Extra-Judicial Remedies
Chapter Sixty-Eight
Syllabus topic 3.4, "Judicial and Extra Judicial Remedies."
Pages 275 to 278 of 434
In one line
In some situations the law allows a person to put a wrong right himself, without going to court, provided he uses no more force than is necessary.
In the wording a student can write in an exam: the extra-judicial remedies, also called remedies by the act of the party or self-help, are self-defence, expulsion of a trespasser, re-entry on land, recaption of goods, abatement of a nuisance, and distress damage feasant; each is available only within narrow limits, each requires that no more force be used than is reasonably necessary, and a person who exceeds those limits commits a tort himself.
1. Self-defence
A person may use reasonable force to defend his own body, the body of another, and property in his possession against an unlawful attack. Chapter [General Defences II] works out the conditions, and the penal law states the same right in sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023: nothing is an offence which is done in the exercise of the right of private defence, and every person has a right, subject to the restrictions in section 37, to defend his own body and the body of any other person against any offence affecting the human body, and property, whether movable or immovable, of himself or of any other person.
The limits. The force must be necessary and proportionate, it must be used while the danger continues, and property may never be defended by force intended to cause death.
2. Expulsion of a trespasser
An occupier may request a trespasser to leave and, after giving him a reasonable opportunity to go, may put him out using no more force than is reasonably necessary.
The limits. The request comes first, except where the entry was violent; the force must be reasonable; and a person who entered lawfully must be given a reasonable time to leave before he is treated as a trespasser at all.
3. Re-entry on land
A person entitled to possession may enter and retake the land, using no more force than is reasonably necessary.
This is the most dangerous of the six, and it must be read with section 6 of the Specific Relief Act 1963, which gives a person dispossessed otherwise than in due course of law a summary suit to recover possession within six months, in which even a true owner's title is no defence. So a person who takes the law into his own hands may find himself ordered to give the land back and left to sue on his title afterwards. Chapter [Remedies for Trespass to Land] works that out.
4. Recaption of goods
A person entitled to the immediate possession of goods may retake them from a person who has wrongfully taken or detained them.
Extra-Judicial Remedies
The limits. He may take them peaceably wherever they are; he may enter the land of the wrongdoer, after a demand, to recover them; he may not enter the land of an innocent third person except after a demand and refusal; and force must be reasonable.
5. Abatement of a nuisance
The person injured may himself remove the nuisance, for example by cutting overhanging branches or removing an obstruction.
The limits. Notice must ordinarily be given first, particularly where entry on another's land is necessary; only so much may be done as is necessary to end the nuisance; where there is a choice of methods the least mischievous must be taken; and what is cut or removed belongs to its owner and must not be appropriated. A person who abates without notice, or does more than is necessary, is himself a wrongdoer. Chapter [Defences and Remedies in Nuisance] gives the setting.
6. Distress damage feasant
A person on whose land cattle or chattels have strayed and done damage may seize and detain them until compensation is paid.
The limits. The thing must have been actually doing damage; it must be seized on the land where it is doing damage; the detainer may not use or work the thing; and he must return it once compensation is paid or tendered. The remedy has been narrowed a good deal by statutes dealing with cattle trespass.
Why the law keeps these remedies narrow
Self-help is quick and cheap, and it is also how private quarrels become fights. Every condition above exists to keep the peace: the requirement of notice, the requirement that force be reasonable, and above all the summary suit under section 6 of the Specific Relief Act 1963, which makes dispossession by strength unprofitable even for a person with a good title.
A worked example
Priya finds that her tenant has left, that a stranger has moved into the flat, that the stranger's dog is digging up her garden, and that a neighbour's tree now overhangs the balcony. Her car has also been taken by a mechanic who refuses to return it until an inflated bill is paid.
The stranger. Priya may ask him to leave and, after a reasonable opportunity, put him out with reasonable force. If he has been in settled possession, the safer course is a suit, because if she puts him out otherwise than in due course of law he may recover possession under section 6 of the Specific Relief Act 1963 without proving any title.
