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Law Of Torts

Https://legalserviceindia.com/legal/admincp/edit_article.php?id=7834 The word tort is of French origin and has been derived from the Latin term Tortem which means to twist. This tort implies a conduct which is not lawful but twisted, crooked or unlawful.
The word tort denotes civil wrong which is not breach of contract or breach of any other obligation.

Tort arises from the English term wrong or the Roman term delict.

The term tort denotes includes cases in which compensation is demanded or claimed by the injured party from the wrong doer.

Tort involves situations in which there is a breach of duty fixed by the law and such duty fixed by the law and such duty is not fixed by the parties between themselves.

Definitions By Jurists
Different jurists have given different definition of torts. However there has been no particular scientific definition of tort which includes all the aspects of tort.

The different definitions given by various jurists are as follows:
  • The statute itself, S. 2(m) of the Limitation Act, 1963
  • According to Salmond, The term tort is a civil wrong for which the only remedy is common law action for unliquidated damages and which is not exclusively a breach of contract or a breach of trust or any other equitable obligation.
  • According to Fraser, The term tort is an infringement of Right in Rem of a private individual giving an option of finding a suit against the wrongdoer.
  • According to Winfield, The term tort means a breach of duty fixed law and these duties are towards persons generally.
  • According to Pollock, The term tort covers various species of wrongs which have common features amongst them and they are redress able by common legal proceedings.

Analysis Of Winfield S Definition

According to Winfield, tort involves a breach of duty primarily fixed by the law. This duty is towards persons generally and it is redressible by common law action for un-liquidated damages.

If we analyze Winfield s definition, we see that:
  • It means that Tort is a breach of duty which is fixed by the law and it is not fixed by the individuals among themselves. This definition lacks the aspect of vicarious liability which means the master s liability for the torts committed by its servant. For example, if an owner sends his servant to receive the guests at station and the driver accidentally injures a pedestrian then in such a case, the owner will be held vicariously liable for the tort committed by his servant.
  • It states that tort is redressible by common law action for un-liquidated damages.

Damages may be liquidated damages which are those damages that are pre-determinant between the parties that is the parties already had decided the amount which is payable on breach by party. Un-liquidated damages are those damages which are not yet decided by the parties and are left to discretion by the parties and are left to discretion of the courts.
  • This definition ignores the aspect of forming alternate remedies which could be avoided.
  • Injunction is a preventive remedy in which a person attains a written order from the court is that such wrong can be prevented from happening again and again.
  • Restoration means the return of the property belonging to a person which he is dispossessed from.
  • Self-help is an extra judicial remedy in which without opting for the process of court a person can remedy the wrong done to him.

    For example, in case of trespass, the appropriate remedy is not compensation or injunction but the remedy of self-help that is by using reasonable or necessary force as per the facts and circumstances of the case.

Comprehensive Definition

Tort is a civil wrong which results in violation of the private rights of the individual (private rights include right to his own body, right to property, and right to protect his reputation) and which is redressible by:
  • Un-Liquidated Damages
  • Self-Help
  • Injunction
  • Restitution Of Property

Nature And Development Of Term Tort

  • The term tort was used for the first time by the British East India Company and officially it was used in India in the eighteenth century.
  • In the eleventh century, England was conquered by the France or French people as a result of whom many of the terms used in English Legal System are of French origin.
    For example, the terms like contract, court, judge, legal money, and debt are of French origin.
  • In the eighteenth century, the first British courts were established in the presidency town of Bombay, Calcutta and Madras called as the Mayor s Court which was introduced for the first time in India, the English Law of Torts suitable to the Indian circumstances applicable at that time.
  • There is very less tort litigation in India because first of all there is no statute of law of torts and most of tort is based upon judicial decisions.
    Other reasons include:
    • Lack of awareness of one s own rights
    • Very casual attitude of the Court towards these wrongs
    • The spirit of toleration

Now The Question Arises Whether This Branch Of Law Is Law Of Tort Or Law Of Torts

