Prof. (Dr.

) C J Rawandale
Professor, Symbiosis Law School, NOIDA
Judicial Remedies Extra-Judicial Remedies

•  Judicial Remedies: Remedies by •  Extra-judicial remedies: Remedies

way of action at law. availed by party himself without the
aids of law.
•  Damages
•  Expulsion of Trespasser
•  Injunction
•  Re-entry on Land
•  Specific Restitution of Property
•  Recaption of Goods,
•  Distress of Damage Feasant

•  Abatement of Nuisance
DAMAGES
§  Damages represent the pecuniar y recompense
recoverable by process of law, by a person who has
sustained an injury through the wrongful act or omission Legal Remedies
of another.
§  Object: To place the injured party in the position which
he would have occupied; if the wrong had not been
committed.
§  Damages are divided into General Damages and Special
Damages. These damages can be further subdivided into
Pecuniary and Non-Pecuniary damages.
§  Livingstone v. Rawyords Coad Co.,(1880) 5 App. Cas 25

§  “Where any injury is to be compensated by damages in Measure of Damages

settling the sum of money to be given for reparation of
damages you should as nearly as possible get that sum of
money which will put the party who has been injured, or
who has suffered in the same position as he would have
been in, if he had not sustained the wrong for which he is
now getting his compensation or reparation.”
§  Swaraj Motors Private Ltd. v. R.T.
Raman Pillai, AIR 1968 Ker. 315
§  In case of personal injury arising from
accident, the plaintiff is entitled to
ex p e n s e s wh i c h h e a c t u a l ly a n d
reasonably incurred for the medical
treatment and incidental matters upto the
date of institution of the suit.
§  He can recover as special damages
under this head only the amount so
determined. He is entitled to claim loss of
professional income.
§  Shafiq v. Pramod Bhatia, AIR 1998 MP
142
§  The Plaintiff was awarded Rs. 84,000 as
compensation wherein an accident
caused 50% permanent disability and
shortened the leg by one inch. The
claimant was not able to carry on his
business of sale of cloth by taking round
from place to place.
§  The principle in this regards is that
damages are intended to put the plaintiff
in the same position as he would have
been if he had not received the injury.
§  The principle ‘remoteness of damages’ is based
on the maxim ‘injure on remota causa sed proxima
spectatur’.
Measure of Damages

§  It prevents the plaintiff from recovering any damages

that do not flow or arise as a direct consequence of
the wrongful act complained of.
§  In all claims for damages whether arising from
contract or tort, a duty is cast upon the plaintiff to
mitigate or minimize the damages to take all
reasonable precautions to reduce the amount of loss Measure of Damages
or damage arising from the wrongful act of the
defendant.

§  Any loss or damage with which the exercise of

reasonable care the plaintiff could have avoided, will
be deemed too remote to be recoverable.
§  The claimant, had suffered mesothelioma as a result of
negligent exposure to asbestos whilst he was employed
by the defendant.
§  The claimant was 59 years old at the date of the trial, and
had been employed as an electrician by the defendant
for four years, during which he had been working in
close proximity to people who were working with
asbestos. That was the claimant’s only exposure to
asbestos during his working life, and he had eventually
emigrated to Australia, where he again found work as an
electrician and later moved into supervisory and
management roles and eventually set up his own
electrical company.
§  The claimant was married and had two children, but
his son had died leaving a wife and two children,
and the claimant had promised to help his
grandchildren financially where necessary. He had
enjoyed professional success and was contracted to
complete several projects. There was sufficient work for
him for several years, to his retirement, but he and
his wife had returned to the UK. As a result of his
serious illness the claimant could perform only
minimal tasks and he suffered constant chest pain and
fatigue, and he had an estimated life expectancy of about
2 years.
§  General damages of £70,000 were awarded for
pain, suffering and loss of amenity.
§  The claimant had experienced mild symptoms of
mesothelioma for two years, and would suffer
increasing symptoms and greater disability for
another two years until his death. He had been fit
before contracting the disease, but at the time of
the trial could manage walking very slowly. He would
have expected to work an average of 2,500 hours a
year at a wage of A$90 – (A$130 per hour) until the
age of 70.
§  A deduction of 40% was made to reflect the
claimant’s personal expenditure, taking account of
his increasing future commitment to his
grandchildren, so awards of £139,180 and £551,163
were made for past and future loss of earnings
respectively.
§  The rest of the award was made to cover the addition
of expenses for medical treatment, loss of other
contractual benefits, relocation costs and care costs
and a total sum of £948,565.71 was awarded.
§  Nominal Damages
§  Contemptuous Damages

