Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,

Canada.

The Law of Specific Relief

Cases in which specific performance enforceable

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;

(b) when 1[ there] exists no standard for ascertaining the actual damage caused by non-performance of
the act agreed to be done;

For example: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

For example: A contracts with B to paint a picture for B, who agrees to pay therefor taka 1,000. The
picture is painted. B is entitled to have it delivered to him on payment or tender of the taka 1,000.

(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.

Contracts not specifically enforceable

21. The following contracts cannot be specifically enforced:–

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(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;

(c) a contract the terms of which the Court cannot find with reasonable certainty;

(d) a contract which is in its nature revocable;

(e) a contract made by trustees either in excess of their powers or in breach of their trust;

Page | 1
Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,
Canada.

(f) a contract made by or on behalf of a corporation or public company created for special purposes, or
by the promoters of such company, which is in excess of its powers;

(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;

(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.

And, save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to
arbitration shall be specifically enforced; but if any person who has made such a contract other than an
arbitration agreement to which the provisions of the said Act apply and has refused to perform it sues in
respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

Unregistered contract for sale not specifically enforceable

21A. Notwithstanding anything to the contrary contained in this Act or any other law for the time being
in force, no contract for sale of any immovable property can be specifically enforced unless–

(a) the contract is in writing and registered under the Registration Act, 1908, whether or not the
transferee has taken possession of the property or any part thereof; and

(b) the balance amount of consideration of the contract is deposited in the court at the time of filing the
suit for specific performance of the contract.]

When instrument may be rectified

31. 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.

For example: (a) A, intending to sell to B his house and one of three godowns adjacent to it, execute 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.

Page | 2
Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,
Canada.

Presumption as to intent of parties

32. 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

33. In rectifying a written instrument, the Court may inquire what the instrument was intended to mean,
and what were intended to be its legal consequences, and is not confined to the inquiry what the
language of the instrument was intended to be.

Specific enforcement of rectified contract

34. 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.

When rescission may be adjudged

35. 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:-

(a) where the contract is viodable 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;

(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.

When the purchaser or lessee is in possession of the subject-matter, and the Court finds that such
possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and
profits, if any, received by him as such 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.

Page | 3
Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,
Canada.

Preventive relief how granted

52. Preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual.

Temporary injunctions Perpetual injunctions

53. 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 Code of Civil Procedure.

Perpetual injunctions when granted

54. 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.

When such obligation arises from contract, the Court shall be guided by the rules and provisions
contained in Chapter II of this Act.

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;

(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

55. 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.

For example:

(a) A, by new buildings, obstructs lights to the access and use of which B has acquired a right under the
1[ Limitation Act, 1908] Part IV. 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.

Page | 4
Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,
Canada.

(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.

Injunction when refused

56. An injunction cannot be granted-

(a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought,
unless such restraint 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 restraint persons from applying to any legislative body;

(d) to interfere with the public duties of any department of the Government, or with the sovereign acts
of 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 on his agents has been such as to disentitle him to the assistance
of the Court;

(k) where the applicant has no personal interest in the matter.

Injunction to perform negative agreement

57. Notwithstanding section 56, clause (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.

Page | 5
Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,
Canada.

THE BANGLADESH LABOUR ACT, 2006

According to Section: 1(4) of the Bangladesh Labour Act (BLA), 2006

This Act shall not apply to the following establishments or workers, namely:

(a) Government or any office under the Government;

(b) security printing press;

(c) ordnance factory;

(d) any institution, run for treatment, care or service of the sick, disabled, aged, destitute, handicapped,
orphan, abandoned woman or child or widow, but not run for profit or gain;

(e) shops or stalls in any public exhibition or show established for its own requirement which deal only in
retail trade;

(f) shops or stalls in any public fair or bazaar established for religious or charitable purposes;

(g) any educational, training or research institution[run not for any profit or gain];

(h) any hostel, mess [hospital, clinic and diagnostic centre] run not for any profit or gain;

(i) in the case of application of Chapter II, any shop or industrial or commercial establishment owned
and directly operated by the Government where the workers are governed by the conduct rules
applicable to the Government servants;

(j) any worker whose recruitment and terms and conditions of service

are governed by the Acts or rules made under article 62, 79, 113 or 133 of the Constitution, but in the
case of application of Chapters XII, XIII and XIV, the workers employed in the following establishments
shall not be subject to this prohibition, namely:

(i) railway department;

(ii) post, telegraph and telephone department;

(iii) roads and highways department;

(iv) public works department;

(v) public health engineering department;

(vi) Bangladesh Government printing press;

(k) workers employed in an establishment mentioned in clauses (b), (c), (d), (e), (f), (g) and (h), but in the
case of application of Chapters XII, XIII and XIV, the workers other than teachers, employed in any
university shall not be subject to this prohibition;

(l) seamen, in the cases other than the case of application of Chapters XII, XIII and XIV;

Page | 6
Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,
Canada.

(m) ocean going vessels, in the cases other than the case of the application of Chapter XVI;

(n) any agricultural farm where normally less than [five] workers work;

(o) domestic servants; and

(p) any establishment run by its owner with the aid of members of his family and where no worker is
employed for wages.

Definition under section 2 of the Bangladesh Labour Act, 2006

Sub-section (8A) ‘‘agricultural worker’’ means a person who is employed in agricultural work for wages
on the basis of daily, monthly or yearly contract or on a contract of doing any specific work.

