Introduction:

The law of “specific relief” as administered in Pakistan is primarily contained in the Specific
Relief Act, 1877. It was promulgated on the 7th of February, 1877 in British-India, prior to
Partition in 1947. Even before the codification of Specific Relief Act, specific relief had been
administered in British-India based on the principles of fairness, equity, justice and good
conscience.

Scope:

The Act embodies what in essence is adjective law and not substantive law. Specific Relief Act
being adjective law contains in its fold codification of principles derived from long series of
precedent and practices of English Courts of Equity. Specific Relief Act is thus, based on
principles of equity, reason and good conscience. Most leading principle in Specific Relief Act is
that “one who seeks equity must do equity.”

Objects of specific relief:

Following are the objects of specific relief:

 Possession must be lawful as who comes for equity must do equity and come with clean
hands. Ejection from lawful possession invites lawsuit against unlawful dispossession. It
also invites claim against unlawful ejection.
 No unlawful means are used for ejectment of possessor even dispossession is caused
unlawfully. Only courts are competent authority to grant specific relief to the affected
party.
 Person who comes for specific relief must do equity and refrain from the use of unlawful
means.
 Specific relief aims that law should not be taken into hands of an individual and just State
should remain sole authority in granting the relief to the aggrieved party.

Applicability:

The Specific Relief Act, 1877 deals with the remedies granted at the discretion of the court for
the enforcement of individual civil rights. In case of breach of contract, one of the remedies that
remain before the party is to obtain compensation and the other is to follow the Specific
Performance of the Contract.

Here the question becomes worthy of consideration if in each case of breach of contract, the
parties plead for specific performance of the contract. So the court may grant the specific
performance of the contract in all those cases or not? Therefore, it is necessary that what scheme
is given under the Act? The Specific Relief Act, 1877 expressly divides the provisions relating to
Specific Performance into two categories. Those contracts which are come under the first
category I.e.,” which contract can be specifically enforced “and second category related to those
contract “which cannot be the specifically enforced.”

Provisions touching these category spread over section 12 to 30 of Specific Relief Act,1877
where sec.12 describe cases in which specific performance of contract can be enforced and at the
same in section 21 describe contracts which cannot be specifically enforced .

What is meant by “Specific Performance of Contracts”?

Specific performance means enforcement of exact terms of the contract. Under it the plaintiff
claims for the specific thing of which he is entitled as per the terms of contract.

For example, if A agrees to sell certain shares to B of a specific company which are limited in
number and after the payment made by B, if A refuses to sell the shares then B is entitled to
recovery of those shares.

“Specific performance” is the most important part of the Specific Relief Act. It contains the
provision for specific performance of a contract. The heading of this part/Chapter II is “OF
SPECIFIC PERFORMANCE OF CONTRACT” and refers to the concept that “a contract is an
agreement enforceable by law”. Thus, the only consideration for the court in contract cases
falling within Chapter II is whether they can be specifically enforced.

Cases in which specific performance is enforceable:

According to section 12 of the very Act that the granting of specific performance is at the
discretion of the court. This so-called discretion is controlled by the rule that it has to be
exercised soundly, reasonably, not arbitrarily and in harmony with judicial principles. It is not to
be exercised to confer unfair advantage upon any party claiming specific performance. In the
following cases specific performance may be granted:-

1. Where a part of contract cannot be specifically performed but its non-performance admits
of compensation and the part left unperformed is of small value, the Court will allow
specific performance of so much of the contract as can be performed and will allow
compensation for the rest. In brief where obligation in performance of a trust arises.

For example, contract by a beneficiary of a trust to sell his right in trust.

2. Where damages are not evaluated.

Where party is unable to perform the whole of his part of contract and the part so left is
unperformed.
For instance, A agrees to sell B a painting of a deceased painter and B agrees to buy it.
Later on B refuses to buy it. A may compel B specifically to perform this contract,
because there is no standard for the evaluation of the actual damage caused by refusal of
B by its non-performance.
 3. Where there compensation in money is insufficient or inadequate. There are the contracts
in which scarce item is agreed to deliver or perform but later on refused.
For example, A agrees to sell B shares of a company, which are limited in number and
not always to be had in the market, and their possession carries with it the status of a
shareholder, which cannot otherwise B procure. Later on A refuses to perform contract,
here B can compel A to do so. In another example, A agrees to sell B certain parcel of
land, only available in certain area. Later on A refuses to perform contract. B can compel
A to sell it specifically because its relief may be inadequate.
4. Where monetary compensation is not recoverable.
For instance, defendant has gone bankrupt or insolvent.

Presumption:

This section raises a presumption that compensation would not be adequate in the case of
transfer of immovable property, and it would be adequate in case of breach of transfer of
movable property. Thus, the party alleging compensation is respectively adequate or inadequate
must prove it.

Specific performance of part of contract:

As already stated above, the specific performance of a contract may be enforced wholly or
partly. So that, now, these sections are related to the performance of part of contract. Sections 13,
14, 15 and 16 of the Specific Relief Act 1877 provide for the part performance of a contract as
far as it can be performed, and compensation as far as its performance is impossible.

These provisions stands in exception to the general rule of equity contained in Section 17 of the
Act which requires that specific performance of a contract must be in its entirety. Following are
the cases in which part performance of contract is enforced specifically u/s 13 to 17 in contrast to
S. 56 of The Contract Act:

 Partially cessation of contract: According to Contract Act, performance of the agreement

to do impossible act is void. Consequent impossibility also renders contract void.

