Sitaram v. Jaswantsingh Jalamsingh

1. This appeal is by the deft. against whom a decree for Rs. 1300 as damages for assault was passed by the two Courts below. The learned Judge of the lower appellate Court found that the respondent wanted to take forcible possession of the house in question before completing the transaction of sale in respect of it. It is not necessary to enter into the question whether the respondent's vendor Amrit had any interest in the house because the learned appellate Judge has given a clear finding in favour of the appellant that the respondent had no title to the house. The house was in the occupation of the appellant's brother Pyarelal. The respondent went to the spot with three or four companions of his. The learned appellate Judge found that the respondent & his companions were unarmed. According to the appellate Judge, the respondent trespassed into the house & began throwing away some of the articles of the appellant's father. The respondent wanted to take advantage of his position & authority as malguzar of the village to get possession of the house. The appellant's father delivered two or three stick blows to the respondent. At that stage, according to the concurrent finding of the two Courts below, the appellant used an are & hit the respondent. The injury was inflicted on the head. Both the Courts held that though the appellant's father was within his right, the appellant exceeded it. The claim was accordingly decreed.

2. The learned counsel for the appellant contended that the decision under appeal is vitiated because the learned Judge determined the question whether the appellant exceeded the right of private defence by reference to Ss. 99 & 104, Penal Code. Further the learned counsel invoked the maxim “volanti non fit injuria” to negative the claim of the respondent. Even excluding from discussion the considerations which arise in dealing with a plea of private defence under the criminal law, it must be held that the decision of the Court below is correct. An occupier is entitled to expel a trespasser & if necessary, even forcibly remove him from the premises. The law also allows a person to resort to a reasonable degree of force for the protection of himself or any other person against an unlawful use of force. “Force is not reasonable,” says Salmond, “if it is either necessary—i.e, greater than is requisite for the purpose—or disproportionate to the evil to be prevented.” (The Law of Torts, Edn. 10, p. 334). Reference may be made to two cases: Crockeroft v. Smith, (1669-1732) 88 E.E 872 & Cook v. Beal, 91 E.R 1014. In the first case Holt, C.J observed:

“For hitting a man a little blow with a little stick on the shoulder, is not a reason for him to draw a sword & out & new the other.”

3. Equally apposite is the statement to be found in the second case:

“… a man cannot justify a main for every assault, as if A strike B.B cannot justify the drawing his sword & cutting of his hand; but it must be such an assault whereby in probability the lite may be in danger.”

4. On the facts found in the instant case, it must be held that the learned appellate Judge was right in coming to the conclusion that the defts’. party which was four in number was in no danger of being attacked by the respondent or his companions. There was not even an attempt on the part of the respondent to use any violence against the person of the appellant or his father or his brothers. According to both the Courts, no injury was caused to the appellant or anyone of his party. Thus, in the circumstances, it must be held that the appellant had not a right of self-defence but a right to forcibly remove the trespasser. He, however, deliberately gave the respondent a blow with an axe.

5. The respondent fell down as a result of the blow given to him. He had to stay in the Harsud hospital for two days, later in Khandwa Hospital for five weeks & lastly in the Jubbulpore hospital for one month & ten days as an indoor patient. Two operations had to be performed, one at Khandwa & another at Jubbulpore Even after that he was very weak & was advised by the doctor not to join service at once. Prom all this it is beyond question that a very dangerous injury was inflicted upon a vital part of the body by a deadly weapon.

6. The finding of the appellate judge that Goturam was within his right but Sitaram exceeded it is correct.

7. The defence of inevitable accident suggested in the grounds of appeal is untenable because the harm caused to the respondent cannot be regarded as an unavoidable result of an act done in a reasonable & careful manner.

8. The maxim “volanti non fit injuria” has no application to the facts of the case. The maxim means that no-one can enforce a right which he has voluntarily waived or abandoned. The maxim has two aspects to it. In one aspect it connotes consent to an intentional act which would otherwise be tortious. In another aspect it means consent to run the risk of unintentional harm. In the present case the appellant intentionally caused injury to the respondent. It cannot be said that because the respondent trespassed into the premises of the appellant that the respondent consented to the injury inflicted upon him. As observed by Lord Justice Greer in (1934) 1 K.B 455, 473), “a trespasser is not without rights.” The true principle is that stated in Barnes v. Ward, (1850) 137 E.R 945 at p. 956:

‘A trespasser is liable to an action for the injury which he does: tut he does not forfeit his right of action for an injury sustained.”

9. The learned counsel for the appellant contended that only contemptuous damages should have been awarded to the respondent. I cannot agree. The question of damages has to be considered by reference to all the circumstances of the case. The justification of the appellant having failed, he must be held liable, for all the direct consequences flowing from the wrongful injury caused to the respondent. Though a plea of private defence has not to be considered too strictly, the proportion between the aggression & the defence has always to be kept in view. In this case, the [assault committed by the appellant was out of jail proportion to the harm sought to be prevented. It was not a defensive act at all. As Pollock points out, no right is to be abused or made the cloak of wrong (On Torts, Edn. 14, p. 134). In my view that is what happened in this case.

10. The appellate Court is reluctant to interfere with a finding of the Court below on the quantum of damages unless that Court has gone wrong in fixing the basis upon which that figure is founded: Devendrahumar v. Nirmalabai, I.L.R (1945) Nag. 349 at p. 358. The respondent claimed damages under three heads: on account of mental & physical agony & loss of reputation; expenses of medical treatment & loss of pay. Both the Courts refused to take into account any claim on the basis of loss of reputation. That being so, the damages have been awarded under heads which are well recognized in a case of tortious personal injury; Phillips v. South Western Railway Co., (1879) 4 Q.B.D 406, Phillips v. London & South Western Railway Co., (1879) 5 Q.B.D 78 & Sorabji Hormusji Batlivala…(Defendant), v. Jamshedji Merwanji Wadia…(Plaintiff), .*, 38 Bom. 552. Both the Courts have found that the respondent spent Rs. 675 on account of his treatment & did lose Rs. 425 as pay. The balance which has been awarded on account of mental agony caused cannot by any means be considered excessive. The appeal is dismissed without notice to the other side.

11. Appeal dismissed.