LAWS OF MALAYSIA
REPRINT
Act 137
SPECIFIC RELIEF ACT 1950
Incorporating all amendments up to 1 January 2006
PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, MALAYSIA
UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968
IN COLLABORATION WITH
PERCETAKAN NASIONAL MALAYSIA BHD
2006
Laws of Malaysia
2
ACT 137
SPECIFIC RELIEF ACT 1950
First enacted
... ... ... ... ... ... 1950 (Ordinance No. 29
of 1950)
Revised
... ... ... ... ... ... ... 1974 (Act 137 w.e.f.
1 July 1974)
PREVIOUS REPRINTS
First Reprint
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1997
Second Reprint
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2000
Specific Relief
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LAWS OF MALAYSIA
Act 137
SPECIFIC RELIEF ACT 1950
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
Short title
2.
Interpretation
3.
Savings
4.
Specific relief how given
5.
Preventive relief
6.
Relief not granted to enforce penal law
PART II
SPECIFIC RELIEF
CHAPTER I
RECOVERING POSSESSION OF PROPERTY
Possession of Immovable Property
7.
Recovery of specific immovable property
8.
Suit by person dispossessed of immovable property
Possession of Movable Property
9.
Recovery of specific movable property
10.
Liability of person in possession, not as owner, to deliver to person
entitled to immediate possession
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ACT 137
CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS
Contracts which may be Specifically Enforced
Section
11.
Cases in which specific performance enforceable
12.
Contracts of which the subject has partially ceased to exist
13.
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
Contracts which cannot be Specifically Enforced
20.
Contracts not specifically enforceable
Discretion of the Court
21.
Discretion as to decreeing specific performance
For whom Contracts may be Specifically Enforced
22.
Who may obtain specific performance
For whom Contracts cannot be Specifically Enforced
23.
Personal bars to the relief
24.
Contracts to sell property by one who has no title, or who is a voluntary
settlor
For whom Contracts cannot be Specifically Enforced,
except with a Variation
25.
Non-enforcement except with variation
Against whom Contracts may be Specifically Enforced
26.
Relief against parties and persons claiming under them by subsequent
title
Specific Relief
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Against whom Contracts cannot be Specifically Enforced
Section
27.
What parties cannot be compelled to perform
The effect of Dismissing a suit for Specific Performance
28.
Bar of suit for breach after dismissal
Awards and Directions to Execute Settlements
29.
Application of preceding sections to awards and testamentary directions
to execute settlements
CHAPTER III
RECTIFICATION OF INSTRUMENTS
30.
When instrument may be rectified
31.
Presumption as to intent of parties
32.
Principles of rectification
33.
Specific enforcement of rectified contract
CHAPTER IV
RESCISSION OF CONTRACTS
34.
When rescission may be adjudged
35.
Rescission for mistake
36.
Alternative prayer for rescission in suit for specific performance
37.
Court may require party rescinding to do equity
CHAPTER V
CANCELLATION OF INSTRUMENTS
38.
When cancellation may be ordered
39.
What instruments may be partially cancelled
40.
Power to require party for whom instrument is cancelled to make
compensation
CHAPTER VI
DECLARATORY DECREES
41.
Discretion of court as to declaration of status or right
42.
Effect of declaration
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CHAPTER VII
APPOINTMENT OF RECEIVERS
Section
43.
Appointment of Receivers discretionary
CHAPTER VIII
ENFORCEMENT OF PUBLIC DUTIES
44.
Power to order public servants and others to do certain specific acts
45.
Application how made and procedure
46.
Peremptory order
47.
Execution of, and appeal from, orders
48.
Costs
49.
Bar to issue of mandamus
PART III
PREVENTIVE RELIEF
CHAPTER IX
OF INJUNCTIONS GENERALLY
50.
Preventive relief how granted
51.
Temporary and perpetual injunctions
CHAPTER X
OF PERPETUAL INJUNCTIONS
52.
Perpetual injunctions when granted
53.
Mandatory injunctions
54.
Injunction when refused
55.
Injunction to perform negative agreement
Specific Relief
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LAWS OF MALAYSIA
Act 137
SPECIFIC RELIEF ACT 1950
An Act relating to specific relief.
[Kuala Lumpur, Johore, Kedah, Kelantan,
Negeri Sembilan, Pahang, Perak, Perlis,
Selangor and Terengganu--4 July 1950;
Malacca, Penang, Sabah and Sarawak--
1 July 1974, Act A238]
PART I
PRELIMINARY
Short title
This Act may be cited as the Specific Relief Act 1950.
1.
Interpretation
2. (1) In this Act--
"obligation" includes every duty enforceable by law;
"settlement" means any instrument (other than a will or codicil)
whereby the destination or devolution of successive interests in
movable or immovable property is disposed of or is agreed to be
disposed of;
"trust" includes every species of express, implied, or constructive
fiduciary ownership;
"trustee" includes every person holding, expressly, by implication
or constructively, a fiduciary character.
ILLUSTRATIONS
(a) Z bequeaths land to A, "not doubting that he will pay thereout an
annuity of RM1,000 to B for his life". A accepts the bequest. A is a trustee,
within the meaning of this Act, for B, to the extent of the annuity.
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ACT 137
(b) A is the legal, medical, or spiritual adviser of B. By availing himself
of his situation as such adviser, A gains some pecuniary advantage which
might otherwise have accrued to B. A is a trustee for B, within the meaning
of this Act, of the advantage.
(c) A, being B's banker, discloses, for his own purpose, the state of B's
account. A is a trustee, within the meaning of this Act, for B, of the benefit
gained by him by means of the disclosure.
(d) A, one of several partners, is employed to purchase goods for the firm.
A, unknown to his co-partners, supplies them, at the market-price, with goods
previously bought by himself when the price was lower, and thus makes a
considerable profit. A is a trustee, for his co-partners, within the meaning
of this Act, of the profit so made.
(e) A, the manager of B's indigo-factory, becomes agent for C, a vendor
of indigo-seed, and receives, without B's assent, commission on the seed
purchased from C for the factory. A is a trustee, within the meaning of this
Act, for B, of the commission so received.
(2) All words occurring in this Act, which are defined in the
Contracts Act 1950 [Act 136], shall be deemed to have the meanings
respectively assigned to them by that Act.
Savings
3.  Except where it is herein otherwise expressly provided, nothing
in this Act shall be deemed--
(a) to give any right to relief in respect of any agreement
which is not a contract;
(b) to deprive any person of any right to relief, other than
specific performance, which he may have under any
contract; or
(c) to affect the operation of any law in force for the time
being relating to the registration of documents.
Specific relief how given
Specific relief is given--
4.
(a) by taking possession of certain property and delivering
it to a claimant;
(b) by ordering a party to do the very act which he is under
an obligation to do;
(c) by preventing a party from doing that which he is under
an obligation not to do;
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(d) by determining and declaring the rights of parties otherwise
than by an award of compensation; or
(e) by appointing a receiver.
Preventive relief
5.  Specific relief granted under paragraph 4 (c) is called preventive
relief.
Relief not granted to enforce penal law
6.  Specific relief cannot be granted for the mere purpose of
enforcing a penal law.
