Legal Remedies

Author: Ms. Prachi

INTRODUCTION

There are two kinds of remedies in tort: judicial and non-judicial. Judicial Remedies are acquired through courts of law; whereas extra-judicial remedies are obtained through self-help. Extrajudicial remedies are (a) abatement of nuisance, (b) reception of goods, (c) distress damage feasant, (d) expulsion of the trespasser, and (e) re-entry on land. It is propounded that these extra-judicial remedies should not be normally resorted to, for it may create problems of law and order. Judicial remedies are (i) damages; (ii) injunction and (iii) specific restitution of property.[1]

JUDICIAL REMEDIES

1. DAMAGES

Damages are the most essential remedy which the plaintiff can claim after the tort is perpetrated. They are of various kinds:

• Nominal Damages: Generally, damages correspond to the loss incurred by the plaintiff. In case of infringement of the plaintiff’s legal right without him suffering any actual loss (injuria sine damno) the Court of law awards him nominal damages considering his right. The amount awarded may be nominal, say, one or two rupees.[2]

When a wrong is actionable per se as in the case of trespass, damage to the plaintiff is presumed and a cause of action lies even though in fact the plaintiff may not have incurred any loss. In the case of Ashby v. White[3] the returning officer illegally disallowed a qualified voter to vote at a parliamentary election but it was found that the voter suffered no loss thereby insofar as the candidate for whom he wanted to vote had even otherwise won the election. The defendant was held liable.

• Derisory/ Contemptuous Damages: The sum awarded is very trivial because the court forms a very low opinion of the plaintiff’s claim and thinks that the plaintiff although has suffered greater loss, does not deserve to be fully compensated. For instance, the reason for the defendant’s battery against the plaintiff is found to be some offensive remark by the plaintiff.
• Ordinary/ Real/ Compensatory Damages: Usually the damages awarded to the plaintiff are compensatory in nature as the basic aim of the civil law is to compensate for the injuries incurred by the party by allowing him, by means of damages, an amount equivalent to the loss incurred by him.
• Exemplary Damages: When the court awards damages in excess of the loss suffered in order to prevent similar behavior in the future, the damages are known as ‘exemplary, punitive, or vindictive’. Such damages are not compensatory in nature rather are a means of punishment to the defendant.

Lord Devlin in Rookes v.Barnard,[4] held that the basic aim of exemplary damages being to discourage and punish the awardee of such damages “confuses the civil and criminal function of law”.[5]

Lord Devlin concluded that such damages can be awarded only in the following cases:

(a) Where the damage has been caused by oppressive, arbitrary, unconstitutional action by the servants of the government and it did not extend to oppressive action by private corporations or individuals;

(b) Where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that the tort does not pay.

(c) Where exemplary damages are expressly authorised by the statute.

In the case of Bhim Singh v. State of J. & K.,[6] the plaintiff was illegitimately detained by a returning officer, the Supreme Court awarded exemplary damages.

• Prospective Damages: Such damages are awarded in cases where there are chances of damage in future as a result of the defendant’s wrongful act which has not actually resulted at the time of the decision of the case.

In the case of Y.S. Kumar v. Kuldip Singh,[7] the respondent, who was an Excise and Taxation officer, met with an accident, resulting in physical injuries at the ankle. As a result of the injuries, he incurred permanent disability which affected the enjoyment of his normal life. He was awarded compensation of Rs. 50 p.m. for a period of 12 years on account of physical disability and loss of enjoyment of normal life.

2. INJUNCTION

An injunction is an order of the court directing the doing of some act or restraining the commission or continuance of some act. The court has the discretion to grant or refuse this remedy and when remedy by way of damages is a sufficient relief, injunction and will not be granted. The injunctions are of various kinds:

1. Temporary and Perpetual Injunction

Temporary and Perpetual injunctions have been defined in Sec. 37, Specific Relief Act, 1963 as follows:

(1) A temporary injunction is such that it continues until a specific period of time, or until further orders of the court.

(2) A perpetual injunction is such that the defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which could be converse to the right of the plaintiff.

