368 EP-IL&GL

This Section is based upon an English case viz., Lumley v. Wagner (21) L.J. CH.
898. In this case Miss W, a singer agreed to sing at L’s theatre for a certain period
and not to sing anywhere else during that period. Afterwards, she entered into a
contract to sing at another theatre and refused to perform her contract with L. The
Court refused to enforce her positive agreement to sing at L’s theatre (by specific
performance since it is based on personal volition) but granted an injunction
restraining her from singing at any other theatre thereby preventing breach of the
negative part of the agreement though the positive part of it, being a contract for the personal service, could
not be specifically enforced.
Conditions necessary for the applicability of this Section are:
(1) The contract should comprise of two agreements, one affirmative and another negative.
(2) Both the agreements must be divisible.
(3) The negative agreement must relate to a specific act.
(4) The Court should be unable to compel specific performace of the affirmative agreement.
(5) The plaintiff must not have failed to perform the contract, so far as it is binding upon him.
A negative stipulation may be express or implied. An express negative stipulation in one where the negative
stipulation is put expressly. The Section does not say that every affirmative contract includes by necessary
implication a negative agreement to refrain from doing certain things. It is therefore a question of interpretation
in each case to find whether a particular contract can be said to have a negative stipulation, express or implied,
contained in it, e.g., the mere use of word “exclusively” does not imply a negative stipulation to refrain from
service of other people.
The provisions of this Section are based on the equitable principle that “he who seeks equity must do equity”.
The principle as laid down in Section 42 was followed in the cases of Burn Mcdonald (1907) 36 Cal 354;
Metropolitan Electric Supply v. Ginder, (1901) 2 Ch. 799; Subba Naidu v. Hari Badshah, (13 M.L.J. 13); and
Madras Rly Co. v. Rust, (1891) 14 Mad 18.

LAW RELATING TO TORTS

SECTION II

INTRODUCTION
The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived from Latin language from
the word Tortum. Thus, simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort. Tort is
really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or private.
Broadly speaking, public wrongs are the violations of ‘public law and hence amount to be offences against the
State, while private wrongs are the breaches of private law, i.e., wrongs against individuals. Public wrongs or
crimes are those wrongs which are made punishable under the penal law which belong to the public law group.
Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a breach of
contract or breach of trust.”
Salmond defines it as ”a civil wrong for which the remedy is a common law action for unliquidated damages and
which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”
Fraser describes it as “an infringement of a right in rem of a private individual giving a right of compensation at
the suit of the injured party.”
 Lesson 22 An Overview of Law Relating to Specific Relief, Limitation and Evidence 369

Winfield says : “Tortious liability arises from the breach of duty, primarily fixed by law; this duty is towards
persons generally and its breach is redressable by an action for unliquidated damages”.
Two important elements can be derived from all these definitions, namely: (i) that a tort is a species of civil injury
of wrong as opposed to a criminal wrong, and (ii) that every civil wrong is not a tort. Accordingly, it is now
possible to distinguish tort from a crime and from a contract, a trust and a quasi-contract. The distinction between
civil and criminal wrongs depends on the nature of the appropriate remedy provided by law.