§  Real or Substantial Damages

§  Exemplary Damages

§  Prospective Damages
§  Damages which are awarded by the Court to the
plaintiff not by way of compensation but by way of
recognition of some legal rights of plaintiff which
the defendant has infringed are nominal damages.
Types of Damages

§  Nominal damages are available for torts which are

actionable per se.
§  Ashby v. White, (1703) 2 Ld. Ry. 938
§  In this case a rightful voter’s right to
vote was wrongfully and maliciously
denied at an election. However the
candidate in whose favour he wanted
to cast his vote won the elections.
§  He was awarded damages nominal in
nature.
§  Constantine v. Imperial London
Hotels Ltd. (1944) 1 KB 693
§  The owner of a hotel wrongfully
refused a West Indian Cricketer entry
in their hotel.
§  Although he suffered no loss, the
wrongful exclusion was held to be
tor tuous, was given nominal
damages.
§  Contemptuous damages are an indication of the law
court expressing an opinion of the claim of the
plaintiff or its disapproval of his conduct in the
matter. Types of Damages
§  They differ from nominal damages as they may be
awarded for any tortuous act whether actionable per
se or not.
§  Contemptuous damages are usually awarded in libel
claims in which the claimant has technically proved
the case, but the court wishes to express its
disapproval that the claim was ever brought in the first
place.
§  The sum awarded will usually be the smallest coin of
the realm.
§  Damages which are assessed and awarded as
compensation for damage actually suffered by the
plaintiff, and not simply by way of mere
recognition of a legal right violated are called real
or substantial damages. Types of Damages

§  Real or substantial damages are also called as

‘compensatory damages’.
§  Exemplary damages are awarded where there has
been great injury by reason of aggravating
circumstances accompanying the wrong.
Types of Damages

§  Exemplary damages are awarded not by way of

compensation for the plaintiff, but by way of
punishment for the defendant.
§  Rookes v Barnard, 1961 AC 1129
§  Exemplary or punitive damages can be awarded in
three cases:
1.  Oppressive, arbitrary or unconstitutional action by
servants of the Government
2.  Cases 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
3.  Where exemplar y damages are expressly
authorised by the statute.
§  Bhim Singh v. State of J & K, AIR 1986 SC 494
§  Bhim Singh, MLA of J & K was arrested when he was
going to attend Assembly session. The Supreme Court
considered it to be appropriate case to award Where servants of the
exemplary damages. government behave in an
oppressive, arbitrary or
unconstitutional way.
§  George v. Metropolitan Comr. of Police (1984)
§  The police to question needed the claimant, mother of
a young man. Some officers forced their way into her
house and ransacked it for a full half hour. They hit and
kicked the claimant and then invented a false
allegation to deceive the court. She was awarded
£6,000 for trespass and assault and £2,000 exemplary
damages.
§  Manson v. Associated News Papers Ltd. (1965) 1 All
ER 954
§  If a person who is possessed of material which would
be defamatory if published, and who does to really Where the conduct of the
believe it to be true at all, decides to publish it simply defendant was calculated
because he can make a profit from publishing it and to profit from the tort in
because he reckons that any damages he might have the sense that any
to pay would be so small that it would be well worth it, compensation payable
then that is a man, and that is the only man, against would be less than any
whom an award of exemplary damages can be made. profit, which might be
made
§  In case of Tort of Passing Off, one of the remedy is
‘Account of Profits’.
§  The purpose of account of profits is not to punish the
defendant but to prevent unjust enrichment. Where exemplar y
damages are expressly
§  An account is limited to the profits actually made and authorised by the statute
attributable to the infringement and the claimant must
take the defendants business as it is.
§  Damages which are likely to result from the wrongful
act of the defendant but they have not actually
resulted at the time when the damages are being
decided by the Court.
Types of Damages

