Que.No. 1:-Whether it is permissible to amend agreement of sale
in suit for specific performance of contract ?
Ans:- As per sec.26 (3) of specific relief Act,agreement of sale in suit for
Specific performance can be amended.
Puranram ...Vs... Bhaguram 2008(4) MHLJ SC 8011.
Que.No. 2:-Whether revenue authorities under tenancy law can
grant injunction ?
Ans:- No.
Que.No. 3:-What precaution are to be taken for passing order of
status quo. ?
Ans:- Status quo order should not be passed in doubtful
circumstances. There should be specific finding
about the person who is in possession of suit
property.
Que.No. 4:-What are guiding principle for grant of temporary
mandatory injunction ?
Ans:- 1-Strong prima facie case in favour of plaintiff.
2-Balance of convenience.
3-Irreparable injury.
Que.No. 5:-Whether injunction to restrain defendant from
performing second marriage can be granted ?
Ans:- Performing of second marriage is itself an offence. Hence, court will grant injunction restraining
defendant from performing second marriage.
Que.No. 6:-Whether father can ask injunction to restrain his
married daughter from using his name ?
Ans:- No.
Que.No. 7:-What is the fate of order of injunction after
restoration of suit, which was dismissed for default ?
Ans:- When suit is dismissed in default, injunction is
automatically vacated unless there is contrary order.
If suit is restored, injunction will be restored.
Que.No. 8:-Whether a suit by landlord under section 6 of
Specific Relief Act, is tenable, where tenant's
exclusive possession is forcibly dispossessed by third
party ?
Ans:- Yes, as right of landlord is adversaly affected when
tenant is dispossessed by third party.
Que.No. 9:-Whether an exparte order of temporary injunction can
be passed when Caveat is on record and notice is
served on the Advocate of Caveator ?
Ans:- When caveat is on record, as per sec.148 A(3) it is the
duty of court to serve notice of application on
caveator.
Que.No.10:-Whether one co-owner in possession of land can
claim injunction against other co-owner ?
Ans:- No. Possession of one co-owner amounts to
possession of another co-owner. Only if one co-
owner is damaging suit property, injunction can be
granted to another owner.
Que.No.11:-Whether order of Temporary injunction can be
passed when the suit is stayed under section 10 of
C.P.C. ?
Ans:- Order of temporary injunction can be passed when
suit is stayed under sec.10 of C.P.C.
India Bank ..Vs.. Maharashtra State co-operative
Marketing Faderation Ltd.,AIR 1998 SC 1952.
Que.No.12:-Whether order of Temporary injunction can be
passed when issue of tenancy is under consideration?
Ans:- No. court is supposed to be decide first question of
jurisdiction.
Que.No.13:-Whether temporary injunction can be granted after
decision of the suit ?
Ans:- Yes when there is danger to property
Que.No.14:-Whether injunction can be granted against the “Karta
of Joint Hindu Family for alienating coparcenary
property at the instance of coparcener ?
Ans:- Karta can alienate coparcenary property for legal
necessity. He can not be restrained from alienating
suit property for legal necessity. Coparcener can only
file suit for setting aside said transfer and for
partition.
Que.No.15:-Whether injunction can be granted against the true
owner at the instance of a person in unlawful
possession / settled possessor ?
Ans:- Possession of plaintiff should be lawful to claim injunction. Settled possessor can not be dispossessed
from suit property without following due process of law. Settled possessor can get injunction from court.
Que.No.16:-Whether injunction can be granted in execution
(Darkhast) proceeding ?
Ans:- Yes when property is in danger of being wasted,damaged and sold.
Que.No.17:-What is effect of non-compliance of Order 39, Rule-3
of the Code of Civil Procedure ?
Ans:- If there is non-compliance of Order 39 Rule 3 of CPC
court can vacate the injunction.
Que.No.18:-Whether possession of the tenant can be protected by
granting temporary injunction ?