  • According to Winfield and Pollock, it is law of tort. According to them, every unjustifiable harm is a tort and whatever is left for which no remedy is available can be covered under this breach of law of tort. It is for this reason that Winfield s book is called, Law of Tort.
  • According to Salmond, it is law of torts. The reason is that, according to him, the branch of law of torts consists of a specific or definite number of wrongs for which the remedy is available.
  • Therefore, the branch of law of torts consist of specific or fixed number of wrongs and in case a person suffers from some harm and appears before the court and can fit that wrong is a particular specified category then the remedy is available for him.
  • Salmond's point of view is very narrow as if a person is unable to specify the category under which the harm done then he cannot claim any remedy under the Law of Torts.
  • Salmond's book is also called Law of Torts.

Difference Between Tort And Crime

Head Tort Crime
Definition Tort means the infringement of the private rights of the individual. Crime means breach or violation of public rights and duties which are due towards the whole community.
Who will file the case? In case of tort, intention is not an important factor. In crime, state files criminal proceedings against the accused.
Codification In case of tort, the individual that is plaintiff files a civil suit against the wrongdoer. However criminal law is codified- divided into sections and sequentially numbered.
Remedy which is available Tort law is not codified but based upon Judicial decisions. In crime, the remedy is punishment to not only deter (stop) him but also other potential offenders from committing the crime again.
Intention In tort, remedy of compensation is available to the injured party so that the loss incurred by him can be compensated to make good the loss suffered by him. In crime, intention is a very relevant factor in determining punishment.
 
It may be that the same wrongful act may be that the same wrongful act may be both crime as well as tort. So, in such cases both the remedies of compensation as well as punishment are available.

For example: A digs a ditch on the public road resulting in inconvenience to the public. In such case he has committed the offence of public nuisance, punishable under section 268 of Indian Penal Code. Now suppose B falls into that ditch and suffers injuries. Now in this case, B falls into that ditch and suffers injuries. Now in this case, B can claim compensation from A additionally for the tort of private nuisance.

Difference Between Tort And Contract

Head Tort Contract
Duty fixed In case of Tort, duty is fixed by the law. In case of contract, duty is fixed by the parties between themselves.
Duty towards In case of tort, duty is towards persons generally. In case of contract, duty is only towards specific individuals.
Motive In case of tort, motive is a relevant factor. In case of a breach of contract, motive is not a relevant factor.
Compensation In case of tort, compensation is in the form of unliquidated damages.
The reason is that first the parties are not known to each other and it is very difficult to visualize the situation in which the amount of compensation beforehand.
In case of contract, compensation is in the form of liquidated damages.
Violation of right Tort involves the violation of the Right in rem. Contract involves violation of the Right in Personam.

Difference Between Tort And Quasi Contract

Quasi Contract is based upon the principle of unjust enrichment which means making undue benefit to which a person is not entitled to at the cost of the other party.
For example, if A leaves his goods at B s house by mistake and B uses them as his own goods then B must pay compensation to A as a quasi-contractual obligation.

Head

Tort Quasi Contract
Violation of right Tort involves violation of the Right in Rem. Quasi Contract involves violation of the Right in Personam.
Remedies available In case of tort the remedies available are:
  • unliquidated damages
  • self help
  • injunction
  • restitution of property
In case of Quasi Contract only remedy available is damage or compensation.

Ingredients Of Tortious Liability

The 2 ingredients of tortious liability are:
  1. Injuria Sine Damnum
    • The term injuria sine damnum means violation of a legal right.
    • The term sine means without. The term damnum or damno means any harm, loss or damage of money, health, comfort howsoever substantial such harm, loss or damage may be.
    • Thus, the legal maxim means whenever there is violation or infringement or breach of legal right then the same is actionable in a court of law irrespective of the fact whether any harm, loss or damage has been suffered or not.
    • The real test to find liability under law of torts is to see whether a person s legal right has been violated or not and suffering of any harm, loss or damage is not important.
    • This maxim covers the Torts which are Actionable per se. for example, the tort of trespass which gets completed from the moment a person enters into another person s premises unauthorized or without permission. Thus, in such cases, the actual loss, harm or damage need not be proved.

