Specific relief: nature, kinds and recovery of possession

1. Meaning and nature of specific relief

Specific relief is relief in specie: the court orders the very act or thing to which the plaintiff is entitled, instead of compensation for its loss. It grew out of the equitable jurisdiction of the English Court of Chancery, which stepped in where the common law remedy of damages was inadequate. In India it was first codified in the Specific Relief Act, 1877, replaced by the present Act of 1963 on the recommendations of the Ninth Report of the Law Commission.

Three features run through the Act.

• It enforces civil rights only. Section 4 says specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.
• It is procedural as well as substantive. The Act does not create most of the rights it protects; those come from the Contract Act, the Transfer of Property Act and the general law. It supplies the remedy.
• It was largely discretionary until 2018. Specific performance (old section 20) and declarations and injunctions were all “in the discretion of the court”. The Specific Relief (Amendment) Act, 2018, in force from 1 October 2018, made specific performance of contracts the rule, subject only to the exceptions in the Act. Declarations (section 34) and injunctions (section 36) remain discretionary.

2. Kinds of specific relief: the scheme of the Act

The Act is arranged in three Parts.

• Part I, Preliminary (sections 1 to 4).
• Part II, Specific Relief: Chapter I, recovering possession of property (sections 5 to 8); Chapter II, specific performance of contracts (sections 9 to 25, including the 2018 sections 20 to 20C on substituted performance and infrastructure projects); Chapter III, rectification of instruments (section 26); Chapter IV, rescission of contracts (sections 27 to 30); Chapter V, cancellation of instruments (sections 31 to 33); Chapter VI, declaratory decrees (sections 34 and 35).
• Part III, Preventive Relief: injunctions, temporary and perpetual (sections 36 to 42).

A useful division for an answer is restitutive relief (recovery of possession), enforcement of obligations (specific performance, mandatory injunction), correction or removal of documents (rectification, rescission, cancellation), declaration of status or title, and preventive relief (prohibitory injunctions).

3. Recovery of specific immovable property: section 5

A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908. This is the ordinary suit for possession on the strength of title. The plaintiff must prove his title, and the period of limitation is twelve years (Articles 64 and 65 of the Limitation Act, 1963).

4. Suit by a person dispossessed: section 6

Section 6(1) provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession, notwithstanding any other title that may be set up in such suit. The rest of the section fixes the limits:

• no suit lies after the expiry of six months from the date of dispossession (section 6(2)(a));
• no suit lies against the Government (section 6(2)(b));
• no appeal lies from an order or decree in the suit, and no review is allowed (section 6(3)); the remedy against a wrong decree is revision under section 115 CPC;
• nothing in the section bars any person from suing to establish his title and recover possession (section 6(4)).

The point of the section is to discourage people from taking the law into their own hands. The only questions are: was the plaintiff in possession, was he dispossessed without consent and otherwise than by due process, and did he sue within six months. Title is irrelevant. Even the true owner who throws out a trespasser by force can be made to restore possession, and must then file his own suit on title under section 6(4) and section 5.

• Lallu Yeshwant Singh v. Rao Jagdish Singh, 1967 INSC 283, AIR 1968 SC 620. Decided under section 9 of the 1877 Act, the predecessor of section 6. After the lease of the land had ended, the landlord took possession without going to court. The Court held that a landlord cannot use force to recover possession from a tenant whose tenancy has expired; he must do so in due course of law, and the dispossessed tenant could recover possession.
• Rame Gowda v. M. Varadappa Naidu, 2003 INSC 718, (2004) 1 SCC 769. A three-judge Bench held that a person in settled possession, even without title, is protected against the true owner, who can remove him only by due process. A stray or casual act of trespass does not amount to settled possession.

5. Recovery of movable property: sections 7 and 8

Section 7: a person entitled to the possession of specific movable property may recover it in the manner provided by the CPC. A trustee may sue for the possession of movable property to the beneficial interest of which the person for whom he is trustee is entitled, and a special or temporary right to present possession is enough.

Section 8 goes further. Any person having possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession in any of four cases:

• the thing is held by the defendant as the agent or trustee of the claimant;
• compensation in money would not afford adequate relief for its loss (a family heirloom, a portrait, a manuscript);
• it would be extremely difficult to ascertain the actual damage caused by its loss;
• the possession of the thing has been wrongfully transferred from the claimant.

Unless the contrary is proved, the court presumes that money compensation is inadequate or damage is hard to ascertain (Explanation to section 8). The ordinary rule for movables is that damages suffice; section 8 gives the thing itself where it is unique or held in a fiduciary capacity.

6. Problem

A is a tenant of B's shop. The lease expires. While A is away, B breaks the lock, removes A's goods and takes possession. A sues three months later. B pleads that he is the owner and the lease has ended.

Issue. Can A, whose lease has expired, recover possession from the owner?

Law. Section 6 allows a person dispossessed without consent and otherwise than in due course of law to recover possession within six months, notwithstanding any title set up by the defendant. Lallu Yeshwant Singh and Rame Gowda hold that the owner must use the courts to evict a person in settled possession.

Application. A was in settled possession. He did not consent, and B did not obtain a decree. The suit is within six months and B is not the Government. B's title is irrelevant in a section 6 suit.

Conclusion. A will get a decree for possession, and B cannot appeal (only revision lies). B may then file a regular suit on title and for eviction under section 6(4).

How this is examined

Usually as a short note: “Nature and kinds of specific relief”, “Suit by a person dispossessed of immovable property” or “Recovery of specific movable property”. For section 6 list the four ingredients, the six-month limit, the bar against the Government, and no appeal or review, then cite Lallu Yeshwant Singh. The forcible eviction problem above is the usual form. An essay on the 2018 amendment may open with this topic, so be ready to say in two lines that specific performance has ceased to be discretionary.