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Thread: Q. Court always orders for specific performance as a whole, are there any exceptions

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    Word Icon 35px Jpg.ashx Q. Court always orders for specific performance as a whole, are there any exceptions

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    Q. Court always orders for specific performance as a whole, are there any exceptions to the general rule.
    (1998) (2000) (2001) (2004) (2006/S) (2007)
    1. Introduction:

    Contract should be specifically enforced entirety and not in parts however under specific relief act there are some circumstances when a contract is incapable of being performed in its entirety due to some deficiency in the quality, or value of the subject matter of the contract.
    2. Relevant Provisions:
    Sec. 14, 15, 16, specific relief act.
    3. Definition of part performance of contract:
    Part performance means specific performance of only a part of the contract and rest of its being either compensated or abated.
    4. General rule:
    It is the general rule that court will not direct specific performance of a part of contract. so contract should be specifically enforced entirety.
    5. Exceptions to general rule:
    Following are the exceptions of the general rule.
    I. Where part unperformed is small:
    Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency.
    Case law
    2005 SCMR 1408
    It was held that partial performance of agreement even if legally possible would be refused on the ground that the same would occasion prejudice damage loss and would be disaduantageous to other person.
    II. Where part unperformed is large:
    Where a party to contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of the compensation in money, he is not entitled to obtain a decree for specific performance. but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that plaintiff relinquishes all claim to further performance, and all rights to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.
    III. Where the part of the contract is independent:
    When a part of a contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the such contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.
    Application:
    (i) Part taken by itself could and ought to be specifically performed and.
    (ii) Such part stood on a separate and independent footing.
    Case law
    PLD 1973 119

    It was held that where a contract which is incomplete or is dependent on acts of their parties or execution of a formal document to become concluded contracts have generally been held to be incomplete contracts such contracts cannot be specifically enforced.
    6. Conclusion:
    To conclude I can say that, specific performance is an equitable relief. it is not a matter of right. the contracts should be performed entirety and not in parts. Sec. 14, 15, and 17 provide exceptions to the basic rule where in a contract can be specifically enforced in parts viz., where part unperformed is small, where part unperformed is large and lastly where the part of contract is independent.

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