PART II
SPECIFIC RELIEF
CHAPTER I
RECOVERING POSSESSION OF PROPERTY
Possession of Immovable Property
Recovery of specific immovable property
7. (1) Subject to subsection (2), a person entitled to the possession
of specific immovable property may recover it in the manner
prescribed by the law relating to civil procedure.
(2) Where a specific immovable property has been let under a
tenancy, and that tenancy is determined or has come to an end, but
the occupier continues to remain in occupation of the property or
part thereof, the person entitled to the possession of the property
shall not enforce his right to recover it against the occupier otherwise
than by proceedings in the court.
(3) In subsection (2) "occupier" means any person lawfully in
occupation of the property or part thereof at the termination of the
tenancy.
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ACT 137
Suit by person dispossessed of immovable property
8. (1) If any person is dispossessed without his consent of immovable
property otherwise than in due course of law, he or any person
claiming through him may, by suit, recover possession thereof,
notwithstanding any other title that may be set up in the suit.
(2) Nothing in this section shall bar any person from suing to
establish his title to any such property and to recover possession
thereof.
(3) No suit under this section shall be brought against any
Government in Malaysia.
(4) No appeal shall lie from any order or decree passed in any
suit instituted under this section, nor shall any review of any such
order or decree be allowed.
Possession of Movable Property
Recovery of specific movable property
9.  A person entitled to the possession of specific movable property
may recover the same in the manner prescribed by the law relating
to civil procedure.
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.
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 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.
(b) 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 entitled him to recover
it from B.
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(c) A deposits books and papers for safe custody with B. B loses 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 121 of the
Contracts Act 1950.
(d) A, a warehouse-keeper, is charged with the delivery of certain goods
to Z, which B takes out of A's possession. A may sue B for the goods.
Liability of person in possession not as owner, to deliver to
person entitled to immediate possession
10.  Any person having the possession or control of a particular
article of movable property, of which he is not the owner, may be
compelled specifically to deliver it to the person entitled to its
immediate possession, in any of the following cases:
(a) when the thing claimed is held by the defendant as the
agent or trustee of the claimant;
ILLUSTRATION
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.
(b) when compensation in money would not afford the claimant
adequate relief for the loss of the thing claimed;
ILLUSTRATION
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.
(c) when it would be extremely difficult to ascertain the
actual damage caused by its loss; and
ILLUSTRATION
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 to special a character to bear
an ascertainable market-value. B may be compelled to deliver them to A.
(d) when the possession of the thing claimed has been
wrongfully transferred from the claimant.
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CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS
Contracts which may be Specifically Enforced
Cases in which specific performance enforceable
11. (1) 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;
ILLUSTRATION
A 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.
(b) when there exists no standard for ascertaining the actual
damage caused by the non-performance of the act agreed
to be done;
ILLUSTRATION
A 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 non-performance.
(c) when the act agreed to be done is such that pecuniary
compensation for its non-performance would not afford
adequate relief; or
ILLUSTRATIONS
(a) A contracts with B to sell him a house for RM1,000. B is entitled to
a decree directing A to convey the house to him, he paying the purchase-
money.
(b) In consideration of being released from certain obligations imposed
on it by its Act of incorporation, a railway company contracts with Z to make
an archway through their railway to connect lands of Z served by the railway,
to construct a road between certain specified points, to pay a certain annual
sum towards the maintenance of this road, and also to construct a siding and
a wharf as specified in the contract. Z is entitled to have this contract
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specifically enforced, for his interest in its performance cannot be adequately
compensated for by money; and the court may appoint a proper person to
superintend the construction of the archway, road, siding, and wharf.
(c) A contracts to sell, and B contracts to buy, a certain number of
railway-shares of a particular description. A refuses to complete the sale. B
may compel A specifically to perform this agreement, for the shares are
limited in number and not always to be had in the market, and their possession
carries with it the status of a shareholder, which cannot otherwise be procured.
(d) A contracts with B to paint a picture for B, who agrees to pay therefor
RM1,000. The picture is painted. B is entitled to have it delivered to him
on payment or tender of the RM1,000.
(d) when it is probable that pecuniary compensation cannot
be got for the non-performance of the act agreed to be
done.
ILLUSTRATION
A transfers without endorsement, but for valuable consideration, a promissory
note to B. A becomes insolvent, and C is appointed his assignee. B may
compel C to endorse the note, for C has succeeded to A's liabilities and a
decree for pecuniary compensation for not endorsing the note would be
fruitless.
(2) Unless and until the contrary is proved, the court shall
presume that the breach of a contract to transfer immovable property
cannot be adequately relieved by compensation in money, and that
the breach of a contract to transfer movable property can be thus
relieved.
Contracts of which the subject has partially ceased to exist
12.  Notwithstanding anything contained in section 57 of the
C o n t r a c t s Act 1950, a contract is not wholly impossible of
performance because a portion of its subject matter, existing, at
its date, has ceased to exist at the time of the performance.
ILLUSTRATIONS
(a) A contracts to sell a house to B for RM10,000. The day after the
contract is made, the house is destroyed by a cyclone. B may be compelled
to perform his part of the contract by paying the purchase-money.
(b) In consideration of a sum of money payable by B, A contracts to grant
an annuity to B's life. The day after the contract has been made, B is thrown
from his horse and killed. B's representative may be compelled to pay the
purchase-money.
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Specific performance of part of contract where part unperformed
is small
13.  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.
ILLUSTRATION
In a contract for the sale and purchase of a house and lands for RM20,000,
it is agreed that part of the furniture should be taken at a valuation. The court
may direct specific performance of the contract notwithstanding the parties
are unable to agree as to the valuation of the furniture, and may either have
the furniture valued in the suit and include it in the decree for specific
performance, or may confine its decree to the house.
Specific performance of part of contract where part unperformed
is large
14.  Where a party to a 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 compensation
in money, he is not entitled to obtain a decree for specific performance.
But the court may, at the suit of the other party, direct the party
in default to perform specifically so much of his part of the contract
as he can perform, provided that the plaintiff relinquishes all claim
to further performance, and all right to compensation either for the
deficiency, or for the loss or damage sustained by him through the
default of the defendant.
Specific performance of independent part of contract
15.  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 same contract which
cannot or ought not to be specifically performed, the court may
direct specific performance of the former part.
Specific Relief
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Bar in other cases of specific performance of part of contract
16.  The court shall not direct the specific performance of a part
of a contract except in cases coming under one or other of the three
last preceding sections.
Purchaser's rights against vendor with imperfect title
17.  Where a person contracts to sell or let certain property, having
only an imperfect title thereto, the purchaser or lessee (except as
otherwise provided by this Chapter) has the following rights:
(a) if the vendor or lessor has subsequently to the sale or
lease acquired any interest in the property, the purchaser
or lessee may compel him to make good the contract out
of that interest;
(b) where the concurrence of other persons is necessary to
validate the title, and they are bound to convey at the
vendor's or lessor's request, the purchaser or lessee may
compel him to procure the concurrence; and
(c) where the vendor or lessor sues for specific performance
of the contract, and the suit is dismissed on the ground
of his imperfect title, the defendant has a right to a return
of his deposit (if any) with interest thereon, to his costs
of the suit, and to a lien for the deposit, interest, and
costs on the interest of the vendor or lessor in the property
agreed to be sold or let.
