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Report No. 147

1.3. Need for re-consideration.-

The Specific Relief Act, 1963 has posed several problems and difficulties. Indeed it has given rise to divergence of judicial opinion on some of the provisions:

(i) There is a conflict of judicial opinion on the question whether an owner can bring a suit for possession under section 6 when not he but a person deriving title from him is in possession of the property;

(ii) Section 15 of the Act is not free from difficulty. Courts in India have often been confronted with a situation where a contract is clearly intended for the benefit of third party but still have been reluctant to enforce the contract at the instance of such third patties. This is despite consideration for the contract may move even, from such third party;

(iii) the expression 'failed to aver and prove' in section 16 has given rise to lot of litigation;

(iv) the decision of the Supreme Court in Babulal v. Hazari Lal Kishori Lal : AIR 1982 SC 818, while analysing the provisions of section 22(2), emphasised the need for adding after the word "proceeding" in the proviso to section 22(2), the words "including a proceeding in execution";

(iv) There is a divergence of judicial opinion on the question whether courts can extend the time originally fixed for payment, notwithstanding the terms of the decree under section 28;

(vi) Doubts have also been expressed as to whether decree other than compromise decree will fall within the meaning of the expression "written instruments" under section 31; and

(vii) Section 1 requires reconsideration in order to bring uniformity at national level. These difficulties have prompted the Law Commission to consider these questions suo motu, with a view to make the law simpler and to avoid litigation on technicalities.

With the above object in view, we proceed to examine sections 1, 6, 15, 16, 20, 22, 28 & 33 of the Specific Relief Act and to analyse the case law giving rise to judicial controversies and deficiencies therein. At the end we have made recommendations in this regard. Since 1963, various other areas calling for specific relief have also opened up.1 But, having considered this question afresh, we think that there may be need for different types of solutions to meet those difficulties2 but at present there is no justification to change the arrangement of the 1963 Act in this respect or to make the Act more comprehensive to cover other types of specific reliefs as well.

1. For example compensatory relief in respect of death or personal injury in various kinds of situations including those while in police custody.

2. The Commission is proposing to consider the wider issues and to cover them in a later report.



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