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(6) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion.

(c) Where the invasion is such that pecuniary compensation would not afford adequate relief.

(d) Where it is probable that pecuniary compensation cannot be got for the invasion.

(e) Where the injunction is necessary to prevent a multiplicity

of judicial proceedings. Mandatory When to prevent the breach of an obligation it is necessary to injunc

compel the performance of certain acts which the Court is capable tions.

of enforcing, the Court is empowered to grant an injunction to prevent the breach and also to compel performance of the requisite acts. The circuitous method of compelling a man (for example) to pull down a wall by enjoining him not to keep it up is wisely discarded by the Act.

Section 56 enumerates the defences to a suit for an injunction. It does not forbid the Courts to grant injunctions to prevent libels. Notwithstanding Lord Cairns' decision in Prudential Assurance Co. v. Knott, the Select Committee did not see why breach of the obligation not to injure a man's reputation should not be restrained like the breach of any other obligation, and the provision in section 7 prevents any clashing with the criminal law.

Section 57 enables the Court under certain circumstances to grant an injunction to perform an agreement not to do a certain act.

The Specific Relief Act occupies a middle ground between Substantive law and Procedure, between the Contract Act on the one hand and the Civil Procedure Code on the other. It is therefore placed at the end of the first volume of this work.

The framing of this Act was suggested to the writer in 1875 by the draft New York Civil Code, 1862, which contains a Title called 'Specific and Preventive Relief,' consisting of three chapters headed respectively General Principles,' Specific Relief,' and * Preventive Relief.' On this plan he proceeded to draw a bill, using as his model for secs. 5, 6, 7, 8, 10, 11 the New York draft, and for sec. 9 the Indian Act XIV of 1859, sec. 15. For the most important part of the draft--that relating to the specific performance of contracts—some help was got from the New York draft, but far more from the English equity reports and the works of Mr. Dart and Lord Justice Fry. Two of its sections

History of the Act.

144 L. J., Ch. 194.

(14, 15) had been drafted in England by the Law Commissioners. The chapters on Rectification, Rescission, and Cancellation are for the most part taken from the New York draft. The chapter on Declaratory Decrees, originally framed on sec. 15 of the Civil Procedure Code of 1859 (itself copied from the English enactment 15 & 16 Vic. c. 86, sec. 50), is in its present form suggested by the Scotch action of declarator. The section on Receivers was suggested by Mr. Pitt Kennedy. The chapter on the Enforcement of Public Duties was distilled from Tapping's and other English books on mandamus, and the draft of this part of the Act was submitted by the law-member to Sir R. Couch, then Chief Justice of Bengal, who returned it to him unaltered. Lastly, in drawing the chapters on Injunctions some help was got from the New York chapter on Preventive Relief and Mr. Kerr's work on the subject. The Bill was carefully revised and much improved by Mr. (now Lord) Hobhouse, then law-member of the Governor-General's Council. He in particular drew the section (22) on Discretion, and most, if not all, the illustrations which had not been taken from the equity reports. With the permission of the Secretary of State, the Bill was introduced in December 1875: it was referred to a Select Committee, who revised it with the aid derived from some valuable criticisms by Mr. Pitt Kennedy; and it was passed in February 1877, and came into force on the ist of May in that year.

Since then, though it has been in force throughout the whole of British India, except what are called the Scheduled Districts", and applied to every class of the population, it has worked smoothly, and no amendments have been found necessary. But whenever it Suggesis revised by the Legislature it would perhaps be well to make its tions for its

amendclassification of trusts harmonize more completely with that of Act ment. II of 1882; to repeal sections 5 and 6 as unnecessary; and to make it clear that the Court may impose terms when (under section 10) it compels the delivery of title-deeds. In the chapter on Specific Performance it should be expressly stated that laches is no defence: that a decree for specific performance cannot be coupled with an award of indemnity, that such decrees may be made where the subject matter of the contract is land out of British India, if the defendant is within the jurisdiction of the country, and that the English doctrine of mutuality of remedy does not apply. To section 18, cl. (c) should be added some words such as of such interest as he has as such :' and in section 21 some

· As to Upper Burma, see the note infra, on sec. 1.

rule should be laid down to show the limits of the Court's power to superintend the execution of works such as building, roadmaking, or repairing. The basis of a suit for a declaratory decree should be more clearly described. To the chapter on the appointment of receivers some illustrations might be added to show when the Court may fitly refuse to appoint. Lastly, the power to make orders in the nature of a mandamus (Chap. viii) might properly be given to the High Court at Allahabad, the Chief Court of the Panjáb, and, perhaps, the Recorder of Rangoon ; and the local limits of this useful jurisdiction might be extended so as to enable the Courts possessing it to control Mufassal municipalities.

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OF RECOVERING POSSESSION OF PROPERTY.

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(a) PoSSESSION OF IMMOVEABLE PROPERTY. Recovery of specific immoveable property Suit by person dispossessed of immoveable property.

(6) POSSESSION OF MOVEABLE PROPERTY. Recovery of specific moveable property Liability of person in possession, not as owner, to deliver to person en

titled to immediate possession

CHAPTER II.

OF THE SPECIFIC PERFORMANCE OF CONTRACTS.

(a) CONTRACTS WHICH MAY BE SPECIFICALLY ENFORCED.
Cases in which specific performance enforceable
Contracts of which the subject has partially ceased to exist

SECTION

Specific performance of part of contract where part unperformed is small. 14 Specific performance of part of contract where part unperformed is large . 15 Specific performance of independent part of contract

16 Bar in other cases of specific performance of part of contract

17 Purchaser's rights against vendor with imperfect title

18 Power to award compensation in certain cases .

19 Liquidation of damages not a bar to specific performance.

.

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(6) CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED. Contracts not specifically enforceable

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(c) OF THE DISCRETION OF THE COURT. Discretion as to decreeing specific performance.

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(d) FOR WHOM CONTRACTS MAY BE SPECIFICALLY ENFORCED. Who may obtain specific performance

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(e) FOR WHOM CONTRACTS CANNOT BE SPECIFICALLY ENFORCED. Personal bars to the relief Contracts to sell property by one who has no title, or who is a voluntary

settlor

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(1) FOR WHOM CONTRACTS CANNOT BE SPECIFICALLY ENFORCED,

EXCEPT WITH A VARIATION. Non-enforcement except with variation

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(9) AGAINST WHOM CONTRACTS MAY BE SPECIFICALLY ENFORCED. Relief against parties and persons claiming under them by subsequent

title

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(h) AGAINST WHOM CONTRACTS CANNOT BE SPECIFICALLY ENFORCED. What parties cannot be compelled to perform .

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(i) THE EFFECT OF DISMISSING A SUIT FOR SPECIFIC PERFORMANCE Bar of suit for breach after dismissal

· 29

(3) AWARDS AND DIRECTIONS TO EXECUTE SETTLEMENTS. Application of preceding sections to awards and testamentary directions

to execute settlements

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CHAPTER III.

OF THE RECTIFICATION OF INSTRUMENTS.

When instrument may be rectified
Presumption as to intent of parties
Principles of rectification •
Specific enforcement of rectified contract.

31 32 33 34

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