Power to award compensation in certain cases
18. (1) Any person suing for the specific performance of a contract
may also ask for compensation for its breach, either in addition
to, or in substitution for, its performance.
(2) If in any such suit the court decides that specific performance
ought not to be granted, but that there is a contract between the
parties which has been broken by the defendant and that the plaintiff
is entitled to compensation for that breach, it shall award him
compensation accordingly.
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ACT 137
ILLUSTRATION
A contracts to sell a hundred gantangs of rice to B. B brings a suit to
compel A to perform the contract or to pay compensation. The court is of
opinion that A has made a valid contract and has broken it, without excuse,
to the injury of B, but that specific performance is not the proper remedy.
It shall award to B such compensation as it deems just.
(3) If in any such suit the court decides that specific performance
ought to be granted, but that it is not sufficient to satisfy the justice
of the case, and that some compensation for breach of the contract
should also be made to the plaintiff, it shall award him such
compensation accordingly.
ILLUSTRATION
A contracts with B to sell him a house for RM1,000, the price to be paid
and the possession given on the 1st January. A fails to perform his part of
the contract, and B brings his suit for specific performance and compensation,
which is decided in his favour. The decree may besides ordering specific
performance, award to B compensation for any loss which he has sustained
by A's refusal.
(4) Compensation awarded under this section may be assessed
in such a manner as the court may direct.
(5) The circumstance that the contract has become in capable
of specific performance shall not preclude the court from exercising
the jurisdiction conferred by this section.
ILLUSTRATIONS
(a) A, a purchaser, sues B, his vendor, for specific performance of a
contract for the sale of a patent. Before the hearing of the suit the patent
expires. The court may award A compensation for the non-performance of
the contract, and may, if necessary, amend the plaint for that purpose.
(b) A sues for the specific performance of a resolution passed by the
directors of a public company, under which he was entitled to have a certain
number of shares allotted to him, and for compensation for the non-performance
of the resolution. All the shares had been allotted before the institution of
the suit. The court may, under this section, award A compensation for the
non-performance.
Liquidation of damages not a bar to specific performance
19.  A contract, otherwise proper to be specifically enforced, may
be so enforced, though a sum be named in it as the amount to be
paid in case of its breach, and the party in default is willing to pay
the same.
Specific Relief
17
ILLUSTRATION
A contracts to grant B an under-lease of property held by A under C, and
that he will apply to C for a licence necessary to the validity of the under-
lease, and that, if the licence is not procured, A will pay B RM10,000. A
refuses to apply for the licence and offers to pay B the RM10,000. B is
nevertheless entitled to have the contract specifically enforced if C consents
to give the licence.
Contracts which cannot be Specifically Enforced
Contracts not specifically enforceable
20. (1) The following contracts cannot be specifically enforced:
(a) a contract for the non-performance of which compensation
in money is an adequate relief;
ILLUSTRATION
A contracts to sell, and B contracts to buy, RM10,000 in the four per cent
loan of the City of Penang;
A contracts to sell, and B contracts to buy, 40 pikuls of coffee at RM30
per pikul;
In consideration of certain property having been transferred by A to B,
B contracts to open a credit in A's favour to the extent of RM10,000, and
to honour A's drafts to that amount:
The above contracts cannot be specifically enforced, for in the first and
second both A and B, and in the third A, would be reimbursed by compensation
in money.
(b) a contract which runs into such minute or numerous details,
or which is so dependent on the personal qualifications
or volition of the parties, or otherwise from its nature is
such, that the court cannot enforce specific performance
of its material terms;
ILLUSTRATIONS
(a) A contracts to render personal service to B;
A contracts to employ B on personal service;
A, an author, contracts with B, a publisher, to complete a literary
work;
B cannot enforce specific performance of these contracts.
(b) A contracts to buy B's business at the amount of a valuation to be
made by two valuers, one to be named by A and the other by B. A and B
each name a valuer, but before the valuation is made A instructs his valuer
not to proceed;
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ACT 137
By a charter-party entered into in Telok Anson between A, the owner of
a ship, and B, the charterer, it is agreed that the ship shall proceed to
Rangoon, and there load a cargo of rice, and thence proceed to London,
freight to be paid, one-third on arrival at Rangoon, and two-thirds on delivery
of the cargo in London;
A lets land to B, and B contracts to cultivate it in a particular manner for
three years next after the date of the lease;
A and B contract that, in consideration of annual advances to be made by
A, B will, for three years next after the date of the contract, grow particular
crops on the land in his possession and deliver them to A when cut and ready
for delivery;
A contracts with B that, in consideration of RM1,000 to be paid to him
by B, he will paint a picture for B;
A contracts with B to execute certain works which the court cannot
superintend;
A contracts to supply B with all the goods of a certain class which B may
require;
A contracts with B to take from B a lease of a certain house for a specified
term, at a specified rent, "if the drawing-room is handsomely decorated,"
even if it is held to have so much certainty that compensation can be recovered
for its breach;
A contracts to marry B:
The above contracts cannot be specifically enforced.
(c) a contract the terms of which the court cannot find with
reasonable certainty;
ILLUSTRATION
A, the owner of a refreshment-room, contracts with B to give him
accommodation there for the sale of his goods and to furnish him with the
necessary appliances. A refuses to perform his contract. The case is one for
compensation and not for specific performance, the amount and nature of the
accommodation and appliances being undefined.
(d) a contract which is in its nature revocable;
ILLUSTRATION
A and B contract to become partners in a certain business, the contract
not specifying the duration of the proposed partnership. This contract cannot
be specifically performed, for, if it were so performed, either A or B might
at once dissolve the partnership.
Specific Relief
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(e) a contract made by trustees either in excess of their
powers or in breach of their trust;
ILLUSTRATIONS
(a) A is a trustee of land with power to lease it for seven years. He enters
into a contract with B to grant a lease of the land for seven years, with a
covenant to renew the lease at the expiry of the term. This contract cannot
be specifically enforced.
(b) The directors of a company have power to sell the concern with the
sanction of a general meeting of the shareholders. They contract to sell it
without any such sanction. This contract cannot be specifically enforced.
(c) Two trustees, A and B, empowered to sell trust property worth RM10,000,
contract to sell it to C for RM3,000. The contract is so disadvantageous as
to be a breach of trust. C cannot enforce its specific performance.
(d) The promoters of a company for working mines contract that the
company, when formed, shall purchase certain mineral property. They take
no proper precautions to ascertain the value of the property, and in fact agree
to pay an extravagant price therefor. They also stipulate that the vendors
shall give them a bonus out of the purchase-money. This contract cannot be
specifically enforced.
(f) a contract made by or on behalf of a corporation or
public company created for special purposes, or by the
promoters of the company, which is in excess of its
powers;
ILLUSTRATION
A company existing for the sole purpose of making and working a railway
contracts for the purchase of a piece of land for the purpose of erecting a
cotton-mill thereon. This contract cannot be specifically enforced.
