JUDICIAL

REMEDIES
Submitted by: Shantanu Agnihotri
Submitted to: Prof. Faizan-Ur-Rehman

Course: B.A.LL.B(Hons.)
Semester II

Roll No. 57

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 JAMIA MILLIA ISLAMIA
FACULTY OF LAW 2020-21

Introduction

T
ort is the French equivalent of the English word wrong. The word tort is also derived
from the Latin word tortum, which means twisted or crooked or wrong, in contrast to
the word rectum, which means straight (rectitude uses that Latin root). Thus conduct
that is twisted or crooked and not straight is a tort. The term was introduced into the English law
by the Norman jurists.1

The law of torts developed almost entirely in the common-law courts; that is, statutes passed by
legislatures were not the source of law that plaintiffs usually relied on. Usually, plaintiffs would
rely on the common law (judicial decisions). Through thousands of cases, the courts have
fashioned a series of rules that govern the conduct of individuals in their noncontractual dealings
with each other. Through contracts, individuals can craft their own rights and responsibilities
toward each other. In the absence of contracts, tort law holds individuals legally accountable for
the consequences of their actions. Those who suffer losses at the hands of others can be
compensated.2

About the Title

Any matters in which legal rights are involved remedies are given to the subjects in a society to
ensure justice and peace in that particular state. Remedies are the compensation given to a person
for the loss he has suffered from, it may be awarded to any person in several ways like it may be
ordered by the court, granted by judgement after trial or hearing, by agreement (settlement)
1
Sir Frederick Pollock,THE LAW OF TORTS,Stevens and Sons Limited, Law Publishers and Booksellers,1895
2
Bryan A. Garner, Black's Law Dictionary, West Publishing Co; 7th Revised edition(1999)

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between the person claiming harm and the person who has caused it, and by the automatic
operation of law.

There are some specific kinds of remedies available for the citizens of a state some
remediesinvolve some particular acts to be performed or some acts to be prohibited while others
involve some amount of money to be paid as damages for the loss other party has suffered due to
injury or breach of contract, some remedies need to be proved by the courts in form of
declaration of rights of parties and an order to honour them. An “extraordinary remedy” is the
one in which judge assign any specific post to a person to control the situation or problem which
has occurred, such as appointment of a referee, master or receiver to investigate, report or take
charge of property. A Legal remedy is one such treatment. When the aggrieved person is taken
back to the position that they were enjoying before their rights were infringed, they are said to
have been provided with a legal remedy. There are various types of legal remedies. For instance,
if something that belongs to you has been taken away from you by a party, the court can either
ask them to pay you back in money, or ask them to return your belongings as they were, and may
also punish the party in some cases.3

Types of remedies
The manner in which a right is enforced or satisfied by a court when some harm or injury,
recognized by society as a wrongful act, is inflicted upon an individual.There are three crucial
categories of judicial remedies in common law systems. The legal remedy originates from the
law courts of England and is seen in the form of a payment of money to the victim, commonly
referred to as damages . Damages aim at making up the harm that a breaching party has-
committed to the victim. In the history of the English legal system, the legal remedy only existed
in the form of monetary relief, and therefore the victim must petition through a separate system if
he or she wanted other forms of compensation.4

3
3.Ratanlal Ranchhoddas,Law of Torts(Eng-India),2nd-Edition.
4
1.D.r.R.K.Bangia,Law Of Torts,Pg no-414-415,(Allahabad law Agency,24-Edition-2017)

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Although the courtrooms and proceedings have been integrated, the distinction between requests
for money versus action is still present. Non-monetary compensation refers to the second
category of judicial remedies—equitable remedies.