    Ashby V White (1703) Kb

    Mr. Matthew Ashby, a cobbler, turned up to cast his vote for the British Parliament in December 1701. Ashby was turned away by William White, a constable, on the grounds that he was no settled inhabitant of the borough, and had never contributed either to church or poor. In spite of this, his candidate won the election and no harm was caused to him. The defendant contended that since Ashby had suffered no loss as his candidate had won the election, he was not liable.

    Lord Holt C.J. upheld Ashby s, submissions arguing that what was at issue was a most transcendent thing, and of a high nature. Finally it was held that the defendant (White) by preventing Plaintiff (Ashby) from voting violated Ashby s legal right and was entitled to damages. Lord Holt C.J. observed, Every injury imports damage, though it does not cost the party one farthing and it is impossible to prove the contrary; for damage is not merely pecuniary but injury imports damage, when a person is thereby hindered of his right.

    As in an action for slanderous words though a man does not lose a penny by the reason of speaking of them, yet he shall have an action. So, if a man gives another a cuff on his ear, though it costs him nothing, not so much as a little diachylon (plaster), yet he shall have his action. So, a man shall have an action against another for riding over his ground, though it does him no damage, for it is an invasion of his property and the other has no right to come there.

    Bhim Singh V State Of Jammu And Kashmir (1986) Sc

    On August 17, 1985 Bhim Singh was suspended from the opening of the budget session of the Jammu and Kashmir Legislative Assembly that was scheduled for September 11. He subsequently challenged the suspension in the Jammu and Kashmir High Court. After his suspension was stayed by High Court on September 9, Bhim Singh left Jammu for Srinagar to attend the Legislative Assembly session. On route at 3:00 am on September 10, he was intercepted by the police. He was taken away by the police and kept prisoner at an undisclosed location. After attempts to locate him proved futile his wife and advocate, Jayamala, then moved the court to locate Bhim Singh.

    The court found that Bhim Singh was not produced before the magistrate nor sub judge who issued the police orders of remand and that the police obtained the orders in surreptitious circumstances at the residence of the magistrate and after hours from the sub judge. The Supreme Court criticized the conduct of the magistrate and sub judge stating that they had no concern for the subject out of either casual behavior or worse that they had potentially colluded with the police who had deliberately acted mala fide.

    The court ruled that there "certainly was a gross violation of Bhim Singh's constitutional rights" and condemned the authoritarian acts of the police. The judges stated that the police were but minions and that they were in no doubt that the top levels of the government of Jammu and Kashmir were ultimately responsible.

    The Supreme Court in a landmark judgment that impacted tort law in India awarded Bhim Singh a compensation of fifty thousand rupees for his illegal detention and false imprisonment by the police.

    Marzetti V Williams Bank (1890) Kb

    Plaintiff submitted a cheque the defendant s bank. However, the bank wrongfully refused to honor or accept the plaintiff s or customer s cheque. The customer had sufficient funds in the bank account and such wrongful refusal violates the legal right of the customer therefore the court considered appropriate that customer be awarded compensation for the same despite the fact no actual loss has been suffered.

    Morningstar V Lafayette Hotel Co. (1914) Ny

    Plaintiff was a customer at defendant s hotel and did not like the food being served there.
    So, he purchased raw food from outside and gave it to the hotel chef to be prepared and sent to his room.
    The food was prepared, sent to his room and was accompanied by a bill which the customer refused to pay.
    Next morning when the customer went for breakfast, he was publicly told that he won t be served breakfast or any food from now.

    Thus, plaintiff filed a case for:
    • wrongful refusal of service
    • public insult
    • hurting his feelings

    Held:
    The court held that the plaintiff s legal right being violated therefore he deserved compensation for the same.