§  Subhas Chandra v. Ram Singh, AIR 1972 Delhi 189

§  Appellant was hit by a bus driver. He suffered several
injuries resulting in his permanent disability to walk
without a surgical shoe. Because of the disability he
could not take employment in certain avenues.
§  T h eM o t o r C l a i m s T r i b u n a l a w a rd e d h i m
compensation amounting to Rs. 3,000 under the
heading ‘probable further loss’. The amount of
compensation on appeal was increased to Rs. 7000 by
the Delhi High Court.
INJUNCTION
§  An injunction is an order of the court directing the
doing of some act or restraining the commission or
continuance of some act. Legal Remedies
§  Temporary and Perpetual Injunction
§  Prohibitory and Mandatory Injunction
§  Section 37, Specific Relief Act, 1963: A temporary
injunction is such as is to continue until a specified
time, or until the further order of the court.
§  It does not mean determination in favour of the
plaintiff but simply shows the concern of the Court that
there is a substantial question requiring consideration. Types of Injunction
§  Te m p o r a r y
Injunction is also called as
‘interlocutory injunction’.

§  Illustration: A and B have a dispute regarding title

over a plot of land, which is in A’s possession. B also
claims to have the title of the same plot. Case is
pending before the court; A begins with construction
on the said spot. B goes to court and Court orders
temporary injunction. The intention is that the
property should continue to remain in its existing
condition rather than being destroyed or wrongfully
disposed of before the final decision of the Court.
§  Section 37, Specific Relief Act, 1963: A perpetual
injunction is one by which the defendant is
perpetually enjoined from the assertion of a right, or
from the commission of an act, which could be Types of Injunction
contrary to the right of the plaintiff.
§  If the court after going into the matter, finds that the
plaintiff is entitled to the relief, the temporary
injunction will be replaced by a perpetual injunction.
§  A perpetual injunction is a final order and is issued
after the full consideration of the case.
§  Prohibitory injunction is self explanatory. It means an
injunction which prohibits the defendants from doing
some act which will interfere with the plaintiff’s
lawful rights. Types of Injunction

§  Illustration: Continuing acts of trespass, nuisance.

§  Mandatory injunction is an order which requires the
defendant to do some positive act.

Types of Injunction
§  Illustration: Pulling down a wall which causes
obstruction to the plaintiff’s right of light.
 SPECIFIC
RESTITUTION OF PROPERTIES
§  When one is wrongfully dispossessed of his movable
or immovable property, the court may order that the
specific property should be restored back to the
plaintiff.

§  Section 6 of the Specific Relief Act, 1963: A person

who is wrongfully dispossessed of immovable
property is entitled to recover the immovable
property.
§  Section 7 of the Specific Relief Act, 1963: A person
who is wrongfully dispossessed of movable property
is entitled to recover the movable property.

§  Illustration: Action for ejectment, the recovery of

chattels by an action for detinue etc.
EXPULSION OF TRESPASSER
§  A person can resort to legitimate force in order to repel
an intruder or trespasser provided the force used by him
does not transgress the reasonable limits of the occasion
i.e. he mustn’t use disproportionate force.
Extra-Judicial Remedies

§  Scott v. Mathew Brown & Co. (1885) 51 LT 746

§  The rightful owner of property is entitled to use force in
ejecting a trespasser so long as he does him no personal
injury.