GENERAL CONDITIONS OF LIABILITY FOR A TORT

As stated earlier, there is no fixed catalogue of circumstances, which along and for all time mark the limit of what
are torts. Certain situations have been held to be torts and will continue to be so in the absence of statutory
repeal, and others have been held not to be torts. However, certain general conditions for tortuous liability can
be laid down.
In general, a tort consists of some act or omission done by the defendant (tortfeasor) whereby he has without
just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:
(i) a wrongful act or omission of the defendant;
(ii) the wrongful act must result in causing legal damage to another; and
(iii) the wrongful act must be of such a nature as to give rise to a legal remedy.
(i) Wrongful act: The act complained of, should under the circumstances, be legally wrongful as regards the
party complaining. In other words, it should prejudicially affect any of the above mentioned interests, and protected
by law. Thus, every person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and
right to property are violated without legal excuse, has a right of action against the person who violated them,
whether loss results from such violation or not.
(ii) Legal damages: it is not every damage that is a damage in the eye of the law. It must be a damage which the
law recognizes as such. In other words, there should be legal injury or invasion of the legal right. In the absence
of an infringement of a legal right, an action does not lie. Also, where there is infringement of a legal right, an
action lies even though no damage may have been caused.
As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither identical with actual damage
nor is it necessarily pecuniary. Two maxims, namely : (i) Damnum sine injuria, and (ii) injuria sine damnum,
explain this proposition.
Damnum Sine Injuria
Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means infringement
of a right conferred by law on the plaintiff. The maxim means that in a given case, a man may have suffered
damage and yet have no action in tort, because the damage is not to an interest protected by the law of torts.
Therefore, causing damage, however substantial to another person is not actionable in law unless there is
also a violation of a legal right of the plaintiff. Common examples are, where the damage results from an act
done in the exercise of legal rights. Thus, if I own a shop and you open a shop in the neighbourhood, as a
result of which I lose some customers and my profits fall off, I cannot sue you for the lose in profits, because
you are exercising your legal right. [Gloucester Grammer School case, (1410) Y.B. Hill. 11 Hen, 4, of. 47, pp.
21,36]
Injuria Sine Damno
It means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong in tort, i.e.
where there is infringement of a legal right not resulting in harm but plaintiff can still sue in tort.
Some rights or interests are so important that their violation is an actionable tort without proof of damage. Thus
370 EP-IL&GL

when there is an invasion of an “absolute” private right of an individual, there is an injuria and the plaintiff’s action
will succeed even if there is no Damnum or damages. In simple terms, it means that if some one else’s legal
rights are infringed upon, it is actionable, even if no damage has resulted to the other person. The leading
example is the case of Ashby v White referred to above where a person was wrongfully not allowed to vote and
even though it has not caused him any damage, since his legal right to vote was denied, he was entitled to
compensation. An absolute right is one, the violation of which is actionable per se, i.e., without the proof of any
damage. Injuria sine damno covers such cases and action lies when the right is violated even though no damage
has occurred. Thus the act of trespassing upon another’s land is actionable even though it has not caused the
plaintiff even the slightest harm.
(iii) Legal remedy: The third condition of liability for a tort is legal remedy. This means that to constitute a tort,
the wrongful act must come under the law. The main remedy for a tort is an action for unliquidated damages,
although some other remedies, e.g., injunction, may be obtained in addition to damages or specific restitution
may be claimed in an action for the detention of a chattel. Self-help is a remedy of which the injured party can
avail himself without going to a law court. It does not apply to all torts and perhaps the best example of these to
which it does apply is trespass to land. For example, if “A” finds a drunken stranger in his room who has no
business to be there in it, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but
if that be not possible with such force as the circumstances of the case may warrant.
Mens Rea
How far a guilty mind of persons is required for liability for tort?
The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act itself creates no guilt
in the absence of a guilty mind. It does not mean that for the law or Torts, the act must be done with an evil
motive, but simply means that mind must concur in the Act, the act must be done either with wrongful intention
or negligence. For example, under criminal law, mens rea must be proved. However, to this principle cases of
absolute or strict liability are exceptions.

Test your knowledge

State whether the following statement is “True” or “False”
The act of trespassing upon another’s land is not actionable if it has not caused the
plaintiff the slightest harm.
• True
• False
Correct answer: False

KINDS OF TORTIOUS LIABILITY

The following types of tortuous liability may be noted:

(A) STRICT OR ABSOLUTE LIABILITY

In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention or negligence
on the defendant’s part. In other words, the defendant is held liable without fault. These cases fall under the
following categories:
(i) Liability for Inevitable Accident – Such liability arises in cases where damage is done by the escape of
dangerous substances brought or kept by anyone upon his land. Such cases are where a man is made by law
an insurer of other against the result of his activities.
 Lesson 22 An Overview of Law Relating to Specific Relief, Limitation and Evidence 371

(ii) Liability for Inevitable Mistake – Such cases are where a person interferes with the property or reputation
of another.
(iii) Vicarious Liability for Wrongs committed by others – Responsibility in such cases is imputed by law on
grounds of social policy or expediency. These case involve liability of master for the acts of his servant.
Rule in Rylands v. Fletcher

The rule in Rylands v. Flethcer (1868) L.R. 3 H.L. 330 is that a man acts at his peril
and is the insurer of the safety of his neighbour against accidental harm. Such duty
is absolute because it is independent of negligence on the part of the defendant or
his servants. It was held in that case that: “If a person brings or accumulates on his
land anything which, if it should escape may cause damage to his neighbours, he
does so at his own peril. If it does not escape and cause damage he is responsible,
however careful he may have been, and whatever precautions he may have taken
to prevent damage.”