Ans:- Yes. Provided his conduct is free from blemish.
Que.No.19:-Who cannot enforce specific performance of
contract ?
Ans:- As per sec.16 of Specific Relief Act specific
performance of contract cannot be enforced in favour
of following persons.
Que.No.20:-Is it necessary that entire amount of consideration
should be kept ready by plaintiff to show his readiness
and willingness to perform contract ?
Ans:- No. it is not necessary that entire amount of
consideration should be kept ready by plaintiff to
show his readiness and willingness to perform
contract. Azhar Sultana ..Vs.. B. Rajamani ,AIR
2009 SC 2157.
Que.No.21:-Whether issue of hardship is necessary in the suit for
specific performance. If raised ?
Ans:- As per Sec 20 (1) (b) where performance of contract
would involve some hardship on the defendant which
he did not foresee, where as its non performance
would involve no such hardship on plaintiff. Thus,
issue of hardship is necessary in suit for specific
performance of Contract.
Que.No.22:-Whether the injunction can be granted, if the court
has no jurisdiction to entertain the suit ?
Ans:- As per Sec 9 A of Maharashtra Amendment, where at
the hearing of application relating to interim relief in
suit, objection to jurisdiction is taken, such issue to be
decided by the court as a preliminary issue. As per
sub sec. (2), notwithstanding anything contained in
sub sec. (1) at the hearing of any such application,
court may grant such interim relief as consider
necessary pending determination by it of the
preliminary issue as to jurisdiction.
Que.No.23:-What is the difference between injunction and stay
order ?
Ans:- Sec.10 applies only to suits and appeals. It does not
apply if earlier proceeding is not a suit. Injunction is
a judicial process where by a party is ordered to do or to refrain from doing a particular thing. By stay order suit or appeal is stayed. By stay order a person cannot be directed to do a particular act.
Que.No.24:-What is the meaning of specific under Specific Relief
Act ?
Ans:- Specific Relief is relief in specie. It is a remedy
which aims at exact fulfilment of an obligation.
Adhunik Steels Ltd...Vs.. Orissa AIR 2007 SC2563.
Que.No.25:-Whether dismissal of the suit for specific
performance of contract bars the plaintiff to sue for
compensation for a breach and for refund of earnest
money ?
Ans:- As per Sec 24 of Specific Relief Act dismissal of the
suit for specific performance of contract bars the
plaintiff to sue for compensation for a breach of
contract, but shall not bar his right to sue for any
other relief to which he may be entitled by reason of
such breach.
Que.No.26:-Whether the escalation in prices during the pendency
of the suit, is a ground to deny the relief of specific
performance ?
Ans:- Relief of specific performance cannot be denied due
to escalation in prices during the pendency of suit.
Que.No.27:-Whether there is a scope to grant relief of injunction
in criminal case ?
Ans:- As per sec.4 of Specific Relief Act, specific relief can
be granted only for the purpose of enforcing
individual civil rights and not for the purpose of
enforcing a penal law. Thus, relief of injunction
cannot be granted in criminal case.
Que.No.28:-Whether the relief of part performance of contract
can be granted when such relief is not claimed ?
Ans:- No.
Que.No.29:-Whether simplicitor suit for injunction is
maintainable on claim of possession on the basis of
the part performance of the agreement of the sale ?
Ans:- Yes.
Que.No.30:-Whether insufficiently stamped and unregistered
document which is in fact required by law to be
executed on sufficient stamp paper and compulsorily
registrable can be admitted in a suit for specific
performance of contract ?
Ans:- Insufficiently stamped and unregistered
document which is in fact required by law to be
executed on sufficient stamp paper and compulsorily
registrable can be admitted in a suit for specific
performance of contract for collateral purpose.
Que.No.31:-Whether a petition for restitution of conjungal rights
is a suit for specific performance of contract ?