    Ashrafilal V. Municipal Corporation Of Agra:

    In this case, the plaintiff (Ashrafilal) s name was deleted and dropped from the voter list by the concerned authorities (election officials), as a consequence of which the plaintiff was not able to exercise his right to vote. Plaintiff sued the Municipal Corporation of Agra, holding it responsible for the violation of his fundamental right. Municipal Corporation of Agra was held liable by the court as the plaintiff s legal right (right to vote i.e. a fundamental right) was violated and compensation was granted to plaintiff.
     
  2. Damnum Sine Injuria
    • Damnum Sine Injuria/Damnum Absque Injuria
    • The term damnum means any harm, loss, damage in the form of money, health, comfort.
    • The term sine means without while the term injuria means violation of a legal right.
    • Therefore, this maxim means that whenever loss is caused to a person without a violation of his legal right then the same is not actionable in a court of law irrespective of the fact that the harm caused is quite substantial.
    • This maxim covers cases in which loss is caused to one person due to the legal or lawful exercise of rights by another person.
    • This maxim also covers cases where a person does something intentionally within his legal right and causes damages to another and still escapes liability.


Gloucester V Grammar School Case (1410) Kb

Defendant was school teacher in plaintiff's school. Because of some dispute defendant left plaintiff's school and started his own school. As defendant was very famous amongst students or his teaching, boys from plaintiff s school left and joined to defendant s school. Plaintiff sued the defendant for monetary loss caused. It was held that defendant was not liable.

Compensation is no ground of action even though monetary loss is caused if no legal right is violated of anybody. The defendant had lawfully setup his school and did not violate any legal right of the plaintiff in doing so. The plaintiff had, no doubt, suffered considerable damages because of the increased competition (resulting out of the plaintiff s act to set up a new school) but none of his legal right was infringed by the defendant and hence, the defendant cannot be held liable just because the plaintiff suffered monetary losses.

Day V. Browning (1878) 10 Ch D 294: 39 Lt 553:

The plaintiff s house was called Ashford Lodge. for sixty (60) years. The adjoining house belonged to the defendant and was named Ashford Villa. for forty (40) years. The defendant altered the name of his house to that of the plaintiff s house. The plaintiff alleged that the act of defendant had caused him a great deal of inconvenience and annoyance. The plaintiff further said that the material value of his property had been diminished because of the plaintiff s act to rename his house and name it like that of the defendant. It was ruled that the defendant was not liable as he had not violated any right of the plaintiff.

Butt V. Imperial Gas Co. (1878) Lr 2 Ch App 158:

The plaintiff (Butt) carried on his business in a shop which had a board to indicate the materials in which he dealt. The defendant (Imperial Gas Company), by the virtue of its statutory authority, erected a gasometer outside the plaintiff s shop. And, the gasometer was erected and put up in such a way that it obstructed the view of the plaintiff s premises.

The plaintiff brought an action to restrain, by injunction, the erection of gasometer. The plaintiff contended that the actions of the Imperial gas Co. had led him to suffer legal damage and he was entitled to the injunction. It was ruled that injunction cannot be granted for the injury complained of by the plaintiff.

Vishnu Dutt Sharma V. Board Of High School And Intermediate Examination Air 1981 All 46:

The plaintiff (Vishnu Dutt Sharma) was a student who was wrongfully detained by the Principal, on the basis of misconstruction of the relevant regulations, on the account of shortage of attendance. The plaintiff filed a suit and argued that he was entitled to damages as he had suffered loss of one year. But the court ruled that the plaintiff cannot claim compensation as misconstruction of regulations does not amount to a tort.

Quinn V Leathem (1901) Ac 495, 539:70 Ljps 6;

It was ruled that competition was no ground for action whatever damage it may cause, provided nobody s legal rights are infringed. This judgment is the guiding principle for the cases related to losses suffered by the plaintiff due to increased competition because of the defendant s act(s).

Chasemore V Richards (1859) 7 Hlc 349:

Plaintiff (a landowner as well as mill owner) was running a mill on his own land and for this purpose he was using the water of the stream for a long time (about six years). The defendant dug an extensive well in his own land with the aim of supplying water to the inhabitants of district. Consequently, thereby, the defendant s actions cut off the underground water supply of stream because percolation the water resulted in gathering of the water in the well of the defendant.