The dog. Distress damage feasant: she may seize and detain it while it is doing damage on her land, and must not work it or ill-treat it, and must return it on compensation being paid.
Extra-Judicial Remedies
The branches. Abatement: she may cut them back to the boundary after notice, doing no more than is necessary, and the cut branches belong to the neighbour.
The car. Recaption: she may retake it peaceably, and may enter the mechanic's premises to do so after a demand; she may not break in, and she may not use force against the person.
And if she is attacked while doing any of this, she may defend herself with reasonable and proportionate force.
What it does NOT mean
It is not a licence to use force at large. Every remedy is limited to what is reasonably necessary.
It does not defeat section 6 of the Specific Relief Act 1963. A person dispossessed by self-help may recover possession summarily, whatever the other party's title.
Abatement is not a substitute for a suit. It is confined to what is necessary and requires notice.
Distress damage feasant does not give ownership. The thing is detained as security, not acquired.
Quick revision
- Six extra-judicial remedies: self-defence, expulsion of a trespasser, re-entry, recaption of goods, abatement of a nuisance, distress damage feasant.
- Each requires no more force than is reasonably necessary.
- Self-defence: sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023 state the same right for the penal law.
- Expulsion: request first, then reasonable force.
- Re-entry: dangerous, because section 6 of the Specific Relief Act 1963 lets the dispossessed person recover within six months regardless of title.
- Recaption: peaceable retaking; entry on the wrongdoer's land after demand; on an innocent person's land only after demand and refusal.
- Abatement: notice, necessity, the least mischievous method, and no appropriation of what is removed.
- Distress damage feasant: seizure while doing damage, no use of the thing, return on compensation.
Test yourself
1. What are the extra-judicial remedies in tort, and what conditions govern them? Six. Self-defence, the use of reasonable and proportionate force to protect person or property while the danger continues, which the penal law also declares in sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023. Expulsion of a trespasser, after a request to leave and a reasonable opportunity to do so, with no more force than is necessary. Re-entry on land by a person entitled to possession, again with reasonable force only. Recaption of goods by a person entitled to their immediate possession, taken peaceably, with entry on the wrongdoer's land permitted after a demand and on an innocent person's land only after demand and refusal. Abatement of a nuisance, ordinarily after notice, doing no more than is necessary, choosing the least mischievous method, and not appropriating what is removed. And distress damage feasant, the seizure of an animal or chattel while it is doing damage on the land, which may not be used and must be returned on compensation being paid. In every case a person who exceeds the limits commits a tort himself.
Extra-Judicial Remedies
2. Why is re-entry on land the most dangerous of these remedies in India? Because section 6 of the Specific Relief Act 1963 makes self-help unprofitable. A person dispossessed of immovable property without his consent otherwise than in due course of law may sue within six months to recover possession, and in that suit no other title may be set up, so that even the true owner loses. There is no appeal or review from the decree, though the defeated party may afterwards sue on his title. The consequence is that an owner who ejects an occupier by force may be ordered to restore possession to the very person he removed, and must then bring the ordinary suit under section 5 that he should have brought in the first place. The policy is to keep the peace by ensuring that disputes about land are settled by courts and not by strength.
3. What conditions attach to the abatement of a nuisance? Four. Notice must ordinarily be given to the person responsible before abatement, particularly where it is necessary to enter his land, since the law prefers that he be given the chance to remove the nuisance himself. Only so much may be done as is necessary to end the nuisance, so a person who cuts an overhanging branch may cut it back to the boundary and no further. Where there is a choice of methods, the least mischievous must be adopted. And what is severed or removed remains the property of its owner and must not be appropriated by the abator. A person who abates without notice, or who does more than is necessary, becomes a wrongdoer himself and may be sued, which is why abatement is a remedy of convenience for small and obvious interferences rather than a substitute for a suit.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.