Ans:- No because as per Hindu law marriage is a sacrament and not contract. As per muslim law Marriage is a contract.Hence petition for restitution of conjungal rights
is a suit for specific performance of contract in muslim law
Que.No.32:-Whether under Specific Relief Act, the declaration
can be sought in respect of the death of any person ?
Ans:- As per sec.34 of Specific Relief Act, any person
entitled to any legal character or to any right as to any
property may institute suit against any person denying
or interested to deny his title to such character or
right. Hence declaration can be claimed in respect of death of person if interest of living persons is involved
Que.No.33:-When the time is presumed to be of the essence of
contract in the suit for specific performance of
contract ?
Ans:- Raghuvir Singh Bhatty Vs. Ram Chandra Waman
Subhedar reported in AIR 2002 Allhabad, 13,
(A) Limitation Act (36 of 1963), Art. 54 – Suit for
specific performance of contract – Limitation – Permission of ceiling authority, pre-requisite for execution of sale deed – sale deed to be executed only after intimation to purchaser of grant of permission – Notice by vendor to purchaser that contract had frustrated on account of refusal to grant permission by Ceiling Authority – Limitation would start running from service of notice.
(B) Specific Relief Act (47 of 1963), Ss. 20, 16 – Discretion of Court – Permission of Ceiling Authority, pre-requisite for execution of sale deed – Refusal of permission by authorities – Contract frustrated on account of failure to obtain permission – Subsequent repeal of Ceiling Act – Legal hurdle of impossibility in enforcing contract thus removed – Decree for specific performance can be passed.
(C) Specific Relief Act (47 of 1963), S 16 – Time whether essence of contract – Sale of immovable property other than commercial transaction – Agreement to purchase land for building house for purchaser himself – Mere fixation of period within which contract is to be performed – Not a decisive test – No
recital in agreement that parties intended time to be of
essence – It cannot be held that time was essence of
contract.
Contract Act S. 55.
(D) Specific Relief Act (47 of 1963), S. 16(c) – Readiness and willingness – Proof – Time not essence of contract – Mere delay in absence of abandonment or waiver – Not a ground for inferring want of readiness or willingness so as to refuse specific performance.
(E) Specific Relief Act (47 of 1963), S. 20 – Discretion of Court – Time not of essence of contract – Clauses in agreement however, indicating that contract had to be performed within reasonable time – plaintiff contributing to the delay in execution of contract – Prices of property escalating sharply in the meanwhile – defendant cannot be called upon to execute the sale-deed
Que.No.34:-Distinguish between sec.5 and 6 of the Specific
Relief Act. ?
Ans:- Sec. 5 & 6 of Specific Relief Act, are mutually
exclusive. Sec.5 of Act does not limit the kinds of the
suit. It only lays on that procedure laid down by Civil
Procedure Code.S 5 is related to title and S 6 is related to possession.
Somnath ..Vs.. Raju, AIR 1970 SC 846.
Nair Services ..Vs.. Alxzander, AIR 1968 SC 1165
Que.No.35:-Whether the inadmissible documents can be looked
into at the stage of deciding the temporary injunction?
Ans:- It is held by honourable Bombay High Court in the
case of Shamrao Ganpat Chitamani ..Vs.. Kakasaheb ,
2008 (2) MHLJ, 8191 that at the stage of temporary
injunction court can refer to documents which on
produced on record without formal proof.
Que.No.36:-Whether a Law of Specific Relief is a kind of
Procedural Law of Substantive Law ?
Ans:- Is a procedural Law.
Que.No.37:-Whether party in suit can set up title on one part and
also take plea of adverse possession ? Whether both
pleas are alternative and permissible ?
Ans:- Inconsistant pleadings are permissible. Court can not ask parties to select plea.A party cannot be prohibited from taking alternate and inconsistent pleas
In the light of the views taken by the Apex Court and this High Court that a party cannot be prohibited from taking alternate and inconsistent pleas, the impugned order must be held to be bad in law and therefore, quashed and set aside. There is nothing in law that enables the trial Court direct the party to plead the case in a particular direction and close down all remaining fronts.Civil Procedure Code, O. 6 R. 2 – Inconsistent pleas/defences in suit not prohibited by law.