The quantity of water of stream was reduced and the mill was closed for non-availability of water as the mill owner was not able to get the required amount of water (from his own well). Plaintiff sued deft for damage. It was ruled that defendant was not liable because of principle of damnum sine injuria. The defendant s actions did not result violation of any legal right of the plaintiff, although the plaintiff suffered actual loss in money.

The defendant s actions were lawful as he was entitled to use his land in whichever way he wanted and he did not infringe any right of the plaintiff.

Mogul Steamship Co Ltd V Mcgregor, Gow & Co [1889] Lr 23 Qbd 598

Facts:
The plaintiffs were independent ship-owners who sent their ships to the cargo port to obtain cargo. An association (the defendants), also in the business of owning cargo ships, sent more ships down to the port and reduced their freights so low that the plaintiffs were unable to make a profit. They further threatened to dismiss any agents who loaded the plaintiff s ships. The plaintiff brought action alleging a conspiracy to injury and requested damages.

Issues:
Whether the defendant s actions were unlawful and deemed an indictable offence by way of a conspiracy.

Held:
The defendants had acted in an effort to protect their own profits and trade which was considered to be a lawful objective. No unlawful acts had taken place to warrant any wrongdoing, so therefore the plaintiffs had no cause of action. To prove that a conspiracy constituting an indictable offence occurred, a matter contrary to law would have to be shown to have occurred.

Lord Halsbury found it impossible to suggest that there had been any malicious intention to injure rival traders, except in the sense that they intended their competitors to withdraw from trade. The defendant s actions were therefore considered to be actions taken to support their own business interests. Further, unlawful acts would have to involve obstruction, violence, interference or molestation to meet the definition. None of those occurred. The appeal was upheld and no cause of action was available for the plaintiffs.

Town Area Committee V. Prabhu Dayal Air 1975 All 132

Facts:
Plaintiff s case was that he had made construction of 16 shops on the old foundations of the building and the defendant Town Area Committee illegally demolished these constructions. According to him the notice under Section 186 of the U.P. Municipal Act was bad as it gave to the plaintiff only two hours time to demolish the constructions and not a reasonable time as contemplated in Section 302 of the Act. It was also asserted that demolition, after this notice was bad as the notice was served at a time when the plaintiff was out of station. The action was said to be mala fide.

The plea of the defendant was that the constructions had been made by the plaintiff without giving the notice of intention to erect the building under Section 178 and without obtaining necessary sanction under Section 180 of the Act. It was asserted that the notice to demolish the constructions had been given earlier on 18th December requiring the stoppage of further constructions and removal of constructions already made and when it was not complied with an order had been passed by the District Magistrate directing the Town Area Committee to take action under Section 186. Thereafter another notice was given on December 21, which also was not complied with and only then the building was demolished in accordance with law.

Issue:
  1. Can Malice disentitle a person from taking course of law?
  2. Can plaintiff suffer legal injury because of an illegal act?

Legal Reasoning:
HARI SWARUP, J. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice does not enter the scene at all. A legal act, though motivated by malice, will not make the actor liable to pay damages. Mere malice cannot disentitle a person from taking recourse to law for getting the wrong undone. Law does not take into account all harms suffered by a person which caused no legal injury. Damage so done is called damnum sine injuria. Such damage does not give the sufferer any right to get compensation.

Decision:
HARI SWARUP, J. There is no merit in the contention of the learned counsel that the plaintiff had suffered injuria by the act of the demolition of the building because he had a fundamental right to hold and enjoy the property even though it was constructed without prior sanction from Municipal authorities. There is no right to enjoy property not legally obtained or constructed. A person has been given by law a right to construct a building, but that right is restricted by various enactments, one of which is the U.P. Municipalities Act.