The facts of this case were as follows: B, a mill owner employed independent contractors, who were apparently
competent to construct a reservoir on his land to provide water for his mill. There were old disused mining
shafts under the site of the reservoir which the contractors failed to observe because they were filled with
earth. The contractors therefore, did not block them. When the water was filled in the reservoir, it bursted
through the shafts and flooded the plaintiff’s coal mines on the adjoining land. It was found as a fact that B did
not know of the shafts and had not been negligent, though the independent contractors, had been, B was held
liable. Blackburn, J., observed; “We think that the true rule of law is that the person, who for his own purposes
brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his
peril and if, he does not do so is, prima facie answerable for all the damage which is the natural consequence
of its escape.”
Later in the case of Read v. Lyons [(1946) 2 All. E.R. 471 (H.L.)], it has been explained that two conditions are
necessary in order to apply the rule in Ryland v. Fletcher, these are:
(i) Escape: from a place of which the defendant has occupation or over which he has a control to a place which
is outside his occupation or control or something likely to do mischief if it escapes; and
(ii) Non-natural use of Land: The defendant is liable if he makes a non-natural use of land.
If either of these conditions is absent, the rule of strict liability will not apply.
Exceptions to the Rule of Strict Liability
The following exceptions to the rule of strict liability have been introduced in course of time, some of them being
inherent in the judgment itself in Ryland v. Fletcher:
(i) Damage due to Natural Use of the Land
In Ryland v. Fletcher water collected in the reservoir in such large quantity, was held to be non-natural
use of land. Keeping water for ordinary domestic purpose is ‘natural use’. Things not essentially dangerous
which is not unusual for a person to have on his own land, such as water pipe installations in buildings,
the working of mines and minerals on land, the lighting of fire in a fire-place of a house, and necessary
wiring for supplying electric light, fall under the category of “natural use” of land.
(ii) Consent of the plaintiff
Where the plaintiff has consented to the accumulation of the dangerous thing on the defendant’s land,
the liability under the rule in Ryland v. Flethcher does not arise. Such a consent is implied where the
source of danger is for the ‘common benefit’ of both the plaintiff and the defendant.
372 EP-IL&GL

(iii) Act of Third Party

If the harm has been caused due to the act of a stranger, who is neither defendant’s servant nor agent
nor the defendant has any control over him, the defendant will not be liable. Thus, in Box v. Jubh (1879)
4 Ex. D. 76, the overflow from the defendant’s reservoir was caused by the blocking of a drain by
stranger, the defendant was held not liable. But if the act of the stranger, is or can be foreseen by the
defendant and the damage can be prevented, the defendant must, by due care prevent the damage.
Failure on his part to avoid such damage will make him liable.
(iv) Statutory Authority
Sometimes, public bodies storing water, gas, electricity and the like are by statute, exempted from
liability so long as they have taken reasonable care. This is based on the principle that they act in public
interest.
Thus, in Green v. Chelzea Water Works Co. (1894) 70 L.T. 547 the defendant company had a statutory
duty to maintain continuous supply of water. A main belonging to the company burst without any fault on
its part as a consequence of which plaintiff’s premises were flooded with water. It was held that the
company was not liable as the company was engaged in performing a statutory duty.
(v) Act of God
If an escape is caused, through natural causes and without human intervention circumstances which no
human foresight can provide against and of which human prudence is not bound to recognize the
possibility, there is then said to exist the defence of Act of God.
(vi) Escape due to plaintiff’s own Default
Damage by escape due to the plaintiff’s own default was considered to be good defence in Rylands v.
Fletcher itself. Also, if the plaintiff suffers damage by his own intrusion into the defendant’s property, he
cannot complain for the damage so caused.
Applicability of the rule in Rylands v. Fletcher in cases of enterprises engaged in a hazardous or inherently
dangerous industry
The Supreme Court has discussed the applicability of the rule of Reylands v. Fletcher in the case of M.C. Mehta
v. Union of India and Others (1987) 1. Comp. L.J. p. 99 S.C. while determining the principles on which the liability
of an enterprise engaged in a hazardous or inherently dangerous industry depended if an accident occurred in
such industry.
“We have to evolve new principle and lay down new norms which would adequately deal with the new
problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constricted
by reference to the law as it prevails in England or for the matter of that, in any other foreign country”.
On the question of the nature of liability for a hazardous enterprise the court while noting that the above rule as
developed in England recognizes certain limitations and responsibilities recorded it’s final view as follows:
“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry
which poses a potential threat to the health and safety of the persons working in the factory and residing in
the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm
results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.
The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous
activity in which it is engaged, must be conducted with the highest standards of safety; and if any harm results
on account of such activity, the enterprise must be absolutely liable to compensate for such harm; and it
should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred
without negligence on its part.”
 Lesson 22 An Overview of Law Relating to Specific Relief, Limitation and Evidence 373