Even inconsistent stands are not prohibited by law and allowed to be pleaded. Even the Court will not be able to object to leading the evidence on inconsistent pleas and the party will be doing so at its own risk and peril. There is no provision that enables the Court to dictate the party to elect the ground of attack or defence the party should persist by waiving other plea or ground of attack and defence, which is either inconsistent or in conflict with the one persisted. When a party takes inconsistent pleas, ordinarily, it may abandon/destroy one, for success in another. In a given case, two conflicting and inconsistent pleas may even destroy both the pleas, cases, grounds of attack or grounds of defence. In a given case, party may sacrifice one for the success in the alternate plea. This is a matter to be considered when the court enters the zone of appreciation of evidence and grant of relief in accordance with the case established. There is nothing either in the Civil Procedure Code or in the Evidence Act, that prevents a party from pleading alternate pleas, whether consistent, complimentary or inconsistent and conflicting. There is nothing in law that enables the trial court direct the party to plead the case in a particular direction and close down all remaining fronts.
[Held, that the impugned order of the trial court directing defendant no. 1 to file pursis and elect one of the pleas as to whether they are owners by agreement of sale or they are owners by adverse possession in the suit filed by plaintiffs for declaration of title and possession of agricultural lands was bad in law and therefore quashed and set aside.
Bombay High Court
Dadabhau Shankar Ghodke And Ors. vs Mohanlal Kanhyalal Agrawal And ... on 17 June, 2002
Equivalent citations: (2003) 1 BOMLR 676, 2003 (1) MhLj 446
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Que.No.38:-When defendant can apply for Temporary injunction?
Ans:- When there is danger to his property.
Que.No.39:-Whether interim injunction can be granted to restrain
the publication of defamatory matter ?
Ans:- Yes.
Que.No.40:-At the stage of adjudication of the temporary
injunction application, issue of the jurisdiction raised
u/s 9-A was decided.
Whether the said issue needs to be decided again
along with other issues after the trial ?
Ans:- No.
Que.No.41:-Whether the defendant can file application for
temporary injunction without filling counter claim ?
Ans:- Yes in some cases only.
Que.No.42:-Whether suit for simplicitor injunction without
seeking consequential relief is tenable ?
Ans:- Yes.
Que.No.43:-Whether suit for simplicitor injunction is tenable
filed by person claiming to be in possession on the
basis of the agreement to sale is tenable without
seeking the relief of performance of contract ?
Ans:- Yes.
Que.No.44:-What is the difference between temporary injunction
and perpetual injunction ?
Ans:- Temporary injunction operates till disposal of suit.
Perpetual injunction continues perpetually.
Temporary injunction is granted under CPC.
Perpetual injunction is granted under Specific Relief Act. Perpetual injunction can be granted by final
decree made at the hearing and upon merits of the
suit.
Que.No.45:-Can a contract of personal service be specifically
enforced ?
Ans:- No.
Que.No.46:-Whether the suit for specific performance can be
filed upon unregistered document or upon an oral
agreement ?
Ans:- Yes.
Que.No.47:-Whether a person in possession of property as
watchman can entitle for relief injunction against real
owner ?
Ans:- No. Person in permissive possession cannot claim
injunction against real owner.
Que.No.48:-What is the difference between readiness and
willingness?
Ans:- Distinction may be drawn between readiness to
perform the contract and willingness to perform
contract. Readiness means financial ability of
plaintiff to pay the purchase price. Willingness
means whether plaintiff was willing to perform his
part of contract even if he had financial capacity to do
so.
Que.No.49;-The Specific Relief Act,1963 is complimentary Act
to which 3 Acts ?
Ans:- Transfer of Property Act, Contract Act and Civil procedure code.
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