(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; and
ILLUSTRATION
A contracts to let for twenty-one years to B the right to use such part of
a certain railway made by A as was upon B's land, and that B should have
a right of running carriages over the whole line on certain terms, and might
require A to supply the necessary engine-power, and that A should during
the term keep the whole railway in good repair. Specific performance of this
contract must be refused to B.
(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.
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ILLUSTRATION
A contracts to pay an annuity to B for the lives of C and D. It turns out
that, at the date of the contract, C, though supposed by A and B to be alive,
was dead. The contract cannot be specifically performed.
(2) Save as provided by the law relating to civil procedure, no
contract to refer a controversy to arbitration shall be specifically
enforced.
Discretion of the Court
Discretion as to decreeing specific performance
2 1 . ( 1 ) T h e jurisdiction to decree specific performance is
discretionary, and the court is not bound to grant any 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.
(2) The following are cases in which the court may properly
exercise a discretion not to decree specific performance:
(a) where the circumstances under which the contract is made
are such as to give the plaintiff an unfair advantage over
t h e defendant, though there may be no fraud or
misrepresentation on the plaintiff's part; and
ILLUSTRATIONS
(a) A contracts to sell to B the interest of C in certain stock-in-trade. It
is stipulated that the sale shall stand good, even though it should turn out
that C's interest is worth nothing. In fact, the value of C's interest depends
on the result of certain partnership-accounts, on which he is heavily in debt
to his partners. This indebtedness is known to A, but not to B. Specific
performance of the contract should be refused to A.
(b) A contracts to sell, and B contracts to buy, certain land. To protect
the land from floods, it is necessary for its owner to maintain an expensive
embankment. B does not know of this circumstance, and A conceals it from
him. Specific performance of the contract should be refused to A.
(c) A's property is put up to auction. B requests C, A's attorney, to bid
for him. C does this inadvertently and in good faith. The persons present,
seeing the vendor's attorney bidding, think that he is a mere puffer and cease
to compete. The lot is knocked down to B at a low price. Specific performance
of the contract should be refused to B.
(b) Where the performance of a contract would involve some
hardship on the defendant which he did not foresee, whereas
its non-performance would involve no such hardship on
the plaintiff.
Specific Relief
21
ILLUSTRATIONS
(a) A and B, trustees, join their beneficiary, C, in a contract to sell the
trust-estate to D, and personally agree to exonerate the estate from heavy
incumbrances to which it is subject. The purchase-money is not nearly enough
to discharge those incumbrances, though, at the date of the contract, the
vendors believed it to be sufficient. Specific performance of the contract
should be refused to D.
(b) A contracts with B to sell him certain lands, and to make a road to
it from a certain railway-station. It is found afterwards that A cannot make
the road without exposing himself to litigation. Specific performance of the
part of the contract relating to the road should be refused to B, even though
it may be held that he is entitled to specific performance of the rest with
compensation for loss of the road.
(c) A, a lessee of mines, contracts with B, his lessor, that at any time
during the continuance of the lease B may give notice of his desire to take
the machinery and plant used in and about the mines, and that he shall have
the articles specified in his notice delivered to him at a valuation on the
expiry of the lease. Such a contract might be most injurious to the lessee's
business, and specific performance of it should be refused to B.
(d) A contracts with B to buy from B's manufactory and not elsewhere
all the goods of a certain class used by A in his trade. The court cannot
compel B to supply the goods, but if he does not supply them A may be
ruined, unless he is allowed to buy them elsewhere. Specific performance
of the contract should be refused to B.
(3) A case in which the court may properly exercise a discretion
to decree specific performance is where the plaintiff has done
substantial acts or suffered losses in consequence of a contract
capable of specific performance.
ILLUSTRATION
A sells land to a railway company, who contract to execute certain works
for his convenience. The company take the land and use it for their railway.
Specific performance of the contract to execute the works should be decreed
in favour of A.
For whom Contracts may be Specifically Enforced
Who may obtain specific performance
22.  Except as otherwise provided by this Chapter, the specific
performance of a contract may be obtained by--
(a) any party thereto;
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(b) the representative in interest, or the principal, of any
party thereto:
Provided that, where the learning, skill, solvency, or
any personal quality of the party is a material ingredient
in the contract, or where the contract provides that his
interest shall not be assigned, his representative in interest
or his principal shall not be entitled to specific performance
of the contract, unless where his part thereof has already
been performed;
(c) where the contract is a settlement on marriage, or a
compromise of doubtful rights between members of the
same family, any person beneficially entitled thereunder;
(d) when a public company has entered into a contract and
subsequently becomes amalgamated with another public
company, the new company which arises out of the
amalgamation; or
(e) when the promoters of a public company have, before its
incorporation, entered into contract for the purposes of
the company, and the contract is warranted by the terms
of the incorporation, the company.
For whom Contracts cannot be Specifically Enforced
Personal bars to the relief
23.  Specific performance of a contract cannot be enforced in
favour of a person--
(a) who could not recover compensation for its breach;
ILLUSTRATION
A, in the character of agent for B, enters into an agreement with C to buy
C's house. A is in reality acting not as agent for B but on his own account.
A cannot enforce specific performance of this contract.
(b) who has become incapable of performing, or violates,
any essential term of the contract that on his part remains
to be performed;
ILLUSTRATIONS
(a) A contracts to sell B a house and to become tenant thereof for a term
of fourteen years from the date of the sale at a specified yearly rent. A
becomes insolvent. Neither he nor the official receiver of his estate can
enforce specific performance of the contract.
Specific Relief
23
(b) A contracts to sell B a house and garden in which there are ornamental
trees, a material element in the value of the property as a residence. A,
without B's consent, fells the trees. A cannot enforce specific performance
of the contract.
(c) A, holding land under a contract with B for a lease, commits waste,
or treats the land in an unhusbandlike manner. A cannot enforce specific
performance of the contract.
(d) A contracts to let, and B contracts to take, an unfinished house, B
contracting to finish the house and the lease to contain covenants on the part
of A to keep the house in repair. B finishes the house in a very defective
manner: he cannot enforce the contract specifically, though A and B may sue
each other for compensation for breach of it.
(c) who has already chosen his remedy and obtained satisfaction
for the alleged breach of contract; or
ILLUSTRATION
A contracts to let, and B contracts to take, a house for a specified term
at a specified rent. B refuses to perform the contract. A thereupon sues for,
and obtains, compensation for the breach. A cannot obtain specific performance
of the contract.
(d) who, previously to the contract, had notice that a settlement
of the subject matter thereof (though not founded on any
valuable consideration) had been made and was then in
force.
Contracts to sell property by one who has no title, or who is
a voluntary settlor
24.  A contract for the sale or letting of property, whether movable
or immovable, cannot be specifically enforced in favour of a vendor
or lessor--
(a) who, knowing himself not to have any title to the property,
has contracted to sell or let the same;
(b) who, though he entered into the contract believing that
he had a good title to the property; cannot, at the time
fixed by the parties or by the court for the completion
of the sale or letting, give the purchaser or lessee a title
free from reasonable doubt; or
(c) who, previous to entering into the contract, has made a
s e t t l e m e n t (though not founded on any valuable
consideration) of the subject matter of the contract.
