Preventive relief. (d) by determining and declaring the rights of parties otherwise than by an award of compensation1; or (e) by appointing a Receiver 2. 6. Specific relief granted under clause (c) of section 5 is called preventive relief. Relief not 7. Specific relief cannot be granted for the mere purpose of granted to enforce enforcing a penal law 3. penal law. 1 Chap. VI. 2 Chap. VII. Sec. 5 (which was suggested by § 1881 of the draft N. Y. Civil Code) omits to refer to chaps. III and IV. It might well be repealed. 38 Cal. 168: Draft N. Ÿ. Civil Code, § 1883, which excepts cases of nuisance. See sec. 55 infra. Ill. (e) shows that an injunction may be obtained to restrain the publication of defamatory matter. Though such publication is a criminal offence, it is also an infringement of a civil right. So in India, as in England, the Court may restrain by injunction the commission of criminal acts affecting rights of property which the Court is bound to protect, Gee v. Pritchard, 2 Swanst. 413, and other cases cited in Daniell, 1578, note (k). PART II. OF SPECIFIC RELIEF. CHAPTER I. OF RECOVERING POSSESSION OF PROPERTY. (a) Possession of Immoveable Property. 8. A person entitled to the possession of specific immove- Recovery able property may recover it in the manner prescribed by the of specific Code of Civil Procedure. immoveable property. Suit by possessed 9. If any person is dispossessed1 without his consent of immoveable property otherwise than in due course of law, he person disor any person claiming through him may, by suit instituted of immovewithin six months from the date of the dispossession, recover able propossession thereof, notwithstanding any other title that may be set up in such suit 2. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this section shall be brought against the Government 3. No appeal shall lie from any order or decree passed in any 1 either wholly or partially. Thus where A trespasses on B's property and retains joint possession thereof, B may sue under this section, for he is dispossessed to the same extent as A has obtained possession, 3 Mad. 250. The possession of which the plaintiff in a suit under this section has been deprived must be a juridical as opposed to a physical possession. A mere trespasser has not acquired what the law understands by possession, and cannot, therefore, have been dispossessed,' 7 Bom. H. C., A. C. J. 87, per Melvill J. See also 5 Bom. 446. A jurisdiction in cases of illegal dispossession is given to Mámlatdárs by Bom. Act III of 1876, West & B., 3rd ed., 696, n. 2 In a summary suit under this section the plaintiff may sue each of 3 This word is not defined. It perty. Recovery of specific suit instituted under this section, nor shall any review of any such order or decree be allowed 2. (b) Possession of Moveable Property. 10. A person entitled to the possession of specific moveable moveable property may recover the same in the manner prescribed by property. the Code of Civil Procedure 3. Explanation 1.-A trustee may sue under this section for the possession of property to the beneficial interest in which the person for whom he is trustee is entitled 4. Explanation 2.-A special or temporary right to the present possession of property is sufficient to support a suit under this section. Illustrations. (a) A bequeaths land to B for his life, with remainder to C. A dies. B enters on the land, but C, without B's consent, obtains possession of the title-deeds. B may recover them from C3. (b) A pledges certain jewels to B to secure a loan. B disposes of them before he is entitled to do so. A, without having paid or tendered the amount of the loan, sues B for possession of the jewels. The suit should be dismissed, as A is not entitled to their possession *, whatever right he may have to secure their safe custody'. (c) A receives a letter addressed to him by B. B gets back the letter without A's consent. A has such a property therein as entitles him to recover it from B3. (d) A deposits books and papers for safe custody with B. Bloses them and C finds them, but refuses to deliver them to B when demanded. B may recover them from C, subject to C's right, if any, under section 168 of the Indian Contract Act, 1872. (e) A, a warehouse-keeper, is charged with the delivery of certain This does not bar a rehearing under sec. 103 of the Civil Procedure Code, 4 Mad. 218. 