Thus, while imposing absolute liability for manufacture of hazardous substances, the Supreme Court intended
that the requirement of non-natural use or the aspect of escape of a dangerous substance, commonly regarded
as essential for liability under Rylands v. Fletcher, need not be proved in India.

Test your knowledge

Which of the following are different kinds of strict or absolute liability?
(a) Liability for inevitable accident
(b) Liability for evitable accident
(c) Liability for inevitable mistake
(d) Vicarious liability for wrongs committed by others.
Correct answer: (a), (c) and (d)

(B) VICARIOUS LIABILITY

Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable for the tort committed
by another. A master is vicariously liable for the tort of his servant, principal for the tort of his agent and partners
for the tort of a partner. This is know as vicarious liability in tort. The common examples of such a liability are:
(a) Principal and Agent [Specific authority]
Qui facit per alium facit per se – he who acts through another is acting himself, so that the act of the agent is the act
of the principal. When an agent commits a tort in the ordinary course of his duties as an agent, the principal is liable
for the same. In Lloyd v. Grace, Smith & Co. (1912) A.C. 716, the managing clerk of a firm of solicitors, while acting
in the ordinary course of business committed fraud, against a lady client by fraudulently inducing her to sign
documents transferring her property to him. He had done so without the knowledge of his principal who was liable
because the fraud was committed in the course of employment.
(b) Partners
For the tort committed by a partner in the ordinary course of the business of the firm, all the other partners are
liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several. In
Hamlyn v. Houston & Co. (1903) 1 K.B. 81, one of the two partners bribed the plaintiff’s clerk and induced him to
divulge secrets relating to his employer’s business. It was held that both the partners were liable for the tort
committed by only one of them.
(c) Master and Servant [Authority by relation]
A master is liable for the tort committed by his servant while acting in the course of his employment. The servant,
of course, is also liable; their liability is joint and several.
In such cases (1) liability of a person is independent of his own wrongful intention or negligence (2) liability is
joint as well several (3) In case of vicarious liability the liability arises because of the relationship between the
principal and the wrongdoer but in case of absolute or strict liability the liability arises out of the wrong itself.
A master is liable not only for the acts which have been committed by the servant, but also for acts done by him
which are not specifically authorized, in the course of his employment. The basis of the rule has been variously
stated: on the maxim Respondeat Superior (Let the principal be liable) or on the maxim Qui facit per alium facit
per se (he who does an act through another is deemed to do it himself).
The master is liable even though the servant acted against the express instructions, for the benefit of his master,
so long as the servant acted in the course of employment.
374 EP-IL&GL