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ILLUSTRATIONS
(a) A, without C's authority, contracts to sell to B an estate which A
knows to belong to C. A cannot enforce specific performance of this contract,
even though C is willing to confirm it.
(b) A, out of natural love and affection, makes a settlement of certain
property on his brothers and their issue, and afterwards enters into a contract
to sell the property to a stranger. A cannot enforce specific performance of
this contract so as to override the settlement and thus prejudice the interests
of the persons claiming under it.
For whom Contracts cannot be Specifically Enforced,
except with a Variation
Non-enforcement except with variation
25.  Where a plaintiff seeks specific performance of a contract in
writing, to which the defendant sets up a variation, the plaintiff
cannot obtain the performance sought, except with the variation
so set up, in the following cases, namely:
(a) where by fraud or mistake of fact the contract of which
performance is sought is in terms different from that
which the defendant supposed it to be when he entered
into it;
(b) where by fraud, mistake of fact, or surprise the defendant
entered into a contract under a reasonable misapprehension
as to its effect as between himself and the plaintiff;
(c) where the defendant, knowing the terms of the contract
and understanding its effect, has entered into it relying
upon some misrepresentation by the plaintiff, or upon
some stipulation on the plaintiff's part, which adds to the
contract, but which he refuses to fulfil;
(d) where the object of the parties was to produce a certain
legal result, which the contract as framed is not calculated
to produce; and
(e) where the parties have, subsequently to the execution of
the contract, contracted to vary it.
ILLUSTRATIONS
(a) A, B, and C sign a writing by which they purport to contract each to
enter into a bond to D for RM1,000. In a suit by D, to make A, B and C
separately liable each to the extent of RM1,000, they prove that the word
"each" was inserted by mistake; that the intention was that they should give
a joint bond for RM1,000. D can obtain the performance sought only with
the variation thus set up.
Specific Relief
25
(b) A contracts in writing to let to B a wharf, together with a strip of A's
land delineated in a map. Before signing the contract, B proposed orally that
he should be at liberty to substitute for the strip mentioned in the contract
another strip of A's land of the same dimensions, and to this A expressly
assented. B then signed the written contract, A cannot obtain specific performance
of the written contract, except with the variation set up by B.
(c) A contracts in writing to let a house to B, for a certain term, at the
rent of RM100 per month, putting it first into tenantable repair. The house
turns out to be not worth repairing, so, with B's consent, A pulls it down
and erects a new house in its place. B contracting orally to pay rent at RM120
per mensem. B then sues to enforce specific performance of the contract in
writing. He cannot enforce it except with the variations made by the subsequent
oral contract.
Against whom Contracts may be
Specifically Enforces
Relief against parties and persons claiming under them by
subsequent title
26.  Except as otherwise provided by this Chapter, specific
performance of a contract may be enforced against--
(a) either party thereto;
(b) any other person claiming under a party to the contract
by a title arising subsequently to the contract, except a
transferee for value who has paid his money in good faith
and without notice of the original contract;
ILLUSTRATIONS
(a) A contracts to convey certain land to B by a particular day. A dies
intestate before that day without having conveyed the land. B may compel
A's heir or other representative in interest to perform the contract specifically.
(b) A contracts, in consideration of RM1,000, to bequeath certain of his
lands to B. Immediately after the contract A dies intestate, and C takes out
administration to his estate. B may enforce specific performance of the
contract against C.
(c) A contracts to sell certain land to B. Before the completion of the
contract, A becomes mentally disordered, and C is appointed his committee.
B may specifically enforce the contract against C.
(c) any person claiming under a title which, though prior to
the contract and known to the plaintiff, might have been
displaced by the defendant;
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(d) when a public company has entered into a contract and
subsequently becomes amalgamated with another public
company, the new company which arises out of the
amalgamation; and
(e) when the promoters of a public company have, before its
incorporation, entered into a contract, the company:
Provided that the company has ratified and adopted the
contract and the contract is warranted by the terms of the
incorporation.
Against whom Contracts cannot be Specifically Enforced
What parties cannot be compelled to perform
27.  Specific performance of a contract cannot be enforced against
a party thereto in any of the following cases:
(a) if the consideration to be received by him is so grossly
inadequate, with reference to the state of things existing
at the date of the contract, as to be either by itself or
coupled with other circumstances evidence of fraud or of
undue advantage taken by the plaintiff;
(b) if his assent was obtained by the misrepresentation (whether
wilful or innocent), concealment, circumvention, or unfair
practices, of any party to whom performance would become
due under the contract, or by any promise of the party
which has not been substantially fulfilled; or
(c) if his assent was given under the influence of mistake of
fact, misapprehension, or surprise:
ILLUSTRATIONS
(a) A, one of two executors, in the erroneous belief that he had the
authority of his co-executor, enters into an agreement for the sale to B of
his testator's property. B cannot insist on the sale being completed.
(b) A directs an auctioneer to sell certain land. A afterwards revokes the
auctioneer's authority as to 20 acres of this land, but the auctioneer inadvertently
sells the whole to B, who has not notice of the revocation. B cannot enforce
specific performance of the agreement.
Provided that, when the contract provides for compensation in
case of mistake, compensation may be made for a mistake within
the scope of the provision, and the contract specifically enforced
in other respects if proper to be so enforced.
Specific Relief
27
The effect of Dismissing a suit for Specific Performance
Bar of suit for breach after dismissal
28.  The dismissal of a suit for specific performance of a contract
or part thereof shall bar the plaintiff's right to sue for compensation
for the breach of the contract or part, as the case may be.
Awards and Directions to Execute Settlements
Application of preceding sections to awards and testamentary
directions to execute settlements
29.  The provisions of this Chapter as to contracts shall, mutatis
mutandis, apply to awards and to directions in a will or codicil to
execute a particular settlement.
CHAPTER III
RECTIFICATION OF INSTRUMENTS
When instrument may be rectified
30.  When, through fraud or a mutual mistake of the parties, a
contract or other instrument in writing does not truly express their
intention, either party, or his representative in interest, may institute
a suit to have the instrument rectified: and if the court find it
clearly proved that there has been fraud or mistake in framing the
instrument, and ascertain the real intention of the parties in executing
the same, the court may in its discretion rectify the instrument so
as to express that intention, so far as this can be done without
prejudice to rights acquired by third persons in good faith and for
value.
ILLUSTRATIONS
(a) A, intending to sell to B his house and one of three godowns adjacent
to it, executes a conveyance prepared by B, in which, through B's fraud, all
three godowns are included. Of the two godowns which were fraudulently
included, B gives one to C and lets the other to D for a rent, neither C nor
D having any knowledge of the fraud. The conveyance may, as against B
and C, be rectified so as to exclude from it the godown given to C, but it
cannot be rectified so as to affect D's lease.