A Temporary or Interlocutory Injunction is usually granted before the case has been heard on merits and it is only provisional and, as such, continues until the case is heard on its merits or until further orders of the court. It does not mean determination in favour of the plaintiff but simply shows that there is a substantial question requiring consideration. Where it is, for example, intended that the property should continue to remain in its existing condition rather than being destroyed or wrongfully disposed or before the final decision, such an injunction will be issued. If the court, after fully going into the matter, finds that the plaintiff is entitled to the relief, the temporary injunction will be replaced by a perpetual injunction. If, however, the plaintiff’s case is found to be unjust, the injunction will be dissolved. A perpetual injunction is a final order and is issued after the full consideration of the case.

• Prohibitory and Mandatory Injunction: Prohibitory injunction forbids the defendants from doing some act which will interfere with the plaintiff’s lawful rights. The examples of it are restraining the defendant from committing or continuing the acts like trespass or nuisance. Mandatory injunction is an order which requires the defendant to do some positive act, for example, an order to pull down a wall which causes obstruction to the plaintiff’s right of light.

3. SPECIFIC RESTITUTION OF PROPERTY

The third kind of judicial remedy is the specific restitution of property. A person who is illegitimately dispossessed of immovable property,[8]or of a specific movable property is authorized to recover the immovable or movable property,[9]as the case may be. The notion of ‘Restitution’ hinges on conferment or receiving of benefit which is unjust. The apex court in the case of State of Gujarat v. Essar Oil Limited while depending on the ‘Restatement of the Law of Restitution by American Law Institute (1937 American Law Institute Publishers, St Paul)’ has expounded upon the phrase ‘benefit’ and has held that, “A person confers a benefit upon another if he gives to the other possession of or some other interest in money, land, chattels, or performs services beneficial to or at the request of the other, satisfies a debt or a duty of the other or in a way adds to the other’s security or advantage. He confers a benefit not only where he adds to the property of another but also where he saves the other from expense or loss. Thus the word “benefit” therefore denotes any form of advantage”.

Thus, a case for restitution can be made out if it is proved that a benefit has been either conferred or received and the same is unjust, constituting unjust enrichment.

EXTRA JUDICIAL REMEDIES

A person can resort to certain remedies apart from the aforesaid judicial remedies known as extra-judicial remedies. Such remedies are obtained outside the court of law. These remedies can be used by self-help. The remedies are Re-entry of land, re-caption of chattels, distress damage feasant, and abatement of the nuisance.

1. Expulsion of Trespasser

A person can expel a trespasser from his land by using a reasonable amount of force. The two pre-requisites are:

• The person has the immediate possession of the property.
• The force used by the possessor should be reasonable according to the situation.
• Re-entry on Land

The person entitled to a property can remove a trespasser from his land and re-enter by the use of reasonable force.

• Re-caption of chattels

The owner of chattels or goods is entitled to recapture them if they have been unlawfully dispossessed from him.

• Distress Damage Feasant

If a person’s cattle trespass another person’s premises and destroy his crops, the owner of the land is entitled to take possession of the cattle until he is compensated for the loss he has incurred.

• Abatement of Nuisance

An occupier is entitled to abate i.e. to terminate by his own act, nuisance which is affecting his land.

CONCLUSION

The basic aim of compensation in tort is to take the aggrieved party back to the status or position it was enjoying before the occurrence of the tort. It is not fulfilled by punishing the defendant as is the case in crime. The remedies in tort can be judicial or extrajudicial. When the court of law is involved to gain the remedy and the law is duly followed, such remedies are called judicial remedies. When the aggrieved party takes the law in his own hands, the remedies so obtained are referred to as extrajudicial remedies.

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[1] S.P Singh & Indrajit P. Singh, Law of Torts 324 (Universal Lexis Nexis, Greater Noida, 7^th Edition).

[2] R.K.Bangia, Dr. R.K.Bangia’s The law of Torts 414 ( Faridabad, Twenty Fourth Edition,2017).

[3] (1703) 2 Lord Raym, 938; Tozer v. Child, (1857) 7 E. & B. 377.

[4] (1964) A.C.1129 (1964) 2 W.L.R. 269: (1964) 1 All E.R. 367.

[5] (1964) A.C.1129, at 1221.

[6] A.I.R. 1986 S.C. 494.

[7] A.I.R1972 Punjab & Haryana 326.

[8] Specific Relief Act, 1963, section 6. See Chapter XV, title 4(B), p. 390.

[9] Specific Relief Act, 1963, section 7.