(d) Employer and Independent Contractor

It is to be remembered that an employer is vicariously liable for the torts of his servants committed in the course
of their employment, but he is not liable for the torts of those who are his independent contractors.
A servant is a person who is employed by another (the employer) to perform services in connection with the
affairs of the employer, and over whom the employer has control in the performance of these services. An
independent contractor is one who works for another but who is not controlled by that other in his conduct in the
performance of that work. These definitions show that a person is a servant where the employer “retains the
control of the actual performance” of the work.
(e) Where Employer is Liable for the acts of Independent Contractor
The employer is not liable merely because an independent contractor commits a tort in the course of his
employment; the employer is liable only if he himself is deemed to have committed a tort. This may happen in
one of the following three ways:
(i) When employer authorizes him to commit a tort.
(ii) In torts of strict liability
(iii) Negligence of independent contractor
(f) Where Employer is not Liable for the acts of an Independent Contractor
An employer is not liable for the tort of an independent contractor if he has taken care in the appointment of the
contractor. In Philips v. Britania Hygienic Laundry Co. (1923), the owner of lorry was held not liable when a third-
party’s vehicle was damaged, in consequence of the negligent repair of his lorry by a garage proprietor.
Employers of independent contractors are liable for the “collateral negligence” of their contractors in the course
of his employment. Where A employed B to fit casement windows into certain premises. B’s servant negligently
put a tool on the still of the window on which he was working at the time. The wind blew the casement open and
the tool was knocked off the still on to a passer by. The employer was held to be liable, because the harm was
caused by the work on a highway and duty lies upon the employer to avoid harm.
(g) Liability for the acts of Servants
An employer is liable whenever his servant commits a tort in the course of his employment. An act is deemed to
be done in the course of employment if it is either:
(i) a wrongful act authorized by the employer, or
(ii) a wrongful and unauthorized mode of doing some act authorized by the employer.
So for as the first alternative is concerned there is no difficulty in holding the master liable for the tort of his
servant. A few examples, however, are necessary to explain the working of the rule in the second. These are as
follows:
In Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board (1942) A.C. 509, the director of a petrol
lorry, while transferring petrol from the lorry to an underground tank at a garage, struck a match in order to light
a cigarette and then threw it, still alight on the floor. An explosion and a fire ensued. The House of Lords held his
employers liable for the damage caused, for he did the act in the course of carrying out his task of delivering
petrol; it was an unauthorized way of doing what he was employed to do.
Similarly, in Bayley v. Manchester, Sheffield and Lincolnshire Rly. Co. (1873) L.R. 7 C.P. 415, erroneously
thinking that the plaintiff was in the wrong train, a porter of the defendants forcibly removed him. The defendants
were held liable.
 Lesson 22 An Overview of Law Relating to Specific Relief, Limitation and Evidence 375

(C) VICARIOUS LIABILITY OF THE STATE

(a) The Position in England
At Common Law the Crown could not be sued in tort, either for wrongs actually authorized by it or committed by
its servants, in the course of their employment. With the passing of the Crown Proceeding Act, 1947, the Crown
is liable for the torts committed by its servants just like a private individual. Thus, in England, the Crown is now
vicariously liable for the torts of its servants.
(b) The Position in India
Unlike the Crown Proceeding Act, 1947 of England, we have no statutory provision with respect to the liability of
the State in India.
When a case of Government liability in tort comes before the courts, the question is whether the particular
Government activity, which gave rise to the tort, was the sovereign function or non-sovereign function. If it is a
sovereign function, it could claim immunity from the tortuous liability, otherwise not. A sovereign function denotes
the activity of the State which can be done only by the State like defence, police, etc. The State is not liable
vicariously for any breach by its employees. A non sovereign function covers generally the activities of commercial
nature or those which can be carried out by a private individual like transport, hospitals etc. in which the State is
equally liable similar to a private person.

Test your knowledge

Which of the following are common examples of vicarious liability?
(a) Principal and agent
(b) Partners
(c) Master and servant
(d) Employer and employed contractor
Correct answer: (a), (b) and (c)

TORTS OR WRONGS TO PERSONAL SAFETY AND FREEDOM

An action for damages lies in the following kinds of wrongs which are styled as injuries to the person of an
individual:
(a) Battery
Any direct application of force to the person of another individual without his consent or lawful justification is a
wrong of battery. To constitute a tort of battery, therefore, two things are necessary: (i) use of force, however,
trivial it may be without the plaintiff’s consent, and (ii) without any lawful justification.
Even though the force used is very trivial and does not cause any harm, the wrong is committed. Thus, even to
touch a person in anger or without any lawful justification is battery.
(b) Assault
Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a contact with
his person. Thus, when the defendant by his act creates an apprehension in the mind of the plaintiff that he is
going to commit battery against him, the tort of assault is committed. The law of assault is substantially the same
as that of battery except that apprehension of contact, not the contact itself has to be established. Usually when
there is a battery, there will also be assault, but not for instance, when a person is hit from behind. To point a
376 EP-IL&GL

