomic proposition. D, however,
decided to have the car repaired and claimed the damages from W amounting to 137 pounds (192
pounds 80 pounds claimed from insurance 25 pounds the cost of hiring another vehicle until his car
was repaired). W argued that D could have purchased a similar vehicle in the open market for 85
pounds; he should have not taken this uneconomic step. The court accepted this view and awarded the
replacement value of the vehicle, i.e., 30 pounds (85 pounds replacement price 25 pounds cost of hiring
another vehicle 80 pounds claimed from the insurance).
2) Vindictive Damages
At time breach of contract by one party not only results in monetary loss to the injured party but also
subjects him to disappointment and mental agony. In such cases monetary compensation alone cannot
provide an appropriate remedy to the sufferings of the injured party. Thus there is a need for vindictive
damages.
Vindictive damages do not form part of the law of contract. The concept is borrowed from English law.
There are two kinds of contracts where Indian courts consider awarding vindictive damages:
i. Breach of contract to marry. In this case the amount of damages will depend upon the extent of injury
to the partys feeling. One may be ruined, other may not mind so much.
ii. Where a banker refuses to honour the cheque of a customer while having his money in his hands, and
the customer thereby suffers loss of reputation.
3) Nominal Damages
Sometimes, a person brings a legal action for breach of contract and proves that a breach actually
occurred but fails to prove that any actual damage has been suffered. This may happen, for example,
because of the rules for measuring damages and requirement that damages should be foreseeable and
proved with certainity. In such a situation, injured party is awarded nominal damages.
Such damages are awarded simply to recognise the right of the injured party to claim damages, and are
of very small amount.
For ex:
a) A contracted to purchase LML Scooter from B, a dealer, for Rs. 25, 000. But A failed to purchase
the Scooter. However, the demand for the Scooter far exceeded the supply and B could sell the Scooter
to Z for Rs. 25, 000, i.e., without any loss of profit. Here if B makes a claim upon A for breach of
contract, he will be entitled to nominal damages only.
4) Liquidated Damages And Penalty-
The contracting party may stipulate in the contract a sum of money to be paid in case the contract is
broken by either party. It may be termed as liquidated damages or penalty depending upon the
purpose to fix the sum.
The purpose of fixing a sum as liquidated damages is to compensate the injured party for the loss to be
incurred by the breach of the other. Thus it is a fair pre-estimation of the loss to be caused by non-
performance of the contract.
The purpose of providing a penalty in a contract is to discourage a party from breaching it and to
provide a special punishment if the contract is breached anyway. Thus it is a sum which has no relation
to the probable loss, and generally is disproportionate to the damages likely to accrue as a result of the
breach.
The above differentiation is required to understand the position of English Law in this respect. English
Law awards liquidated damages as compensation, irrespective of the fact whether the sum so specified
is more or less than the actual damages. But does not allow the sum specified as penalty on the ground
that only the government, not private individuals can determine appropriate remedies for breach of
contract.
Indian Contract Law differs from English law in this matter. It does not recognise any difference
between liquidated damages and penalty. Nor does it allow any sum fixed by the parties as damages.
It says that the injured party is entitled to a reasonable compensation in case of breach subject to the
maximum of the amount fixed as liquidated damages or penalty by the parties to the contract.
Section 74 of the indian Contract Act, 1872, provides that, when a contract has been broken, if a sum is
named in the contract as the amount to be paid in case of such breach, or if the contract contains any
other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual
damage or loss is proved to have been caused thereby, to receive from the other party who has broken
the contract reasonable compensation not exceeding the amount so named or, as the case may be the
penalty stipulated for.
Thus in India, the sum named in the contract is not aawarded as damages. It is left to the court to
ascertain the actual loss or reasonable compensation and award the same, which will, however, not
exceed the sum named in the contract.
The Supreme Court in Bhupinder Singh Bawa vs. Asha Devi(2016), has upheld an order of
eviction on the ground of bona fide requirement of tenanted premises for the business requirement
of the son of the landlady
Following the decision of the Harbilas' Case (supra) and the, this Court in a recent decision reported
in Mohinder Prasad Jain Vs. Manohar Lal Jain 2006 (2) SCC 724 held that a landlord is entitled
to seek eviction of a tenant under the Act from a non- residential building on the ground that
the landlord bonafiderequired the tenanted premises for his own use and occupation.
Petitioner
.Vs
... Respondent
eviction of tenant
Verification:
I/we the above named petitioner/petitioners recognised agent do hereby verify that
the contents of paragraph No.1 to 19 of my above application are true to my knowledge
and last para is prayer to the Court.