§  Edwick v. Hwkes, (1881) 18 Ch. D 199

§  While ejecting a trespasser, the rightful owner of
property should not resort to violence.
RE-ENTRY ON LAND
§  A man wrongfully disposed of his land may retake its
possession, if he can do so in a peaceful manner and
without the use of force.
§  Hemmings v. Stoke Poges Golf Club, (1920) 1 KB 720 Extra-Judicial Remedies
§  If an owner of landed property finds a trespasser on
his premises, he may enter the premises and turn the
trespasser out, using no more force than is necessary
to expel him, without having to pay damages for the
force used.
§  Section 6 of the Specific Relief Act, 1963 and the
Bombay Mamlatdars’ Courts Act, 1906 (in the
states of Maharashtra and Gujarat), if one in
possession of immovable property is disposed,
otherwise than by due course of law, he may, within six
months, sue to recover possession without reference
to any title set up by another, which is left to be
determined in a separate action.
RECAPTION OF GOODS
§  A person entitled to the immediate possession of
chattels, may recover them from any person who has
then been in actual possession and detain them,
provided that such possession was wrongful in its Extra-Judicial Remedies
inception.
ABATEMENT OF NUISANCE
§  ‘Abatement’ means removal of the nuisance by the
party injured.
§  It is justifiable provided it must be peaceable, without
danger to life or limb and after notice to remove the Extra-Judicial Remedies
same, if it is necessary to enter another’s land to
abate a nuisance, or where the nuisance is a dwelling
house in actual occupation or a common, unless it is
unsafe to wait.

§  Lemmon v. Webb, (1895) AC 1: Putraya v. Krishna

Gota, (1934) 40 MLW 639
§  The occupier of land may cut off the overhanging
branches of his neighbour’s trees, or sever roots which
have spread from these trees into his own land.
§  Someshwar v. Chunilal, (1919) 22 Bom LR 790
§  One cannot cut the branches if the trees stand on the
land of both parties.

§  Raghuwath Patnaik v. Dullabha Behera, ILR 1951

Cut 522
§  Where the roots of trees originally planted by
defendants in their own land had penetrated into
plaintiff’s land wherefrom fresh trees had sprung up
and the defendants cut and removed such tree from
plaintiff’s land, it was held that where the roots of a
trees extended into the lands of both owners and the
tree derived its nourishment from soils of both, it
became the common property of both though it might
actually stand on the land of one of them and
consequently the plaintiff was entitled to half of the
value of the trees cut and removed by the defendants.
 DISTRESS
DAMAGE FEASANT
§  Distress: A right to retain
§  Feasant: An object which has done a wrong

§  Damages: The loss caused to the owner or the Extra-Judicial Remedies

occupier.

§  Distress Damage Feasant is a remedy by which, if

cattle or other things be on a man’s land
encumbering it or otherwise doing damage there, he
may summarily seize them, without legal process, and
retain them impounded as a pledge for the redress of
the injury he has sustained.
§  England:
§  Section 7 of the Animals Act, 1971 has abolished the
remedy of Distress Damage Feasant which substitutes a
right to seize, detain and sell livestock which has strayed
on to one’s land and which is not then in the control of
any other person.
§  India:
§  In India the right of Distress Damage Feasant would be
held to exist, except under express law. Cattle Trespass
Act, 1871 contains special provisions regarding the
impounding of cattle taken trespassing and doing
damage.
a.  A person on whose land cattle trespass and do
damage is authorised to take them to a cattle pound
within 24 hours of the seizure.
b.  He doesn’t have the right of further detention or sale;
On payment of the pound fees to the pound keeper,
the owner of the cattle can get his cattle released. The
injured party doesn’t get any part of such pound fee.
•  Thus the said legislation has impliedly taken away the
right of distress Damage Feasant.