2 Mere omission of the party dispossessed to avail himself of the provisions of this section is not acquiescence in the dispossessor's act so as to deprive him of his right to rely on his previous possession in an action of ejectment against a trespasser, 8 Bom. 375, 376. A suit lies under this section where the plaintiff's possession has been partially, as well as where it has been wholly disturbed, 3 Mad. 250. And the defendant has no option to retain the property upon paying its value. So in England since the C. L. P. Act, 1854, sec. 78. • Bullen & Leake, p. 414. 5 Lord Buckhurst's Case, I Co. Rep. 28. The illustration assumes that B is not a beneficiary. Otherwise his trustee would be entitled to the deeds. See the Trusts Act, sec. 31, supra, P. 853. The bailor must pay or tender before he becomes entitled to the possession. "Donald v. Suckling, L. R., 1 Q. Oliver v. Oliver, 8 Jur., goods to Z, which B takes out of A's possession. A may sue B for the goods'. 11. Any person having the possession or control of a par- Liability of person ticular article of moveable property, of which he is not the in possesowner, may be compelled specifically to deliver it to the person sion, not entitled to its immediate possession, in any of the following to deliver cases : as owner, to person entitled to (a) when the thing claimed is held by the defendant as the immediate agent or trustee 2 of the claimant ; (6) when compensation in money would not afford the claimant adequate relief for the loss of the thing claimed 3; (c) when it would be extremely difficult to ascertain the actual damage caused by its loss; (d) when the possession of the thing claimed has been wrongfully transferred from the claimant *. Illustrations of clause (a)-A, proceeding to Europe, leaves his furniture in charge of B as his agent during his absence. B, without A's authority, pledges the furniture to C, and C, knowing that B had no right to pledge the furniture, advertises it for sale. C may be compelled to deliver the furniture to A, for he holds it as A's trustee. of clause (b)-Z has got possession of an idol belonging to A's family, and of which A is the proper custodian. Z may be compelled to deliver the idol to A. of clause (c)-A is entitled to a picture by a dead painter and a pair of rare China vases. B has possession of them. The articles are of too special a character to bear an ascertainable market-value. B may be compelled to deliver them to A 8. 1 This illustrates Expl. 2-4 having a temporary right to the present possession of the goods. As to the decree in suits under this section, see the Code of Civil Procedure, secs. 208, 259, and as to the measure of damages, Mayne, Dam. p. 389. "Wood v. Rowcliffe, a Phill. 882. This includes two classes of English cases, (a) where the thing in question is unique, where there is, over and above the market value, a pretium affectionis (Fry, 28), and (b) where, though it is not unique, it possesses a special and peculiar value to the plaintiff (Fry, 30). In the latter class of cases the Court will enjoin the possessor of the article not to sell it, North v. G. N. Ry. Co., a Giff. 64. possession. Cases in which specific perform ance en forceable. CHAPTER II. OF THE SPECIFIC PERFORMANCE OF CONTRACTS. (a) Contracts which may be specifically enforced. 12. Except as otherwise provided in this chapter, the specific performance of any contract may in the discretion of the Court be enforced (a) when the act agreed to be done is in the performance, wholly or partly, of a trust 3; (b) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done ; (c) when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or (d) when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done. Explanation.-Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer moveable property can be thus relieved *. Illustrations of clause (a)-4 holds certain stock in trust for B. A wrongfully disposes of the stock. The law creates an obligation on A to restore the same quantity of stock to B, and B may enforce specific performance of this obligation". of clause (b)-4 agrees to buy, and B agrees to sell, a picture by a dead painter and two rare China vases. A may compel B specifically to perform this contract, for there is no standard for ascertaining the actual damage which would be caused by its nonperformance". of clause (c)—A contracts with B to sell him a house for Rs. 1000. 1i.e. an agreement enforceable by law; supra, p. 547 2 See infra, sec. 22. whether express, constructive, or resulting, supra, p. 946. * I Sim. & St 610. Forest v. Elwes, 4 Ves. 497: Pooley v. Budd, 14 Beav. 34. This illustration is repealed by the Trusts Act, II of 1882, wherever that Act is in force. • Falcke v. Grey, 4 Drew. 651. |