This type of remedy comes from the equitable jurisdiction developed in the- English Court.
Declaratory remedies make up the third category of judicial remedies. Different from the other
two categories, declaratory remedies usually involve a court's determination of how the law
applies to particular facts without any command to the parties.Courts give- declaratory remedies
about many different kinds of questions, including whether a person has a legal status, who the
owner of a property is, whether a statute has a particular meaning, or what the rights are under a
contract. Judicial remedies are those remedies which are awarded to a party by court while extra
judicial remedies are those which are available to a party by his own act alone, in certain cases of
torts. Judicial remedies are further divided into three main types i.e. damages, injunction, and
specific restitution of property, while extra judicial remedies are classified into several other
types like Expulsion of trespasser, Re-entry on land, Recaption of goods, Distress damage
feasant, Abatement of nuisance. Judicial remedies:

These remedies are:

1.Awarding of damages

2.Granting of injunction

3.Specific restitution ofproperty5

Damages
Damages are quite simply the award of a monetary sum to the claimant, which must then be paid
by the defendant. The general guiding principle is that of full compensation: the idea that the
amount of damages awarded should return the claimant to the position they would have been in
had the tort not occurred. An award of damages is made up of a number of different smaller

5
2.The peachy EassayJournal/( https://peachyessay.com/sample-essay/remedies-in-law-of-torts/)

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awards which take into account different elements of the case, all added together to reach a final
lump sum. Prudent judges will provide this breakdown a trial.

It is a principle of judicial review that remedies are discretionary. It is only possible to

receive damages in judicial review claims if there is another established cause of action, separate
to the ground for judicial review, such as breach of statutory duty, misfeasance in public office or
a private action in tort.

CASE: Scott v. Shepherd (1773) 2 W Bl. 892.

‘Defendant threw a lighted squib, made of gunpowder, from the street into the marketplace
where large groups of people were assembled. The lighted squib landed near Yates. To prevent
injury to himself and Yates, Willis threw the quid across the marketplace. The squib landed next
to Ryal. To save his own goods from being injured, Ryal picked up the squib and threw it to
another part of the marketplace. The squib then struck Plaintiff in the face.

The combustible matter of the lighted squib injured Plaintiff’s eyes. Plaintiff lost the use of his
eye. Plaintiff sued Defendant for trespass and assault for throwing, casting, and tossing the
lighted squib. The jury returned a verdict in favor of Plaintiff.”6

1. DAMAGES:

●Nominal damages:
Nominal Damages will be awarded where the claimant proves that the defendant has committed
a tort but the claimant has suffered no loss.Contemptuous damages consist of the award of a
derisory sum, usually the smallest coin of the realm of. They are awarded when the court
considers that the claimant’s action, although technically successful, was without merit and

6
3.The Law Teacher Journal.( https://www.lawteacher.net/)

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should not have been brought. The claimant may then be at risk on costs, which are normally
awarded to the successful party.7

●General and special damage:

General damage is the damage that is presumed to flow from torts which are actionable per se,
and so need not be specifically pleaded (e.g., loss of reputation in a libel action). Special damage
refers to the damage that the claimant must plead and prove as part of his cause of action in torts
where damage is the gist of the action (e.g., negligence, nuisance, slander).There is a second and
much more commonly used meaning of the distinction between general damages and special
damages. In practice, losses that are capable of being calculated with reasonable accuracy are
pleaded as ‘special damages’. Inexact or unliquidated losses (although they are not presumed an
therefore must be pleaded) are compensated by an award of ‘general damages’. For example, in a
personal injuries action, accrued expenses such as damaged clothing, medical expenses and
lossof earnings to the date of trial are special damages. Pain and suffering and loss of amenity
(andprospective loss of earnings) are treated as general damages.8

●Aggravated and exemplary:

To award damages court may notice the manner where specific tort is committed and the it may
take its decision. If purpose of committing tort is to harm proper feelings of dignity and pride of
plaintiff, then in such case aggravated damages may be awarded. These damages are given for
purpose of compensating the other party, but they are higher than would normally be the case to
reflect the greater injury to the claimant.While exemplary damages are punitive in nature. The
difference between aggravated damages and exemplary damages is that aggravated damages are
awarded for the conduct that shocks the plaintiff and that’s why this type of damages constitute
real loss, whereas exemplary damages are awarded for the conduct that shocks the court.