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(b) By a marriage settlement, A, the father of B, the intended wife, covenants
with C, the intended husband, to pay to C, his executors, administrators, and
assigns, during A's life, an annuity of RM5,000. C dies insolvent and the
official receiver claims the annuity from A. The court, on finding it clearly
proved that the parties always intended that this annuity should be paid as
a provision for B and her children, may rectify the settlement and decree that
the official receiver has no right to any part of the annuity.
Presumption as to intent of parties
31.  For the purpose of rectifying a contract in writing, the court
must be satisfied that all the parties thereto intended to make an
equitable and conscientious agreement.
Principles of rectification
32.  In rectifying a written instrument, the court may enquire
what the instrument was intended to mean, and what were intended
to be its legal consequences, and is not confined to the enquiry
what the language of the instrument was intended to be.
Specific enforcement of rectified contract
33.  A contract in writing may be first rectified and then, if the
plaintiff has so prayed in his plaint and the court thinks fit, specifically
enforced.
ILLUSTRATION
A contracts in writing to pay his solicitor, B, a fixed sum in lieu of costs.
The contract contains mistakes as to the name and rights of the client, which,
if construed strictly, would exclude B from all rights under it. B is entitled,
if the court thinks fit, to have it rectified, and to an order for payment of
the sum, as if at the time of its execution it had expressed the intention of
the parties.
CHAPTER IV
RESCISSION OF CONTRACTS
When rescission may be adjudged
34. (1) Any person interested in a contract in writing may sue to
have it rescinded, and such rescission may be adjudged by the
court in any of the following cases, namely:
Specific Relief
29
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on
its face, and the defendant is more to blame than the
plaintiff; and
(c) where a decree for specific performance of a contract of
sale, or of a contract to take a lease, has been made, and
the purchaser or lessee makes default in payment of the
purchase-money or other sums which the court has ordered
him to pay.
(2) When the purchaser or lessee is in possession of the subject
matter, and the court finds that his possession is wrongful, the
court may also order him to pay to the vendor or lessor the rents
and profit, if any, received by him as possessor.
In the same case, the court may, by order in the suit in which
the decree has been made and not complied with, rescind the
contract, either so far as regards the party in default, or altogether,
as the justice of the case may require.
Rescission for mistake
35.  Rescission of a contract in writing cannot be adjudged for
mere mistake, unless the party against whom it is adjudged can
be restored to substantially the same position as if the contract had
not been made.
Alternative prayer for rescission in suit for specific performance
36.  A plaintiff instituting a suit for the specific performance of
a contract in writing may pray in the alternative that, if the contract
cannot be specifically enforced, it may be rescinded and delivered
up to be cancelled; and the court, if it refuses to enforce the
contract specifically, may direct it to be rescinded and delivered
up accordingly.
Court may require party rescinding to do equity
37.  On adjudging the rescission of a contract, the court may
require the party to whom the relief is granted to make any
compensation to the other which justice may require.
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CHAPTER V
CANCELLATION OF INSTRUMENTS
When cancellation may be ordered
38. (1) Any person against whom a written instrument is void or
voidable, who has reasonable apprehension that such instrument,
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 be delivered up and cancelled.
(2) If the instrument has been registered under any law in force
for the time being relating to the registration of documents, the
court shall also send a copy of its decree to the officer in whose
office the instrument has been so registered; and that officer shall
note on the copy of the instrument contained in his books the fact
of its cancellation.
ILLUSTRATIONS
(a) A, the owner of a ship, by fraudulently representing her to be seaworthy,
induces B, an underwriter, to insure her. B may obtain the cancellation of
the policy.
(b) A conveys land to B, who bequeaths it to C and dies. There upon D
gets possession of the land and produces a forged instrument stating that the
conveyance was made to B in trust for him. C may obtain the cancellation
of the forged instrument.
(c) A agrees to sell and deliver a ship to B, to be paid for by B's acceptances
of four bills of exchange, for sums amounting to RM30,000 to be drawn by
A on B. The bills are drawn and accepted, but the ship is not delivered
according to the agreement. A sues B on one of the bills. B may obtain the
cancellation of all the bills.
What instruments may be partially cancelled
39.  Where an instrument is evidence of different rights or different
obligations, the court may in a proper case cancel it in part and
allow it to stand for the residue.
ILLUSTRATIONS
A draws a bill on B, who endorses it to C, by whom it appears to be
endorsed to D, who endorses it to E. C's endorsement is forged. C is entitled
to have the endorsement cancelled, leaving the bill to stand in other respects.
Specific Relief
31
Power to require party for whom instrument is cancelled to
make compensation
40.  On adjudging the cancellation of an instrument, the court
may require the party to whom the relief is granted to make any
compensation to the other which justice may require.
CHAPTER VI
DECLARATORY DECREES
Discretion of court as to declaration of status or right
41.  Any person entitled to any legal character, or to any right as
to any property, may institute a suit against any person denying,
or interested to deny, his title to the character or right, and the
court may in its discretion make therein a declaration that he is
so entitled, and the plaintiff need not in that suit ask for any further
relief:
Provided that no court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere declaration
or title, omits to do so.
Explanation--A trustee of property is a "person interested to deny" a title
adverse to the title of someone who is not in existence, and for whom, if
in existence, he would be a trustee.
ILLUSTRATIONS
(a) A bequeaths his property to B, C and D, "to be equally divided
amongst all and each of them, if living at the time of my death, then amongst
their surviving children". No such children are in existence. In a suit against
A's executor, the court may declare whether B, C and D took the property
absolutely, or only for their lives, and it may also declare the interests of
the children before their rights are vested.
(b) A covenants that, if he should at any time be entitled to property
exceeding RM100,000, he will settle it upon certain trusts. Before any such
property accrues, or any persons entitled under the trusts are ascertained, he
institutes a suit to obtain a declaration that the covenant is void for uncertainty.
The court may make the declaration.
(c) A is in possession of certain property. B, alleging that he is the owner
of the property, requires A to deliver it to him. A may obtain a declaration
of his right to hold the property.
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(d) A bequeaths property to B for his life, with remainder to B's wife and
her children, if any, by B, but, if B die without any wife or children to C,
B has a putative wife, D, and children, but C denies that B and D were ever
lawfully married; D and her children may, in B's lifetime, institute a suit
against C and obtain therein a declaration that they are truly the wife and
children of B.
Effect of declaration
42.  A declaration made under this Chapter is binding only on the
parties to the suit, persons claiming through them respectively,
and, where any of the parties are trustees, on the persons for
whom, if in existence at the date of the declaration, those parties
would be trustees.
CHAPTER VII
APPOINTMENT OF RECEIVERS
Appointment of Receivers discretionary
43.  The appointment of a Receiver pending a suit is a matter
resting in the discretion of the court. The mode and effect of his
appointment, and his rights, powers, duties, and liabilities, are
regulated by the law relating to civil procedure.
