The word tort is of French origin and has been derived from the Latin term
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
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
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
- 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
- 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
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
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.
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
- 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
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
||Tort means the infringement of the private rights of the
||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
||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
||In crime, the remedy is punishment to not only deter
(stop) him but also other potential offenders from committing the crime
||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
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.
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
||In case of Tort, duty is fixed by the law.
||In case of contract, duty is fixed by the
parties between themselves.
||In case of tort, duty is towards persons
||In case of contract, duty is only towards
||In case of tort, motive is a relevant factor.
||In case of a breach of contract, motive is
not a relevant factor.
||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
|In case of contract, compensation is in the
form of liquidated damages.
|Violation of right
||Tort involves the violation of the Right in
||Contract involves violation of the Right in
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
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
|Violation of right
||Tort involves violation of the Right in Rem.
||Quasi Contract involves violation of the Right in
||In case of tort the remedies available are:
- unliquidated damages
- self help
- 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:
- 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
- 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
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.
- Damnum Sine Injuria
- Damnum Sine Injuria/Damnum Absque Injuria
- The term damnum means any harm, loss, damage in the form of money,
- The term sine means without while the term injuria means violation of a
- 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
- 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
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
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
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
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  Lr 23 Qbd 598
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.
Whether the defendant s actions were unlawful and deemed an indictable offence
by way of a conspiracy.
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
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.
- Can Malice disentitle a person from taking course of law?
- Can plaintiff suffer legal injury because of an illegal act?
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.
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
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.
- Can defendants protect their land from flood water?
- Can defendants protect their land from normal rain water?
- Whether any legal injury has been caused to the plaintiff?
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
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
[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.
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
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.
- 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
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