7
Dr.R.K.Bangia,Law Of Torts,Pg no-414-415,(Allahabad law Agency,24th-Edition-2017)
8
Legal Bite Journal/https://www.legalbites.in/remedies-in-torts/

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 Case: Rookes v. Barnard [1964] AC 1129,

The House of Lords held that, except where specifically authorised by statute, exemplary
damages should be awarded only in two categories of case:

1. Oppressive, arbitrary or unconstitutional actions by servants of government.

2. where the defendant’s conduct has been calculated by him to make a profit for himself which
may well exceed the compensation payable.9

9
Dr.R.K.Bangia,Law of Torts.Rookes V. Barnard(1964)A.C.1129(1964) 2 W.L.R. 269 (1964) 1 ALL E.R.367.

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Case: In Y.S. Kumar V. Kuldepp Singh,

the respondent, who was excise and taxation officer was hit by the motor cycle, resulting in
physical injuries at the ankle. Because of the injuries he suffered permanent disability which
affected enjoyment of his normal life. He was awarded compensation of Rs.7200 calculated at
Rs. 50p.m. for a period of 12 years on account of physical disability and loss of enjoyment of
normal life.All the damages are assessed in one and the same action because there cannot be
more than one suit for the same cause of action. This rule was laid down in Fitter V. Veal. There
the plaintiff in an action against the defendant for battery recovered a sum of 11 pound.
Subsequently,a bone of his skull had to be removed and the therefore he brought a second suit to
recover compensation for the same.Held,the second action couldn’t lie.However,in two
exceptional cases,successive actions are permitted:

1.Where two distinct rights are violated by the same wrongful act.It can be illustrated by
Brundsen V. Humphery.(where the Court held that;second action could be also maintained
because that was for the violation of a distinct right.)

2.When the tort is a continuing one,successive action is permitted.10

Payment:Originally, the only option open to the courts was lump sum payments at the time of
the judgement.Although there was a point at which certain judges would award extra damages to
account for inflation, this is now not the case. It is assumed that claimants will have the foresight
to invest or save their lump sum in a way which will deal with inflation (via interest rates or
similar).

10
Dr.R.K. Bangia pg no.416-417.Y.S. Kumar V. Kuldip Singh,A.I.R.1972,Punjab&Haryana 326,

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2. Injunctions
An injunction is a declaration by a court that the defendant must behave in a certain manner.
They come in two main forms – prohibitory, in which a claimant is prohibited from doing
something and mandatory, in which the defendant must do something. As well as being either
prohibitory or mandatory, injunctions will be either quia timet, final, or interim.11
Injunctions are a matter of court discretion. Whilst damages are available to claimants in all
eventualities, injunctions are an equitable remedy, and thus whether they are granted depends on
the will of the court. Their use tends to be limited, since they involve essentially overriding the
will of an individual or organisation.
Types of Injunctions:
1. Prohibitive or mandatory.
2. Temporary or perpetual injunctions.

These have been defined the section 37,of Specific Relief Act,1963;1.A temporary injunction is
such as it is to follow/continue the until a specified time,or until further orders of the court. A
perpetual injunction is one by which the defendant is perpetually enjoyed from the assertion of
the right,or from the commission of an act,which could be contrary to thr right of the plantiff. A
temporary or interlocutory injunction is genrally granted before the case heared on merits and it
is only provisional and as, such as, continues until the case heared on merits or any further orders
of court.Where it is, for ex,intended that the property should continue to remain in tts exixting
condition rather than being destroyed or wrongfully disposed of 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 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.12

11
8.R.Ranchhoddas,Law Of Torts pg no-152,(Eng-India)2nd-Edition.
12
9.Ratanlal,Law of Torts-(Eng-India)2nd-Edition.
*Legal Service of India Journal,/ http://www.legalserviceindia.com/legal/article-484-injunction-and-extra-
judicial-remedies-under-tort-law.html

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Further Injunction Subtypes:
Injunctions can also be divided up into three groups, depending on a when tortious event is likely
to occur: quia timet injunctions, final injunctions and interim injunctions.

