সুনিদিষ্ট প্রতিকার আইন একটি মূল আইন , এই আইনে ৫৭ টি ধারা ১০ টি অধ্যায় ও ৩ টি খাত আছে। ইহা প্রথম পকাশিত হয় ৭ই ফেব্রয়ারী ১৮৭৭ এবং কার্যকারী হয় ১লা মে ১৮৭৭ থেকে। এই আমীনের ৫ ধারার সুনিদিষ্ট প্রতিকার ৫ ভাবে দেওয়ার বিধান রহিয়াছে কিন্ত কোন ক্ষতিপুরোন বিধান সুনিদিষ্ট প্রতিকার নাই। মূল শাখা সুনিদিষ্ট প্রতিকারের সকল প্রকার প্রতিকার আদালতের ইচ্ছাধীন ক্ষমতা।
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Question-1: (a) what do you mean by cancellation of an instrument? Who can seek such cancellation and on what grounds?

(b) The plaintiff is a party to the disputed document. Can he maintain a suit for a simple declaration that the deed in question is forged and fraudulent one and as such the same is not binding upon hem? If not, unden which law and what section he should seek his redress?     [9th December, 2006].

Ans: Meaning of cancellation of instrument:

Cancellation of instrument means the cancellation of deed or documents. The deed is cancelled by passing a decree by the court. The court cancels the deed which is void or void able.

ln section 39 of The Specific Relief Act- 1877, it has been stated about the cancellation of the instruments that “Any person against whom a written instruments is void or void able, who has reasonable apprehension that such instruments, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable, and the court may in its discretion, so adjudge it and order it to he delivered up and cancelled”. If the instrument has been registered under the registration Act, the court shall also send a copy of its decree to the officer in whose the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

Who can seek such cancellation and on what grounds?

Cancellation of instrument means the instruments which are illegal and unenforceable by law. On that basis the instrument are declared by the court as void or voidable it does not have any legal effect. The person can seek such cancellation of the instrument for which this type of instrument is enforceable to achieve the rights on the property. He bears the apprehension in such instrument may cause him serious prejudice when it is properly used. That person can file a suit in the court for the cancellation of that instrument under section 39 of The Specific Relief Act 1877. lf that person thinks that the existing instrument may cause him prejudice, then he decides to file the suit for the cancellation of instrument.

Grounds:On the basis of the only two grounds any person can seek cancellation of instrument, namely-

(1) The instrument is void or voidable.

(2) There is a reasonable apprehension that such instrument if left outstanding may cause him serious injury.

Ans: Essential points:

The plaintiff of the suit will have to prove the essential ingredients for the cancellation of instrument.

The main 3(Three) points are given below:

(1) The instrument must be void or void able.

(2) There is a reasonable apprehension that such instrument if left outstanding may cause him serious injury.

(3) The court has the competent jurisdiction to cancel the instrument for the ends of justice.

From the above reasons stated in section 39 of The Specific Act-1877. plaintiff will have to prove those reasons in the suit of the cancellation of the instrument. Ans: (b): From the above problem it is found that the plaintiff is a party to the disputed document. This is the question whether he can maintain a suit for a simple declaration that the deed is forged and fraudulent one and as such the same is not binding upon him.

lf any of the parties of a registered deed want to cancel it, then a suit should be fided in the competent court under section 39 of the specific Relief Act-187. Since the plaintiff is the party to the disputed deed. So, it will not be the right legal step if he files a suit of simple. Declaration that the forged and fraudulent document under section 39 of the Specific Relief Act. Otherwise. this document will be a matter or prejudice in future for the plaintiff.  Because, if the deed is void or voidable and kept uncompromising may be the cause of prejudice for the plaintiff. Thus the deed should be compulsorily cancelled by the decree of the court. Because, the forged and fraudulent deed is remained strong and active unless it is cancelled by the decree of the court

Question 2:  What is meant by relief of specific performance of Contact? In which situation will the court refuse to pass a decree of specific performance?

Ans: Specific Performance of contract:

Specific performance of contact means to perform the responsibilities as per the conditions of a valid contract. Once a contract is made between the both parties if the person does not perform his responsibilities by executing the contract as per the law of the contract, the compensation can be claimed against the person for breach of contract. Compensation is a kind of special relief. But this type relief always does not ensure proper justice. The prejudicial person of the contract may not be satisfied with the compensation provided by the court. That is why; the suit is filed in the competent court under section 12 of the Specific Relief Act for the specific performance of contract.

