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Report No. 9 71. Section 28.- The entire contents and arrangement of section 28 have been severely criticised by Pollock and Mulla1: - 1. Specific Relief Act, 8th Edn., p. 823. "This section is incongruous, misplaced, and altogether an unsatisfactory piece of work. If it means more than an exhortation to administer the remedy now in question on the principles declared in the Contract Act, sections 15-22; if it purports to confer on the Court a discretion to apply, for this purpose, a standard different from that of the general law; and if, in particular, ICA, section 22 is to be considered in applicable in suits for specific performance-then it ought not to have been mixed up with provisions relating merely to procedure, but, as materially enlarging the discretion of the Court, should have followed section 22 of the present Act and should have made the intention more explicit. Having regard to this comment we recommend the incorporation of the provision into section 22,-making it clear that even where the mistake or misrepresentation is not such as to render the contract voidable, the Court may refuse to enforce specific performance where it would be inequitable on the part of the plaintiff to obtain the relief [See section 21(2) (c) of Appendix I]. Section 28 may, therefore, be omitted.    |
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