loaded gun at the plaintiff, or to shake fist under his nose, or to curse him in a threatening manner, or to aim a
blow at him which is intercepted, or to surround him with a display of force is to assault him clearly if the
defendant by his act intends to commit a battery and the plaintiff apprehends it, is an assault.
(c) Bodily Harm
A willful act (or statement) of defendant, calculated to cause physical harm to the plaintiff and in fact causing
physical harm to him, is a tort.
(d) False Imprisonment
False imprisonment consists in the imposition of a total restraint for some period, however short, upon the liberty
of another, without sufficient lawful justification. It means unauthorized restraint on a person’s body. What happens
in false imprisonment is that a person is confined within certain limits so that he cannot move about and so his
personal liberty is infringed. It is a serious violation of a person’s right and liberty whether being confined within
the four walls or by being prevented from leaving place where he is. If a man is restrained, by a threat of force
from leaving his own house or an open field there is false imprisonment.
(e) Malicious Prosecution
Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another, maliciously
and without reasonable and probable cause, which terminate in favour of that other and which results in damage
to his reputation, personal freedom or property.
The following are the essential elements of this tort:
(i) There must have been a prosecution of the plaintiff by the defendant.
(ii) There must have been want of reasonable and probable cause for that prosecution.
(iii) The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of
justice).
(iv) The plaintiff must have suffered damages as a result of the prosecution.
(v) The prosecution must have terminated in favour of the plaintiff.
To be actionable, the proceedings must have been instigated actually by the defendant. If he merely states the
fact as he believes them to a policeman or a magistrate he is not responsible for any proceedings which might
ensue as a result of action by such policeman or magistrate on his/her own initiative.
This is because there is no malice involved in it. Malicious prosecution thus actually refers to the case of initial
prosecution with malice and as a remedy for it, the other party who had won the case, may institute, under the
law of torts, a suit for malicious prosecution.
(f) Nervous Shock
This branch of law is comparatively of recent origin. It provides relief when a person may get physical injury not
by an impact, e.g., by stick, bullet or sword but merely by the nervous shock through what he has seen or heard.
Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place
as a result of the emotional disturbance, fear or sorrow.
(g) Defamation
Defamation is an attack on the reputation of a person. It means that something is said or done by a person which
affects the reputation of another. It is defined as follows:
“Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking
members of society generally; or which tends to make them shun or avoid that person.”
Defamation may be classified into two heads: Libel and Slander. Libel is a representation made in some permanent
form, e.g. written words, pictures, caricatures, cinema films, effigy, statue and recorded words. In a cinema films
both the photographic part of it and the speech which is synchronized with it amount to tort.
Slander is the publication of a defamatory statement in a transient form; statement of temporary nature such as
spoken words, or gestures.
 Lesson 22 An Overview of Law Relating to Specific Relief, Limitation and Evidence 377

Generally, the punishment for libel is more severe than for slander.
Defamation is tort as well as a crime in India.
In India both libel and slander are treated as a crime. Section 499 of the Indian Penal Code recognizes both libel
and slander as an offence. However, torts in criminal law are stricter than in law of tort.

REMEDIES IN TORTS
Judicial Remedies
Three types of judicial remedies are available to the plaintiff in an action for tort namely: (i) Damages or
Compensation, (ii) Injunction, and (iii) Specific Restitution of Property.

Extra Judicial Remedies

In certain cases it is lawful to redress one’s injuries by means of self help without recourse to the court. These
remedies are:
(a) Self Defence
It is lawful for any person to use reasonable forces to protect himself, or any other person against any unlawful
use of force.
(b) Prevention of Trespass
An occupier of land or any person with his authority may use reasonable force to prevent trespassers entering
or to eject them but the force should be reasonable for the purpose.
(c) Re-entry on Land
A person wrongfully disposed of land may retake possession of land if he can do so in a peaceful and reasonable
manner.
(d) Re-caption of Goods
It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either peacefully or by the
use of a reasonable force from one who has wrongly taken it or wrongfully detained it.
(e) Abatement of Nuisance
The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously affecting it.
Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees, but (i) upon giving
notice; (ii) by choosing the least mischievous method; (iii) avoiding unnecessary damage.
(f) Distress Damage Feasant
An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing damage there
and detain them until compensation is paid for the damage. The right is known as that of distress damage
feasant-to distrain things which are doing damage. It is a legal seizure and detention of cattle or chattel till
compensation is paid for the damage.

Test your knowledge

Which of the following situations are considered as assault?
(a) Point a loaded gun at the plaintiff
(b) Curse him in a threatening manner
(c) Use force
(d) Aim a blow at him which is intercepted
Correct answer: (a), (b) and (d)