CHAPTER VIII
ENFORCEMENT OF PUBLIC DUTIES
Power to order public servants and others to do certain specific
acts
44. (1) A Judge may make an order requiring any specific act to
be done or forborne, by any person holding a public office, whether
of a permanent or a temporary nature, or by any corporation or any
court subordinate to the High Court:
Provided that--
(a) an application for such an order be made by some person
whose property, franchise, or personal right would be
injured by the forbearing or doing, as the case may be,
of the said specific act;
Specific Relief
33
(b) such doing or forbearing is, under any law for the time
being in force, clearly incumbent on the person or court
in his or its public character, or on the corporation in its
corporate character;
(c) in the opinion of the Judge the doing or forbearing is
consonant to right and justice;
(d) the applicant has no other specific and adequate legal
remedy; and
(e) the remedy given by the order applied for will be complete.
(2) Nothing in this section shall be deemed to authorize a Judge--
(a) to make any order binding on the Yang di-Pertuan Agong;
(b) to make any order on any servant of any Government in
Malaysia, as such, merely to enforce the satisfaction of
a claim upon that Government; or
(c) to make any order which is otherwise expressly excluded
by any law for the time being in force.
Application how made and procedure
45.  Every application under section 44 must be founded on an
affidavit of the person injured, stating his right in the matter in
question, his demand of justice, and the denial thereof; and a Judge
may, in his discretion, make the order applied for absolute in the
first instance, or refuse it, or grant a rule to show cause why the
order applied for should not be made. If, in the last case, the
person, court, or corporation complained of shows no sufficient
cause, the Judge may first make an order in the alternative, either
to do or forbear the act mentioned in the order, or to signify some
reason to the contrary and make an answer thereto by such day
as the Judge fixes in this behalf.
Peremptory order
46.  If the person, court, or corporation to whom or to which such
order is directed makes no answer, or makes an insufficient or a
false answer, the Judge may then issue a peremptory order to do
or forbear the act absolutely.
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Execution of, and appeal from, orders
47.  Every order under this Chapter shall be executed and may
be appealed from, as if it were a decree made in the exercise of
the ordinary jurisdiction of the High Court.
Costs
48.  The costs of all applications and orders under this Chapter
shall be in the discretion of the Judge.
Bar to issue of mandamus
49.  Neither the High Court nor any other court in Malaysia shall
hereafter issue any writ of mandamus.
PART III
PREVENTIVE RELIEF
CHAPTER IX
OF INJUNCTIONS GENERALLY
Preventive relief how granted
50.  Preventive relief is granted at the discretion of the court by
injunction, temporary or perpetual.
Temporary and perpetual injunctions
51. (1) Temporary injunctions are such as are to continue until
a specified time, or until the further order of the court. They may
be granted at any period of a suit, and are regulated by the law
relating to civil procedure.
(2) A perpetual injunction can only be granted by the decree
made at the hearing and upon the merits of the suit; the defendant
is thereby perpetually enjoined from the assertion of a right, or
from the commission of an act, which would be contrary to the
rights of the plaintiff.
Specific Relief
35
CHAPTER X
OF PERPETUAL INJUNCTIONS
Perpetual injunctions when granted
52. (1) Subject to the 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 favour of the applicant,
whether expressly or by implication.
(2) When such an obligation arises from contract, the court
s h a l l be guided by the rules and provisions contained in
Chapter II.
(3) 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, namely:
(a) where the defendant is trustee of the property for the
plaintiff;
(b) 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; and
(e) where the injunction is necessary to prevent a multiplicity
of judicial proceedings.
Explanation--For the purpose of this section a trade-mark is property.
ILLUSTRATIONS
(a) A lets certain land to B, and B contracts not to dig sand or gravel
thereout. A may sue for an injunction to restrain B from digging in violation
of his contract.
(b) A trustee, threatens a breach of trust. His co-trustees, if any, should,
and the beneficial owners may, sue for an injunction to prevent the breach.
(c) The directors of a public company are about to pay a dividend out
of capital or borrowed money. Any of the shareholders may sue for an
injunction to restrain them.
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(d) The directors of a fire and life insurance company are about to engage
in marine insurances. Any of the shareholders may sue for an injunction to
restrain them.
(e) A, an executor, through misconduct or insolvency, is bringing the
property of the deceased into danger. The court may grant an injunction to
restrain him from getting in the assets.
(f) A, a trustee for B, is about to make an imprudent sale of a small part
of the trust-property. B may sue for an injunction to restrain the sale, even
though compensation in money would have afforded him adequate relief.
(g) A makes a settlement (not founded on marriage or other valuable
consideration) of an estate on B and his children. A then contracts to sell the
estate to C. B or any of his children may sue for an injunction to restrain
the sale.
(h) In the course of A's employment as a solicitor, certain papers belonging
to his client, B, come into his possession. A threatens to make these papers
public, or to communicate their contents to a stranger. B may sue for an
injunction to restrain A from so doing.
(i) A is B's medical adviser. He demands money of B which B declines
to pay. A then threatens to make known the effect of B's communications
to him as a patient. This is contrary to A's duty, and B may sue for an
injunction to restrain him from so doing.
(j) A, the owner of two adjoining houses, lets one to B and afterwards
lets the other to C. A and C begin to make such alterations in the house let
to C as will prevent the comfortable enjoyment of the house let to B. B may
sue for an injunction to restrain them from so doing.
(k) A lets certain arable lands to B for purposes of husbandry, but without
any express contract as to the mode of cultivation. Contrary to the mode of
cultivation customary in the district, B threatens to sow the lands with seed
injurious thereto and requiring many years to eradicate. A may sue for an
injunction to restrain B from sowing the lands in contravention of his implied
contract to use them in a husbandlike manner.
(l) A, B, and C are partners, the partnership being determinable at will.
A threatens to do an act tending to the destruction of the partnership-property.
B and C may, without seeking a dissolution of the partnership, sue for an
injunction to restrain A from doing the act.
(m) A, the owner of certain houses in Kelang, becomes insolvent. B buys
them from the Official Receiver of A's estate and enters into possession. A
persists in trespassing on and damaging the houses, and B is thereby compelled,
at considerable expense, to employ men to protect the possession. B may sue
for an injunction to restrain further acts of trespass.
(n) A, in an administration-suit to which a creditor, B, is not a party,
obtains a decree for the administration of C's assets, B proceeds against C's
estate for his debt. A may sue for an injunction to restrain B.
(o) A and B are in possession of contiguous lands and of the mines
underneath them. A works his mine so as to extend under B's mine and
threatens to remove certain pillars which help to support B's mine. B may
sue for an injunction to restrain him from so doing.
Specific Relief
37
(p) A rings bells or makes some other unnecessary noise so near a house
as to interfere materially and unreasonably with the physical comfort of the
occupier, B. B may sue for an injunction restraining A from making the noise.
(q) A pollutes the air with smoke so as to interfere materially with the
physical comfort of B and C, who carry on business in a neighbouring house.
B and C may sue for an injunction to restrain the pollution.
(r) A infringes B's patent. If the court is satisfied that the patent is valid
and has been infringed, B may obtain an injunction to restrain the infringement.
(s) A pirates B's copyright. B may obtain an injunction to restrain the
piracy, unless the work of which copyright is claimed is libellous or obscene.
(t) A improperly uses the trade mark of B. B may obtain an injunction
to restrain the user, provided that B's use of the trade mark is honest.
(u) A, a tradesman, holds out B as his partner against the wish and without
the authority of B. B may sue for an injunction to restrain A from so doing.
