REMEDY IN LAW OF TORT7 min read

BY : Vaani Srivastava

Injunction as a remedy in law of Tort:

An injunction is the type of remedy in which the court provides special orders that compel the other party to do or abstain from doing some specific act.An injunction is an order of the court against a person, which ceases him from doing or not doing any particular act. The court has the discretion to provide injunctive relief or not.

Generally, people ask for the monetary compensation(damages) for the injury they have suffered but, in many cases, the plaintiff asks for the remedy of an Injunction to prevent the occurrence of the harm inthe future.

Illustration:

News channel named APK news takes the interview of Mr.Kabani. Next day, runs news that Mr Kabani and Mrs Chandali has an affair going on. Mr Kabani doesn’t know about it. The news affects Mr Kabani’s reputation and he files a case of defamation against the news channel and also demands the injunction i.e. the order of the court against the news channel asking news channel to stop repeating the news regularly on their channel. Now the discretion to provide injunction or not is completely based on the court.    

And if court passes the order of any person but if that person fails to comply with the court orders then he is liable for the contempt of court.

Types of Injunctions:

1)  Prohibitory Injunction:

  It means to restrict/ prohibit a person from doing a continuous act, which is against the plaintiff in his course of ordinary enjoyment of land or other property. The maxim Status quo ante has been followed i.e., to make whole again someone whose rights have been violated. In simple terms it means that, where an order of a court restrain, a person from doing, continuing or repeating a wrongful act, it is prohibitory injunction.

Illustration

If A continuously enters B’s property i.e. trespassing in B’s property, B can approach the court and ask for prohibitory injunction i.e. restricting/prohibiting A to enter in his property.

2) Mandatory Injunction:

A mandatory injunction is given by the court in very rare cases. Under this injunction, the court mandate or direct someone to do the act, i.e. if done any act to undo that act, or if any act not done which he has to do, the court can ask the person/corporation to do that act. i.e. when an order of a court enjoins any person to do some positive act which will put an end to a wrongful state of things created by him, or which  will discharge his legal obligation.

Illustration

If A falsely possessed the goods of B. B can ask for a mandatory injunction and court can direct A to give the property of B to B i.e. direct someone to do an act.

3) Temporary Injunction:

Temporary Injunction means the order of injunction by the court for a specified time i.e., until the next order of the court. Basically, a temporary injunction is granted in the early stage of any suit. It is also known as interim injunction which means it is issued only for a specified period, until the suit is finally disposed off by the court.

Illustration

A and B are involved in a dispute related to the possession of a car. If the suit in the court is still running and B regularly commits the tort by entering in the car without the permission. A can ask the court for a temporary injunction against B and restrict him from doing that act again but only up to the day of judgement and after the court gives its judgement both the party will be bound by that judgement.    

4) Permanent Injunction:

The permanent injunction is one of that injunction which ultimately disposes of the injunction suit.

Illustration

If A after getting fired from his job threat the plaintiff that, he will disclose all the confidential information of the plaintiff company to others. The plaintiff approached the court and demand the permanent injunction as to restrict A from doing such act i.e. even in the future A cannot disclose the information. 

When is injunction Refused?

1) An injunction cannot be issued to restrict any person from prosecuting a judicial proceeding.

2)  A files a suit requesting the court to pass an order of injunction against B for restricting him from prosecuting in a judicial proceeding. That order cannot be passed.An  Injunction cannot be issued to restrict any person from applying to any legislative body.

3)  An injunction cannot be issued to restrict any person from prosecuting in a criminal matter.

4) The Court will refuse injunction to the plaintiff who has no personal interest in the matter.

Specific Restitution:

The restitution is 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.

In English Law there are three forms of action are real, personal and mixed.

  • Real Actions: In real actions, the plaintiff claims rights to recover lands, tenements and hereditaments.
  • Personal Actions: In personal actions, the plaintiff claims a debt, or sought to recover a chattel, or claims damages for injury done to this person or property. Personal actions are debt, covenant, assumpit, trespass, detinue and trover.
  • Mixed Actions: These actions partake the nature of both.
  • Constitutional Remedies:

It has been held about the writ jurisdiction of the Supreme court and of the High Court under the constitution that it is not merely preventive but also remedial and includes a power to award interim and final compensation in appropriate cases. Lest may start a trend of going in for writ jurisdiction instead of civil suit, such compensation is restricted to cases involving infringement of fundamental rights in gross and patent manner in which a number of persons are victim or the individual would suffer a lot because of his inability to undertake litigation. A writ may be allowed to be instituted for this purpose by any person other than sufferer or a class of sufferers.

When the right  to live with dignity under Article 21 of the constitution of India of four injured female victims was violated by throwing acid on their faces, the state was held liable to provide free legal aid and compensation to the victims even though the crime was committed by a private person. It was held that the writ petition would be proper remedy and party could not be relegated to file civil suit for compensation[1].

Expulsion of trespasser:

A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are:

  • The person should be entitled to immediate possession of his property.
  • The force used by the owner should be reasonable according to the circumstances.

Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and re-enter himself.

  • Re-entry on Land: In this case, the owner of a property can remove the trespasser and re-enter his property by using a reasonable amount of force.
  • Re-Caption: A person is entitle to the immediate possession of chattels i.e. movables may recover them from any person who has them in his actual possession and detain them, provided that such possession was wrongful in its inception.
  • Self – Defence:It is lawful for a man to defend his person or property and to use reasonable force towards another for the purpose.
  • Abatement: In case of a nuisance, be it private or public, a person (the injured party) can remove the object causing nuisance.
  • Distress damage feasent: Lastly, distress damage feasant. In this case, a person’s cattle/other beasts move to another’s property and his crops are spoiled. The owner of the property is entitled to take possession of the beasts until he is compensated for the loss suffered by him. However, it is doubtful  if the right to distress damage feasent can be said to exist in India under the general law. However, there are express enactments which may allow such distress example. the Cattle Trespass Act, 1871.

[1]Ramjan v. State of Rajasthan AIR 2008 (NOC) 2168 (RAJ)

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