● Quia timet (‘because he fears’) injunctions are used when the claimant fears a tortuous action
will occur, but it has not yet taken place. that act must be one which will cause significant
irreparable damage to the claimant; and there must be evidence that the defendant will not desist
unless a quia timet injunction is granted.
● Final injunctions are simply those which are granted after a tort has been committed, but where
it is likely that the tort will reoccur.
●Interim (or interlocutory) injunctions apply whilst the tortious activity is ongoing (or else where
there is a high chance of it reoccurring in the near future). By definition, they are temporary.
Their use is particularly restrained, since they are essentially a remedy which is applied before a
case has been properly heard. The criteria for an interim injunction are found in American
Cyanamid v Ethicon [1975] AC 396 where the court laid down a two-part test to be met:

1. The first part of the test involved the claimant showing that the issue at hand was serious
enough to warrant an interim injunction.

2. The second part of the test involves the claimant demonstrating that, on the ‘balance of
convenience’, it would essentially be more sensible for the court to grant the interim injunction.13

3. Specific Restitution of Property

The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property.
Restitution means restoration of goods back to the owner of the goods. When a person is
wrongfully dispossessed of his property or goods, he is entitled to the restoration of his
property.14

13
Fedrick Pollock,Bart;The law of Torts,Steven Sons&ltd,04th-Edition.
14
Avtar Singh: Introduction to the Law of Torts and Consumer Protection,Lexis Nexis(2013)

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Basic Case Laws
1.Chaitanya Singh v. Maharishi Dayanand Saraswati University-

Here the petitioner, who was a student of B.Ed. ,allegedly suffered monetary loss ,mental stress
and strain due to the arbitrary actions of the respondents for which he filed the writ .It was held
that the award of compensation for which the writ was filed could not be claimed directly under
Article 226 of the Constitution of India, particularly when the alternative remedy of a civil suit
was available to a party ,and it should be availed of at the first instance. The appellant having not
succeeded in getting compensation for damages against the university, though having succeeded
for his admission to the B.Ed course and finally succeeded in completing the same, could not be
said to have been put to any monetary loss for which the respondent university could be held
responsible.*

2.Rohini Sharma &othersv.Sakuntala Devi and others-

In this case the trial court granted an ex-parte and ad-interim injunction to plaintiff-appellants but
same was vacated by the first appellate court. Hence, this appeal, whether the trial court was in
error in fact in discharging interim order of injunction. It was held in a suit for declaration of
title, Court has power under Order 39, rules 1 &2 or even under section 151 of CPC, to grant an
ad-interim injunction. The Relief was purely discretionary. Any further belief, such as, perpetual
injunction sought by Plaintiff-Appellant, was dependent upon declaratory decree as prayed by
them. Finally it was held that power restricting transfer and refusing restriction can be exercised
only in manner specified within framework of articles of Association. It was found that the
resolution did not contravene any provisions of law or articles of association. Also it was held
that, Ex parte injunctions could be granted only under exceptional circumstances. It could not be
said that discretion exercised by the Court below was so grossly erroneous as to call for
interference this stage.15

15
11.David k. wolf,The law of Torts,pg no125-140,Lucus Pub,2009-Edition.
*Legal Match Journal,/ https://www.legalmatch.com/law-library/article/remedies-in-tort-law.html

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3.Redland Bricks Ltd v Morris [1970] AC 652-

where the court allowed an appeal against a mandatory injunction because the costs of doing so
were disproportionate. The court identified four criteria which should be satisfied before a
mandatory injunction would be granted:Firstly, there must be a strong possibility of damage
occurring in the future.Secondly, damages must be an insufficient alternative.Thirdly, the
defendants must have behaved unreasonably.Fourthly, the injunction must be capable of
describing exactly what the defendant should do.