If a person constructs a building illegally, the demolition of such building by the municipal authorities would not amount to causing injuria to the owner of the property. No person has the right to enjoy the fruits of an act which is an offence under law. As the plaintiff has failed to prove that he had suffered injuria in the legal sense, he is not entitled to get any compensation.

P.Seetharamayya V. G. Mahalakshmamma Air 1958 Ap 103

Facts: The parties to the appeals are owners of adjacent lands. The fifth defendant had constructed a bund on her land to preserve part of it from damage by flow of water through a breach in the embankment of the vagu. Defendants Nos.1 to 4 dug a trench to ward off water entering into their plot. These defendants further constructed another bund to the north of their and as additional safeguard.

The appellants case is that the fifth defendant on account of bitter enmity between her and the other defendants, put up bunds in her plot, and defendants Nos. 1 to 4 dug the trench as well as put up a bund to the north and the west of their plots; that thereby rain water falling on their plot flowed into appellants plot, completely washing variga and groundnut crops raised therein; and that the appellants twice put up bunds along a length of 150 feet to the west of their plot to prevent the flow of rain water, but each time the bunds were washed away.

The appellant asked for mandatory injunction to demolish the bunds and to fill in the trench on the defendants land, for permanent injunction against these defendants against putting up bunds or digging a trench, and for damages for the loss caused by flow of water.

Issue:
  1. Can defendants protect their land from flood water?
  2. Can defendants protect their land from normal rain water?
  3. Whether any legal injury has been caused to the plaintiff?

Legal reasoning:
MOHAMMED AHMED ANSARI, J. The leading case on the point is Nield v. N.W. Rly, (1874) 10 Ex. 4, in which a flood had occurred in a canal from the bursting of the banks of an adjoining river, and the defendants, the canal company, placed a barricade across the canal above their premises, and thereby flooded the plaintiff s premises. It was held that they were not liable for the damages.

Lord Bramwell, B says:
The flood is a common enemy against which every man has a right to defend himself, and it would be mischievous if the law were otherwise, for a man must then stand by and see his property destroyed, out of fear lest dome neighbor might say you have caused me an injury. The law allows, I may say, a kind of reasonable selfishness in such matters; it says Let everyone look out for himself, and protect his own interest, and he who puts up a barricade against a flood is entitled to say to his neighbor who complaints of it why did not you do the same?

Gerrard V Crowe, [Air 190 Pc 111].

The parties to the case owned lands upon opposite sides of a river, which in flood, rose higher than its banks, and some of the flood water used to flow over the respondents land, ultimately finding its way back to the river. The respondents erected an embankment from a point on their lands about half a mile from the river diagonally to its bank, with the object of protecting their land behind the embankment, and the water-flow over the appellant s land in time of heavy floods was thereby increased.

The appellant sued the respondents for damages and an injunction. The Privy Council held that the action could not be maintained, and Viscount Cave observed: The general rule as the right of an owner of the land on or near a river to protect him from flood is well settled.

In Farquharson v. Farquharson [1741 Mor 1277], the rule was stated as follows: It was found lawful for one to build a fence upon his own ground by the side of a river to prevent damage to his own ground by the overflow of the river, though thereby a damage should happen to his neighbor by throwing the whole overflow in the time of flood upon his ground; but it was found not lawful to use any operation in the alveus.

These authorities have been followed in this country as laying down the correct proposition of law, and the earliest of such cases is Gopal Reddi v Chenna Reddi [ILR 18 Mad 158]. The defendants of the case were owners of land on the banks of a jungle stream and had raised embankments which prevented their lands from being flooded, but caused the stream to overflow the land of the plaintiff situated lower down the stream. It appears that it was not reasonably practicable for the defendants to protect their lands from inundation by any other means than those adopted. A division Bench held that no actionable wrong had been committed and the suit was not, therefore, maintainable.

Shephard J. says: There is a great distinction between protecting oneself from an apprehended danger and getting rid of the consequences of an injury which has actually occurred. The distinction was clearly marked in Whalley v. Lancashire and Yorkshire Ry. Co. [(1884) 13 QBD 131], where it was held that the defendants were liable because, a misfortune has happened they had transferred it from their own land to that of the plaintiffs.