Sub-section (10) “gratuity” means the wages of at least 30 (thirty) days, at the rate of the wages a
worker received last, for every completed year of his service or for a period of his service exceeding
06(six) months or, in the case of his service of more than 10 (ten) years, the wages of 45 (forty five) days
at the rate of the wages he received last, which is payable to such worker on the termination of his
employment; this shall be in addition to any compensation, or wages or allowance in lieu of a notice,
payable by an employer because of termination of employment of a worker on different grounds under
this Act;]

Sub-section (11) “retrenchment” means the termination of services of workers by the employer on the
ground of redundancy.

Sub-section (17) “discharge” means the termination of service of a worker by the employer for reasons
of physical or mental incapacity or continued ill-health.

Sub-section (18) “go-slow” means an organized, deliberate and intentional slowing down of normal
output of work by a group of workers, and which is not due to any mechanical defect, breakdown of
machinery, failure or defect in power supply or failure in the supply of ordinary materials and spare
parts of machinery.

Sub-section (22) “strike” means cessation of work or refusal to work jointly by a group of workers
employed in any establishment or refusal to accept work or continue to work unanimously by a body of
workers employed therein.

Sub-section (31) “establishment” means any shop, commercial establishment [transport,] industrial
establishment or premises or precincts where workers are employed for the purpose of carrying on any
industry.

Sub-section (39) “dismissal” means the termination of service of a worker by the employer for
misconduct.

Sub-section (43) “illegal strike” means a strike declared, commenced or continued [in contravention
of]the provisions of Chapter XIV.

Page | 7
Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,
Canada.

Sub-section (44) “illegal lock-out” means a lock-out declared, commenced or continued [in
contravention of] the provisions of Chapter XIV.

Sub-section (45) “wages” means all remuneration, expressed in terms of money or capable of being so
expressed, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to
a worker in respect of his employment or of work done in such employment, and includes any other
additional remuneration of the nature aforesaid which would be so payable, but does not include the
following money, namely:

(a) the value of any house accommodation, light, water, medical facilities or other amenity or the value
of any service excluded by general or special order by the Government;

(b) any subscription paid by the employer to any pension fund or provident fund;

(c) any travelling allowance or the value of any travelling concession;

(d) any sum paid to a worker to defray special expenses entitled to him by the nature of his
employment.

Sub-section (49) “employer”, in relation to an establishment, means any person who employs workers
therein, and also includes the following persons, namely:

(a) an heir, guardian, or successor in assignment or legal representative of such person;

(b) manager or any person responsible for the management or control of the establishment;

(c) in the case of an establishment run by or under the authority of the Government, an authority
appointed in this behalf or where no such authority exists, the head of the Ministry or Division
concerned;

(d) in the case of an establishment run by or on behalf of a local authority, an officer appointed in this
behalf or where no such officer exists, the Chief Executive Officer of that authority;

(e) in the case of any other establishment, the owner of such establishment and every Director,
Manager, Secretary, agent or any officer or person concerned with the management of the affairs such
establishment;

(f) in the case of an establishment under the possession of any person other than the owner, the person
in possession of that establishment or the person who is in ultimate control over the affairs of the
establishment or the manager or any competent officer who is connected with the management of such
activities.

Sub-section (52) “collective bargaining agent [CBA]” means a trade union or federation of trade unions
of an establishment or group of establishments which is an agent of the workers [CBA] for collective
bargaining in such establishment or group of establishments under Chapter XIII.

Sub-section (57) “lock-out” means the closing of a place of work or a part of such place, or the
suspension of work therein, wholly or partly, by an employer, or refusal, absolute or conditional, by an
employer to continue 1[allow to work by] any number of workers employed by him, where such closing,

Page | 8
Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa, Ontario,
Canada.

suspension or refusal occurs in connection with any industrial dispute or is intended for the purpose of
compelling workers to accept certain terms and conditions of employment;

Sub-section (58) “lay-off” means the failure, refusal or inability of an employer to give employment to a
worker on account of shortage of coal, power or raw material or the accumulation of stock or the break-
down of machinery.

Sub-section (62) “industrial dispute” means any dispute or difference of opinion between employers
and employers, between employers and workers or between workers and workers in respect of
appointment or conditions of service or conditions of work or environment of work of any person.

Sub-section (63) “child” means a person who has not completed 14th (fourteenth) years of age.

Sub-section (65) “worker” means any person including an apprentice employed in any establishment or
industry, either directly or through a contractor, [by whatever name he is called,] to do any skilled,
unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of
employment are expressed or implied, but does not include a person employed mainly in a managerial,
administrative [or supervisory] capacity.

Sub-section (67) “total disablement” means such disablement, whether of a temporary or permanent
nature, which incapacitates a worker for all work which he was capable of performing at the time of the
accident resulting in such disablement or such worker losses working capacity due to reaction of
chemical substances used in the course of work or ill health caused by contamination connected with
the work: Provided that permanent total disablement shall be deemed to result from the permanent
total loss of the sight of both eyes or from any combination of injuries specified in the First Schedule
where the aggregate percentage of the loss of earning capacity as specified in that Schedule against
those injuries, amounts to one hundred percent.

Page | 9