4. Denny v. Allen, 18 Mass. 147, 1 Pick. 147 (1822)

In this case it was decided that injunctions could extend beyond the parties to include their
attorneys and counsellors. The general principle to be extracted from the cases in the books is,
that when the devise is to take effect upon a future event, it shall be considered that the
testator had in view all those of the class to which he intended his bounty, who should be
capable .of taking when the event happens ; as in Cowp. 309. Here the testator gives his estate
to his wife during life, then to the children of his brothers and sisters, or, as in the codicil, to
his nephews and nieces. Of the personal estate thus bequeathed, all the nephews and nieces,
who were alive at the time of the death of her who had the life interest, must take in equal
shares. There being forty-one thus entitled, the plaintiff must recover one forty-first part of the

sum in the hands of the trustee . The trustee, having paid over the income, during the life of
the widow, without any deduction, now prayed leave to retain a certain sum for his services
for the whole time that the property has been in his hands. The Court allowed him a
compensation only for the time since the widow’s decease, and his expenses in attending to
this suit. The latter could be enjoined from proceeding at law or enforcing a judgment and they
could be held in contempt of Chancery if they violated the injunction.16

16
Law Teacher/Last Visted on27April,2020 https://www.lawteacher.net/modules/tort-
law/remedies/lecture.php

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CONCLUSION
Any matters in which legal rights are involved remedies are given to the subjects in a society to
ensure justice and peace in that particular state. Remedies are the compensation given to a person
for the loss he has suffered from, it may be awarded to any person in several ways like it may be
ordered by the court, granted by judgement after trial or hearing, by agreement (settlement)
between the person claiming harm and the person who has caused it, and by the automatic
operation of law.The word ‘Injunction' as discussed in the project 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 will not be granted.So basically, an Injunction is a kind of relief or a
remedy provided by the court to the party whose lawful rights are violated. The court directs the
party who is violating the rights of the other party either to stop doing such an act which is
violating the rights of the other party or to commence an act which because of not being done is
violating the rights of the other party. But as said above, the Court has a discretion to grant or not
to grant the injunction and this is where the loophole lies. There can be chances of a bias and the
violating party could continue to violate the rights of the other party and the suffering party could
continue to suffer. So, this is one point where this remedy in the form of an injunction goes
weak. The Court and the Judiciary should take care in order to avoid such biases and continue as
a helping hand to the common people.17

17
Clerk and Lindsell on Torts, Publisher:Sweet & Maxwell; 22nd edition(2017)

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BIBLIOGRAPHY
●Sir Frederick Pollock,THE LAW OF TORTS,Stevens and Sons Limited, Law Publishers and
Booksellers,1895
●Bryan A. Garner, Black's Law Dictionary, West Publishing Co; 7th Revised edition(1999)
●Dr.R.K.Bangia,Law of Torts,Allahabad Law Agency,24th-Edition,2017.
●Ratanlal Ranchhoddas,Law of Torts(Eng-India),2nd-Edition.

●Clerk and Lindsell on Torts, Publisher:Sweet & Maxwell; 22nd edition(2017)

●David k.Wolf,The Law of Torts,Lupus Publication,2009-Edition.

●Fedrick Pollock,Bart;The law of Torts,Steven sons&ltd,04th-Edition.

●Avtar Singh: Introduction to the Law of Torts and Consumer Protection,Lexis Nexis(2013)

●Topper Legal/last visited on 28april2020 https://www.toppr.com/guides/legal-aptitude/law-of-

torts/legal-remedies-in-tort

●LawTeacher/LastVistedon27April,2020https://www.lawteacher.net/modules/tort-
law/remedies/lecture.php

●PleadersLegalJournalshttps://www.legalmatch.com/law-library/article/remedies-in-tort-
law.html

●Legal Bites Law&Beyond/Last Visted on 28April2020, https://www.legalbites.in/

●Legal Service India – Lawyers/http://www.legalserviceindia.com/

●Cornal Law School,Legal Information Site; https://www.law.cornell.edu/wex/tort

●Encyclopaedia Britannica; https://www.britannica.com/topic/tort

●Law101,FundamenralLaw,https://courses.lumenlearning.com/suny-monroe-
law101/chapter/general-law-of-torts/

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