Sheikh Hussain Sahib V. Subbayya [Air 1926 Mad. 449]

The Full Bench of the Madras High Court in has held that an owner of the land on a lower level, to which surface water from the adjacent land on a higher level naturally flows, is not entitled to deal with his land so as to obstruct the flow of water from higher land.

The right to protection against flood water should not be confused with the customary right of an agriculturist in this country.

Kasia Pillai V. Kumaraswami Pillai [Air 1929mad 337]

Facts: An agriculturist has been held entitled to drain off into the neighboring lower lands water brought into his land for agricultural operations. Madhavan Nair, J. has observed in the aforesaid case: It appears to us that in India, the right of an agriculturist to drain off into the lower lands the water brought into his land for ordinary agricultural operations is a customary right. He is entitled to do so by custom; otherwise, it will be impossible to carry out agricultural operations successfully.

Decision: MOHAMMED AHMED ANSARI, J. Had the damages been caused by normal rain water having been forced towards the appellants land, one would expect the loss to be annual, but there is no such evidence. The right to protect the land from flood is ceded to the landholder; the owner should further enjoy the power of reasonably selecting how to protect the land. There is no evidence in the case that the fifth defendant in putting the bunds has negligently chosen the means of protecting her land. Therefore, this is a case of damnum sine injuria, and the plaintiff must adopt their own protective measures against the flood water.

Nuisance

The word nuisance is a French word and conveys the generic idea of harm as the word tort conveys. But it has a special meaning in English law. It has civil as well as criminal aspects. As a criminal wrong, common or public nuisance was punishable from early times. As civil redress the assize of nuisance and an action on the case for nuisance were available to people as a general remedy for different kinds of injuries when no other suitable remedy was available. Nuisance, according to Winfield, is an unlawful interference with one's use or enjoyment of land or of some right over or in connection with it.

Examples of nuisance are disturbing noise, bad smelling fumes, polluting water, overhanging trees, vibrations, sparks, etc. Whether there is in fact nuisance or not has to be judged from the point of view of time, place, and other circumstances.

Malice, as an improper motive, cannot turn a lawful act into an unlawful one. But the doing of something which may, on the very face of it, be treated as nuisance for it endangers or disturbs normal conditions of social living, that is, where it violates the principle of live and let live may amount to malice.

Nuisance is of two kinds: Public Nuisance and Private Nuisance.
Public nuisance dealt by criminal law is not actionable in tort unless the damage suffered by the plaintiff is a "particular damage other than and beyond the general inconvenience and injury suffered by the public."

Private nuisance is a wrong against a private person exclusively. The action of nuisance being a wrong to property as well as to person is available only to the occupier of the property. Further, nuisance must not be momentary but must continue for some time and there must be some give and take in the affairs of life; hence an accidental injury is not nuisance.

Nuisance basically is an interference with the comfort of occupiers of land but every interference is not actionable nuisance if the conduct of the defendant is not unreasonable. Some minor discomforts which are parts of the social life in crowded cities, have to be endured, and looking to circumstances of time, place and persons they may not be regarded as nuisance by courts. When personal discomfort is caused by the conduct of the defendant court can afford to take a lenient view of the matter, but if loss to property is caused by the conduct of the defendant, the court is not likely to take a lenient view.

Written By:
  1. Gurmeet Singh, Advocate, For M/S Gurmeet Singh & Associates, Advocates and Legal Consultants,
    Website: www.gurmeetsinghandassociates.com /.in, Email: [email protected], Ph No:+91 8750002000
  2. Sh.Ishan Harlalka,
  3. Adv.Vidushi Jain,
  4. Adv. Hritwik.
  5. Adv.Aman Sharma,
  6. Sh. Aman Karamvir,
  7. Adv. Tripti Rajput,
  8. Ms.Divya Kaushal,
  9. Adv.Alpana Yadav

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