According to Specific Relief Act, when subject matter ceases to exist at the time of its
performance, it does not render performance of contract impossible wholly. Inevitable accident is
no reason to show inability to perform contract.

 Part performance of contract where impossibility is small: Contract is made to perform

and not to keep it unperformed. Non-performance of small portion of contract puts in
payment of compensation where compensation is admitted in money.

There may be a contract small portion of that may remain unperformed due to certain reasons. In
this case where party remains unable to perform contract wholly and unperformed part is small
and admits compensation in money, Court may direct defaulter for the performance of contract
and awards compensation in money for the portion unperformed.

For example, A contracts with B for the sale of 100 acres land. Later on it reveals (turns out) that
A is only owner of 95 acres and rest five acres are related to C who does not agree to convey his
five acres. In a suit Court may direct A for the conveyance of 95 acres to B along-with
compensation in money for rest five acres.

Here small portion means unsubstantial or immaterial or non-essential part of contract.

 Part performance of contract where impossibility is large: There may be a case in which
substantial part of contract becomes impossible to perform. Neither considerable part is
performed nor compensation in money is admitted. Court may direct seller for the
performance of contract specifically provided vendee waives off his rights including
further performance and compensation against deficiency or loss of damage.

Vendee would also pay full purchase money, which was agreed at the time of contract even than
large part of contract is impossible to perform due to imperfect title.

For instance, A contracts to sell B 100 bushels (hamper, creel, basket, crate, bin, hopper) of
wheat. It reveals later on that A is unable to convey half of the bushels being related to other
person. Court may direct A in suit for the performance of contract upto the extent of possibility
provided vendee waives off his right of further performance and pays full purchase money.

 Performance of independent part of contract: There may be case where contract consists
on several independent parts some of which are able to perform and rest are impossible to
perform. Independent part or parts, which are possible to perform, may be enforced
specifically. Court may direct defendant for the performance of independent part of
contract performance of that is possible. For this purpose contract must be separable
without interference of Court however courts are not competent to separate the parts of
contract.

Specific performance of part of contract: There may be three conditions where part performance
of contract may be enforced specifically. Those three cases can be summed up as:

(1) Where unperformed part of contract is small or unsubstantial.

(2) Where unperformed part of contract is large or substantial.

(3) Where performance of independent part of contract is possible.

Only these are three cases where Court may direct for specific performance of part of contract.

Contracts which are not enforceable specifically u/s 21:

Following are the contracts which cannot be specifically enforceable:-

1. Where adequate relief is admitted:

Contract to pay a sum of money in installments. Contract non-performance of
which admits an adequate relief in money cannot be specifically enforced. Contract in
which agreement is made to lend money is not specifically enforceable. Neither borrower
can be compelled to accept loan, nor borrower can compel for the compulsory advance of
money. If in the opinion of the Court damages are an adequate relief, specific
performance of contract shall not be decreed.
For example, A agrees to sell B, 40 chairs at Rs. 500/- each. This is not specifically
enforceable because an adequate relief can be granted.
2. Court being incapable to supervise:
Contracts incapable of supervision by courts such as having minute or numerous
details or dependant on personal qualifications or violation of parties or otherwise in
which Court become unable to enforce specifically its material terms.
For instance, contract of personal service, to employ person on personal services, to
complete library work, to cultivate land in particular manner, for paint of picture, to
marry or instances in which either minute or numerous details are involved or dependant
on personal qualification, thus not enforceable specifically in its material terms.
3. Uncertain contract: Contract, which is not specifically certain, is not specifically
enforceable. Terms and conditions of contract relied upon must be precise and accurate.
Contract, which is unable to interpret, is not specifically enforceable but damages can be
prayed.
For example, A agrees to give B his house for the sale of his goods and to furnish him
with the necessary appliances. Later on A refuses to perform his contract. This case is
one for compensation and not for specific performance, the amount and nature of the
accommodation and appliances being undefined.
4. Where nature of contract is revocable: A contract nature of, which is revocable, is not
specifically enforceable.
For instance, a contract for a partnership without any time fixed for its duration cannot be
specifically enforced.
5. Violation of contract: Contract involving breach of trust or excessive use of power is not
specifically enforceable. Court protects the interest of beneficiary and refrains to
specifically enforce contract which are in excess of powers or breach of trust.
For example, a trustee is empowered to lease out certain land for ten years. Its renewal
after expiry of ten years shall amounts breach of trust.
6. Ultra vires: Ultra vires of company cannot be specifically enforced. Contract made by or
on behalf of company, which is not within scope of powers, conferred by the
Memorandum of Association (MOA), amounts ultra vires, thus not specifically
enforceable.
For instance, a company is formed for the manufacturing of tractors, makes chemicals
that Memorandum of Association (MOA) does not allow, amounts ultra vires, therefore
not specifically enforceable.
7. Time barred contract: A contract continuity of which exceeds than three years also falls
in this category.
For instance, Continuous duty as legal advisor or medical advisor for a period of fifteen
years falls, u/s 21(g).
8. Non-existent subject matter: Where subject matter is non-existent at the time of making
contract and both parties are under mistake of fact is not specifically enforceable.
9. For example, A agrees to sell B a horse. It turns out later that at the date of contract,
horse had been died. Contract cannot be specifically enforced.