The Court's Power to Engage Experts
Chapter Seventy-Seven
Syllabus topic 4.2.3, "Contracts that cannot be specifically performed"
Pages 377 to 381 of 462
In one line
A new section, inserted in 2018, that lets the court hire its own expert, and it exists to make specific performance workable in exactly the contracts section 14(b) used to put out of reach.
In the words a student can write in an exam: section 14A of the Specific Relief Act 1963, inserted by section 5 of the Specific Relief (Amendment) Act 2018 with effect from 1 October 2018, empowers a court, in any suit under the Act, where it considers it necessary to get expert opinion to assist it on any specific issue, to engage one or more experts and direct them to report, and to secure their attendance to give evidence including the production of documents; to require any person to give relevant information to the expert or to produce, or provide access to, any relevant documents, goods or other property for inspection; and it provides that the opinion or report forms part of the record of the suit.
Why the section was inserted
Section 14(b) says a contract cannot be specifically enforced where its performance involves the performance of a continuous duty which the court cannot supervise.
The words "which the court cannot supervise" describe a practical difficulty, not a legal one. Courts have refused to decree construction contracts, maintenance obligations and the running of a business because a judge has no way of knowing, month after month, whether the work is being done properly, and would be dragged back into the case at every stage.
Section 14A attacks that difficulty directly. If the reason a court cannot supervise is that it lacks the technical means, then give it the means. An engineer can report on whether a structure meets specification; a surveyor can report on progress. The impossibility that justified clause (b) is much reduced.
The section sits with the rest of the 2018 scheme. Parliament made specific performance the rule in section 10; it then had to make the rule workable in the very contracts, chiefly infrastructure and construction, that the amendment was aimed at. Section 14A, sections 20A to 20C and the Schedule are all part of the same design.
The provision itself
"(1) Without prejudice to the generality of the provisions contained in the Code of Civil Procedure, 1908, in any suit under this Act, where the court considers it necessary to get expert opinion to assist it on any specific issue involved in the suit, it may engage one or more experts and direct to report to it on such issue and may secure attendance of the expert for providing evidence, including production of documents on the issue.
(2) The court may require or direct any person to give relevant information to the expert or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.
(3) The opinion or report given by the expert shall form part of the record of the suit; and the court, or with the permission of the court any of the parties to the suit, may examine the expert personally in open court on any of the matters referred to him or mentioned in his opinion or report, or as to his opinion or report, or as to the manner in which he has made the inspection.
(4) The expert shall be entitled to such fee, cost or expense as the court may fix, which shall be payable by the parties in such proportion, and at such time, as the court may direct."
The Court's Power to Engage Experts
Broken down
Sub-section (1): engaging the expert
Four features.
"Without prejudice to the generality of the Code of Civil Procedure 1908." The section adds to the court's existing powers, for example to appoint a commissioner under Order XXVI, and does not cut them down.
"In any suit under this Act." Not confined to specific performance. It is available in a suit for an injunction, a declaration, rectification or cancellation as well.
"Where the court considers it necessary." The initiative is the court's, and the test is its own view of what will assist it.
"To assist it on any specific issue." The reference must be to an identified issue, not a general invitation to investigate the case.
Sub-section (2): getting the expert what he needs
The court may require any person, not only a party, to give information to the expert, or to produce or provide access to documents, goods or other property for inspection. Without this the power to engage would often be useless, since the material is usually in one side's hands.
Sub-section (3): the report, and testing it
Two safeguards, and they matter because a court decision must rest on evidence the parties can meet.
The opinion or report forms part of the record, so it is not private advice to the judge.
The expert may be examined in open court, by the court, or by a party with the permission of the court, on the matters referred to him, on his opinion or report, or on the manner in which he made his inspection.
Sub-section (4): who pays
The expert is entitled to such fee, cost or expense as the court may fix, payable by the parties in the proportion and at the time the court directs.
Where it bites
| Contract | Old position under s.14(b) | With s.14A |
|---|---|---|
| Construction to a specification | refused: the court cannot supervise the work | an engineer may report on compliance at each stage |
| Maintenance of premises over years | refused | periodic expert reports make compliance checkable |
| Development of an infrastructure project | refused, and damages were the only remedy | read with ss.20A to 20C, performance is the intended remedy |
| Running a business | still difficult, involving continuous discretionary judgment | expert help does not answer the objection where the duty is one of judgment rather than of measurable standard |
The Court's Power to Engage Experts
Do not overstate it. Section 14A does not repeal section 14(b), and it does not make every continuous duty enforceable. What it does is remove the evidential obstacle. Where the difficulty is not measurement but the exercise of personal judgment or discretion, clause (b) and clause (c) still bite.