(v) A, a very eminent man, writes letters on family topics to B. After the
death of A and B, C, who is B's residuary legatee, proposes to make money
by publishing A's letters. D, who is A's executor, has a property in the letters,
and may sue for an injunction to restrain C from publishing them.
(w) A carries on a manufactory and B is his assistant. In the course of his
business, A imparts to B a secret process of value, B afterwards demands
money of A, threatening, in case of refusal, to disclose the process to C, a
rival manufacturer. A may sue for an injunction to restrain B from disclosing
the process.
Mandatory injunctions
53.  When, to prevent the breach of an obligation, it is necessary
to compel the performance of certain acts which the court is capable
of enforcing, the court may in its discretion grant an injunction to
prevent the breach complained of, and also to compel performance
of the requisite acts.
ILLUSTRATIONS
(a) A, by new buildings, obstructs lights to the access and use of which
B has acquired a right by prescription. B may obtain an injunction, not only
to restrain A from going on with the buildings, but also to pull down so much
of them as obstructs B's lights.
(b) A builds a house with eaves projecting over B's land. B may sue for
an injunction to pull down so much of the eaves as so project.
(c) In the case put as illustration (i) to section 52, the court may also
order all written communications made by B, as patient, to A, as medical
adviser, to be destroyed.
(d) In the case put as illustration (v) to section 52 the court may also order
A's letters to be destroyed.
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ACT 137
(e) A threatens to publish statements concerning B which would be
punishable under Chapter XXI of the Penal Code [Act 574]. The court may
grant an injunction to restrain the publication, even though it may be shown
not to be injurious to B's property.
(f) A, being B's medical adviser, threatens to publish B's written
communications with him, showing that B has led an immoral life. B may
obtain an injunction to restrain the publication.
(g) In the cases put as illustrations (s) and (t) to section 52, and as
illustrations (e) and (f) to this section, the court may also order the copies
produced by piracy, and the trade marks, statements, and communications,
therein respectively mentioned, to be given up or destroyed.
Injunction when refused
An injunction cannot be granted--
54.
(a) to stay a judicial proceeding pending at the institution of
the suit in which the injunction is sought, unless such a
r e s t r a i n t is necessary to prevent a multiplicity of
proceedings;
(b) to stay proceedings in a court not subordinate to that
from which the injunction is sought;
(c) to restrain persons from applying to any legislative body;
(d) to interfere with the public duties of any department of
any Government in Malaysia, or with the sovereign acts
of a foreign Government;
(e) to stay proceedings in any criminal matter;
(f) to prevent the breach of a contract the performance of
which would not be specifically enforced;
(g) to prevent, on the ground of nuisance, an act of which
it is not reasonably clear that it will be a nuisance;
(h) to prevent a continuing breach in which the applicant has
acquiesced;
(i) when equally efficacious relief can certainly be obtained
by any other usual mode of proceeding, except in case
of breach of trust;
(j) when the conduct of the applicant or his agents has been
such as to disentitle him to the assistance of the court;
or
(k) where the applicant has no personal interest in the matter.
Specific Relief
39
ILLUSTRATIONS
(a) A seeks an injunction to restrain his partner, B, from receiving the
partnership-debts and effects. It appears that A had improperly possessed
himself of the books of the firm and refused B access to them. The court
will refuse the injunction.
(b) A manufactures and sells crucibles, designating them as "patent plumbago
crucibles" though, in fact, they have never been patented. B pirates the
designation. A cannot obtain an injunction to restrain the piracy.
(c) A sells an article called "Mexican Balm" stating that it is compounded
of divers rare essences, and has sovereign medicinal qualities. B commences
to sell a similar article to which he gives a name and description such as to
lead people into the belief that they are buying A's Mexican Balm. A sues
B for an injunction to restrain the sale. B shows that A's Mexican Balm
consists of nothing but scented hog's lard. A's use of his description is not
an honest one and he cannot obtain an injunction.
Injunction to perform negative agreement
55.  Notwithstanding paragraph 54(f), where a contract comprises
an affirmative agreement to do a certain act, coupled with a negative
agreement, express or implied, not to do a certain act, the circumstance
that the court is unable to compel specific performance of the
affirmative agreement shall not preclude it from granting an injunction
to perform the negative agreement:
Provided that the applicant has not failed to perform the contract
so far as it is binding on him.
ILLUSTRATIONS
(a) A contracts to sell to B for RM1,000 the good-will of a certain
business unconnected with business premises, and further agrees not to carry
on that business in Klang. B pays A RM1,000 but A carries on the business
in Klang. The court cannot compel A to send his customers to B, but B may
obtain an injunction restraining A from carrying on the business in Klang.
(b) A contracts to sell to B the good-will of a business. A then sets up
a similar business close by B's shop, and solicits his old customers to deal
with him. This is contrary to his implied contract, and B may obtain an
injunction to restrain A from soliciting the customers, and from doing any
act whereby their good-will may be withdrawn from B.
(c) A contracts with B to sing for twelve months at B's theatre and not
to sing in public elsewhere. B cannot obtain specific performance of the
contract to sing, but he is entitled to an injunction restraining A from singing
at any other place of public entertainment.
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ACT 137
(d) B contracts with A that he will serve him faithfully for twelve months
as a clerk. A is not entitled to a decree for specific performance of this
contract. But he is entitled to an injunction restraining B from serving a rival
house as clerk.
(e) A contracts with B that, in consideration of RM1,000 to be paid to
him by B on a day fixed, he will not set up a certain business within a
specified distance. B fails to pay the money. A cannot be restrained from
carrying on the business within the specified distance.
Specific Relief
41
LAWS OF MALAYSIA
Act 137
SPECIFIC RELIEF ACT 1950
LIST OF AMENDMENTS
Amending law
Short title
In force from
L.N. 332/1958
Federal Constitution
13-11-1958
(Modification of Laws)
(Ordinances and Proclaimations)
Order 1958
Act A238
Specific Relief (Malay States)
01-07-1974
(Amendments and Extension)
Act 1974
Act 160
Malaysian Currency (Ringgit)
29-08-1975
Act 1975
Act A811
Specific Relief (Amendment)
21-02-1992
Act 1992
Laws of Malaysia
42
ACT 137
LAWS OF MALAYSIA
Act 137
SPECIFIC RELIEF ACT 1950
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from
Long title
Act A238
01-07-1974
1
Act A238
01-07-1974
2
Act A238
01-07-1974
7
Act A238
01-07-1974
Act A811
21-02-1992
8
Act A238
01-07-1974
9
Act A238
01-07-1974
12
Act A238
01-07-1974
20
Act A238
01-07-1974
43
Act A238
01-07-1974
44
Act A238
01-07-1974
49
Act A238
01-07-1974
51
Act A238
01-07-1974
54
Act A238
01-07-1974
56
Act A238
01-07-1974
Schedule
Act A238
01-07-1974
DICETAK OLEH
PERCETAKAN NASIONAL MALAYSIA BERHAD,
KUALA LUMPUR
BAGI PIHAK DAN DENGAN PERINTAH KERAJAAN MALAYSIA