When the specific performance of contract is enforced:

In section 12 of the Specific Relief Act 1877, it has been stated about the specific performance of contract that- Except as otherwise provided in this chapter, the specific performance of any contract may, in the discretion of the court be enforced-

  1. a) when the act agreed to be done is in the performance, wholly of partly, of a trust;
  2. b) when there exists no standard for ascertaining the actual damage caused by non- performance of the act agreed to be done.

Explanation: Unless and until contrary is proved. The court shall presume that the breach of a contract to transfer immovable property can’t be adequately relieved by transfer of movable property can be thus relieved.

When the specific performance of contract is not enforceable:

As per the conditions of the Specific performance of contract provided in section 12 of the Specific Relief Act- 1877, the specific performance of contract can be enforced. But As per section 21 of the Specific Relief Act- 1877, in the following contacts the specific performance can’t be enforced.

  1. a) a contract for the non-performance of which compensation in money is an adequate relief;
  2. b) a contract which runs into such minute of numerous details, of which is so dependent on the personal qualifications or volition of the parties, or otherwise from natural is such. That the court can’t enforce specific performance of its material terms;
  3. c) a contract the terms of which the court can’t find with reasonable certainty;
  4. d) a contract which is in its nature revocable;
  5. e) a contract made by trustees either in excess of their powers or in breach of their trust;
  6. f) a contract made by or on behalf of a corporation or public company created for special purposes or by the promoters of such company, which is in excess of its powers;
  7. g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date
  8. h) a contract of which a material part of the subject matter, supposed by both parties to exist, has, before it has been made, ceased to exist.

Discretionary power of the court to enforce specific performance of contract:

As per section 22 of the Specific Relief Act- 1877, it has been stated about the discretion as to decreeing specific performance 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; but 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.”

Question 10: When can a suit under section 9 of The Specific Relief Act be filed? What are the advantages of filling a suit under this section? Against whom such a suit can’t be filed

Ans: In our society, it is seen that sometimes the real owner of the property is dispossessed by someone. In that way, being dispossessed he comes to the learned lawyer and expects the appropriate and effective legal help within the period of 6 (six) months from the date of dispossession from the property. In that circumstance, the learned lawyer wants to know some important information as the points from the client. Those are as follows:

  1. Whether that person is the real owner of the said land or not.
  2. Whether that person was in possession since before.
  3. Whether that person has been disposed by the government or not.
  4. Whether the defendant has forcibly dispossessed him or not.
  5. Whether the defendant has legally dispossessed him or not.
  6. Whether he has taken preparation to file the suit within six months from being dispossessed by the defendant of not.
  7. About the present market value of that property.
  8. Whether he has the documents as the ownership of the property of not.

All those information will be mentioned in the plaint by knowing from the client to file the suit for the recovery of possession. Every person after being dispossessed from his own possessed property will detail the above mentioned information to the learned lawyer for the initiative of the legal step.

The advantages of filing a suit under section  9 of the Specific Relief Act:

According to section -9 of The Specific Relief Act- 1877 it has been stated about the suit by person disposed of immovable property that- “if any person is dispossessed without his consent of immovable property. Otherwise, in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other little that may be set up in such suit.”

Nothing in this section shall bar any person from suing to establish his little to such property and to recover possession. In this suit the dispossessor need not prove his title over the property. But he has to file the suit under section of the Specific Relief Act within 06 (six) months from the day of dispossession from the property. In that stage, 50% of the advalorem court fee is paid in the suit. The principle of section 9 of the Specific Relief Act is that ” The person who is in possession now will be in possession.”

Neither any appeal shall lie from any order or decree passed in any suit instituted under this section nor shall any review of any such order of decree be allowed. Under section 115 of the Code of Civil Procedure, only revision is applicable.

Against whom a suit under section 9 of the Specific Relief Act can’t be filed?

A suit for recovery of possession under section 9 of the Specific Relief Act- 1877 can’t be filed against the Government.

Question 03: What are the things which are to be proved for obtaining a decree of permanent injunction in respect of an immovable property?

Ans: There are two types of relief’s retained in the Specific Relief Act.

  1. i) Remedial ii) Preventive relief.
  2. i) Preventive relief: The Specific Relief Act provides the remedial relief about the recovery of possession, specific performance of contract, variation, rectification etc.
  3. ii) Preventive relief:

The Specific Relief Act provides the remedial relief about the preventive relief about granting temporary injunction or permanent injunction. The preventive relief is granted at the discretion of the court.