A worked example
Gaurav contracts with a developer, Hind Constructions, to build a warehouse to a detailed specification within eighteen months. The developer stops work at forty per cent. Gaurav sues for specific performance.
- Before 2018. The claim would very likely have failed under section 14(b): performance involves a continuous duty over many months which the court cannot supervise, and Gaurav would have been left to damages.
- Now, first step. Section 10 says the court shall enforce, subject to sections 11(2), 14 and 16, so the question is whether section 14(b) applies.
- Section 14A in operation. The court may engage a structural engineer to report on what has been built, what remains, and whether the work conforms to specification. Under sub-section (2) it may direct Hind Constructions to give the engineer access to the site and to produce the drawings and test certificates.
- The report. It forms part of the record under sub-section (3), and either party may, with the court's permission, examine the engineer in open court on his opinion and on how he inspected.
- Cost. Under sub-section (4) the court fixes the engineer's fee and directs which party pays it and when.
- The effect on section 14(b). The court now has a means of knowing whether its decree is being obeyed, so the objection that it cannot supervise is much weaker, and a decree becomes realistic.
- Change the facts: the contract required the developer to "manage the warehouse profitably" for five years. Expert evidence cannot cure this. The duty calls for continuous commercial judgment, so clause (b) still applies and, if the developer was chosen for its own expertise, clause (c) as well.
What it does NOT mean
"Section 14A repeals section 14(b)." It does not. It reduces the practical force of the objection where the difficulty is one of measurement.
"A party may appoint the expert." The court engages the expert, on its own view of what will assist it. The parties' own expert evidence is a separate matter under the ordinary law of evidence.
The Court's Power to Engage Experts
"The expert's report binds the court." It forms part of the record and may be tested by examination in open court. It is material for the court, not a substitute for its decision.
"Only parties can be required to help the expert." Sub-section (2) allows the court to require any person to give information or provide access.
"Section 14A applies only to specific performance suits." It applies in any suit under this Act.
Quick revision
- s.14A, inserted by s.5 of the 2018 Act, in force 1 October 2018.
- (1) In any suit under this Act, where the court considers it necessary to get expert opinion to assist it on any specific issue, it may engage one or more experts, direct them to report, and secure their attendance to give evidence including production of documents. Without prejudice to the Code of Civil Procedure 1908.
- (2) The court may require any person to give information to the expert or to produce or provide access to documents, goods or other property for inspection.
- (3) The report forms part of the record, and the expert may be examined in open court by the court, or by a party with the court's permission.
- (4) The expert's fee, cost or expense is fixed by the court and apportioned between the parties as it directs.
- Purpose: to answer the practical objection in s.14(b), the continuous duty the court cannot supervise, and to make specific performance workable in construction and infrastructure contracts. Read with ss.20A to 20C.
- It does not repeal s.14(b), and it does not help where the duty requires continuous judgment rather than measurable compliance.
Test yourself
1. What power does section 14A give the court? In any suit under the Act, where the court considers it necessary to obtain expert opinion to assist it on any specific issue involved in the suit, it may engage one or more experts, direct them to report on that issue, and secure their attendance to give evidence including the production of documents. The power is expressed to be without prejudice to the generality of the Code of Civil Procedure 1908.
2. Why was it inserted? Because section 14(b) excludes from specific performance a contract involving a continuous duty which the court cannot supervise, and that objection is practical rather than legal. By giving the court expert assistance, Parliament reduced the difficulty of knowing whether a decree is being complied with, and so made specific performance workable in the construction and infrastructure contracts the 2018 amendment was aimed at.
3. How is the expert's report treated? It forms part of the record of the suit, and the court, or with the court's permission any party, may examine the expert personally in open court on the matters referred to him, on his opinion or report, or on the manner in which he made his inspection. It is therefore material to be tested, not private advice to the judge.
The Court's Power to Engage Experts
4. Whom may the court direct to assist the expert? Any person. Sub-section (2) allows the court to require or direct any person to give relevant information to the expert, or to produce or provide access to any relevant documents, goods or other property for his inspection, so the power is not confined to the parties.
5. Does section 14A make every continuous duty specifically enforceable? No. It does not repeal section 14(b). It removes the evidential obstacle where compliance can be measured against a standard, as in construction. Where the duty involves continuous commercial judgment or discretion, or depends on the personal qualifications of a party, clauses (b) and (c) of section 14 continue to apply.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.