• Lex Specialis

Extra-Judicial Remedies under the Law of Torts

Ritwik Tyagi


Introduction


The ultimate objective of providing remedies to an aggrieved party is to restore him/her to such a position of enjoyment as he/she was in prior to the commitment of the tortious act. In the usual course, an aggrieved party can be served with various remedies through the judicial route, such as compensation or damages, specific restitution, injunction, etc. However, there also exist certain extra-judicial methods to which the aggrieved party can take recourse for remedying the wrong suffered by him/her without requiring a court to intervene in the matter.


While judicial remedies are obtained by approaching the forum of the court, extra-judicial remedies, as the name suggests, are ways of restoring the injured party to their previous position of enjoyment by resorting to means which are outside the scope of action of courts. These remedies are forms of lawful self-redressal of the tortious issue without having to knock on the doors of the court. There are several forms of extra-judicial remedies, such as the following - Expulsion of Trespasser, Re-Entry on Land, Recapture of Goods, Distress Damage Feasant and Removal of Nuisance. Let us consider these forms in detail in the subsequent section.


1. Expulsion of Trespasser

Quite simply, this remedy implies that in case of trespass, the aggrieved persons can themselves take necessary action to expel the trespasser from their property. However, it must be kept in mind that the amount of force used by the injured party to expel the trespasser should be reasonable to the circumstances of the case and in proportion with what force is actually required to evict the trespasser. For instance, if the trespasser refuses to leave or vacate a premise, then the owner can use force to remove the trespasser from the property.


2. Re-Entry on Land

Similar to the previous remedy, this allows the aggrieved party to use reasonable force to evict the trespasser and re-enter their land. An essential prerequisite to the lawfulness of this remedy is that the aggrieved party must have been wrongfully removed from their land and therefore, bear the right to immediate possession of the property.


3. Recapture of Goods

By the use of this remedy, an aggrieved person can, with the use of a reasonable amount of force, recover or recapture his/her own goods which had been wrongfully taken away by the tortfeasor, and in whose unlawful possession those goods now lie. The use of a proportionate amount of force in order to recapture such goods would not, in general, attract any civil or penal action in a court, thus giving an aggrieved person sufficient leeway to adopt this remedy.


4. Distress Damage Feasant

This remedy is centred around an interesting scenario where the aggrieved party finds cattle belonging to another person spoiling crops or other property on his/her land. In such circumstances, the aggrieved person is entitled to detain the cattle until their owner provides adequate compensation for the losses suffered. However, if the cattle in question manages to escape the detention, the aggrieved person is not entitled to recapture it. While the term distress is usually used to refer to cattle, it is not limited in scope and can be extended to include any sort of chattel.


5. Removal of Nuisance

Also referred to as abatement of nuisance, this remedy provides an aggrieved person the right to remove the source of nuisance that is causing damage to him/her. A rather contentious remedy, the scope of actions that can be taken by an aggrieved person to remove the nuisance is very unclear. For instance, it is difficult to say whether it is lawful for a person to enter another’s property to remove any nuisance. Also, it is rather onerous to decide what would constitute a nuisance, since what seems like noise to one person may be music to the ears of another.


Conclusion


Broadly speaking, these are the five extra-judicial remedies that an aggrieved person can take recourse to for the purpose of restoring his/her earlier position of enjoyment, without having to go through the judicial machinery. A common thread between all of these remedies is that the use of force must be reasonable to the cause. Thus, an aggrieved party can successfully redress the tortious act by lawfully adopting these remedies against the tortfeasor.


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