Injunction:

Injunction is a kind of judicial process whereby a party is required to do (mandatory injunction) or to refrain from doing any particular act (prohibitory injunction) of maintaining status quo. It is quite a discretionary remedy of granting injunction. On the basis of the procedure of civil litigation there are three types of injunctions. i) Ad-interim injunction   ii) Temporary injunction iii) Permanent injunction. On the other hand, on the basis of the nature and character, there are two types of injunctions: i) Mandatory injunction ii) Prohibitory injunction.

In granting the injunction the court must be satisfied about the consideration of following three matters:

  1. i) Prima facie case: The first condition of issuing the order of temporary injunction that the petitioner has to make out a prima facie case in support of the right claimed by the plaintiff. In the court is satisfied with the dispute raised by the plaintiff and with the application for the temporary injunction of the petitioner if it is proved as the strong case for trial on the merit, evidence and witness before the court. There should be the possibility of the petitioner having the conclusive title claimed by the plaintiff.
  2. ii) Irreparable loss: The petitioner has to satisfy the court that if the injunction as prayed in the petition is not granted, the petitioner will suffer the irreparable loss. On the other hand, with the order of temporary injunction it requires to protect the consequence of the apprehended injury.

iii) Balance of convenience and inconvenience: In granting the temporary injunction the court considers the balance of convenience and inconvenience in favor of the petitioner.

Permanent injunction:

Through the permanent injunction the defendant is restrained from doing or committing an act forever by way of judicial process so that the defendant can’t violate the right of the plaintiff. The decree of the permanent injunction is passed after the final hearing of the both parties upon the merits of the case. In section 54 of the Specific Relief Act it is stated about the permanent injunction that-

“Subject to other provisions contained in, or referred to by, this chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favor of the application, whether expressly or by implication”.

When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the court may grant a perpetual injunction in the following cases:

  1. a) Where the defendant is trustee of the property for the plaintiff;
  2. b) where there exists on standard for ascertaining the actual damage caused, of likely to be caused by the invasion;
  3. c) where the invasion is such that pecuniary compensation would not afford adequate relief;
  4. d) where it is probable that pecuniary compensation can’t be received for the invasion;
  5. e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Question-04. If a person is dispossessed from immovable property, what are the provisions in the Specific Relief  Act- 1877 to get recovery of possession in the said property? Discuss with reference to the relevant provisions of the Specific Relief Act- 1877.

Ans: It is stated in the language of law that “Possession of immovable property is the maximum ownership but the rest is proved with the title”. So, the possession plays the vital role to prove the ownership in the property. In our society, it is seen that sometimes the real owner of the property is dispossessed by someone. In that way, being dispossessed from the property he comes to the learned lawyer and expects the appropriate and effective legal help within the period of 6 (six) months from the date of dispossession from the property. In that circumstance, the learned lawyer wants to know some important information as the points from the client. Those are as follows:

  1. Whether that person is the real owner of the said land or not.
  2. Whether that person was in possession since before.
  3. Whether that person has been disposed by the government or not.
  4. Whether the defendant has forcibly dispossessed him or not.
  5. Whether the defendant has legally dispossessed him or not.
  6. Whether he has taken preparation to file the suit within six months from being dispossessed by the defendant or not.
  7. about the present market value of that property.
  8. Whether he has the documents as the ownership of the property or not.

All those information will be mentioned in the plaint by knowing from the client to file the suit for the recovery of possession. Every person after being dispossessed from his own possessed property will detail the above mentioned information to the learned lawyer for the initiative of the legal step.

According to section 9 of The Specific Relief Act- 1877, it has been stated about the suit by person disposed of immovable property that-“If any person is dispossessed without his consent of immovable property. Otherwise, in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other little that may be set up in such suit”.

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession. In this suit the dispossessor need not prove his title over the property. But he has to file the suit under section of the Specific Relief Act within 06 (six) months from the day of dispossession from the property. In that stage, 50% of the advalorem court fee is paid in the suit. The principle of section 9 of the Specific Relief Act is that “The person who is in possession now will be in possession.”

Neither any appeal shall lie from any order of decree passed in any suit instituted under this section nor shall any such order or decree be allowed. Under section 115 of the Code of Civil Procedure, only revision is applicable.

A suit for recovery of possession under section 9 of the Specific Relief Act- 1877 can’t be filed against the Government.