Section 5 of the Transfer of Property Act, 1882 (Indian) makes use of the word conveyance in
the wider sense as referred to above. Thus, conveyance is an act of conveyancing or
transferring any property whether movable or immovable from one person to another
permitted by customs, conventions and law within the legal structure of the country.
As such, deed of transfer is a conveyance deed which could be for movable or immovable
property and according to the Transfer of Property Act, 1882, transfer may be by sale, by lease,
by giving gift, by exchange, by will or bequeathment. But acquisition of property by inheritance
does not amount to transfer under the strict sense of legal meaning.
Document may include documents relating to transfer of property as well as other documents in a
sense as per definition given in Section 3(18) of the General Clauses Act, 1897 which include any matter
written, expressed or described upon any substance by means of letters, figures or mark, which is
intended to be used for the purpose of recording that matter. For example, for a banker the document
would mean loan agreement, deed of mortgage, charge, pledge, guarantee, etc. For a businessman,
document would mean something as defined under Section 2(4) of the Indian Sale of Goods Act, 1930
so as to include a document of title to goods i.e. Bill of lading, dock-warrant, warehouse-keepers
certificate, wharfingers certificate, railway receipt multi-model transport document warrant or order for
the delivery of goods and any other document used in ordinary course of business as proof of the
possession or control of goods or authorising or purporting to authorise, either by endorsement or by
delivery, the possessor of the document to transfer or receive goods thereby represented.
The Companies Act, 1956 defines vide Section 2(15) the term document in still wider concept so as
to include summons, notices, requisitions, order, other legal process, and registers, whether issued, sent
or kept in pursuance of this or any other Act, or otherwise. Thus, drafting may cover all types of
documents in business usages. In India, the commercial houses, banks and financial institutions have
been using the term documentation in substitution of the words drafting and conveyancing.
Documentation refers to the activity which symbolises preparation of documents including finalisation
and execution thereof.
There may be cases where the transaction may partake both contract as well as conveyance. For
example, lease, whereby obligation is created while possession of the property is transferred by lessor to
lessee. More so, contracts are governed by provisions of the Indian Contract Act, 1872 whereas the cases
of transfer of immovable property are governed by the Transfer of Property Act, 1882 in India. A mere
contract to mortgage or sale would not amount to actual transfer of interest in the property but the deed
of mortgage or sale would operate as conveyance of such interest. In other words, once the document
transferring immovable property has been completed and registered as required by law, the transaction
becomes conveyance. Any such transaction would be governed under the provisions of the Transfer of
Property Act, 1882.
BETWEEN:
2. Master____________S/o ________________
Age:________ Occ: _________
AND
Mr. ___________________S/o _________________
Age:________ Occ: _________
R/o ____________________
____________________ ..... Respondent
3. That the petitioner No. 1 visited to the CAW Cell for settlement of her married life but the
respondent refused to maintain the petitioners. Then a case Under section 498A/406/34 IPC
under the FIR No. _________ was registered against the respondent.
Contd.P.2.
:: 2 ::
4. That the respondent is not giving any maintenance to the petitioners and the Parents of the
petitioner No. 1 are very poor person. The petitioner No. 1 has neither any source of income
from any side nor she has any movable or immovable properties in her own name.
6. That the petitioner No. 1 has require Rs.4,000/- per month for her maintenance and
Rs.3,000/- for her minor child as the petitioner No. 2 is attending school and expenses have
to be made regarding his tuition fee, transport and cost of books etc. apart from other
necessary expenses.
7. The Petitioner No: 1 is a household lady, not having any skilled qualification and unable to
work any job, as well unable to maintain herself and her son by self.
8. This court has the jurisdiction as the petitioners live within the jurisdiction of this court and
the marriage between the petitioner No. 1 and respondent had taken place here.
PRAYEPRAYER
It is, therefore, most respectfully prayed to this Hon'ble Court that in view of the
abovementioned circumstances, please grant the maintenance of Rs.5,000/- per month for the
petitioner No.1 and Rs.3,000/- for the petitioner No. 2 Under section 125 Cr.PC from the date of
petition in the interest of justice. Any other and further relief (s), which this Hon'ble Court deems
fit and proper may also be passed in favour of the petitioners and against the respondent.
Petitioner No. 2
(Being Minor Represented By Pet : 1)
Contd.P.3.
:: 3 ::
VERIFICATION
I the above named petitioner do hereby verify that, all the facts above mentioned are true and
correct to the best of her knowledge and belief. Hence verified by this petitioner and on behalf of
the other petitioner on this the ___th day of Dec, 2008 at Hyderabad.
Petitioner No. 2
(Being Minor Represented By Pet : 1)